allotment

The Indian Reorganization Act at 80 years

Year

At Pine Ridge, daily controversy surrounds the Indian Reorganization Act (IRA) of 1934. Congress enacted the IRA on June 18, 1934. However, the voting requirement was drastically altered just three days prior. This amendment (H.R. 7781, 49 Stat., 378) dated June 15, 1934, lowered the overall voting bloc from "majority of all eligible voters" to "30 per centum of all eligible voters." Although similar voting laws have been voided by the Supreme Court (Baker v. Carr), this reduced voting requirement is legal, and Pine Ridge elections still adhere to this law. On Pine Ridge, the IRA was put to a public vote on October 27, 1934, with only 28.7 percent participating. The current Constitution and By-laws of the Oglala Sioux Tribe was accepted by the members of the new Oglala Sioux Tribe via referendum vote on January 15, 1936.

Native Nations
Resource Type
Citation

Star Comes Out, Ivan F. "The Indian Reorganization Act at 80 years." Native Sun News. Rapid City, SD. October 14, 2014. Opinion. (http://www.indianz.com/News/2014/015347.asp, accessed October 14, 2014)

Indigenous Land Management in the United States: Context, Cases, Lessons

Year

The Assembly of First Nations (AFN) is seeking ways to support First Nations’ economic development. Among its concerns are the status and management of First Nations’ lands. The Indian Act, bureaucratic processes, the capacities of First Nations themselves, and other factors currently limit the ability of First Nations to add lands to reserves or to use their lands more effectively in productive and self-determined economic activity.

As it confronts these issues, AFN has been interested in how Indigenous land-management issues are being addressed by Native nations in the United States. What is the status of Indigenous lands in the U.S.? Do Native nations in the U.S. face similar challenges to those facing First Nations? Are Native nations in the U.S. engaged in practices that might offer ideas or lessons for First Nations?

There are substantial historical, legal, and political differences between the situations of Native nations in Canada and the U.S. But there also are substantial similarities. In both countries, land has been a pivotal issue–in many ways the pivotal issue–in the history of Indigenous-non-Indigenous relations. In both countries, despite massive land loss, Native nations retain remnant land bases with varying potential for economic development. In both countries, Native nations fiercely defend their remaining lands, seek to expand them, and are determined to exercise greater control over what happens on those lands.

This report addresses the status of Native lands in the U.S. It is divided into two parts. Part 1, “Overview of the U.S. Context,” reviews the history of Indigenous lands and provides an overview of current Indian land tenure and jurisdiction. Part 2, “Meeting the Land Management Challenge,” specifies the primary challenges facing Native nations in the U.S. as they attempt to manage their lands in ways that meet their own objectives and summarizes some of the innovative practices currently in use or being developed by American Indian nations. It identifies what we believe are key features of those practices. It also summarizes some of the relevant research on the relationship between control of Native lands and socioeconomic outcomes. Finally, it offers some recommendations based on the U.S. experience...

This report is featured on the Indigenous Governance Database with the permission of the Assembly of First Nations.

Native Nations
Resource Type
Citation

Cornell, Stephen and Miriam Jorgensen. "Indigenous Land Management in the United States: Context, Cases, Lessons." A Report to the Assembly of First Nations. Grogan|Cornell Consulting. Tucson, Arizona. December 2011. Report.

Standing Rock Sioux Tribal Monitors Program

Year

The Standing Rock Sioux Tribe is located on 2.3 million acres of land in the central regions of North and South Dakota. Land issues rose to the forefront of tribal concerns after events such as allotment, lands flooding after the Army Corps of Engineers built a series of dams adjacent to the Tribe, and years of drought that caused drastic changes to a major river. Allotment meant that many sacred sites were no longer on lands controlled by the Tribe. Dropping water levels in the river, reservoirs, and lakes exposed culturally significant sites long covered by water. Dispersed over a massive land base, these numerous cultural and archeological sites were subject to looting and abuse. In 2000, using its authority to manage, protect, and preserve tribal property, the Tribe’s Historic Preservation Office established a Tribal Monitors Program. Archeologically trained personnel, working with tribal elders, identify and monitor these significant sites. Additionally, they see that the sites, the artifacts within them, and any exposed human remains are dealt with in a culturally appropriate way. The Tribe is managing and protecting its lands while preserving the spiritual and cultural heritage and resources that the nation truly depends on for future generations.

Native Nations
Resource Type
Citation

"Tribal Monitors Program." Honoring Nations: 2005 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2006. Report. 

Permissions

This Honoring Nations report is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development. 

Swinomish Cooperative Land Use Program

Year

Based on a memorandum of agreement between the Tribe and Skagit County, the Swinomish Cooperative Land Use Program provides a framework for conducting permitting activities within the boundaries of the "checkerboarded" reservation and offers a forum for resolving potential conflicts. The process, which began in the mid-1980s, was the first of its kind in the United States and illustrates a promising alternative in land use conflict resolution by promoting between-government jurisdictional coordination. Since 1996, the tribal and county governments have jointly adopted a Comprehensive Land Use Plan and procedures to administer the plan, which together foster a mutually beneficial government-to-government relationship. Significantly, the model also has served to improve relationships between the Tribe and other contiguous local governments. To date, the Swinomish Indian Tribal Community has instituted more than a dozen separate agreements with federal, state, county, and municipal authorities in the areas of land use, public safety, public health, environmental protection, and utility regulation.

Resource Type
Citation

"Swinomish Cooperative Land Use Program." Honoring Nations: 2000 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2001. Report.

Permissions

This Honoring Nations report is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development.

Lenor Scheffler: The Lower Sioux Indian Community's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Lawyer Lenor Scheffler (Lower Sioux Indian Community) provides an overview of the Lower Sioux Indian Community's approach to defining citizenship, which is predicated on residency within the Lower Sioux reservation's boundaries. She also discusses how eligibility for tribal social services is tied to residency. 

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

Resource Type
Citation

Scheffler, Lenor. "The Lower Sioux Indian Community's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Colette Routel:

"Good afternoon everyone. My name is Colette Routel and I'm also one of the co-organizers of this conference along with Sarah Deer. I teach at William Mitchell College of Law. For our afternoon, we're getting started with a panel on other citizenship requirements. After spending the morning talking about the choice between lineal descendency or blood quantum, we now have two speakers that are talking about things such as residency requirements, tiers of citizenship and adoption. I'd like to call up now the two speakers, Lenor Scheffler and Sarah Deer.

Once again, their full bios are in the program, but I would like to highlight just a little bit about each one of them. Lenor Scheffler, who's sitting here to my immediate left, is a partner at Best & Flanagan, where she runs their Indian law practice. She's a member of the Lower Sioux community and she was born near Morton, Minnesota. She is a 1988 graduate of William Mitchell College of Law. She's actually on our school's board of trustees, and she was the first Mdewakanton attorney that we know of anywhere in the United States. After she left William Mitchell, she began her private law practice and like I said she works at Best & Flanagan, which is one of the larger law firms in downtown Minneapolis. She's been very active in the Minnesota American Indian Bar Association and there's a list of her long accolades as well, too, in the bio.

Next to her is Sarah Deer, who you've all heard from this morning. Sarah is a citizen of the Creek Nation in Oklahoma. She's been teaching at William Mitchell College of Law since 2009 and before that she worked for the Tribal Law and Policy Institute and for USDOJ [U.S. Department of Justice] doing grant work for them. Sarah's main area of expertise is actually on violence against women. She was instrumental in helping Congress draft and get passed both the Tribal Law and Order Act in 2010 and then the reauthorization of the Violence Against Women Act much more recently. Sarah's going to talk about her recent scholarship on her own tribe and their constitutional revision process. I'll turn it over to them. Thanks."

Lenor Scheffler:

"Thank you. Good afternoon everyone. Good to see you. Hopefully the food was good and you'll stay awake. If not, we'll have to jump up and down or something. [Lakota language]. I wish you a good day. Glad to be here with you. I am going to talk a little bit about my experience and I have a councilman here who can correct me if my information's a little off. But Gary Prescott, one of our councilmen at Lower Sioux, I'm proud to have him on our council and here today. At Lower Sioux, we rely on a residency requirement and so I'll be talking about that, but generally I just wanted to make a couple comments.

In my practice, which I've been working in Indian Country now it'll be 20 years next year, which is like, 'How did that happen?' And when I work with my tribal clients and they're talking about constitutional reform, the one issue that is the...or the biggest issue of stumbling block after things like land and jurisdiction maybe, but is membership. How do we define who we are as a tribal person, as a First Nation person? Everybody -- depending on whether you were born on the reservation, off the reservation, depending on your age and how much blood you have, your background, your experience -- everything comes together about how you define yourself individually as a tribal member of your particular tribal nation and also how your tribe looks at you and how the outside world majority society looks at us. So it's very complicated, confusing, emotional, challenging -- all of the above -- and so I'm really glad that there's this conference where we can have some discussions and conversation and hopefully you've been able to share some good ideas about this very important topic.

The Lower Sioux, when I was born, under our constitution, which was an Indian Reorganization Act constitution, you had to be born to a member who resided on the reservation and you had to be able to identify your descendency from the 1886 rolls. And so when I was born, my mom lived on the reservation and we can trace our ancestry back to 1886 and beyond. But then, over time our lives have changed, chunks of us have moved away. One of my other councilmen told me that we have approximately over 1,000 now members at Lower Sioux and there's a certain number that live on the reservation, and we also have a service area that we identify or recognize so many miles outside the reservation, and we have then also large numbers of our tribal members who live outside even that service area. And our membership ordinance has privileges and...membership and privileges. I can't remember the exact title now. I should have looked at it before I came here. But residency...if you're a resident of Lower Sioux or in the service area, and in this case now it's up to five years, then you are eligible for certain privileges that are set out in the ordinance and if you have...if I would choose to move back -- which was one of my desires was to retire at Lower Sioux -- I would have to establish residency and there may be some other, if I recall, some other categories. But when you have those privileges, those include the health benefits, the voting, the land assignments, those sorts of things, because our constitution also says when you get a land assignment or a land lease, you have to develop it and reside there and if you abandon it for a certain number of years, then you have to relinquish it back to the community.

So it's been a very interesting experience in my lifetime to watch my community. We all knew who each other was even though, as you know, when our censuses were made by the United States government over the years they were not always accurate and we knew who actually was the child of that couple or who the real mother was and we also know there are examples that people happened to be visiting Prairie Island when they took the census and so a Yankton person might be counted as a Prairie Island person. So we know there are flaws in the records that the government has provided saying who we are in each of our communities, but we as tribal people, we know exactly who our people are, in my opinion. That's my personal opinion.

And so watching at Lower Sioux...and most of us at one point stayed there. Some people left for jobs, some people left for education because there wasn't much there. What I remember is the gravel pit and the gravel roads when I was a kid and then it changed and we had gaming and that brought a whole different experience. I think of our...my childhood as rather idyllic and sheltered living on the reservation. It wasn't perfect, but it was pretty wonderful in my mind and a great place to be, but I knew I had to leave and others made those choices. To watch going from everyone being included, everyone knowing each other to having the influx of workers and relatives who grew up in the Twin Cities or relatives who grew up in other parts of the country because of relocation, people coming back because they're retiring, people are wanting to come back, our community changed. And as those things changed, choices were made about, 'How do we define ourselves?' And as a lawyer, I will defend a tribe's sovereign right to say who their citizens are. And I've also seen when that sword of sovereignty cuts the other way and people are disenrolled or people are harmed by what I would defend as a lawyer, but as a tribal person may have other opinions.

So over the years, our tribe has made choices. How do we account for the people coming back? How do we account for the people who have been here on the reservation their whole life? So we have some benefits. How do we share those benefits and how do we weigh those values and choices that people have made and how do we...because in our Dakota, Lakota, Nakota we are all related. We want to be a relative, we want to live among our relatives and so how do we make choices when we are all related? And so I think it's not been easy for my tribal people to make those choices and sometimes it was in a good way and sometimes it may have been a challenging way, but I believe that they did the best and they do make the best decisions they can.

So residency has been something...it really has helped the members who live there, who choose to live there, who may not be able to leave. The benefits that come with residency makes great sense. I don't mind it that I don't have the benefits, but I...what's so important to me is that I am a member, that I have roots, that that is my home, that is where I come from. So regardless of what label somebody puts on me or says what I get or don't get, I'm individually a person, it doesn't matter. My parents taught my sisters and I that education was everything and to work hard so that we could take care of ourselves whatever we did or wherever we were because my dad said, "˜You're a woman, you're a minority, and the only thing people can't take away from you is your education.' And so we made different choices and so residency to me individually is not as important, but I have other relatives who have retired, my aunts and uncles for example, and it's been very nice because they've not necessarily had 401Ks in their lives where they've lived. I have one uncle who lived in Oregon for most of his life on the Warm Springs Reservation, another auntie who lived off the reservation, and it's been nice to see them to come home with what little retirement they do have, but they get some privileges now and in their old age they have a place to be and to connect and so I think that has great value.

So residence...and it just depends on your opinion, because I also have had my dissident period, I will admit, in the "˜90s, and...where there was about 200 we counted of members of Lower Sioux and descendents and came together and some of us wanted just to be able to vote whether we lived on or off the reservation and others wanted to be able to take advantage of the privileges that were happening at that time -- per capita and other benefits -- regardless of whether you lived on or off the reservation. And so ultimately there was actually a lawsuit. A number of us just dropped out because I wasn't that dissident-like. I don't shake up things that much so we dropped off, but others...actually a case went to the Eighth Circuit, the Maxim case, about privileges and benefits and caused some changes. So it's been an experience that it just depends on where you're sitting as to whether having a residency requirement for the benefits is a challenge or not. But to me the most important is that is...the important thing is that that is where I'm from and where my family's from -- Prairie Island is actually where my grandmother and my great grandmother and Santee is where my grandfather, great grandfather is from -- so it's that connection in place that seems to me most important.

The tiers of citizenship, I've heard of that and maybe that is an option because it is such a hard question to decide who gets to be in and who gets to be out. I have clients who are full blood from other tribes and they say, "˜I do not...,' the chairman of one of my clients from Wisconsin said, "˜I do not want to sit at a council meeting some day and look at the next chairman and he's got blonde and blue eyes. That makes me crazy.' Or I talk to my friends at Prairie Island, my relatives at Prairie Island and they have...they have some descendency and they do have folks that don't necessarily look like majority society says all of us Indians should look like. So I guess my comments are just to give examples and a perspective that, be thoughtful about how you define yourself and find a way...we...gosh, people, we have survived since time immemorial, we should be able to figure out this citizenship piece. We put our heads together, we be relatives with each other and to each other. It seems to me we should be able to figure this out. We can survive this long...I don't believe that we will all waste away because of how we define our citizenship. I think we will figure out a way to do it, but I think it just takes effort and respecting your past, respecting your values, talking to each other and listening to each other and then having the courage to make a decision and then live with that decision and work with it. I think that's another thing maybe...because of all my tribal judge work in my lifetime, too, I'm not afraid of making a decision and just dealing with it, but I think that's what our people have done.

I did a law review article through William Mitchell Law Review in 2012, my perspective on the 1862 uprising or conflict or war -- whatever you want to call it -- and I focused on membership and the challenges that we as Dakota in 1862 faced because we had our people who were already assimilating, cutting their hair, wearing majority society clothes, sitting in wood houses and trying to farm and assimilate, and yet we had our people who were saying, "˜No, we are going to hold on to our traditions and we shouldn't have to do this and we should be able to be who we are.' And contrast those experiences and the complexity of those relationships not only with the United States government and majority society but among ourselves. I contrasted that to a lawsuit that was called Wolf Child v. United States, which was a trust case that had been around for the last almost 10 years now and that was a case again about trust responsibility and a group of plaintiffs having lawyers and they were from our community, Lower Sioux, and saying the government had a trust responsibility to these 1886 descendents, those "friendly" Dakota which is a good and bad term: you either 'hang around the fort Indians' or whatever you wanted to call those folks. And so the case was talking about that issue and whether those descendents...that we should have the benefits that come from those 1886 lands, those lands that were set aside by the federal government for those friendly Mdewakanton Dakota.

And so I contrasted what was happening in 1862 and what was happening with this lawsuit, because that lawsuit brought out the best of us and the worst of us in that having to show your descendency caused people to reconnect with their roots, find out where did great grandma...where was she baptized, was she baptized, where was she born, trying to show that you were descended from those friendly Dakota. But it also divided families that, 'This isn't right, we shouldn't do this litigation.' I'm not a litigator and so I have a theory that litigation gets us nowhere usually, but it does sometimes. But I don't like litigation. You don't have control over what's happening or what the decision's going to be. And so that litigation also, I think, divided us because some families...people who had been in exile from 1862 went to Canada or other parts of the U.S. saying, "˜We want to come back, we want to have land, we want to be members in our communities from where we were born...where we descended from.' And so those...that was dividing in similar ways in my mind as what was happening in 1862. But unfortunately, at this ripe age of, my membership card probably says I'm an elder now, but and after 20 years of practicing law I still don't have an answer about the citizenship and what we can do about it or to take care of or resolve some of those issues from 1862 to today except that the faith that I have in our people and what we've learned and the hope that we can keep moving forward. So those are my perspectives." 

Sarah Deer: The Muscogee (Creek) Nation's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Sarah Deer (Muscogee), Co-Director of the Indian Law Program at the William Mitchell College of Law, provides a brief overview of the Muscogee (Creek) Nation's unique approach to defining its citizenship criteria, which essentially creates two classes of citizens: those who run for elected office, and those who can't. 

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

People
Native Nations
Resource Type
Citation

Deer, Sarah. "The Muscogee (Creek) Nation's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"What I'd like to talk about just very briefly is...first of all, I'm a citizen of the Muscogee (Creek) Nation and I probably...by the way I look, you can tell I'm a lineal descendent as opposed to having a high blood quantum. And I want to talk a little bit about that because one of the things I think -- especially in Oklahoma -- they kind of joke about us. I'm not Cherokee, but they joke about the blonde-haired, blue-eyed Cherokees, and one of the things I think that's really important for someone like me to acknowledge is that I have privilege because of the way I look. I can walk into a store and I'm not treated as an Indian because people don't see me as an Indian.

And when I was talking to one of my mentors, an elder who works to help me try to learn my language, she talked a little bit about that with me recently, about...when she grew up in rural Oklahoma in the 1950s, the level of painful racism in her memory is still very palpable, being treated as second class because of her skin color and because of her name and so today when she sees people who can pass, who don't acknowledge their privilege, who say, ‘I'm a tribal citizen, but I'm just the same as you,' when I didn't go through the experience of racism is painful. And I think we have to talk about that when we talk about lineal descendency because I get the privilege of passing. I get to tell people I'm Indian if I want to and if we don't acknowledge that painful history, I think we're going to continue to have a lot of controversy about what this means to potentially open up citizenship. So I wanted to say that at the outset.

And the other thing that I think is interesting is that I'm asked often what my...how much Indian I am, my blood quantum. But the only people who tend to ask me that are non-Indian people. What Native people ask me is, ‘Who is your family?' So it's...the blood quantum itself is something that is of interest to people, but in my experience that's usually coming from outside the tribe.

Now, what I wanted to talk about was one particular facet of my own tribe's constitution when it comes to governance because we have two classes of citizens. One class is full citizens and the other class is citizens and I want to talk about the difference between the two in just a second. But typically, when we think about American citizenship, the American government really doesn't do much in terms of distinguishing between citizens. All citizens are treated the same. If you're naturalized, you have the same rights and privileges as people who were born here. The one exception that I think became I think a focal point of the election in 2008 was that the president must be a natural-born citizen and so to be the President of the United States you have to have been born here in the country.

So let me tell you about how this Muscogee constitution developed. We have a very complicated history as most tribes do. In Oklahoma in particular we governed...we had really no acknowledgement of our government between 1906 and 1977, 1978. We were still operating as a government, but the federal government didn't recognize us pursuant to the Curtis Act. So when we were able to fight and get recognized as having continuing governance throughout that time period, the federal court actually ordered a constitutional convention, which was interesting and sort of ironic that in terms of re-recognizing the tribal government, the federal judge says, ‘And we will tell you how to do this.' But we did end up ratifying and passing a new constitution in 1979, which governs us today, and citizenship in our nation is determined through lineal descent [from] the 1906 Dawes Roll.

One of the things that's interesting about that of course is that in 1906 during allotment, many traditional people refused the Dawes Roll. They refused to go and sign up for their allotment on principle because they never consented to breaking up the reservation and so you have a lot of traditional people in Oklahoma today who are not enrolled in any tribe because their ancestor stood their ground. So that's another interesting facet.

But what I want to talk about specifically is how the constitution distinguishes between full citizens and citizens, and this comes from Article 3, Section 4 of our constitution, and explains that full citizenship requires the one-quarter blood quantum and those folks are known as the 'full citizens.' And then all citizens who are less than a quarter blood shall be considered citizens and shall have all of the rights and entitlements as members of the Muskogee Creek Nation except the right to hold office. And I'm still doing some research to figure out exactly how this decision was made or what the dialogue in the community was, but to hold office under the constitution you have to have this quarter-blood requirement. So I can't run for office.

And so one of the things that happened is how do we interpret that language? So I just...I present this sort of as a cautionary tale as you're thinking about potentially designing language that would provide this kind of distinction, the kinds of ambiguities that can develop. So what does it mean to hold office? And this became the subject of a dispute in 1986 and the question of what is the right to hold office. So citizens of the nation elect a principal chief, a second chief and a tribal council. And justices and judges are appointed by the principal chief and confirmed by the council so they're not elected positions.

So in 1986, there was a district court case in our tribal court and the party who lost the case appealed to the Muscogee Supreme Court arguing that the judge, the district court judge in that case was not a quarter blood, he was an eighth and so the losing party challenged that decision saying that the judge was not qualified under the constitution because he was holding office with less than a quarter blood. And so what the tribal supreme court then had to do is to interpret what the constitution meant by hold office. And they ended up determining that the constitutional requirement for full citizens or quarter bloods applies only to elected officials. So in other words, the judge and the justices do not have to be full citizens under the constitution.

Now after that case, the Muscogee Tribal Council passed a law that required judges and justices to be full citizens. And this has never actually been litigated, although I suppose someone could challenge that as a question of whether or not the constitution saying hold office trumps the statute that says judges and justices are included in that. So we don't know for sure how the court would have ruled on that particular statute. But slowly, in recent years, I think what has happened is that the body of qualified judges and justices has somewhat shrunk in the sense that there's not a whole lot of quarter bloods practicing law in our tribal courts. And so how do you then find a judge or a justice who's qualified to sit on the court?

So in 2010, the tribal council passed new laws stating that the judges and justices must be full citizens unless there's a waiver passed by two-thirds of the council. And in 2012, they amended that again and now you must merely be a citizen of the tribe, which means there's no blood quantum requirement for the court, but still the quarter blood quantum requirement is for principal chief, second chief and council. So I can be a judge for my tribe, but I can't run for office is basically how that plays out for me; being not in Oklahoma, I suppose that I would not be in a position to run for office at any level.

So there's one other thing I wanted to say about that. Oh, so the other thing that may be important in thinking about this is that to be a district court judge or a trial court judge in our tribe you have to be an attorney. You have to have a JD, you have to have a license to practice law, and you have to have at least four years of experience practicing tribal law. For the justices of our Supreme Court, there is no requirement that you have a legal degree, you merely have to be appointed by the principal chief. And so we have elders on our tribal Supreme Court who are not attorneys and I think that's a really intriguing development where I see a mixture of attorneys and non-attorneys on the supreme courts of tribes where you can blend then traditional knowledge with sort of contemporary western legal traditions.

So I just wanted to give that as sort of a tale of being careful when you draft language, because I'm not sure that everybody agreed on what 'hold office' would have meant, but now it's pretty clear that judges and justices are exempt from the full citizenship requirement.

One other thing I just wanted to raise because we talk about the Veronica case and the Indian Child Welfare Act. One of the things that's interesting about ICWA is that it applies when a child is a member or eligible for membership. Can a tribal government distinguish between citizenship and membership? The reason I bring this up was partly based on a comment made this morning about the clumsiness of the English language and how the English language around the terms like 'citizenship' and 'members' is really incomplete or a mismatch for culture. But there is an English distinction between 'member' and 'citizen,' at least they're two different words, and so one of the questions that I would just pause at -- and I don't know that I have an answer to this is, could a tribal government distinguish between citizenship and membership specifically thinking about ICWA and expanding the body of children in which the tribe would have jurisdiction over? So that was just one piece that I wanted to leave you with and I think that's what I have to say. So thank you."

Bethany Berger: Citizenship: Culture, Language and Law

Producer
William Mitchell College of Law
Year

University of Connecticut Law Professor Bethany Berger provides a brief history of the federal policies that have negatively impacted the ways that Native nations define and enforce their criteria for citizenship historically through to the present day. 

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

Native Nations
Resource Type
Citation

Berger, Bethany. "Citizenship: Culture, Language and Law." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"Our first panel this morning is really designed to develop a foundation for the rest of the day: discuss culture, language and law as it relates to tribal citizenship; historical overview of the laws that have affected tribal citizenship; and what our culture and stories tell us about traditional concepts of citizenship. Our first speaker will be Professor Bethany Berger. All of our speaker bios, by the way, are in your materials, your program for today, so I'm not going to go through and read each line of everyone's bio, but I did want to say a few things about Professor Berger. She is a widely read scholar of property law and one of the leading federal Indian law scholars in the country.

She is a co-author and member of the editorial board of the Felix Cohen Handbook of Federal Indian Law, the foundational treatise in the field and co-author of one of the case books, American Indian Law: Cases and Commentary. After law school, Professor Berger went to the Navajo and Hopi nations to serve as the Director of the Native American Youth Law Project of DNA Peoples Legal Services and there she conducted litigation challenging discrimination against Indian children. At the University of Connecticut, she teaches American Indian law, property, tribal law, and conflicts of Laws. She has served as a judge for the Southwest Intertribal Court of Appeals and has been a visiting professor at Harvard and University of Michigan.

Our next speaker is Professor John Borrows, who is at the University of Minnesota Law School, a professor in the area of international law and human rights. He was appointed Professor and Law Foundation Chair of Aboriginal Justice in Governance at the University of Victoria in 2001. Prior to that, he taught at several other places including the University of Toronto and the University of British Columbia-Vancouver. He received his Ph.D. in 1994, an LLM in 1991 and a JD in 1990. He has been honored with a Trudeau Fellowship for Research Achievements, Creativity and Social Commitment with an achievement award from the National Aboriginal Achievement Foundation for Outstanding Accomplishment in the fields of law and justice.

And finally, our panelist professor Stephen Cornell, who is a professor of Sociology in Public Administration and Policy at the University of Arizona, also Faculty Associate with the Native Nations Institute. He is the Director of the Udall Center for Studies in Public Policy, Professor of Sociology-Public Administration. Also Co-Director of the Harvard Project on American Indian Economic Development, a program headquartered at the Kennedy School of Governance. He holds a Ph.D. from the University of Chicago and taught at Harvard University for nine years before moving to California and then to Arizona. All of these speakers today have had a profound impact on my scholarship and I think have really done an incredible amount to try to articulate how federal Indian law has impacted the lives, the real lives of Native people today. So I'm very excited to introduce the panel. Please join me in welcoming them this morning."

[applause]

Bethany Berger:

"So I want to say what a pleasure it is to be here and how sorry I am I can't stay for the rest of the day. You guys are doing really important and hard work here. And in my remarks, I'm going to focus on large overall trends mostly in federal Indian law, so it's not necessarily going to speak to your tribal choices, but some of the factors may be the same. And I also want to say what a pleasure it is to be on a panel with Professor Borrows and Professor Cornell, and Professor Cornell in particular helped shape the way I look at federal Indian policy history.

So we talk about tribal citizen choices in historical perspective, mostly focusing on the federal trends, but I also want to say that tribes have always engaged in boundary drawing and those boundaries have always relied heavily on descent and clanship, but they've also always made room for incorporating people that weren't born with that descent and clan. So this is from a frieze in the U.S. Capitol Building in Washington, D.C. This is an image of Pocahontas supposedly saving Captain Smith. Whether it's apocryphal or not, one of the suggestions about it is that this was actually an adoption ritual, that in order for an outsider to be adopted into the Pamunkey they had to go through a kind of play-acted process of attempted threat and saving. And this kind of adoption has gone on throughout history.

The Navajo Nation, the Diné -- where I've worked -- have the [Mexican] clan from the Mexican people, the [Red House] clan from the Zuni people and many other clans that reflect people that were not born Diné. In the Great Lakes, intermarriage was often a tool of diplomacy. If you could marry somebody in, you could build a relationship with them that would have important political impacts.

And this process of boundary drawings continued after contact. Just the 1827 Cherokee Constitution -- something that the Cherokee Nation created in a spirit of defiance -- to some extent engaged in this boundary drawing and some of the interesting things you see in it is that they'd already changed some of their traditions saying that children of Cherokee men, because this is a matrilineal tribe, Cherokee men with non-Cherokee women could become Cherokee, but they're also making rules about those of negro and mulatto descent. And so these kind of decisions are shaped from the outside, from the inside in multiple levels.

So federal boundary drawing: federal government has always been interested in drawing boundaries about who is Indian, who is not, who is part of a tribe, who is not. From very first Congress, we passed the Trade and Intercourse acts providing that non-Indians could not be on Indian land, that there were certain punishments, providing jurisdictional rules. And one question is, does 'Indian' mean tribal citizen or not? And relatively early on in the case of U.S. v. Rogers in 1846, the courts essentially decided Indian means whatever the federal government wants it to mean, that a white man who had married a Cherokee woman becomes a citizen of the nation, had actually traveled on the Trail of Tears. He was not Indian for purposes of the federal law, because basically they didn't think Congress wanted that kind of tribal power to change jurisdictional definitions. So this is continually a problem that tribes face, that there is room for making tribal citizenship decisions, but that room can be clamped down on by the federal government.

Process of treaty making and putting people on reservations obviously involved lots of questions about who is a tribal member and who is not, because annuities became really significant once you were on a reservation, once you couldn't engage in the practices that had sustained your people on a greater piece of land. And in fact, annuities would be taken away if you didn't conform to the rules that the agent on the reservation imposed.

One interesting aspect from this area that involves the conference on the Dakota War that William Mitchell [College of Law] put on last year, the Sisseton Wahpeton Sioux were deprived of all of their annuities and deposed from their reservation as a reaction to the Dakota War even though they had not been involved at all and there's an 1867 treaty saying, "˜Oops, you were the wrong group to deprive annuities from.'

Another thing that comes up in these annuity treaties is, and the benefits from treaties, what about people that are the products of intermarriage with people outside the tribe? And quite a lot of these tribes...these treaties around this time have either half-blood or mixed-blood scrip saying...some of them saying, "˜We want to provide for these people,' some of them not necessarily including that provision. And a problem we see in the...from a number of these treaties -- including significantly the 1854 treaty with the Lake Superior Chippewa, kind of an amalgamation of a whole bunch of Ojibwe peoples -- was that the federal government kind of thought anybody with a little Chippewa heritage might be eligible for a mixed-blood scrip and got people applying for their 80 acres by just finding somebody that they could convince was a little bit Chippewa to sign up. And you may be aware of all the scandals that arose from that. But these are just ways the federal government is drawing these boundaries that may not necessarily have to do with the way tribes are drawing boundaries and how it affects tribes going on.

Allotment -- huge impact on tribal citizenship choices. You know this both in treaties in the 1850s on, but particularly after the Dawes Act in 1887, federal government is dividing up reservations, providing allotments to members of the tribes and any land that wasn't allotted out was considered surplus and sold off. And so part of the process, the federal government is creating rolls. Who gets the allotment? And this is a big moment in which tribes...in which individuals are just saying, "˜I'm a member of this tribe and getting it recorded.' Another big moment like that is when other tribes are applying for claims for the improper taking of their land and that's another moment we get these rolls. And it's important to see that these rolls are not really created for tribal purposes. They're created for intimately federal purposes as well, even though they're fundamental to a lot of tribal citizenship requirements today.

So what does this mean for tribes besides the creation of the rolls? Tribes are watching land and money go out to the people that are on these rolls and there's a concern. What if these individuals that are getting our allotted land are not really people we consider part of the tribe? So there's a pressure on tribe to say...to start excluding some people and we see that throughout Indian Country.

Another key thing is that allotment by selling off surplus land to non-tribal members, so that's about two-thirds of the land goes out that way plus the land that was allotted, restrictions removed from it so that could be sold or taken for payment of debts or taxes, sometimes fraudulent. A lot of that money goes out to non-tribal citizens and about three-quarters of land on reservation goes to non-tribal citizens. And under federal law, very difficult to kick those people off. So if you think about the border disputes that the United States has about people coming in, Indian nations can't really enforce that border in that way in part because of allotment so that's changing some citizenship choices.

Another thing -- so this is a picture of a boarding school. Look at all those kids looking just not happy and you know why. But towards the end of the 19th century we get this massive increase in federal services and federal services, they cost money so the federal government is starting to say, "˜Hey, we want to limit the people that are eligible for those federal services,' and one of the laws that they passed to do that says, "˜If you're less than one-quarter blood and we think you're relatively civilized, you're not eligible for these services.' We don't have those specific laws in effect anymore, but we see a lot of their echoes in federal laws today trying to limit the people that can be eligible.

So throughout this process, tribes are having to make choices about who is in and who is out. The big moment when this is formalized in constitutions -- and when there is federal pressure, we really want to see these choices -- is in the Indian New Deal period in the 1930s, when the federal government is encouraging tribes to enact constitutions as part of the process of, to some extent, self-determination that the Indian New Deal represented, and saying, "˜We're going to insist and demand that the people that are included by your constitutions are those that you really want included, that have significant affiliations with your tribe, because this is who the federal money for your tribe is going to go to.' And so this research is from Kirsty Gover and most of it published in a great article from 2009 in the American Indian Law Review and this shows...this is 1936, this is 2003 and just shows how many constitutions, tribal constitutions are adopted during this period and I actually created this one -- she didn't include 1936 because it would just be off the chart -- and so like 30 constitutions are adopted in this period, a whole bunch more in the "˜40s. And then we see in the "˜60s, that's when this process of constitution adopting starts again, kind of goes up again and this is when we're kind of getting into the self-determination period. So this is somewhat more tribal choices to adopt the constitutions. They weren't forced on them before, but there was more federal pressure to do it.

And so what kind of citizenship requirements do we see in these? And it's from the very early period almost 90 percent have parental enrollment requirements. More than 50 percent have residence requirements, that your...either parents have to be residing on the reservation or you have to, or your parents have to be members, you have to be residing on the reservation. Somewhat under 50 percent have Indian or tribal blood requirements and very few have lineal descent requirements. And what this shows is that a number of tribes over this period that require parental enrollment, that goes way down. Residence, that goes way, way down and the Indian or tribal blood requirements and the lineal descent requirements go up. And something this chart doesn't show is that the...what kind of descent is required is shifting from being somewhat more just Indian blood to being tribal blood. This is blood of the nation. And this... so this period, this is what tribes are doing on their own. They're not getting a form constitution or set of membership requirements from the federal government so what is creating this process?

So let's think about what happened after the 1930s. One thing, we get World War II and Native people serve in significant numbers and even more significant numbers -- they go off the reservation to work in the defense industry. And so that's bringing Native people off the reservations. Another factor, relocation, 1950s, federal government is saying, "˜Hey, just leave the reservations; by the way, we don't want reservations anymore, we don't want to pay for people on the reservations. Come to the cities.' And we see that very much in the cities here. We see that in Denver, we see that in Los Angeles, across the country, and so that's also dispersing the population off the reservation.

Something else: Indian gaming. And so this is the poster from the NIGA conference that just happened, this beautiful Sandia Resort and Casino, which creates wealth and questions about how it's going to be distributed, some similar questions to those we saw with allotment.

Other factors: so something important in this area and also in the Northwest, treaty fishing disputes in which tribes are given the power to regulate fishing within their treaty-protected areas. And there's a question, who gets that power to fish, to be considered a member of the tribe and to fish under the treaty? And the tribes are deciding that. So if they limit who can be a member of the tribe, then there can be their relatives that can't participate in that treaty fishing or hunting.

Another factor, these federal laws that create distinctions between tribal power over Indians and non-Indians, members and non-members. So we know '78, Supreme Court says tribes have no criminal jurisdiction over non-Indians. Does this apply...deny them criminal jurisdiction over non-member Indians? The Supreme Court originally said 'no' in 1990, Congress immediately turned around and said yes, but still there's some constitutional questions about that. More important, limits on civil jurisdiction over non-members, and it's not fully resolved, but I think the pretty good argument that tribal jurisdiction is very significantly limited over non-member Indians as well as non-Indians. So somebody is not a member, you may not have jurisdiction over them.

Another factor: Indian Child Welfare Act. Now there's something else in 1978 and Sarah [Deer] talked about the importance of having custody over your children. If somebody is not either a member or the child of the member eligible to be a member, they can't...you can't exercise that jurisdiction under the Indian Child Welfare Act. So that's something pushing towards a broader definition of who is in and who is out. Huge factor that may push in different ways, publish challenges to the idea of Indianness. If somebody who doesn't anything looks at you and says, "˜Do you look Indian to me or not?' what is the impact of that and we just saw that in a really painful way in Adoptive Couple v. Baby Girl in which this man...this child Veronica was taken away from her father, Dusten Brown, because they found that they were not entitled to the protections of the Indian Child Welfare Act under this particular set of circumstances were quite complicated under this statute. And I think it's probably a stupid reading of a statute, but the thing that really tried to...that really influenced the court was this idea that she wasn't Indian enough, that they said, "˜This case is about a little girl who's classified as an Indian because she is 1.2 percent, 3/256th Cherokee.' That's not why she was classified as an Indian. She was classified as an Indian because Cherokee Nation says, "˜Anybody that's a descendent of historical members of our tribe, she is eligible for enrollment in the Cherokee Nation.' That meant that he was...he actually was enrolled in the Cherokee Nation, she was eligible for enrollment.' In fact, the determination of blood quantum has to do with those historical federal rolls, it was probably totally inaccurate, but there's that kind of factor of defining what does it mean? Are the people you define to be a tribe... what are outsiders going to say? And so this all creates these kind of push and pull factors that affect these really hard questions that you guys are dealing with today.

So this is just a picture of violence that occurred as part of the political dispute that arose from the disenrollments of members of the Chukchansi Tribe in California where not only has it really, really messed up their government, they've also disenrolled one of the last Native speakers as a result of this determination of blood lines and stuff. So tremendous impacts of this stuff for your governments, for your people, for your children. So this is again hard work that you're doing and thank you for doing it."

John Petoskey: The Central Role of Justice Systems in Native Nation Building

Producer
Native Nations Institute
Year

John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the key role that justice systems play in Native nation building, and provides an overview of how GTB's distinct history led it to develop a new constitution and system of governance from the ground up in the 1980s, highlighted by an independent, fully developed justice system.

Resource Type
Citation

Petoskey, John. "The Central Role of Justice Systems in Native Nation Building." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Presentation.

Manley Begay:

"I'd like just to welcome you. For those of you that don't know me, my name is Manley Begay. I serve as a social scientist and a senior lecturer in the American Indian Studies program and also teach a course in nation building, and so I have several of my students here from that course as well. And for those of you that are visiting, welcome to the American Indian Studies program, and Harvill 332, and to this lecture by John Petoskey; tribal attorney for many, many years with the Grand Traverse Band of Ottawa and Chippewa Indians. But before we do some formal introduction I wanted to just recognize his wife also has joined us, who's also a former council member as well. So welcome to Tucson and to the American Indian Studies program. Ian Record from the Native Nations Institute has been given the task of introducing John. John and I have known each other for many years and it's been awhile since we've seen each other. And Ian serves as a manager, one of the managers for the program at NNI and you probably see his name all over the internet. He's put together quite an interesting curriculum around issues that relate to Native nations and they do some really interesting work at the Native Nations Institute. He's also a graduate of the American Indian Studies program and he told me to say he's the first White guy to get a doctorate in AIS. He has the dubious distinction of being the first. It's good to welcome you back to AIS. So I'll give the floor to you."

Ian Record:

"Thank you, Manley. It's good to be back here. This used to be my second home, Harvill, and I don't get over here all that often. As Manley mentioned, my name is Ian Record. I got my doctorate... both my master's and my doctorate in Indian Studies, finished my doctorate in 2004. And I've been working with the Native Nations Institute since 2001 when it was first established, first as a graduate student and then I was hired full time. And one of the programs I've been involved with helping develop and get off the ground is the NNI Indigenous Leadership Fellows Program. We established it in 2008 and to date, including this week, we now have five Indigenous Leadership Fellows that have come to Tucson to share their wealth of knowledge and experience with not only NNI, but the entire U of A community. And as you see in the back, we're video recording this talk because the idea of this program is also to share that knowledge, wisdom, and experience with the outside world, with the general public at large and obviously specifically tribal communities and we are very honored to welcome John Petoskey this week to serve as our latest Indigenous Leadership Fellow. We've had John on our radar for quite a long time. Manley mentioned that he goes way back with John. John is one of the first people that Manley and Stephen Cornell and Joseph Kalt ran into when they started doing this on-the-ground research about nation building and about why some tribes are really moving forward while they continue to struggle in terms of achieving their goals. We're lucky to have John with us here this week. He's doing a talk here today obviously, but he's also doing another talk tomorrow over at the U of A Law School and I have some flyers here in case anyone's interested in learning about that, you may have seen it on email. It's tomorrow afternoon over at the Rountree Building and he's going to be talking about the Bay Mills case, which a lot of you have probably seen if you read Indians.com or go to Indian Country Today's website. There's been a lot of chatter, a lot of articles about this case, which is going to be heard by the Supreme Court I think in early December."

John Petoskey:

"December 2nd."

Ian Record:

"Yeah, December 2nd. It could have major implications for tribal sovereign immunity and for tribal jurisdiction and a whole host of other issues that John will address tomorrow. He's here today to talk about nation building. John, as you probably saw in the email that went out in his bio, has been serving as general counsel for the Grand Traverse Band for upwards of 30 years, and has sort of been at the helm working with the leadership of his nation through a lot of major developments, through the reaffirmation... the federal re-recognition if you will of Grand Traverse as a federally recognized tribe, the development of their constitution, the ongoing work they've been doing to develop their legal infrastructure, which is not necessarily the sexiest part of nation building and governance, but it's... some could argue it's the most important part. And so John is here to share his knowledge with you and share the Grand Traverse story about what they've done and what they continue to do to make sure that they have the rules and institutions in place in order to move their nation and community forward. So without further ado, John Petoskey."

John Petoskey:

"Thank you. First of all I'd like to do a few caveats and limitations. I only know a very small part of a very large area of law, federal Indian law, and I only know a very small part of that area geographically, which is Grand Traverse Band and Michigan, the Michigan tribes. And so a lot of my discussion by reason of my limited knowledge is going to be focused on Grand Traverse Band and the small area that I'm familiar with. I am admitted to the New Mexico Bar and I did practice in Alaska for a while and I'm familiar with some of those problems, but that was more than 30 years ago. So I don't have any relevant recent experience in those two states that I practiced in in the past and so for all practical purposes the beginning and end of my life is in Michigan. Having said that, I wanted to quickly describe that life in terms of its history.

Grand Traverse Band is a product like every other tribe of its own unique history. Grand Traverse Band is the signatory of two different treaties, the 1836 and the 1855 treaty along with several other tribes in Michigan, five other tribes in Michigan, and in Michigan we always go like this when you're saying where you're from and Michigan is shaped like a hand. Detroit's down here and so Grand Traverse Band is up here, it's the little finger. It's an area that the exterior boundaries of the original reservation was 87,000 acres. It was established in an 1855 treaty. It was the precursor of the Dawes Act in that at that time the tribes were subject to removal. In fact all of the southern tribes in Michigan were removed along with the tribes in Indiana, Ohio, Pennsylvania and the southeast of Oklahoma. So you have a lot of Ottawas, Potawatomis and out in Oklahoma that have reservations that were removed from southern Michigan. The northern Michigan Ottawas and the northern Michigan Chippewas were fearful that they were going to be removed from Michigan and they negotiated for permanent homelands in 1855, which was a modification of the 1836 treaty. The 1836 treaty ceded a whole area of Michigan to the United States and it created reservations that were temporally limited and the 1855 treaty created these permanent reservations in which Grand Traverse Band, Little River Band, Little Traverse Band were to have communities and to become permanent homes. When the dominant society imposes its... this is not an original thought, this is a thought by Monroe Price who wrote a lot of the article now 35 years ago that was relevant when I was in Alaska.

The Dawes Act in 1887 was converting the common method of governance or making a living of a small time farmer and trying to impose that onto Indian tribes to turn all Indian tribes into small time farmers so it was a wholesale conversation and it failed, the Dawes Act, by everybody's admission of failed. The only reason I bring that up is that 30 years before that Grand Traverse Band went through that. In 1855 we were created a reservation in which it was to be allotted to 80 acres and 40 acres for our ancestors and it was the pilot program if you will for the Dawes Allotment Act. The program failed on a large scale. The tribe was dispossessed from its reservation and by 1880 we were essentially destitute. In 1872 the Secretary of the Interior of person in Columbus Delano opined that a provision in the 1855 treaty, which provided that the Ottawa Chippewa tribe would go out of existence after the allotments had been issued, issued a letter of determination that all of the tribes in Michigan were no longer under federal jurisdiction, there was no trust responsibility and essentially the tribes were not offered any services at 1871 as federal government... as units of government. The federal government was still there in terms of offering medical services and educational services. For example, my parents and my wife's mother and other people did go to Indian boarding schools, but that was all based upon the Snider Act of half blood or above and you would receive services and so they all went to boarding schools.

I give this history because it's a historical basis of how the tribe developed. We were not federally recognized in 1871, and for this time period until 188o we were dispossessed. In the 1930s we tried to reestablish our federal recognition through the Indian Reorganization Act. It was denied not on the basis that we weren't Indian tribes that had a historical treaty relationship with the United States, but it was denied on the basis of insufficient funds. In the 1950s with the Indian Claims Commission Act that was established for unconscionable dealings through treaty negotiations, Indian tribes could be plaintiffs or recognized tribal groups could be plaintiffs. And so a group of the Indian Bar for the Indian Claims Commission came to Michigan and established an organization called the Northern Michigan Ottawa Association. And what the Northern Michigan Ottawa Association was was the old reservations that were established under the 1855 treaty, the Little River Band, the Grand Traverse Band and the Little Traverse Bay Band. Those three Ottawa tribes were then a plaintiffs group that intervened and filed a case that later turned into a judgment in 1971, an ICC judgment in which there was found that the 1836 treaty did not fully compensate the tribes for the taking of the land and a judgment was entered and that's a separate story. But my point is is that there was this group of three tribes together called the Northern Michigan Ottawa Association.

In 1973, the U.S. Attorney filed a case on behalf of the Bay Mills Indian Community, which was established by the Indian Reorganization Act in the 1930s as a federally recognized tribe. That was the only tribe in the 1836 treaty area. The Bays Mills Indian Group lived on a bay in the Upper Peninsula called the White Fish Bay and they had a local history of fishing and there was the oral tradition that the 1836 treaty had recognized off reservation fishing rights. The U.S. Attorney in 1973 agreed with the tradition that the tribe urged on him that they had 1836 treaty fishing rights under Article 13 and also the U.S. Attorney had as a model the U.S. vs. Washington case, which had been in litigation for a number of years that was essentially the same proposition. In fact, when I graduated from law school and worked on U.S. vs. Michigan in the 1970s, you could literally go through and see some of the pleadings in the United States vs. Michigan case, the arguments, and you would find those same arguments in the U.S. vs. Washington pleading file. That was before cut and paste and everybody had to do it on a Selectric and so everybody was typing arguments from Selectrics from the U.S. vs. Washington case that was litigated in the early ‘70s. So the United States filed this case on behalf of Bay Mills alleging that off reservation treaty rights still continued to exist in the Great Lakes and that Bay Mills...the Bay Mills Indian Community was the recipient of those rights. In 1975, the Sault St. Marie Tribe of Chippewa Indians was administratively recognized by an act of the area director of first the State of Michigan and then the regional director of the BIA. Now there wasn't any statutory authority at that time for the BIA to do what it did, but it did recognize Sioux St. Marie as a existing Indian tribe over the objections of the Bay Mills Indian Community because the Bay Mills Indian Community argued that the Sioux St. Marie Tribe was a sub-band of the Bay Mills Indian Community. That's a separate story.

In any event, there was another tribe recognized in 1975 and they intervened in the U.S. vs. Michigan case on off-reservation treaty fishing. You have to keep in mind at that time what was driving this was that you could really pull out a lot of money out of the lake. The lakes were very, very productive. The fish were at their maximum value. If you had a gang of gill nets they're called, you could literally pull your way to riches by sticking them in the water and pulling out the fish and selling them in competition that did not exist because the state had taken the position that all commercial fishing on the Great Lakes was outlawed and it was all sports fishery. And so the population of the Great Lakes commercial fish exploded and private tribal entrepreneurs were capitalizing on that by going out and fishing in the lakes and arguing that they could do that without regulation by the state. The state was arguing that ‘No, they had to be regulated by the state,' and much similar to the United States vs. Washington case. Northern Michigan Ottawa fishermen then said, ‘Well, there's the bonanza. We've got to intervene.' And so they intervened in the case and were dismissed because they were not federally recognized. At that time a fisherman from Grand Traverse Bay called Arthur Duhamel, argued that our tribe should no longer participate in NMOA [Northern Michigan Ottawa Association] and seek federal recognition on its own, which we did. And at that time, I don't know how much history you have done in this class, but the Indian Policy Review Commission had completed a study of non-federally recognized tribes and had issued a report that the federal government had the authority to recognize tribes and that they should do the CFR process, ‘a federal regulations process,' to recognize tribes that had treaty relationships. And so the federal regulations for federal recognition were promulgated. Grand Traverse Band was the first tribe to go over the hurdle and meet all of the requirements to be federally recognized. We had a reservation, we still had residual land that was no longer trust land, but it was from that reservation. We had clearly identified annuity payments from the treaty in 1910, we had a tribal roll in the 1880s and 1871 that came from the earlier treaties, and so we had a very detailed history that we were under federal jurisdiction at one time and taken out of federal jurisdiction in 1872, and that the federal trust relationship recognizing us as a tribe should be re-established. So we were re-established as a federal tribe in 1980 and intervened in U.S. vs. Michigan, which is a separate story that continues today because that case has continued since 1973 and still continues today. It's a series...it's morphed into inland hunting and fishing, it's morphed into 300-page consent decrees where the tribes regulate off reservation fishing and regulate inland hunting and fishing and the tribes...when I say tribes, there were LTB [Little Traverse Bay bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] were later recognized by federal statute in 1997, and so there are five tribes that now basically argue over the division of the resources that are available for off-reservation treaty fishing and also for the division of the resources for inland hunting and fishing and gathering rights. That's a separate issue and it's ongoing.

But getting to the point of this conversation or this lecture is Native nation building and justice systems. So you had a...we had a blank slate somewhat if I may in 1980 because we were federally recognized and we had to create a government and creating the government at that time was following the IRA model of creating a constitution and defining that constitution in terms of what our tribe thought should be in the constitution for governance. Also, in that constitution we got into a dispute with the federal government over the scope of our membership criteria. We argued with the feds that our members, under the federal recognition of 1980, included all Ottawas south of the bridge. The federal government's position, which was Ronald Reagan at the time and James Watt was, ‘That's way too many Indians because that's going to be a big financial drain to have all those Indians,' and so we were in eight years of litigation over the scope of our membership. That was ultimately settled in a compromise solution in which we agreed to limit the scope of our membership to the annuity payments from Grand Traverse Band and all of the members that lived within our area that regardless of whether they were LRB or LTB, they could still be a member of GTB even though their ancestry was traced from LTB. So you have the anomalous situation; it's not anomalous, but you have the situation now where the majority of the tribal councilors on the Grand Traverse Band tribal council historically descend from Little Traverse Bay Band and not from Grand Traverse Bay Band because they were living in the area and joined the tribe at the time. Myself for example, my father's from LTB, my mother is from Grand Traverse Band, but there are other members on the, not on the council, but there are other members on the tribal council whose both parents are from LTB, but they were living in our Grand Traverse Band area and they were part of the compromise that allowed them to be a member of Grand Traverse Band.

I say that because a lot of our governance systems were not really implemented, because the federal government asserted that they were not going to fund our government through the BIA [Bureau of Indian Affairs] unless we acquiesced to their assertions of what our membership should be in our tribal constitution. And so it took us a long time to get to a constitution that would initiate tribal council elections, that would [resolve] disputes because once you have elections and you have people running for office, you're going to have disputes, and we've had our share of disputes -- quite a bit. And in building a constitution, we established the proposition that the judiciary is a separate branch of government and it's tough being a judge in Indian Country. It's tough being a judge any place, but it's particularly tough if you're an Indian judge and you're related to most of the community or you grew up in that area. And so what a lot of tribes do, which I'm sort of jumping around in my presentation, but a lot of tribes do provide an option in their constitutions...I'm not certain how far in the west this is, but I know in Michigan it's very common...where they do provide an option for lawyers to be their tribal judge...judges. And if you look at the Southwest Appellate Court for example, you have Frank Pommershein, you have Rob Williams, you have people that are non-Indians, they're very knowledgeable about Indian law, but they're tribal judges and they're on the tribal appellate court. Now if you...and when you...the problem from my perspective that that creates is it almost handicaps the legitimacy function of the judiciary, because if you're on the street, reservation-level Indian, and you're being judged for a crime on the reservation by a non-Indian lawyer judge, you're less likely to accept the legitimacy of that decision. And there's not a whole lot of discussion in the academic community about that consequence of non-Indian lawyers acting as tribal judges and it's a discussion that I think should take place, because in the best of all possible worlds it's an Indian tribal member that should be the judge and not a non-Indian lawyer. Just to take a thought experiment for example, how many tribes would allow a non-Indian lawyer to be on their tribal council? Nobody. I mean nobody would allow that. And so when you're talking about building legitimate systems, part of the legitimate system is having legitimacy from the ground up, which means being a member of the tribe, being familiar with the community, and not being a non-Indian lawyer who is sympathetic, who has detailed knowledge of the tribe, but when they come in they have a strike against them in terms of the legitimacy of their opinions and decisions. And I've seen that happen again and again at Grand Traverse Band, at Little Traverse Bay Band, at Little River and at other places. There's a professional cadre of tribal judges that are Indian law lawyers that are non-Indians that serve on appellate courts and I thank them for their service, but I'm just saying in terms of legitimacy, it doesn't work very well when their tribal member citizen is being judged by a non-member lawyer. Having said that, I don't think that you can get away from that situation -- at least Michigan cannot get away from that situation -- without building up the human capital corpus of tribal communities to act in those positions as tribal judges.

So what is the...the other point I wanted to bring out in building a justice system is that, and in the context of Grand Traverse Band, a lot of people use the phrase that you don't want the judiciary system to be influenced by politics, and to me, I don't think politics is a necessarily evil word. I think politics is part and parcel of a tribal Indian community because the tribal council represents constituents in a community that are politically driven. They represent a community that is in large measure seeking redress for damages that they've suffered either individually or historically and they want a remedy for pain that they have and the only place that they see the remedy for that pain is to go to their elected council member and say, ‘I want this,' and sometimes their wants can be filled and sometimes they cannot and they do do that same situation when they disagree with a tribal opinion. They'll go to their council member and they'll say, ‘Get rid of that judge. He made a bad decision or she made a bad decision because they found me...they convicted me when I shouldn't have been convicted.' Building a strong system should be able to withstand criticisms like that.

At Grand Traverse Band, we have not gotten rid of a judge when somebody has come in and said, ‘The judge made a terrible decision because the judge found me guilty.' The judge is still there, but the politics of the judge's reappointment certainly came into play because the council, and I've told the council this, ‘You can't reverse the court's decision. You can appeal it or you cannot appoint the individual at the next appointment process,' and they've certainly done that because there are judges that made bad decisions who I thought, and there was one judge in particular who was a non-Indian, he was very intelligent, he wrote very good opinions and he made a couple of decisions that the council didn't like when they wanted to get rid of him and my advice was, ‘You can't get rid of them. You can get rid of them for judicial misconduct, malfeasance in office, things like that. You don't have it here. You have to wait until his term runs out, don't reappoint him. That's what you can do. Or you can appeal the decision that he made.' Appealed the decision he made, the decision was upheld, they had to wait him out, his time came up, he wasn't reappointed. And that's a legitimate exercise of politics, that's politics. That's politics on the council side and in my view that's legitimate. That's a legitimate exercise of politics because they're acting as legitimate representatives of the community objecting to a decision made by a judge and part of that judge's decision, the illegitimacy that is added that isn't very...that isn't said in an academic forum, but certainly is said in a tribal community forum and if you're from a tribal community I know you've heard this, ‘What is that non-Indian doing making this decision about our Indian community?' If you're from an Indian community, you've heard that and when you get into a non-Indian environment, it just seems to disappear, people don't mention that, but I think it should be mentioned because it is part of the legitimacy of the judiciary and non-Indian judge lawyers should recognize that and be sensitive to that and some of them are.

The other thing on nation building is -- excuse me for skipping around on this area -- but the other thing on nation building is the development of tribal codes. It is so difficult developing tribal codes. Grand Traverse Band has now, since 1980, 33 years of experience. Our tribal code is probably 1,000 pages long. It covers very complex areas of the law, covers complex relations that regulate internal tribal politics, internal family politics, it transfers large amounts of money to individuals, and it transfers housing to individuals, it transfers medical care to individuals, it transfers educational benefits to individuals. It's really a transferring organization and part of politics of building a nation is you're always going to argue over the scope of the transfer, the amount, the eligibility, etc.. But the thing that has to be established is it should not be indeterminate. It should be a determinate transfer and rather than saying that something is politically driven, the way I like to characterize it is if something is indeterminate, that you can't tell what's going to happen in the future given your situation, that is what is wrong, that's the evil because you can argue about the politics of the situation, but it has to be a determinate process where people can come in and understand what was the basis of the decision in the past, and what will be the basis of the decision in the future. At Grand Traverse Band, we have something similar to an Administrative Procedures Act [APA] for the development of our tribal code, of writing our codes, posting them and getting comments from our community and then only enacted after there are comments and those comments are reacted to. If you're familiar with...and that's where we got the process, from the Administrative Procedures Act. It was a scaled-down process of the APA. There's no appeal like there is in APA, but it's a scaled-down process to get community participation.

In other cases where's it's a hotly contested issue, for example, revenue allocation ordinances, which are permitted under the Indian Gaming Regulatory Act, in order to do per capita distributions to tribal members you have to establish a revenue allocation ordinance [RAO]. Grand Traverse Band did that prior to the publication of the CFR [Code of Federal Regulations] rules governing revenue allocation ordinances and we created a committee of community members with members of the tribal council on the committee and we kept track of the proceedings and we created...this was before computers...not before computers, but as the use of computers on an every day basis. But we have a legislative history of the RAO for example. We have...there were probably 20 meetings of the RAO and there were comments and selections made by tribal members at each of those meetings, participants of why certain decisions were made. And so it's a chronological legislative history of the development of the final RAO. And so there's a basis to go back and figure out why the tribe made certain decisions at that time.

We did the same thing with a number of other statutes that were hotly contested, creating committees to establish the legitimacy from the ground up by participation with community members. The one issue that was very contentious was membership. We rewrote the membership ordinance and if you follow Indian Country at all you know that membership disputes generally take place when there's per capita and there's not anybody clamoring to get into a poor Indian tribe if they're poor. They're not doing that. That's just not realistic. It's driven by the same thing that drove the initial federal recognition, pulling money out of the lake, pulling money out of the casino. It's gaming in the lake, it's gaming at the casino, it's pulling money out of it and it's clamoring to get in. So that was a contentious issue and we had the same level of legislative history detail in developing our membership ordinance. And the politics will go any which way, but the important point is to make something that is indeterminate determinate, not something where membership is predicated upon some person soliciting a tribal council member and then some council member showing up at a meeting called without notice and an opportunity and then moving to admit somebody with something that wasn't on the agenda to begin with. That is the sort of thing that is a clear violation of procedural due process for the other property interests of the other tribal members.

Grand Traverse Band has its code published at the NARF [Native American Rights Fund] website. It's free and available to other tribes. We also make our documents on our personnel policy free and available to other tribes. We make our documents on our minimum internal controls. In fact, when LTBB [Little Traverse Bay Bands of Odawa Indians] and LRB -- who are our competitors -- first opened up, they got all of their documents on how to operate a casino from us without charge to operate their facilities. We are now implementing a new procedure with the tribal council where our meetings are going to be real time video graphed by...so the community can participate at remote sites and they can also have the information at their fingertips. One other thing that we did that was very, very helpful, incident to a case that we were involved in, Grand Traverse Band vs. the United States, on the scope of restored lands for casino gaming, because it was such a high-value case, we took all of the old minutes that the tribe had from its inception and put them into a database. At that time it was, Iron Mountain was the name of the company and the database was called 'Concordance,' which we still use, but that is extraordinarily helpful for a community and for the tribal councilors because now they ask the question, ‘Well, what does Concordance say,' when something comes up because they can get that...we can get that information immediately. All of the councilors have iPads. All of the meetings are conducted on iPads where they have access to the statutes, to the agendas, to the documents. Everything is iPad-ready, searchable, and now it's going to be recordable. The common denominator in all of that is transparency and transparency across the board.

The tribal court has published all of its opinions, has published all of its court rules. We have relatively good judges. We have some non-Indian judges, two non-Indian judges, who are not tribal members who are sensitive to some of the concerns that I stated earlier. We have a recently appointed appellate judge that is a stellar star if you're familiar with Indian law and that's Matthew Fletcher. He's our chief appellate judge as of about eight days ago. He was a former attorney that worked in the general counsel's office for four years and Matthew was phenomenally adept as most of you may or may not know in terms of his productivity and his knowledge of the minutia of Indian law in terms of litigation. But he doesn't have that same level of facility with the minutia of Indian law in terms of legislation and that's really what I would like to see sort of developed, and NARF has sort of developed that by placing all the codes online where people can go and pick and choose from different...steal from other people is what I'm saying. Don't sit down and try to write a code on the children's code or try to write a gaming regulation code or public departments code, because it's too difficult to do something from the ground up when you can just take it from somebody else and adapt it to your circumstances. The caveat on that is if you don't understand what you're doing from the ground, it's not going to work for you, but if you do understand what you're doing from the ground up then you can choose and select these codes that are applicable to your unique situation and that's what building a nation, in my view, that's what building a Native nation is, is building these justice systems that are determinate. In other words, people will know that good, bad or indifferent, they're going to abide by the judgment. They may object to the judgment or they may applaud the judgment, but they'll live with the judgment. I'll give you an example.

We recently had a very contentious dispute between contiguous property owners on the intestate death of a tribal member, and his son was arguing that he controlled the property and the house. The sister to the brother argued that while the brother was alive that he had deeded it to the niece of...then the niece happened to be the daughter of this other person. So they were just at each other's throats over this on who had the right to that particular house and it went to court. There were good arguments on both sides. The judge ruled that the intent of the uncle was to deed it to his niece, that the intestate succession did not apply and the pre-emption under probate law of a son's right did not apply and the party stopped. After the decision came out, the guy that was making such the big stink about living there and he was going to win, etc., etc., he moved out. He said, ‘Well, that's it. It's over.' So he moved out and the parties moved on.

I can think of other instances where that has occurred. We had a tribal councilor that did self dealing and so we initiated removal proceedings in tribal court against him and he contested that this was not self dealing and so there was a tribal court proceeding on whether or not it was self dealing, contested questions of fact, it was highly litigated, and the court found that it was self dealing and that he should be removed from office for self dealing and the person said, ‘That's fine,' and moved on. At election disputes, very contentious election disputes, in which people lost offices, won offices, but nobody's going out in the street and saying, ‘We're going to protest, we're going to take over the office by force.' Everybody's abiding by the decision and they're arguing though that the decision is wrong, but they're not arguing that the power to make the decision is illegitimate. Nobody's arguing that. They are arguing that the decision is wrong, not that the power to make it is wrong. And that's very hard to do because in Michigan, not to point out Michigan too much, but there was another tribe in Michigan, this is well known in Michigan circles at least, in which a tribe and the judiciary got into a fight and the judiciary had the tribal council literally arrested. They arrested the whole lot of the tribal council, put them in jail and the tribal attorney had to file a federal habeas corpus petition to get his clients out of incarceration. To have those situations, it's what you want to avoid obviously.

But I think that's about the end of my talk. It's just steal from other people, is the end result and don't...it's not an easy answer. They're not easy answers."

Ian Record:

"Thank you, John. We have some time for questions for John. I think about 10 or 12 minutes. He covered a lot of ground, so I'm sure there are some questions out there. Any first volunteers? Yes."

Audience member:

"Does Public Law 280 fit?"

John Petoskey:

"No, it doesn't. We're a non-280 state. I should have said that. I'm sorry."

Audience member:

"So you said when you created the constitution of your tribe it was at those first stages where it was created that the judicial branch is separate."

John Petoskey:

"Right."

Audience member:

"So with a tribe that already has a constitution basically off of the IRA structure, but what would you...I think what's very difficult is when a tribe wants to say, ‘Alright, let's rewrite our constitution to the point we can get our judicial branch separate,' that is very hard because it seems like, in order to do that, you need the political backing to start the process. So with that being said, what's your advice on that or as far as does it just depend on who's the person in office that's going to say, ‘Alright, attorney, you have my support to start rewriting everything to say the court's going to be separate.'"

John Petoskey:

"Well, if it's an IRA constitution and you want a separate judicial branch, then you have to go through a secretarial election to change the constitution and there are CFR procedures for doing that, which I'm sure you're familiar with. On the political question of whether you have the support of the community, that's a question that I can't answer because that's a question that relates directly to that particular community. I can tell you at...the one thing I did not mention is at Grand Traverse Band when we did the constitution, we didn't create a three-branch government, we created a two-branch government with the tribal council acting in a combined executive-legislative capacity and the judiciary as a separate branch. So it's really a two-branch government, it's a little different."

Audience member:

"How important is it for the Grand Traverse Band to incorporate tribal core values into development of its laws and how does the tribe accomplish that if that's indeed a goal?"

John Petoskey:

"In the development of its statutory laws or its case law?"

Audience member:

"Statutory laws."

John Petoskey:

"Well, the process of writing a statute is a process of making a choice and so to the extent...to be perfectly honest, I can't think of a...a lot of the statutes that I worked on are very complex, detailed statutes dealing with complex subject matter. I mean housing, gaming, membership. Membership, for example, maybe that incorporated some of the values on what is the scope of your family community feelings and in the child code we do have termination of parental rights. There was a big argument over whether or not the tribe should have termination of parental rights within its own code and that was based on cultural arguments that the tribe was making between the council members back and forth that that provision should be in there or shouldn't be in there and so that's an ongoing dialogue in the particular instance. It's not...I can't give you a categorical answer, because each instance of where you're making a choice to include or exclude brings up that issue of the values of the legislature and the value of the legislature reflect the values of the community."

Audience member:

"As a general counsel for the tribe, how did you find your role in integrating that discussion for council?"

John Petoskey:

"Give them option A, option B, option C and whoever has the majority votes wins. That's what my role is. A council member with one particular point of view will request a statute to be written for his point of view. Other council members will say, ‘Well, you can't do that so don't write the statute that way,' and I go back to the council and say, ‘I really need direction on a majority vote of a motion, since the council under our constitution operates by motion, ordinance or resolution, that I should be writing this statute from this particular point of view,' and if I don't get the motion, then I don't write the statute. If I get the motion, then I write the statute. That doesn't mean that the statute's enacted, that just means that the bill is written and then there's an argument of whether or not to enact the bill. The recent case that comes to mind is one council member has requested that I write a bill on the election code and other council members have orally stated, ‘Our constitution provides that election processes are controlled by an election board so we should not be writing a code.' That's a situation that I'm going to take back to council and say, ‘I really do need a motion on this because one council member has requested a bill and other council members have said no dice.' And so it's either four against or three for. Whatever it is, I need...I don't have the authority to do it independent of that...of one person asking me to do it."

Ian Record:

"John, one quick follow up on that. You mentioned statutory law in clarifying your question. You and I were talking this morning and you mentioned that you guys have worked very hard to instill core values into your case law in particular and that Matthew Fletcher actually put together a [restatement of Grand Traverse Band common law]. And I think it's available online."

John Petoskey:

"It is."

Ian Record:

"Basically it tracks the articulation of Grand Traverse Band common law through the cases that it..."

John Petoskey:

"It's called a restatement. It's a restatement of Grand Traverse Band common law and it was written by Matthew Fletcher and his brother Zeke, which takes the 150 case law opinions and then writes a restatement of Grand Traverse Band, which I don't know if any other tribe has done that, has written a comprehensive restatement. And you can argue about the particulars, whether or not in his decision on what the case held is correct or incorrect, which I have done on certain cases, but my point is that in the scope to make things transparent, we have put all of our cases on WestLaw, we have put our cases on VersusLaw, we have put them in hard copy in the local law libraries, we have our court rules published on the same basis and the court is considering putting its proceedings on camera also, but that's a rule-making function of the total court to do that."

Akenabah Begay:

"How difficult is it to get rid of your tribal judges?"

John Petoskey:

"Well, we did have a one removal petition for a judge that was authorized by the tribal council and it went to trial. And under incorporation by reference of Michigan case law, you can request a psychological evaluation of a judge that you think is nuts and it was a legitimate request and so that's what I did. And once that came up then the other...the judge, the particular judge, wanted to settle the case because she thought it was an affront to her capacity as a judge even to have that question posed to her. But it was not under Michigan law. You can go through a psychological evaluation of a judge relating to misconduct in office to determine whether or not she is psychologic...or this particular judge was psychologically fit for office and it was a legitimate request."

Akenabah Begay:

"So the tribal council can't fire a judge?"

John Petoskey:

"Oh, no."

Akenabah Begay:

"Okay."

John Petoskey:

"No. They wouldn't...no, they cannot."

Akenabah Begay:

"Okay."

John Petoskey:

"Maybe I didn't get that point across."

Akenabah Begay:

"I took Dr. Begay's class and he said for a stable judicial system it would be best to have judges not be easily removed."

John Petoskey:

"It's...right, and I can say that I have had requests from individual members of the tribal council to fire a judge and my response is, ‘Well, you can't fire a judge because of this opinion that you disagree with. You can appeal it or you can exercise the power of appointment when their term is up or you can do a removal petition,' and those are all permissible exercises of the council's authority when they're dissatisfied with a judge."

Audience member:

"What would be your take on tribes developing their own general counsel as opposed to contracting out to law firms?"

John Petoskey:

"Oh, I think they should. I think it's cheaper to have a general counsel in house and it's a better way of representing the tribe and the more you work the general counsel the cheaper it gets."

Manley Begay:

"Are plans being laid to improve the judicial system? I know a lot of tribes are moving toward establishing business courts or children's court or youth court or constitutional courts and so forth as a way to sort of speed up the process of various types of issues."

John Petoskey:

"Well, the judiciary at Grand Traverse Band has experimented with that. We do have an arbitration provision in our waiver of sovereign immunity under contracts and we have had arbitration for contract disputes on major construction projects and the arbitration award then is enforced by the tribal court, but the tribal court doesn't deal with a construction defect litigation because we write our contracts for arbitration and in arbitration you have arbitrators who are familiar with construction issues and we have gone through arbitration. So that's one way we have attempted to...when I say we, I'm speaking very broadly, the GTB judiciary has attempted to establish peacemaking courts and attempted to...and has that and has used that for resolving family disputes and has attempted to establish a drug court for recalcitrant offenders or first-time offenders who may not turn into recalcitrant offenders."

Audience member:

"As far as the criteria for a tribe appointing a judge for your tribe, is it...do they have to have a law degree and must they speak the language or..."

John Petoskey:

"No. I don't speak the Indian language and I would venture to say 95 percent of our tribal members do not speak the Indian language. My parents did and I was...when I was given this history I was explaining probably why we suffer from this language deficit because our communities were destroyed. Having said that, I think that the language in Michigan is certainly being revitalized by community efforts to maintain it, but in terms of appointment to the tribal judiciary, it's very limited. You have to be 18, a tribal member or an attorney, and that's my point is you go from one extreme to the other and I think that there should be a more detailed process on the appointment of tribal judges to create greater legitimacy. In the hierarchy or the paradigm of what is the best, it would be a tribal member who is a practicing attorney with substantial experience. That would be the best type of tribal judge to have and particularly one that is not going to end up in personal problems in his or her own life, because when you're in an Indian community and if you're from that community, you have so many problems coming at you from your employment and from your family members and your extended family members that it's difficult to be...lead a life that doesn't intersect with all these other problems."

Audience member:

"So the tribal council appoints the judges?"

John Petoskey:

"Yes."

Audience member:

"What are your thoughts about elected judges? I don't know very many tribes that do that but...because I can see the politics..."

John Petoskey:

"There are places in Michigan that do do elected judges. My thought is...I don't know. I would...I don't know. I mean, there are arguments for it and arguments against it. In the states there are elected judges, there are also judges that are pass...that have to pass a panel. The federal system does not elect judges, they have the political appointment process and there was a movement in Grand Traverse Band where a person who had been in front of the tribal court on a number of occasions for various reasons, did start a campaign for elected tribal judges and part of his campaign related to his incarceration as the result of being in front of the tribal judge and he said, ‘I don't mind being in jail, but I want to be in jail by somebody that I helped appoint.'"

Ian Record:

"One final question over here."

Audience member:

"I was just curious, I notice you had involvement with the gaming compacts up in Michigan."

John Petoskey:

"Yes."

Audience member:

"Is there a reciprocity clause up there between...where certain cases will be held whether it's going to be the state or..."

John Petoskey:

"No, there's no reciprocity, not like...Wisconsin and California have those, but we don't. This is the gaming compact of 1993. The compact was 12 pages long and it was in existence until 19...until today, 20 years and we're currently in compact negotiations. I think it's going to be much longer this time around."

Audience member:

"Is there any possibility there might be something like that in terms of where..."

John Petoskey:

"Well, we do have...I did neglect to mention this. In Michigan we did...it was mainly at the behest of Mike Petoskey who is my cousin, who is an admitted lawyer and a long time tribal judge and works... and was our tribal judge at Grand Traverse Band for 18 years and so he was at the helm there for quite a long time. He's now a tribal judge for other judges in Michigan, but I only bring him up because he became a good friend with Justice Cavanaugh who was on the Michigan Supreme Court and who was head of the Rules Committee. And Mike and Justice Cavanaugh fashioned Michigan Court Rule 2615, which provides reciprocity between Michigan state court orders and tribal court orders if the tribal court adopts a rule that is similar to the Michigan court rule and they're covering equal protection and due process and other standards for full faith and credit, so it's no longer an issue of trying to enforce a tribal court order on a full faith and credit basis and then going through to get the judgment domesticated if you will in another forum's jurisdiction. It's an automatic process right now because we have that parallel rule of reciprocity. The state has 2615 and the state court and the tribal court enforce each other's orders as a matter of routine now."

Audience member:

"Thank you."

Ian Record:

"Well, thank you very much again, John."

John Petoskey:

"Thank you."

Jill Doerfler: Constitutional Reform at the White Earth Nation

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Anishinaabe scholar Jill Doerfler discusses the White Earth Nation's current constitutional reform effort, and specifically the extensive debate that White Earth constitutional delegates engaged in regarding changing the criteria for White Earth citizenship. She also stresses the importance of Native nations understanding their traditional governance systems and also documenting the origin stories of their current constitutions prior to engaging in reform so that they can deliberate constitutional change with the appropriate context in mind.

Native Nations
Resource Type
Citation

Doerfler, Jill. "Constitutional Reform at the White Earth Nation." "Leading Native Nations" interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. April 2013. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program we are honored to have with us Jill Doerfler. Jill grew up at White Earth and is a descendant of the White Earth Nation. She's been involved with White Earth's efforts for constitutional reform and served as a member of the constitutional proposal team. She also serves as Assistant Professor of American Indian Studies at the University of Minnesota in Duluth. Jill, welcome, and good to have you with us today."

Jill Doerfler:

"Thank you so much. It's a pleasure to be here."

Ian Record:

"So I've shared a few highlights of your personal biography, but why don't you just start by telling us a little bit more about yourself. What did I leave out?"

Jill Doerfler:

"Sure. Well, as you mentioned I grew up at White Earth and then I did my undergraduate work at the Morris Campus of the University of Minnesota and then on for a Ph.D. in American Studies at the University of Minnesota-Twin Cities campus. And then had two years outside of Minnesota, one at Michigan State and one at the University of Illinois. Then I came back to Duluth for American Indian Studies, which has been really a great place for me to work."

Ian Record:

"And you're also a published author."

Jill Doerfler:

"I am. Thank you. I have had a couple of books come out recently, one co-authored with Gerald Vizenor called The White Earth Nation: Ratification of a Native Democratic Constitution, which we'll be talking more extensively about as we move on today, but Gerald was the lead writer during the constitutional proposal process and so we collaborated on a book. David Wilkins wrote an introduction for us. Gerald wrote a chapter and the constitution itself is in there and then I write newspaper articles for our tribe and so some of my newspaper articles examining the constitution and explaining different chapters are in the book. So that was exciting. And then just recently in February I had another book come out that's co-edited called Centering Anishinaabeg Studies: Understanding the World Through Stories. And so in that book, I collaborated with Heidi Stark and Niigaan Sinclair and we have 21 chapters. It's a much lengthier book than the first and it's a wide range of scholars working in Anishinaabeg studies and using story as a kind of framework to look at law, to look at environmental studies, language, education, so a wide range of disciplines and kind of centering around story as a framework. And my chapter, in that I examine Ignatia Broker's Night Flying Woman which is a White Earth author's text about basically it's very instructive about how to act as a Ojibwe or an Anishinaabe person, and I examine how that text might apply to constitutional reform."

Ian Record:

"That's great. I'll have to check it out. So we are here today to talk about constitutional reform, and I'm curious to learn about how you personally came to be involved in the recent constitutional reform effort at White Earth."

Jill Doerfler:

"Yeah. So I was just a Ph.D. student working on my dissertation, which was on Anishinaabeg identity and citizenship focused on White Earth starting around the turn of the 20th century and moving forward. And I was just wrapping up the dissertation in 2007 when Erna Vizenor, our chairwoman, gave her State of the Nation address stating that we were ready to move forward with a new effort for constitutional reform. There had been other efforts at White Earth previously, but she announced that and so I was very excited to think about how my research could come into play in a very sort of real concrete way. So I called up the office and asked how I could get involved and we started out using newspaper articles as the first way, using some of my dissertation research and rewriting it into newspaper articles to share with people the history of tribal citizenship and Anishinaabeg identity. And then as the reform process moved forward, I continued to give presentations on my research to the constitutional delegates and so I became involved in that way."

Ian Record:

"So in 2009, those delegates ratified a new constitution for the nation. What prompted...you mentioned that White Earth had looked at constitutional reform in the past and had never sort of gone through the whole process and this time they did. What prompted them to go down the reform road?"

Jill Doerfler:

"Well, I think there's a wide range of factors. Currently, White Earth is under the Minnesota Chippewa Tribe constitution, which hasn't been functioning very well for us and there are no separation of powers, for example, in that constitution and the provision for citizenship hasn't been working well for us and there are several things, the Secretary of the Interior I think is mentioned maybe 13 times, and so that constitution just basically hadn't been functioning. And so there had been a few other efforts for reform starting actually in the "˜70s and then a strong effort in the late "˜90s and then Chairwoman Vizenor had ran in part on the fact that she would engage in constitutional reform. It's something that the people at White Earth have wanted for some time. They feel that a new constitution could provide some checks and balances. We have had some issues with corruption and fraud at White Earth in the past that were really problematic and if we don't have a new constitution in place, we don't have a way to prevent that from happening again."

Ian Record:

"So can you briefly describe the process that your nation devised to develop a new constitution, because I can tell you from my own experience that there's a lot of nations talking about the need for constitutional change, but of that number, there's a minority among them that actually make it through to the ratification of a new constitution. So in that respect, process is absolutely critical, so can you share a little bit about the process that your nation took?"

Jill Doerfler:

"Sure. It was definitely a grassroots kind of process and we weren't as organized to have a full plan laid out with timelines and deadlines when we started. Mostly, Chairwoman Vizenor just wanted to start by holding a constitutional convention and see how things went. So in preparation for that, I was writing newspaper articles and then we had a process for constitutional delegates. It was advertised mostly in the tribal newspaper and then people could apply to be constitutional delegates and then Chairwoman Vizenor also sent word out to our community councils and asked those community councils to each send two delegates. And everybody who applied to be a delegate was accepted so it was really inclusive that way. At the first convention, we discussed a wide range of issues and Chairwoman Vizenor ended it by asking the delegates if they wanted to carry this process forward and they did and so we did. So it was really...even though she was in some ways leading the process, she was really letting the delegates make the decisions as far as what they wanted."

Ian Record:

"So your process went through to its fruition, but I would imagine along the way there were several issues or obstacles that emerged. Can you talk about some of those challenges and how you worked to overcome them?"

Jill Doerfler:

"Sure. I think one of the biggest challenges was keeping everyone engaged and keeping the attention of the people and of the delegates, 'cause it was a couple of years in the process. So we started with that first convention in 2007 and then wrapped up in April of '09, so it was that lengthy process. We didn't have a large amount of funding or anything like that. We didn't have a person in charge of doing all the organizing. There were myself and Joe LeGarde and a couple of other people helping get things done, but we didn't have a dedicated person, which I think would have been advantageous to have somebody really coordinating the effort who was in charge. And so we were kind of splitting the duties and kind of each contributing what we could. So that was a little bit of a challenge, but I think the delegates who really believed in the process stuck through with us because they cared so much about the issue they were willing to take the few bumps in the road and to keep moving forward knowing that the results would be worth it."

Ian Record:

"So you sort of touched on this issue of citizen education and engagement, and you mentioned you did a number of newspaper articles which I've had a chance to read, and I think unfortunately we don't see that level of education in many other tribes that are engaging reform so I was wondering if you could talk a little bit more about the efforts that you and the delegates undertook to really I think first and foremost get the citizens to understand why this should matter to them and then get them sort of moving in and engaged in the actual deliberations around what do we need to change in our current constitution or do we need to in fact develop an entirely new one."

Jill Doerfler:

"Yeah, well, I think the delegates are the ones who really did a lot of the work going out. We would talk about issues at the conventions and we would always say, "˜Okay, go back to your families, go back to your community, whether you're on community council or whether it's informally at other gatherings, talk about these issues,' and then I would write the newspaper articles also to kind of keep things at the forefront and hopefully keep people thinking about it and talking about it whether it's over a coffee break at lunch or whether it's at a powwow or like I said, another formal meeting. So we really asked the delegates to kind of go out and keep those conversations going and then to come back and share with us what they had learned and what people were telling them."

Ian Record:

"So it wasn't just about what you were hearing in the actual meetings but it was what you were hearing second hand from people who were coming back with essentially field reporting on what they're hearing sort of on a one-on-one personal basis."

Jill Doerfler:

"Definitely, definitely, and I definitely also received quite a few emails. As technology improves and with my newspaper writing, definitely a lot of people emailed me to tell me their thoughts and ideas and so we took all of that into consideration."

Ian Record:

"How important is that to make sure that the education and engagement of citizens around everything from what a constitution is to what we're thinking about in a new constitution, how important is that to be ongoing versus intermittent? We've seen other tribes stumble where really the only time they're really educating and engaging is when they have a physical meeting and whoever shows up, you show up and you get the information you need and you maybe give the feedback you want to give, but everyone else is sort of left out in the cold."

Jill Doerfler:

"Yeah, I think it really has helped the process that we've tried to stay as engaged as possible throughout, because it gives people more of a commitment and they feel like they're more part of the process, they are more part of the process which is what we want. We don't want a document that just comes out of a few opinions. We need to have everyone's input, because a document like a constitution is a big compromise ultimately. We took in lots of ideas and I'm sure no one person got exactly everything they wanted in that document and so that's another part of the process is sharing the deliberations, sharing the different ideas, and then the outcome so that people can see that there's such a range of ideas that we compromised on certain aspects to try to do our best with what would be the best choices."

Ian Record:

"So you mentioned at the outset that Chairwoman Vizenor was sort of the spearhead for this effort. She made it part of her State of the Nation address and took a lead role sort of at the outset, but then from what I'm hearing, she sort of took a step back after that and played more of a supportive role. And we've seen that as critical in other places as well, where it's good that the leaders are supportive of the effort but not dominating the effort. Is that sort of how it unfolded there and how important was that in the overall success?"

Jill Doerfler:

"Yeah, absolutely. I think it helped take...politics is never going to be out of anything, it's definitely not going to be out of a constitutional process, but I think it helped remove that Erma was not a delegate, she did not vote on the document, she helped facilitate the meetings, she helped with the agenda, but she was not making any of the choices. When delegates had to vote for something, she helped make the motions and helped the process, but she didn't have a vote in the issue, and so it helped give voice to the people and helped the people realize that it's up to them, they're the ones in control and they have the power to make the choices and it's not going to be a process where tribal government just hands us a document and says, "˜This is what tribal leadership wants.' Instead, it's more coming from what the people want."

Ian Record:

"So you did a presentation earlier this week at the Native Nations Institute's constitutions seminar on this topic and one of the things you cited as a key to success in terms of getting the citizens engaged and keeping them engaged was the use of small-group discussions, sort of breakout groups. Can you talk a little bit about what led the nation to use that as an approach and just how critical it was?"

Jill Doerfler:

"Yeah. Boy, I'm not exactly sure how we came to the decision to do that now that I think of it, but in preparation for the first convention we talked about...I was talking with Chairwoman Vizenor and Joe LeGarde and others about how the convention might run and topics and I think it probably was maybe Joe LeGarde that said we should do the small-group breakout. We started out with 40 delegates, which is a large group to try to have a conversation with and then all of the conventions were open and public, so at all conventions there were also other people who attended who were not delegates, and so what we did then is we would have a presentation on a topic or introduce a topic and then give the delegates time to consider certain questions within their small groups. And I think that gave each individual, whether they were a delegate or not a delegate, time to discuss and time to discuss with delegates what was best and it helped people get a more personal viewpoint and also not to feel intimidated to talk in front of a group of 40 delegates plus other attendees. That can be intimidating for some people and as far as time constraints go it was also useful that way. People could say more and then report back as a group and also kind of start the compromise process within the groups hopefully hearing a diversity of ideas in the group, presenting back maybe one or two ideas, and then hearing from others. And so I think overall it helped people feel like they were heard."

Ian Record:

"That's great. So you mentioned that this process lasted over two years. You had four constitutional conventions sort of spaced out during that time and obviously from what you're saying a lot of work in between, ongoing work. Was there...at any point in the process were you at all concerned that or did you doubt that a new constitution would actually take shape and be ratified by the constitutional delegates?"

Jill Doerfler:

"Well, let's see. I don't think...there was going to be no guarantee at the end what the outcome was because we started out with a very loose process with delegates asking them if they even wanted to continue with the process. And there was probably not the clearest of roles from the outset, and it wasn't until Chairwoman Vizenor selected the constitutional proposal team to start the writing of the document...and I think we were very fortunate to have Gerald Vizenor be a constitutional delegate, and as some of the viewers probably know, Gerald Vizenor is a really accomplished scholar from White Earth -- having written I think at this point well over 40 books, everything from poetry to novels to short stories to theory to history -- and so that was lucky for us. We didn't engage a lot of legal consultation, we didn't have somebody sitting by the wayside doing that, and so we had our processes and I had detailed notes and we kind of used that to start the writing. So I think until we started writing the document, it was a little unclear how long the process was going to be and who was going to be in charge of the writing. And I think it actually helped that we didn't have that team designated from the outset, that we were kind of in a looser process because then it wasn't...nobody identified us early on and said, "˜I want to make sure I say this to Gerald or this to Jill because they're going to be part of writing it.' Instead it was...kept it more open and kept the power also more dispersed."

Ian Record:

"So you briefly referenced the role of lawyers in reform process, and I think you may be an exception to the rule at White Earth in that you're not a lawyer and Gerald's not a lawyer and you wrote the constitution. We've seen other instances where the lawyers get involved, even before the writing of the constitution they're heavily involved in the process. Was that ever at sort of the forefront of minds, "˜Let's keep the legal aspects to the side, the legal folks to the side because we want this to be an expression of the people's will and not the expression of any particular lawyer's will?'"

Jill Doerfler:

"Absolutely. I think it's really difficult to find sort of objective legal advice. Everybody has their opinions, even staff attorneys at White Earth have their interests, and so we really wanted it to be a document that people can read and understand. Sometimes...from a legal perspective, sometimes lawyers write in a certain way that's difficult to understand and so we definitely wanted it to come from the people and we did not really utilize lawyers, which some lawyers have critiqued since then. Sometimes I get a raised eyebrow from lawyers that we didn't really engage that in the process."

Ian Record:

"Time will tell I guess if it's going to be an issue."

Jill Doerfler:

"Right, right. We'll see how well that works out in the end."

Ian Record:

"So what would you say ultimately -- now that the process is done -- what would you say ultimately were the keys to the success of the nation in actually seeing this process through?"

Jill Doerfler:

"I think definitely we had a very open, inclusive process. As I mentioned, we had delegates -- who everyone who applied was accepted -- and then all of the constitutional conventions were announced in the newspaper, it was open, anyone could come who wanted to come. No one was ever asked to leave or turned away and so it was very...it was as transparent as we could be and I think that was really critical. We never had a closed door meeting. Never had a closed door meeting with lawyers, we never had a closed door meeting with delegates. Everything was open and so that was definitely one of the keys to our process. Maybe I'll also say that persistence was part of the key as well, because it did take a couple of years and in a way that seems like a long time for me, 'cause that's the timeline I was involved, but some of our constitutional delegates had been involved in different efforts for reform over the past 30 years and so some of them definitely get a lot of credit for seeing the different processes through. And I would say that none of those previous efforts were failed efforts which could be looked at as well. We tried in the late "˜90s, there was a draft constitution at that time, but no action was ever taken on it. True, but I think nonetheless that process still helped us build up to what we did in 2007 and the experience that those people had, they brought that to the table with them when they came in 2007 with those other efforts so that was really advantageous for us."

Ian Record:

"And perhaps some informed perspectives on what didn't work and what to avoid and that sort of thing."

Jill Doerfler:

"Absolutely, yes."

Ian Record:

"So I want to turn to the subject of citizenship, which is as you know one of the most controversial issues facing all Native nations -- who's going to be a part of us and how do we define the criteria that determines that? Citizenship was at the core of your nation's constitutional deliberations, and I'm curious before we get into sort of the mechanics of how you came to arrive at your new definition of citizenship or perhaps a returning to an old definition of citizenship, can you talk a bit about how the White Earth Anishinaabe defined citizenship traditionally and what criteria they used prior to colonization?"

Jill Doerfler:

"Sure. It varied over time, so there isn't just one answer to how things worked, but there's big changes over time. Anishinaabeg people have had contact with non-Indians for hundreds of years by this point and there have been changes, migrations and where my research really starts is starting in the early 20th century, right after the turn of the century. And in my research, I wanted to look at how Anishinaabeg people thinking about their identity, sort of pre-IRA, pre-organized government, and what I came to look at was a series of records that were based actually on land transactions at White Earth. In the 19-teens, allotment happened at White Earth as it did in many nations. And what happened at White Earth is there's legislation that says, "˜Mixed-blood people can sell their land, full-blood people cannot.' Land at White Earth is really gorgeous and spectacular. It was both good timber land and good farm land, lakes country. Lots of non-Indians said, "˜Hey, we'd like that land, we can either make a living there or make money there.' And after allotment happens at White Earth, then we get that legislation about mixed blood and full blood and then land transactions take place at an extraordinary rate. White Earth is often pointed to nationally as a case study because of how quickly land changed hands. And White Earth people complained that there was illegal activities, that people were being lied to or people who couldn't read were asked to sign papers that they were told was for their bill at the store and it was for a lease or it was for the sale. So lots of White Earth people complained and ultimately the federal government did a couple of investigations and one was conducted by Ransom Powell, who was a relatively well-known attorney in Minnesota because he represented some lumber company interests and he was selected to do the process at White Earth. There's a clear political choice there on the part of the U.S. government in choosing him, but he and his team went around and interviewed Anishinaabeg people asking them, "˜Is so and so mixed blood or a full blood?' and those records are extraordinarily rich with responses by people at White Earth saying, [a] "˜I have no idea what you're talking about when you say mixed blood and full blood. We don't define people like that.' 'I can't remember' was a big one. And then Powell and his associates would then also ask questions like about phenotype. "˜Well, did such and such have dark skin' and Anishinaabeg people would say, "˜I don't know, I don't remember,' or some people would say, "˜I don't know, they weren't really light but they weren't really dark, they were kind of medium,' and so Anishinaabeg people found all these inventive ways to kind of get around these definitions that the U.S. government was trying to push, which were these sort of fixed biological, unchanging definitions and for Anishinaabeg people identity wasn't something that was fixed. Identity was something that people created themselves through their actions, how they lived their lives, what choices they made and so they conveyed that time and again in the interviews. And so part of what I shared was some of my research on that, that identity was fluid and people were empowered to create their own identity, which I think is really interesting for us to think about today, that many of us have been really familiar with blood quantum and thinking of identity as this thing that is unchanging that you're born with versus a 100 years ago, Anishinaabeg people saying, "˜Well, you make yourself a full blood or you make your own identity.'"

Ian Record:

"So you brought up a good segue to the next question, which is about blood quantum, because in 1963 White Earth, the sole definition for...sole criterion for citizenship at White Earth became blood quantum. And I'm curious -- how did that come to pass? And it doesn't sound to me like the White Earth people certainly prior to that and I would imagine in 1963 probably didn't fully embrace that change, did they?"

Jill Doerfler:

"Right. Blood quantum I always think is used to disenfranchise people at White Earth in two ways and first it starts with those land transactions. Ultimately, what that investigation found is that about 90 percent of people at White Earth were mixed blood, i.e. 90 percent of those land transactions are legally valid and there's no legal recourse. And so people at White Earth were familiar with how the federal government could use identity to disenfranchise them, in that case to take land basically illegally. And so White Earth becomes part of the Minnesota Chippewa Tribe, which forms in 1936 with the IRA kind of style government and originally there isn't real firm criteria for citizenship. People basically apply to become citizens based on their parents and they're approved. There is no blood quantum requirement initially. And the Secretary of the Interior starts writing to the tribal executive committee, which is the governing body of the Minnesota Chippewa Tribe, saying, "˜You really need to think about your citizenship requirements and you really need to think about using either blood quantum or residency or some combination of these things.' And many members of the tribal executive committee including people from White Earth said, "˜No, we don't want to do that. That's going to become a problem for our children or our grandchildren and we need to think about future generations.' And so they passed several resolutions on citizenship that were lineal descent and sent them to the Secretary of the Interior who has, there's an approval clause in the constitution that the Secretary has to approve. The Secretary rejected all of those resolutions time and again and so over about a 20-year period, this would kind of ebb and flow. It would kind of come up and they would pass a resolution and the Secretary would reject it and then time would pass and the Secretary would say, Well, you really need to decide this.' And they would do the same thing and the Secretary would write back saying, "˜For all intents and purposes, this is the same legislation that you sent me last time. I rejected it last time, I'm going to reject it now.' And then finally we move into the later "˜50s and into the early "˜60s and this is termination time as people familiar with American Indian history are familiar. And basically there were some letters sent that weren't too veiled threats regarding termination saying, "˜If the Minnesota Chippewa Tribe doesn't decide this very soon it'll be made a matter of Congress and Congress will decide.' And so ultimately the tribe agrees to one-quarter Minnesota Chippewa Tribe as the sole requirement for citizenship. It gets voted on by the leaders in '61 and it goes into effect in '63 as a constitutional amendment."

Ian Record:

"So it sounds like this was at the beginning...it sounds like this was a main topic of conversation from the get-go when the new effort began."

Jill Doerfler:

"Yes, absolutely it was. People have felt the impact of blood quantum now. I myself am one of those people. As you mentioned, I'm a White Earth descendant, meaning my mother is a tribal citizen and I'm not and the reason is because of blood quantum. And so many, many families have been impacted, literally divided by blood quantum which is what leaders were talking about in the "˜30s and "˜40s and the record on their statements is very rich, very impassioned speeches about the importance of family and how this will affect the future. In a lot of ways, it was a delayed form of termination. The tribe in some ways was up against these threats of immediate termination, but blood quantum itself is designed to slowly make the population smaller and eventually designed to eliminate tribes. And the Secretary of the Interior was very, relatively frank about that in some of his communications to the tribe saying, "˜Every person that you add to the roll diminishes the share that each person has,' and so trying to use resources to try to get people to tighten up citizenship requirements, trying to limit population numbers. And so to some extent, it's working. And the tribe actually did a demographic study recently showing population and the demographer found that using trends over the last 100 years, if we kind of average things out, we anticipate that by about 2040, we'll just have an aging population, there won't really be anyone eligible for citizenship, and by about 2080, 2090, we anticipate that there may be few or no citizens meaning that as the U.S. government has hoped, the nation will cease to exist. If there are no citizens, there are no treaty obligations, no tribal government, and it's over."

Ian Record:

"So you said the resolutions were from about the 1930s and the 1950s from White Earth about this issue and they were all rebuffed?"

Jill Doerfler:

"Yep. Yeah, "˜30s, "˜40s and then they tried some other tactics sort of in the "˜50s because what was happening was some people were like being rejected from healthcare, other BIA [Bureau of Indian Affairs] programs and the Minnesota Chippewa Tribe and White Earth as a part of that would write to the Secretary of the Interior or to the agent and say, "˜These people are our citizens and they don't have one-quarter blood quantum as the Bureau sometimes wants, but they're still our citizens and they still are entitled to these services.' And there was a big fight and as I said, the record is really rich, and I would imagine that the same is true for other tribes, and I would really encourage other tribes to take a look at their histories and kind of examine what was going on. If the tribe has blood quantum, how did that come to be, what was going on before that? Because I think for lots of people at White Earth, you know, we've had blood quantum since '63. A lot of people have grown up with that and not known anything different, and we need to look back at what our ancestors were saying, what people were doing historically, and think about, 'How can that guide us today? Can some of their wisdom still apply today?'"

Ian Record:

"I saw you when I was doing my presentation yesterday, I was making that exact point. You were nodding your head 'cause I was basically saying that it's absolutely vital for tribes when they begin the constitutional deliberation process that they need to first understand where they came from, where their constitution comes from, what's the oral history, what's the archival history, what's the documentation around what your own people were thinking back when these things were created and did they have any say in how these things were created? Or did they try to voice their opinion on how these things were created and were ignored, were refused, etc.?"

Jill Doerfler:

"Absolutely. I think that's very key. I think people sometimes assume that whatever document we have now or whatever document their tribe has been operating under was somehow sanctioned by elders or was the result of a lot of deliberation and thought and that's not necessarily the case. Sometimes these constitutions were passed with very little participation, sometimes the Secretary of the Interior or other bureaucrats from the BIA were heavily involved in writing these constitutions and it's important to look at that history. Before you're ready to move forward you have to think about the past, because really the way that we construct the past and what happened helps us understand our present and that's what helps us envision our future as well."

Ian Record:

"Isn't it really...at a fundamental level isn't it really an issue of ownership, that there are a lot of people in the community that -- because they don't know that back history, they don't know the origin story, if you will, of their current constitution and system of government -- that there is a sense that we do own this, that this is ours, that this is somehow our creation when in most instances, I won't say all, but in most instances, that's absolutely not the case."

Jill Doerfler:

"Yes, exactly. Yeah. There can be a loyalty to that document that maybe people would have a different opinion on if they had a little bit more historic information."

Ian Record:

"So I want to kind of dive now into how you guys deliberated citizenship, this issue of citizenship in the recent reform process. At the outset you developed some questions to help guide constitutional delegates in terms of evaluating the different options for redefining tribal citizenship. Can you talk about what those questions were and why you chose them?"

Jill Doerfler:

"Sure. It was actually a little bit more towards the end of the process. So we had had several deliberations on citizenship. I had given some presentations also on the history of blood quantum, which is important. It's important for tribes to know their own history, but then blood quantum as a concept has its own history. So we discussed those things, and then because of previous reform efforts at White Earth, there was a constitution created that had a list of citizenship options and so we utilized those during the current process. And so I asked delegates to take a look at those options and start going through them and based on the previous conventions I created a set of questions that wanted to ask which of these options best enacts our Anishinaabe values and beliefs because delegates had said time and again, "˜What we want is a constitution that's ours, that reflects our Anishinaabe culture and our values and how can we put that in the constitution? And so that was kind of an easy mark to say, "˜Then that's a question we want to ask as we look at our citizenship options.' One delegate had talked about how citizenship really is part of the question, who are we and who are we in our hearts,' which I thought was good so we utilized that. We also utilized a question relating to which of the citizenship options will be best for White Earth in the future, so not only looking at our current situation, not only thinking about ourselves or delegates thinking about themselves, but thinking about future generations as our ancestors had encouraged us to do then if we used that to look at the different options."

Ian Record:

"So tell me about one option which you've termed the "band-aid" option or maybe you didn't come up with it, but it's what you shared as the band-aid option. What did it propose and why was it ultimately discarded?"

Jill Doerfler:

"Sure. So we basically had several options that we were looking at. One was lineal descent, three were a variety of blood calculations of different types that were...some were relatively complex, and then delegates, White Earth delegates came up with another option during one of the conventions. One of the small groups said, "˜We have another option which is to make everyone who's currently enrolled, whoever is on the rolls right now, we'll make them a full blood. We'll make them four-fourths.' And ultimately that became termed the 'band-aid' approach. I think one of the delegates said that, that wasn't my term, but delegates considered that option a little bit and it was called the band-aid approach I think because it just put a temporary fix on the problem. What it would do would make it so that everyone who's a citizen now would guarantee that their grandchildren are enrolled no matter who they've had...who their children had children with, etc., that their grandchildren would be enrolled. But it doesn't guarantee anything beyond that. So we're looking into the future, but we're only looking into the future a little bit and there were probably definitely delegates with great-grandchildren who are part of the process who could already see that that probably wasn't forward looking enough. And delegates talked about the fact that this will fix the problem now, but what it will ultimately do is pass the exact same problem on to either our children or onto our grandchildren or some future generations, and so I think delegates ultimately felt like they came to be part of the process to make the hard choices. This isn't going to be an easy choice regarding citizenship, but they wanted to make it in a way that was more forward looking than just two generations in the future."

Ian Record:

"I think on Capitol Hill they call that the 'kicking the can down the road' approach."

Jill Doerfler:

"I think they do."

Ian Record:

"So what decision -- and I think you referenced this already -- but can you talk about the decision that the delegates finally arrived at regarding citizenship, and how did they arrive at that decision?"

Jill Doerfler:

"Sure. Ultimately lineal descent was selected as the option. We deliberated it, delegates deliberated it several times, I had given several presentations as I said evaluating options and sharing information and finally we were discussing different options for citizenship and finally one delegate just made a motion and said, "˜We would like to stop discussing options that deal with blood quantum.' It passed and therefore the only one option that doesn't deal with any type of blood quantum, that was lineal descent and then we moved forward from there. And I think it was probably a culmination of things. In some ways I think delegates who probably decided from the outside that they were in favor of lineal descent were maybe weary of talking about it because we had spent a lot of time on it and so I think for some of them they were like, "˜We are ready to make this decision' and I think for other people it was a little bit of a push that they needed to be like, "˜Okay, we're just going to...we're going to have to just make a choice here. We're never going to get a unanimous decision. There's going to be some people who are going to vote for and some people who are going to vote against and we have to accept that process and move forward.'"

Ian Record:

"So how do you...it seems to me that you're pretty certain that this will strengthen, this new criteria will strengthen the nation moving forward. Can you discuss in what ways?"

Jill Doerfler:

"Sure. Well, I think ultimately it is an enactment of our Anishinaabe values. It really places family and relationships at the center of the nation which is historically appropriate, which is things that we know that our ancestors wanted, and so that's advantageous 'cause it's putting those values into action. If we say family and love and respect is at the heart of the nation, how can we do that? Well, using lineal descent, using family then is one way to do that. It also strengthens the nation from the perspective that potentially we have the option to exist in perpetuity. We don't have a graph with a line that shows when the population will end like we do with blood quantum. We have the idea that as long as families are passing on their values and traditions and political loyalties exist, people will choose to become citizens of the nation and that leaves that option open. A strong citizen base I think is critical for any nation. It gives them a diversity of resources regarding people, what citizens can contribute to the nation, which is something we also talked about at White Earth quite a bit. Sometimes there's a perception that citizens will just drain resources and people will just want to become citizens in order to get certain benefits. We also talked about the fact that becoming a citizen is a responsibility and that when you make that choice to become a citizen, A, you're in some ways acknowledging the jurisdiction of the White Earth Nation, B, you're submitting yourself to those laws and codes and you have obligations to carry out. You're not necessarily going to get anything. We don't have per capita payments at White Earth. I don't see that happening in the future, and I think we want to think of citizens as assets and think about how can more citizens provide more resources. How can having somebody who's a citizen who has expertise in environmental like change, climate change be an advantage? How can we bring more people in and be more inclusive and what could that mean both for the nation politically and economically as well?"

Ian Record:

"So it's interesting you mention this issue of obligations. We talk with a lot of nations about that issue, that somewhere it was lost in the colonization process the obligations of citizenship, that a lot of folks in Native communities, because of the legacies of colonialism, view their relationship with the government as 'what do I get out of it?', not so much what the government and the nation should be expecting of them and what they should be obligated to do. Can you be a little bit more specific on what sort of obligations I guess are expected of citizens under the new constitution and system of government?"

Jill Doerfler:

"Sure. And I'll also say that I think in some ways, because of colonialism, that the relationship with tribal government and the relationship with federal government has sometimes been a little bit confused and I think there is this obligation and what the federal government owes especially via treaty obligations to tribal nations and tribal citizens. But tribal governments don't necessarily owe tribal citizens anything. They may choose to provide services, again enacting our values or choosing to do certain things, but that's not an entitlement necessarily that somebody has. So part of being a citizen is contributing and everyone...as Anishinaabe people we always say, "˜Everyone has a gift,' and the range and diversity of gifts is important to us. We don't want everyone to have the same gift. We want a diversity of people which also relates to increased population. But everyone will contribute in their own way. They will contribute maybe working in tribal government, maybe working for a certain program or service. They may contribute by raising healthy children, they may contribute by helping other family members, they may contribute in a wide range of ways, but focusing on that instead of focusing on what a single person might get."

Ian Record:

"I want to move now onto the other aspects of the new constitution, and I'll ask you in a second for your thoughts on what you think stands ou,t but I'm curious, there's one change that I forgot to write on the list of questions and that is, you're no longer the White Earth Band of Ojibwe, you're now the White Earth Nation. Why was that change made?"

Jill Doerfler:

"Well, we use that sometimes now anyway and we do feel it's a little bit more appropriate for us. It's a little bit stronger assertion of our sovereignty. That's been a preferential name that we've used internally for a while and so this was an opportunity to make that change officially in the constitution."

Ian Record:

"So what other things stand out in terms of the new constitution? Can you give us a brief overview of some of the concrete, fundamental differences between the new constitution and how you govern yourselves under the old arrangement?"

Jill Doerfler:

"Absolutely. I think the separation of powers is one of the biggest things. When Chairwoman Vizenor first announced the fact that she wanted to start constitutional reform, she mentioned two things: citizenship and separation of powers. Currently, there is no separation of powers and the court system is basically established via statute not in the constitution, which gives it a little bit more precarious of a position. And so the new constitution, the ratified constitution of the White Earth Nation, separates out a president, a legislative council, and the judiciary, and each has separate roles and responsibilities. Also the legislative council is not enumerated in a fixed way, because we know that White Earth population will change over time and we don't want to lock ourselves in to having three representatives or three districts or five districts and so that is left open, that will change over time. One part that is fixed is off-reservation representation -- which is something that doesn't exist now -- in a very concrete way. Right now, everyone votes for the chairperson and the secretary-treasurer. They're elected, as we say, at-large. But there are three districts on the reservation right now. So the constitution has sort of open number of districts on the reservation and then two representatives for off-reservation but within Minnesota. And so that's a guarantee that off-reservation [citizens] will have at least two representatives, which is important because we have a large portion of the population, White Earth citizens living off the reservation, so that was a major change. And as I said, having the judiciary separate and established within the constitution, that's really critical because things like the new Tribal Law and Order Act and the Violence Against Women Act, which is hopefully going to allow Native nations to extend their jurisdictional reach a little bit, part of that is having that separate judiciary helps guarantee for everyone that there will be some independence there. I think most of us in Indian Country are in favor of increased jurisdiction, but increased jurisdiction without a separation of powers can be a little bit scary and so that's also..."

Ian Record:

"It essentially raises the stakes and if you maintain a politicized court system, it's just going to make things even worse potentially."

Jill Doerfler:

"Correct. I'll also say a couple of other things about the new constitution. Currently at White Earth, we have community councils, which are operating in a relatively informal basis. They're not written into any governing document, but in the new constitution we have community councils established, we have an elders council and a youth council, and they all have real important roles within the community for people to gather to talk about political issues to also engage in cultural activities, to keep language and cultural practices ongoing and it allows people ways to engage the elected leadership and allows elected leadership maybe to choose to come to a youth council meeting or to come to an elders council meeting when they have a problem. And so that was really important to delegates, and I'm really proud that we have those different councils established and set within the constitution itself."

Ian Record:

"That's fascinating. One tribe I worked with for quite a long time, they, in a draft constitution, which has not yet been ratified, they actually gave constitutional authority to their elders council and their youth council to review legislation before it could be voted on which I thought was really cool."

Jill Doerfler:

"Wow!"

Ian Record:

"I'm really looking forward to that getting ratification at some point. So we talked about what's actually in the new document, some of the things you referenced. That's ultimately just a piece of paper. That leads me to the question: what's the new governance reality that that document seeks to create? How does it seek to improve the effectiveness of White Earth governance and make it more culturally appropriate, etc.?"

Jill Doerfler:

"Yeah, I think also trust is a big issue with government at White Earth and other nations as well. White Earth, as I said briefly, has had some issues with fraud and corruption in the past and that has really tainted peoples' view and their trust and their view of the tribal government as legitimate. And so we hope that the new governing document with the separation of powers, with the ways in which elections are structured, will help improve peoples' pride in the government, potentially their political loyalty, that would be improved."

Ian Record:

"If you were to explain to somebody that knows nothing about your tribe and knows nothing about the reform effort, what aspects of the new constitution and the new governance system are most culturally distinct to White Earth, what would you tell them?"

Jill Doerfler:

"I would say that our preamble is actually potentially most distinct. Preamble, as some people know, is a place in the constitution where there is sometimes a little bit more freedom rather than the articles and exact procedures that are laid out. But I think the preamble is really nicely written, acknowledges our broad range of relationships and cultural values historically and contemporary, and so I think that does a nice job. I do think that we have some processes for basically ethics, impeachment, citizens are allowed to petition. I think that kind of citizen involvement is very culturally appropriate and something that people will welcome having in the new constitution in a way that citizens haven't been able to be as engaged with the current governance structure. And I think historically, Anishinaabeg people and White Earth people had a lot more opportunity to engage leaders, to be a little bit more involved in the process than is currently available, so I think the new constitution also does that. And I think the balance of checks in power and balance of power is also culturally appropriate. Historically, Anishinaabeg people didn't have one or two leaders who were making all the decisions for the tribe. That power was disbursed, there were lots of lengthy council meetings where people could get out and participate, and so we see some of those things integrated in the new constitution as well."

Ian Record:

"So what cultural values would you say does the new constitution seek to protect, advance, to live, and what future do you feel it's designed to help create within the nation?"

Jill Doerfler:

"Sure. I think that one of the things that we talked about a little bit during the process was cultural values and core values. At ones point delegates were asked to identify some of their core values and write belief statements, and ultimately they came very close to intentionally or not intentionally mirroring our teachings, which are sometimes called the seven grandfather teachings, which is basically love, respect, honesty, humility, wisdom -- these types of really basic core values that transcend time, that transcend place that we can all be engaging in today. Sometimes culture for American Indians gets fixed a little bit historically in the past and fixed into certain actions, but if we think of love and respect as part of our cultural values then that opens us up to enacting them today."

Ian Record:

"So final wrap-up question. You guys have gone through the whole process. You're awaiting a secretarial election, is that correct?"

Jill Doerfler:

"Right."

Ian Record:

"But in terms of the actual process and the crafting of a new foundational governing document, you've gone through that process. What do you feel other nations can learn from the White Earth experience? What sort of lessons do you feel that you've learned that might be transferrable to the challenges that other tribes are facing?"

Jill Doerfler:

"Right. So I do hesitate to say we're through the process, 'cause we're gearing up for a really...hopefully what will be a really big citizen engagement and education effort, because things have been sitting at White Earth a little while. Delegates ratified the document in 2009, it's now 2013, and so we do need to work this summer and into the fall to reinvigorate and to educate about the document to make sure any questions that people have are answered. But as far as the writing process and the process that went into getting the document that we have now, I think that transparency was key. I think we did a relatively good job with that. I think since we've finished, social media has really taken off and I would say if we were doing...the nation who's doing it now I would say need more presence on the web. We primarily used newspaper articles which was great, but things on the web can happen a little bit more in real time and I think that would be something that tribes could utilize. I think the fact that we were inclusive as far as delegates went is also good. It also provided some trust I think to people who were maybe skeptical of the process. We can say that everyone who wanted to be included was included but there was that application process and there was a deadline and that was it. There were later some people who wanted to become delegates after the process started and we were unable to do that because we had to stick with our original plan. But I think that that was good as well. I think if we would have added new delegates later we would have almost had to start over and re-educate, so I think it was good that we had that open process, but then once the delegates were selected we stuck with it and we didn't make changes. So I think it's easy to say, "˜Oh, yes, we'll add you,' because there were definitely great people who came along that would have been great additions. Instead we said, "˜Please continue to come to the conventions and you can still share your thoughts and ideas and talk with the delegates and be involved that way.'"

Ian Record:

"Well, we really appreciate you taking some time out of your busy schedule to share your thoughts and experience and wisdom with us, and I'm very eager to see how things unfold there. I definitely think that other nations that are talking about reform, embarking on reform, struggling with reform can certainly learn a lot from the White Earth experience."

Jill Doerfler:

"Thank you. It's been a pleasure to be here and I'm definitely looking forward to our referendum, which will hopefully happen soon."

Ian Record:

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

Honoring Nations: Pat Cornelius: Oneida Nation Farms

Producer
Harvard Project on American Indian Economic Development
Year

Manager of the Oneida Nation Farms Pat Cornelius presents an overview of the organization's work to the Honoring Nations Board of Governors in conjunction with the 2005 Honoring Nations Awards.

People
Resource Type
Citation

Cornelius, Pat. "Oneida Nation Farms." Honoring Nations Awards event. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Tulsa, Oklahoma. November 1, 2005. Presentation.

Pat Cornelius:

"Well, good afternoon everyone and to the Board of Governors. Thank you for inviting us. What I heard this morning with the presenters are really impressive.

Just to let the people know here that the Oneida Farm is one of the biggest farms in northeast Wisconsin. Total acres approximately 9,000 acres. We're tilling approximately 4,700 and some acres. Fifteen years ago we started with 300 acres and 30 head of cattle. It was our general tribal council that said to our council that we should go ahead and purchase our land back, so that's what we're doing. They gave the land commission nine million [dollars] every year to repurchase our land base back.

The Oneida Nation Farms: the Native American Agriculture in America Midwest Heartland

Difficulties and obstacles: the many difficulties and obstacles the Native Americans have seen during the past three centuries must be addressed. We were America's first farmers and we were good stewards of the land and many Native Americans lost their homelands and were displaced to unfamiliar areas with little or no resources to make their living at all. While most farmers and ranchers in America flourished, Indians lacked the modern agricultural know-how and until recently could not get capital, technical support in making agriculture work on the reservations. But we have begun to grow through learning and practical application and this is done through the Kellogg Foundation, First Nations [Development] Institute, Intertribal Bison Cooperative, IAC, USDA Technical Assistance, progressive leadership by our Oneida tribal chairman Gerald Danforth.

Two hundred years ago: history is replete with the early agricultural success of the Oneida Tribe. In the 1500s, the Oneida community in New York were visited by traders [who] reported millions of bushels of corn in storage, 500 acres of land in production. In the early 1900s with a diminished land base, the Haudenosaunee Oneida agriculturalists continued to operate self-sufficient homesteads throughout the territory. We raised white corn, beans, squash, fruits, orchards, domesticated animals. Our cellars were lined with home grown and home canned foods and their corn cribs were full of white corn and they sold food and economics and crafts for a living, although some had already joined the labor force. The cultural, agriculture and social diminished of the Haudenosaunee society were intricately interconnected and intertwined. Well, times have changed.

The Oneida Tribe began settling in what would become Wisconsin in the 1820s. The Oneida Tribe had a treaty agreement with the Menominee Nation for eight million acres. The treaty was for the use and occupancy of the land and the land agreement was then reduced to 500,000 acres. The Oneida Treaty of 1838 gave the Oneida Tribe 65,000 acres and under the Dawes Allotment Act the land base dwindled down to 200. In a hundred years we went from that to approximately 100 acres or 200 acres of land. Traditional tribal culture makes no distinction or separation between spiritual worldviews, values and cultural practices. As Euro-American contact progresses, tribal cultures were devastated.

The allotment and assimilation eras promoted by the Dawes Allotment Act of 1887 and the boarding school era. The boarding school era took infants and children who were ripped from their mothers' arms and placed them in a school far away from their families and literally beat the Indian out of these youths to assimilate them to take the savage out of them. However, they did not understand the deep-seated nature of our cultures, our values, and many of our Native people at that time literally took their culture and tradition and values to the underground to preserve them and preserve their cultural identity. They would not be broken people.

Land and reacquiring our land base back

For the Oneida Tribe everything today is about land and reacquiring our land base. Today, Mother Earth remains the basis of our life for the Oneida people, giving our people subsistence, healing and identity. It connects the past and the present and drives decisions about the future. The Tribe is trying to buy back its full original reservation in northeast Wisconsin. It has laid legal claim to Native land in New York, in upstate New York, and it continues to invest in agriculture and environmental protection programs. Land also goes back to our ceremonies. Land is important in terms of where our ancestors are buried, where the medicines grow, where the trees grow on our Nation. The Oneida Tribe is in the process of reacquiring the original boundaries and has reacquired 17,800 acres, plans to purchase 1,000 acres a year and will have reacquired 51 percent of the 65,000 acres by the year 2020.

The Oneida Nation Farm was started in 1978 and was known as the Iroquois Farm. It had 150 acres and primarily grew vegetables and had a herd of about 25 head of cattle. The Oneida Tribe in their 1979 comprehensive plan proposed using acquired agricultural land to diversify the economy, provide food for the people and to provide employment for our people. We had a meager beginning. In 1989 the farm operation where I began was 350 acres of land and 35 head of cattle. In 1990, the business committee issued a list of objectives. One of these was for the tribe to produce its own vegetables and meat by the year 2000. [In] 1992, the farm land base tripled in size. In 1993, investments in equipment and upgrades to the livestock feed lots were accomplished. These improvements resulted in a workable and efficient farm operation today. At this time, a vertically integrated Oneida agricultural operation became the focus and study to determine the potential for developing a new cannery facility and would process our own meat and our own crops grown on the Oneida fields and could market, distribute, sell the products to our own citizens and other consumers. In 1994, the farm's land base consisted of 1,981 acres of which 1,429 were suitable for crops. So we fast-forward to the year 2004 and we find that the Oneida Farm and the Oneida Agricultural Center grew significantly and responsibly while managing the current...it says 9,000 acres, and diversifying a sustainable farming operation with nine employees.

Consider the following: the farm currently produces 4,750 acres of cash crops, fields of corn, soy beans, wheat, oats and alfalfa. They are either consumed by the farm livestock or we sell it to our neighbors or to outside buyers. We generated nearly two million in revenues in 1995 by placing 2,000 acres sub-marginally acres into federal conservation programs and then we manage 450-550 a year nearly natural Black Angus beef in our feeding operation. We established a hundred head cow/calf rotational grazing project through the federal and with the assistance of the EQUIP program. So we do rotational grazing and now we have a hundred head of calves as well by their side. We established 115 head of bison with the help of ITBC [Intertribal Bison Cooperative] including fencing, water wells and corrals.

We produce traditional white corn, sweet corn for our tribal members and we have a 30-acre apple orchard and we provide healthy harvest in 2004 with sales to our regional orchards that had a poor production year. The orchard store sells squash, pumpkin, pick your own apples, fresh apples, apple pie filling, apple cider, apple butter, applesauce and we sell beef and buffalo and other Native American products. We began studying the creation expansion of a unique Oneida orchard agricultural market with greater country appeal than the large box stores, established new marketing with billboards -- State of Wisconsin, Something from Wisconsin -- and working with the radio stations and newspaper.

It is important that I work with the Oneida Nation school system to begin teaching agricultural business and agricultural bison programs within the schools. We entered the world of high tech. We do our farming with global positioning, high-tech equipment for our plants, our crops, our fertilizer base, and our production. The Oneida Farm works closely with outside funding sources. We worked with again the Intertribal Bison Cooperative, Kellogg Foundation, First Nations [Development Institute], Native American Social Economic Development Strategies, and all USDA programs. Thank you."

Amy Besaw:

"Questions from the board?"

David Gipp:

"You've got a remarkable amount of diversity just within all of your programs that you operate here and I think you're to be commended for it, really some very historical and cultural work that you're doing within your nation. Agriculture and nutrition are I think two critical issues to many of our tribal nations across the land and I guess one of the key questions I always ask is, how do you look at transferability and how does this kind of model that you use work, how could it work for other tribal nations? And what are some of your key ingredients -- if you were to give that advice to another tribal nation -- about how to apply both agricultural and nutritional issues, because as you know diabetes and all of those kinds of issues are real, real problems for most of our population out there throughout Indian Country?

Pat Cornelius:

"Well, working a farm or agriculture or any business with an intertribal government can be...test your strength and your job. What it needs is you need the backing of your tribal...the business committee that we have back home. We need all the players to be involved to support the project to say that health is important, food is important, food security is important and it has to come from the top down. If they support you, that makes my job easier. And then to address the health issues, I am now contacting our diabetes program and working in the schools. We just got our foot in the door so to speak and I think it's critical that we work with our youth and get them to understand -- not only youth as far as health -- but youth to get them involved in coming out and working in the area of agriculture. I worked with youth for 12 years prior to taking this job. I was a home school coordinator at one time and our youth and elders are just...they're our future. They're the future. And who said that we couldn't do farming? Tribal people can do farming and go back and take it back and do it."

Elsie Meeks:

"I just want to make a really quick comment. I would like to commend the Oneida Tribe for hiring a woman as their farm manager."

Pat Cornelius:

"Well, here's my Chair, here's the tribal chairman Gerry Danforth."

Gerry [Gerald] Danforth:

"If I can just comment briefly. I'm the Chairman for Oneida, just recently elected, but I would remiss extremely in my responsibilities as the tribal leader and from the previous tribal leaders who have saw in their past has the wisdom to see this come to a reality but none of this vision would have ever occurred or come to place today with the form of recognition that this Harvard Project has introduced and it certainly would not have become a reality without the steadfast dedication of this woman standing here today, Pat Cornelius."

Pat Cornelius:

"Thank you. Thank you, Gerry."

Oren Lyons:

"I'd like to ask you, what's been the reaction of your non-Indian neighbors to the development of your farm and also to the buffalo herd?"

Pat Cornelius:

"Well, it started like this, is that when we slowly started...I started with the 300 acres, that's how I started my management position to where it is today and I'd go to these feed programs and these programs. My mother's full-blooded Oneida, my father is full-blooded Polish so I kind of look like the Polish side. So I'd go into these meetings and I'd listen to them because like this around, the Oneidas are farming now and they'd say, 'Now what are those Indians doing?' And they'd want to know what the Indians were doing. And they said, 'Oh, the federal government must have bought them a tractor and a combine.' Well, I let them talk and talk and then I'd go over and I'd say, introduce myself, and I'd say, 'I'm Pat, manager of the Oneida Nation Farms.' Well, either they'd turn so red and walk away or they would sit down and talk to me. It has made a big turnaround in our community that we're now very well-respected as far as doing agriculture and they watch us and even some of the new modern machinery that we get to put soil and residue first in how we operate and manage the soils that one day I bought a piece of machinery and within a month there was three farmers that bought the same piece of machinery once they seen us use it. So they do watch us and it's really turned around to being respectful now."

Oren Lyons:

"Are they buying your produce?"

Pat Cornelius:

"Yes, they did. I just sold, right there the corn off that field and we were 230 bushel to the acre on that field and we were...we sold it to one of the big dairies nearby. The first check came in was $78,000 and the next check was $197,000."

David Gipp:

"So it won't be long before you'll be replacing this Land O'Lakes stuff then, huh?"

Pat Cornelius:

"Yes. Oneida Tribal stuff."

David Gipp:

"Very good. One of the other questions I had is that we understand that the effort that you lead really has led to reacquiring about 27 and a half percent of the former reservation or reservation lands or territory I guess. Is that also a part of your long term idea or plan to reacquire even more acreage that benefits agricultural and the citizens of your nation?"

Pat Cornelius:

"I would say yes because most of the acres, the large acres tracts that we have within our area is coming from dairy farmers that are either elder and they don't want to farm anymore. We don't even have to go out and ask to buy land, they come to us. But the land runs anywhere from $5,000 to $9,000 an acre right now and that's what they're charging and if you want it back, that's what we have to pay. I've been on the land commission for 20 years also. I wear about 10 different hats but I just do my job. I just do my job. I work with youth, work with the elder. Sovereignty, the land is important. When I started with the land commission, we had less than 2,000 acres."