capable governing institutions

Eldena Bear Don't Walk: So What's So Important about Tribal Courts?

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Native Nations Institute
Year

Eldena Bear Don't Walk, Chief Justice of the Confederated Salish and Kootenai Tribes, discusses some of the things that tribal justice systems need to have in place in order to be effective, and how important it is for Native nation governments and citizens to respect and support the decisions those systems make. She also reminds that people need to remember that many if not most tribal justice systems are in the early stages of development, and that their continued development must be cultivated.

Resource Type
Citation

Bear Don't Walk, Eldena. "So What's So Important About Tribal Courts?" Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Presentation.

"I'm Eldena Bear Don't Walk and I'm going to tell you a little bit about myself before I get started. I am that kid who always planned to be an attorney. I either wanted to be an attorney or Loretta Lynn; I'm not quite Loretta Lynn, yet. My father is Urban Bear Don't Walk and my mother is Marjorie Mitchell-Bear Don't Walk. My father is one of the first American Indian attorneys in the United States. He's mentioned in In the Courts of the Conquerer. He is the second Crow to ever get a law degree and I am the second generation of Indian attorneys and we're very proud of that in that as Indian people we are developing, we are creating legacies. We now have not just a single generation, but generations of college graduates, we have generations of doctors, we have generations of attorneys, and I think that that can't be emphasized enough in that as we are developing as tribal people, our systems are developing.

How many of you don't have tribal courts? I think that there are several tribes who don't have tribal court systems yet, who might use inter-tribal court systems, whose court systems are fairly new. And I'm 40 and I tell you that because, for example, the Crow court system, in 1975 when my father was still in law school, he and my uncle developed the Crow Court. So the Crow Court is only 38 years old. It's like my little brother and in that, that means that it's still developing.

I became the first woman ever to be the chief justice of the Crow Tribe, but I like to tell people about that process. I got a phone call one day that said, ‘Hey, we really want you to do this; it's an appointment that you have to get through the chairman. He's interested in having you do that.' And so I called my parents because that's the way I was raised. I was raised that in the big decisions in your life there is a lot of consultation and it needs to be meaningful consultation. I call my grandparents, I call my parents, I call my brothers, I talk to my child, I talk to my partner. And I called my dad and he said, ‘Well, this is the third time they've asked for you, so I guess I'll say yes.' Apparently they had been asking him if I would do this and he had been saying no, for whatever the reason was, apparently maybe he didn't think I was ready yet, and I think that that's an important step sometimes in developing programs, are people ready? I don't think it's the best idea to throw a brand-new graduate into running a court system. I think experience is meaningful and powerful and valued in tribal systems. So I started that.

I've been an appellate judge for eight years for a variety of tribes. I worked for the Northern Cheyenne Tribe. I've served almost every tribe in Montana with the exception of Fort Peck and Blackfeet and I worked in Blackfeet Court as an attorney. I haven't served in Fort Peck because, man, it's far away from where I live. It's like 20 hours. It's practically in North Dakota. So I want to talk about that though.

When I was five, you know you have those career days, or maybe it wasn't five, it was like fifth grade and I wore my dad's judge's robes and everybody thought I wanted to be a nun. I am far from being a nun. The sad thing is I was looking for his judge's robes just recently and I can't find it. I swear I saw it because I wanted to wear it. That's what I wanted to wear in court. We all have things that are important to us and most importantly that judge's robe was important because my mom made it. My mom made it for my dad in a time when tribal courts were in the back of some building trailer in the middle of nowhere. Now you go to tribes and they have amazing courtrooms. We went to Pascua Yaqui while I was here. I've never had to go through security that tight. Pascua Yaqui has like TSA-quality security. You have to empty your pockets; they want to see what's in your bag. You'll plan ahead what you take with you before you go into their court system.

So now I work in two courts, three on occasion. I have written 70 appellate opinions in my career at this time, hopefully more to come, so I have a great value for tribal courts and I'm very passionate and enthusiastic, but I'm also very honest about tribal courts and their systems and what is helpful and what is not helpful. So I want you to keep in mind that while you hear a lot of complaints about tribal court systems, we're developing, we're young. Tribal courts are as young as some of your children, as young as some of you and in that, you know at this stage in your life you don't know everything, you don't have everything in perfection, and without that sense of humility about our court systems, it's difficult to drive them forward, it's difficult to make them into something better. You have to treat them sometimes not like a child, but as a developing progress. I like to tell people that our codes are living documents, just like anything else, just like the American constitution, just like the American code, our codes have to be refined, they have to be rewritten, they have to be addressed, because 30 years ago when the first code was written for your tribe or for my tribes nobody knew about meth, nobody knew about certain drug laws, nobody thought about writing a dog ordinance for all of the crazy dogs running around town. You didn't talk about seat belts; you didn't talk about housing issues in your codes.

I'm very excited about the Confederated Salish and Kootenai Tribes right now; they just developed their own Child Support Enforcement Code, instead of using Montana's, instead of using somebody else's we developed our own and why shouldn't we because tribes are best situated to determine for themselves what their needs are. That does not mean though that tribes should reinvent the wheel. There's lots of great code out there, there's lots of tribal courts doing amazing things. What an honor to sit here with Justice [Robert] Yazzie, knowing that the Navajo Court is one of the pinnacles of tribal courts in what they do in instilling cultural value in dictating to their tribal people what their law will look like, what they want their tribe to continue. Law and lawlessness in Indian Country is historical. We've always had laws. Maybe they weren't written down in a little code or on your computer or on the Internet, but we've always had laws and we've always had people who maintained them. We've always had mediators. We've always had people who needed that mediation and who needed some reminding that they need to follow the law and that their actions impact people.

So in talking about what's important in tribal courts, I once taught -- I'm an adjunct professor at the University of Montana School of Law -- and my father always says the most dangerous person in the room is a first-year law student because they know just enough and not enough. So in trying to teach federal Indian law, tribal law, why we should have those values to lots of non-tribal people you really have to focus on what is community development, what does it look like to non-Indian people. And I would tell you in going through Rae Nell's slides that what's important and the key components to justice systems are investment, whether it's personal investment, monetary investment, community investment and it's building laws. Either you are developing a court system or you're destroying a court system and your development or your destruction has a significant impact on the community that you live in.

I am not a member of the Confederated Salish and Kootenai Tribes as an enrolled member, but I am a member of that community. I live there, my kid goes to school there, I speak Salish, I go to those ceremonies. I'm a member of that community. While it might seem that I'm a member of the tribe -- I don't get to vote -- the decisions that tribal administrators make impact me. They impact me as a judge; they impact me as a community member. It is important to think as leaders that you have a duty to your tribe absolutely, but you also have a duty to the people who live in your community and as we become bigger tribes with more mixed people, you're going to have a lot of descendants and you may have jurisdiction over them or you may not.

One of the things that's important to note about the Confederated Salish and Kootenai Tribes is that we're a P.L. 280 [Public Law 280] reservation. So we have concurrent jurisdiction over Indian people with the State of Montana. So what does that mean? For me, that meant as a public defender that many of my clients were my cousins, many of my clients were people I had grown up with. That's investment in your community because you have to see their mom at a ceremony, you have to see their mom in the grocery store, but that also means, and it also means quite frankly that that particular county is one of the most prison-sentencing counties in the State of Montana. It means that there are many, many American Indian people in the Montana prison system. It is, I believe, six times higher, the percentage rate of our existence in the State of Montana. So there are lots of things to consider in tribal court systems. Our tribal courts are a reflection of our community. Again, either we're developing or we're destroying and we have to really make that commitment.

Again, your codes are developing. Some people have very basic codes that they adopted from somebody else. Codes are changeable; just because it's not in your code doesn't mean it can't be in your code. And I would tell you again as leaders -- we were talking about this earlier and I think I had talked to Ian about it on the phone -- the biggest threat to tribal courts are the tribal people themselves. And I will tell you that specifically in the framework of let's say you have an election and you're unhappy about the election and you take it to the tribal court and the tribal court does its job, the job you entrusted it to do, the job you wrote the constitution for them to follow, you wrote a code for us to uphold and we did our job and now you're unhappy. So what do you do? What do people do? They bash it. They go to the newspaper and talk about, 'What a kangaroo court this is, how the judges don't know what they're doing, the advocates don't know how to run the court, they interpreted the law wrong.' And I would tell you that that is not any different than anything that you can watch on CNN. Every court in America is terrible when somebody loses according to the person who lost. But what you're doing on a bigger scale is invalidating the work that generations of people have already done for you.

I take the work of working in a court system very seriously because I know the work that my father put into that court; I know the work that my parents put in just graduating from college. I think that we can't take in our own flippancy the seriousness of what comes out of our mouth; we cannot be harsh enough about some of those things because we have long-term effects. If people don't trust our court systems, they don't want to do business with you. If they don't think that they can get a fair shake in there because you're related to everybody, they don't want to come into your court system, they don't want to avail themselves, and so when they don't avail themselves to our court, what do they do, they want to go take it to a state court where they're more comfortable. Are you going to get a fair shake in state court? Probably. Maybe. Are you going to get a fair shake in tribal court? Maybe. It's all the same.

Now people talk about tribal courts saying, ‘Oh, you...that's your cousin.' You're right. I have 20 first cousins. My mother has 100 first cousins. My grandpa was the youngest of 11 kids and all those kids had seven kids and my grandma had...there were five of them and they all had a trillion kids and I'm related to almost everybody. It was hard to find somebody to marry on your reservation when you have that many first cousins and we actually have cousins in common. So when he's really mad he'll be like, ‘And your damn cousin...' But they're his cousins too, but we're not related. So back to my rant. Of course you're related to those people. My rule is, if I don't have to talk about it with you at Thanksgiving dinner, then I'm working on that case because if I had to recuse myself for everybody that I could show that I was related to, man, you'll never get anybody to be able to sit on those seats. But let's not fool ourselves. I walked into a justice of the peace court and the judge was talking to a man who was on a bond hearing and the judge said to the guy sitting at the bond hearing, ‘Well, I'm going to let you out on your own recognizance because I need you to finish my deck this weekend.' It happens everywhere. Don't fool yourselves to think that tribal courts are better or worse than anybody else, but I will tell you that there's a special investment made by people who are part of tribal courts that can be beneficial. Some people call it nepotism. I think nepotism is an idea that you got something because you didn't deserve it and somebody is allowing you to do that and maybe they're your mom, maybe they're not, whatever.

In reality, we're a community and our tribal communities are built of people who are related and sometimes that investment means that maybe because we understand where that kid is coming from, maybe we can better address their needs in juvenile court, maybe we can better deter them. Maybe what they need is to learn to go chop some wood for a lady for a couple days or to get something...CS&KT [Confederate Salish and Kootenai Tribes] has a grandparent program as a diversion tactic with its youth because we have generations of children who don't have grandparents who are actively involved in their lives. I hope to be the grandma that I was raised with. My grandmas are finger-shaking, chest-popping old ladies who will tell you to knock it off and behave and go wash your hands. Those are the kind of people that sometimes you need in a juvenile court. That's the investment that you want to make. That is about being familiar with your community. That is about being invested in your community. So yes, are we all related? Quite possibly. Does that mean that we're making the wrong decisions? Absolutely not.

So when I took an oath to be a judge, a justice. Let me clarify that. I am a justice. I'm not a judge, unless I'm sitting in the lower court. There is a chief judge for the Confederated Salish and Kootenai Tribe, Wynona Tanner, and then I'm the chief justice. And the only difference really is which court we oversee. But when I took an oath to be a justice, in the Crow code specifically... And again, if you don't like what's happening, write it in your code, fix it. Don't complain about it, do something about it and that means writing in your code. That doesn't mean going and firing all your judges because you're unhappy. If you don't like how your judges work, get them some training. If you don't like the timeline in your courts, fix it. It isn't an all or nothing deal. Every time we make things all or nothing, we again destroy our own credibility.

So again, when I took that oath, in the Crow code it says that I will act without fear or favor. I don't see that in many other codes and I am bound by the ABA Model Judicial Code. The ABA Model Judicial Code is like eight canons, but they're pretty important canons and if you translate them into tribal communities, they're even more important canons, for example, the appearance of impropriety. Some people think, ‘Well, this is my friend. He's a lower court judge, I'm going to go have lunch with him.' What do you think my clients think when they see prosecutors and defenders having lunch together and then my client doesn't get a great deal? They think I sold them out, they think that I'm not doing my job, they think that I'm lazy and that I am not doing the best that I possibly can for them. You have to think about that. Just like leaders in the community, if they see you glad-handing with somebody and then that person gets something over the other, we all can make the appearance of impropriety and you need to be conscious of that.

Quite honestly, being an attorney and a judge on the same reservation is kind of a lonely, solitary existence. One, because you're always getting hit up in the grocery store for free advice, and two, people do want to know what's going on, people do want to talk about their case with you and you can't do it. But even that moment, that moment where they're approaching you in the grocery store trying to talk to you about it, other people see it, it looks improper and it's important to try to not have that happen.

A strong, independent tribal court system will have trust and it's your job as leaders to build the trust in the court as much as it is my job as a judge to build trust in the court. Finances are important, but finances aren't the end-all be-all. I run my appellate court, we probably hear...we have five justices, two lay justices, three attorney justices and one clerk on $78,000 a year. We deal with probably 20 cases, which is a pretty big load for most appellate courts. It is not the load that say Navajo has or some of the Ojibwe nations have who have bigger court systems. Development -- again, we don't have bad court systems, we have developing court systems. We have places that need help. We have opportunities to help them. There are lots of us out there who work in tribal courts who consult on how to develop better code, how to develop better judges, who do a lot of training that we offer for free. Department of Justice right now is really hot on offering trainings. Not only will they offer it, but they will bring it to you.

So Owl's Nest Consulting, my friend Mato Standing High, who is also an attorney who was the AG [attorney general] for his tribe for many, many years. He'll bring you how to make better prosecutors, how to be a better trial court judge, how to write good opinions, and they'll bring it right to where you are. So courts can't say, ‘Well, we can't get anything. We can't do that.' As leaders, develop your court system. Make a commitment to developing your court system because as Rae Nell said, if your court system is strong people believe in you. If your court system is transparent, people believe in you, they want to do business with you, and if they don't believe in you and you have a great court system, that's not about your court system, that's not about their belief in your tribe, that's just them finding a reason not to do business with you.

Again, as I said, either you're building a court or you're destroying a court. A court should be extraordinary when you leave it. We are a transient population as judges. We come and go. Some places elect their judges, some places appoint their judges. Some places appoint their justices for life. My appointments are four years long, I can come and go at the whim of the administration if they like what I've done, if not, I don't have to. But when I leave a court system, I want it to be the best possible place that it can be. It should stand...your court system should stand alone. It should not need one particular judge. It helps if you have great clerks. I have a phenomenal clerk, Abby Dupuis, who has been the clerk of the appellate court since its inception, so for 14 years. She really runs the court. She knows every case. Be good to your staff. And any attorney will tell you, the best thing you can do is not to know the judges, it's to know the clerks, it's to know the people behind the scenes, it's to know the janitors in your building. Those are all good tidbits of information for people to know. It's the same in tribal courts.

I want to tell you quickly about what is so important about tribal courts, and one is about the idea that we are making some pretty new and exciting law. I can tell you that being a judge sometimes means that all I have to hear about is people's really unhappy divorces and that is no different than being an attorney and I promise you nobody's happy in a divorce. But recently the Confederated Salish and Kootenai Appellate Court made a decision about a First Amendment case, about a person's right to say what they want to say, free speech. Those are exciting cases and maybe only if you're kind of like a law nerd do you really think that that's exciting stuff, but it's exciting stuff. And I talk about it to everybody I possibly can because I want people to know not only are we making good law but we're making new...we're going into territories we've never gone into before. We're addressing issues in our code that again nobody thought about. We just did a case about particularized suspicion with a bad stop from a cop. Does that make me the most popular person? Probably not, but I wasn't the most popular person to begin with because I'm a defense attorney. I have to tell you when I became a public defender, my parents said, ‘I don't know if I really want you to do that. Don't people...isn't it unsafe to be a defense attorney?' I said, ‘No, mom. People kill their prosecutors, they don't kill their defense attorneys.' They buy their defense attorneys beers; their grandma makes them banana bread. There's a lot of perks to being in public defense. But we are making new and exciting law. We have great stuff on the best interest of the child. Tribes are incorporating their beliefs into best interest-of-the-child standards. We're incorporating our beliefs into First Amendment issues.

One of the other exciting things I know that's going on in Indian Country is the idea of holistic defense. I don't see American courts addressing holistic defense in a way that I think that tribal courts can. And what I mean by holistic defense is in Montana let's say -- we'll use something pretty vanilla -- if you don't have insurance on your car and you get pulled over for the third time, that is a mandatory seven days in jail for not having liability insurance in a place that there is no public transportation system. Our reservation is about 100 miles long; there's no public transit. So of course people...I'm not encouraging people to break the law, I'm encouraging people to prioritize, but I know that people drive to get to work, to feed their kids without liability insurance; it happens. I've been hit by one of those people. So here's my best legal advice to you right now, here's some free legal advice, write it down. Make sure that you get under-insured and uninsured motorists on your insurance. I see Renee writing it down. Good job. Uninsured, under-insured, because if you get hit by those people who don't have insurance, your insurance helps you cover it then, because I have been hit.

So this person is sitting in jail waiting to get out on bond or not getting bond because they can't make bond because obviously they couldn't even afford to get insurance. They have kids, maybe they're a single mom, there's a potential that their kids could get into the system because nobody's home watching their kids. There's a chance that if they sit in jail for seven days that they're going to lose their job, their car's already been impounded because they couldn't find any...they didn't pay their minutes and they couldn't find anybody to come get their car so they couldn't leave it on the side of the road. Snowball effects happen all the time. Holistic defense addresses those. We have defenders who now say, ‘Okay, what are the other issues? We don't want them to lose their housing, we don't want her to lose her kids, we don't want them to lose their job. How can we work with a prosecutor to make this all good and get it in front of the judge as quickly as we possibly can?'

We have incredible opportunities as tribal courts to mend our communities by being willing not just to say that crime is bad or that divorce is bad, but in addressing some of the other issues that will come with those things by being flexible, just and creative. I think that people who don't have much learn to be as creative as they possibly can. Like your grandma when she was poor and didn't have any money to feed you, she would still figure out how to feed you. We still need to figure out how to solve our problems whether we have money or not. And again it's the same thing. Your tribal council, maybe they have all the money and they're not giving it to you to fix it. That doesn't mean you stop trying to fix it. It means you try to figure out what you can do creatively and if that means feeding them popcorn. It's like a Charlie Brown Thanksgiving -- everybody gets popcorn and toast and whatever it is that you have. It is the same in tribal court systems.

It is important to be transparent in your code. It is important to make things accessible. I have worked in a court system where nobody knows where the code is. Nobody knows where the code is. It is not online. You can access almost every case from the Confederated Salish and Kootenai Tribes, the Crow Tribe, almost every tribe in Montana, almost every tribe I know of who has a solid, longstanding appellate court, you can access their opinions and I do, because when I write an opinion I would rather use another tribe's decision than use a state's decision. Why? Well, in some cases because we're all similarly situated with the Indian Civil Rights Act or it's because our code looks like another code or our constitution is based on the same treaty. All of those things are important that maybe non-tribal court system people don't take into account. If I'm writing in a state system, yeah, I might steal something from another jurisdiction, but if I'm writing something in a tribal court I want it from another tribal court because I think they have invested in the same values that we do.

Again, we have opportunities that other people don't have. States are regulated in ways necessarily that we're not. I would ask you though as tribal people and tribal leaders, when you're building your court systems, really take into consideration what's the best thing? Do you think that lay advocates are the best way to go? Would you let a lay advocate operate on you? I don't know. And I'm saying that that's equally as dangerous. So would you let a lay advocate...? Let me make sure that I'm very clear on this. There are some incredible lay advocates. My uncle who helped start the Crow Court has been a lay advocate for 38 years and he knows the Crow code inside and out. He may not know form, but he knows substance. That is important. But there are other people who go in and pay their fee and then try to write your will or want to help you with your divorce. Maybe not necessarily without training. Be specific about those things. Do you want your judges to not have any training, to just come in and go off the cuff? Do you want everybody to be attorneys? Is that really the most financially sound way to go? Not always. I like to keep myself in business, but that doesn't mean that there's not room for everybody to work in there, but I think training is important. You can never learn enough and quite honestly, you can never share enough of your training with other people.

Again, I encourage people really to build strong court systems in the idea that make it fit what your tribe needs. Your tribe might not need a drug court, but you might need a dog catcher. You might need a youth court, but you don't know how to start it. We're sharing people. Everybody has them. People are developing, there's money out there and grants to get them. There's lots of resources. Your law schools in your states usually have incredible resources. For example, the Indian Law Clinic at the University of Montana, Maylynn Smith, never says 'no.' Aw, I'm done now. Thank you very much. I think we're going to open this up for questions."

NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

Producer
Native Nations Institute
Year

In the second of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the legal doctrine of tribal sovereign immunity and the future of the doctrine with respect to the Michigan v. Bay Mills Indian Community case pending before the U.S. Supreme Court. He also discusses how GTB has worked to systematically build its justice system, and stresses the need for Native nations to adequately fund their justice systems.

People
Resource Type
Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 3, 2013. Interview.

Ryan Seelau:

"Welcome to Leading Native Nations. I'm your host Ryan Seelau. On today's program we have back with us John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians. This week, he is serving as the Indigenous Leadership Fellow with the University of Arizona's Native Nations Institute for Leadership, Management and Policy. Good to have you with us, John."

John Petoskey:

"Thank you."

Ryan Seelau:

"We're here today to talk about a few other nation-building topics to build on the things you've talked about this week, and the first topic I would like to talk about is sovereign immunity. And the first question is hopefully sort of a simple one. Can you just tell us what in layman's terms the doctrine of sovereign immunity is and sort of why it exists and what the rationale behind it is?"

John Petoskey:

"The doctrine provides that a sovereign is not subject to suit unless there is a consent to that suit, unless the sovereign either waives sovereign immunity or -- in the case of Indian tribes -- if Congress statutorily enacts something that abrogates the immunity of the Indian tribe. So sovereign immunity for a state, for example, is recognizing the 11th Amendment of the U.S. Constitution and sovereign immunity of the United States, although not recognized in the U.S. Constitution, is part of the Law of Nations that was adopted in the early part of the constitutional history of the United States, that the United States could not be sued without its consent. So it's a doctrine that provides immunity for a sovereign, in this case the United States, a state or tribe from un-consented lawsuits."

Ryan Seelau:

"And what is sort of the rationale behind why it exists in the tribal context?"

John Petoskey:

"In the tribal context, it's to protect the tribal treasury, and it's also the same rationale that exists for state and federal that the governance process of the tribe should be immune from undue influence by private suits."

Ryan Seelau:

"And in your day-to-day work as general counsel, where does the doctrine of sovereign immunity come up?"

John Petoskey:

"Well, let me preface my response with my history with Grand Traverse Band. Grand Traverse Band was the first tribe to achieve federal recognition in 1980. That was two years after the Santa Clara [Pueblo v. Martinez] decision, which recognized sovereign immunity as a valid doctrine in the modern era of federal Indian law. And so in the early years of representing Grand Traverse Band, we would have a number of off-reservation creditors or off-reservation contract partners or tort people who would be suing in state court against the tribe and we would have to assert the immunity of the tribe, that it had not been waived nor had Congress abrogated that immunity and therefore the...it was generally in the context of a motion to dismiss that there was no basis for the lawsuit because of the immunity of the tribe. And in the early years, I probably did over 30 lawsuits of various litigants suing the tribe and the response from Grand Traverse Band generally evolved from those 30 suits to enacting statutory structures and resolutions that waived immunity and provided redress for people who were suing."

Ryan Seelau:

"Let's talk a little bit more about those statutes. Can you give an idea of some of the areas that immunity's been waived and what the thinking was behind that process and then, not going into specific codes, but what that looked like in practice?"

John Petoskey:

"Well, I know you said not going into specific codes, but I can only talk in terms of the specific codes. First of all, the constitution of Grand Traverse Band provides for a waiver of sovereign immunity for its tribal citizens to sue under rights that are similar to the Indian Civil Rights Act in the Bill of Rights of the United States Constitution and the constitution, the tribe's constitution, limits those remedies to prospective relief without any relief from the tribal treasury. The other two major statutes that the tribe passed was one on contracts and one on tort. The contracts we passed a general waiver of sovereign immunity for expectancy damages on the contract limiting the remedy to consequential damages and so our off-reservation vendors, when they do have a dispute with the tribe, do file a contract claim in the tribal court asserting expectancy damages and you just go through the regular contract analysis. With regard to torts, we have also waived immunity similar to the Federal Tort Claims Act in providing a limitation on remedies that are available for people who suffer, allegedly suffered a tort, and the big limitation that we have on that particular statute is that pain and suffering, which is the large area of tort case compensation, is limited to one-and-a-half times actual physical damages. And I might add that after we passed that statute our insurance premiums, the level of risk, actually declined because the insurance company could then therefore measure the level of risk and knew what the risk was less than not having a tribal waiver of immunity for tort actions."

Ryan Seelau:

"It's very interesting that the insurance premiums declined. Were there other benefits that you saw from the time before that those statutes were enacted to when the policy...when the constitution was passed and other policies came into play?"

John Petoskey:

"Yes. First, for tribal citizens it provides a method to dispute tribal council actions either in the executive or legislative capacity as being a breach of the Bill of Rights, if you will, that's... in our constitution it's Article X, which parallels the Indian Civil Rights Act. And so tribal citizens do bring causes of action against the tribal council or against the tribal councilors or against the executive departments alleging that the implementation of a particular tribal statute or particular tribal program is a violation of the Bill of Rights. The remedies that they seek are modification of the program, prospective relief in other words. With regard to the tort and contract issue, the tribe is involved with off-reservation vendors and also involved with off-reservation business invitees to its casinos and its hotels and we needed to provide a remedy for those people who come on to the reservation to engage in business with us and to have a determinate process of dispute resolution. When we did not have the waiver of sovereign immunity, we always had an indeterminate process of dispute resolution because the suit would be filed and in some cases given the merits of the suit the council would prospectively waive immunity for that particular suit to resolve that issue. In other cases, the council would not waive immunity and would just argue that we're immune from suit and not provide a remedy for the person who allegedly suffered harm. The statutes now provide a determinate response for all litigants on what they're going to do. And so when they enter into business with the tribe, they enter into business with the tribe knowing the risks and understanding that if there is a dispute, there is a remedy to resolve that dispute."

Ryan Seelau:

"I'm going to break my own rule and go into specifics a little bit, but procedurally in the contract instance or when the tribal council wants to waive immunity, is there a procedure or are those automatically in certain instances...?"

John Petoskey:

"No, there is a procedure. We have resolutions. The tribe does waive its immunity for transactional documents related to financing, for example, and we have chartered subordinate organizations and we have a Section 17 corporation under the Indian Reorganization Act that has a process for waiving immunity and that process has to go through the Economic Development Corporation through a resolution authorized by the corporation. That resolution then has to come back to the tribal council and the tribal council has to concur in the waiver prior to the waiver being effective. With regard to...there's one statute I didn't mention that I would like to mention very quickly and that is that the tribe has also enacted an arbitration provision, and primarily the reason we enacted an arbitration statute was because we have done substantial construction projects, multi-million [dollar] construction projects and we needed a methodology to resolve those construction disputes. The expertise of a tribal judge is not necessarily related to the complex problems related to construction activities and the American Arbitration Association has a wide variety of arbitrators that are specialists in different subject matter areas. You could have maritime...well, not maritime jurisdiction, but you could have commercial arbitration, you can have construction arbitration, and so this process that we enacted references the people who have the dispute, the off-reservation contractors and the tribe to go through the arbitration process with construction arbitrators, and it's a much quicker way to resolve disputes because the parties involved are speaking the same language in terms of construction activities. They're engineers, construction managers, they're architects and they generally have the same sort of two standard form of documents. There's two sets of documents, the AIA documents or the Engineer and Construction Management documents that really structure disputes between the owner, the construction vendor and the architect. And so we enacted that provision in arbitration to access that resource. Once the award is given in arbitration then it's enforced by the tribal court and if it's not enforced by the tribal court, which has never happened in our case, but the parties do have relief in federal court through the Federal Arbitration Enforcement Act. So that provides a lot of security for off-reservation contractors that come on to engage in business on the reservation."

Ryan Seelau:

"Has arbitration been used outside of the construction...is it available to other...?"

John Petoskey:

"It is available to other disputes. The arbitration procedure has been incorporated into our transaction documents for loans on the reservation. These are very large loans that we've negotiated with syndicated loan companies in which arbitration is used for the dispute resolution to determine whether there was a even of breach or interpreting the loan documents, which are extremely comprehensive."

Ryan Seelau:

"I want to turn back a little bit to sovereign immunity and talk a little bit about what role do you see sovereign immunity playing in negotiations with either state governments or local governments? Do you see it as having any impact in those...?"

John Petoskey:

"It does have an impact because sovereign immunity serves as a leverage value for the tribe to negotiate agreements with the State of Michigan in the context of what I'm familiar with. The Grand Traverse Band along with several other tribes in Michigan have negotiated a comprehensive tax agreement with the State of Michigan covering sales and use, income tax, utility tax and this agreement really resolves...it also covers tobacco and gasoline tax. The comprehensive tax agreement resolves a lot of disputes that the tribe could engage in or would have engaged in or other states and other tribes are currently engaging in, and that is the scope of the state's authority to tax for on-reservation transactions. What we've done in Michigan, it's called the...it's a tax agreement that is on the Michigan state website and it details what's called a tax agreement area in which the exemptions of the tribe will apply both for state income tax, sales and use tax, gasoline and cigarette tax, and also creates a situation where the sales tax is shared between the tribe and the state on a percentage basis that is subject to negotiation. Now a lot of those negotiations would not have gone forward if the tribe did not have sovereign immunity, because you have the Citizen Potawatomi decision of 1991 that directly relates to tobacco tax in which the Supreme Court held that the tribe was immune from the Oklahoma Tax Commission's collection efforts against the tribe for on-reservation sales of cigarettes that the tribe did not have to collect on behalf of the state, that there were other methods upstream that they could use to collect. And there have been well-publicized disputes between tribes and local taxing authorities, states in particular, in which things have degenerated into violence and road closures and burning tires and things like that. So that specter of civil unrest related to not having an agreement or enforcing an agreement through extra judicial means was one of the circumstances that both the tribes in Michigan and the state wanted to avoid. And incident to that was the immunity of the tribe, that the immunity of the tribe provided a negotiating leverage point as represented by the Citizen Potawatomi case for the tribe to argue with the state to say there's a different way of resolving this issue, we can do a mutual waiver of immunity, we can enter into this tax agreement and we can establish a regime in which the state and the tribes share the tax revenue and recognize the exemptions that are under federal law and this has been in existence since...we started negotiating in 1999 and very complex issues wasn't resolved until 2004. So it's been existence for about 10 years and it's been administered...the tribe -- both the tribe and the state are happy with the results and we are hopeful that will continue into the future."

Ryan Seelau:

"One of the interesting things about Grand Traverse Band's agreement with the State of Michigan in taxes to me is that if there's any disputes they first go to tribal court. My question for you is first of all, was that an important part of what Grand Traverse Band wanted to get out of the agreement and the other tribes? The second, you may or may not be able to answer this, but why do you think the State of Michigan was comfortable first going into the tribal court to deal with those types of disputes should they arise?"

John Petoskey:

"Well, first we wanted them to go to tribal court because our view of National Farmers and jurisdiction was exhausted in tribal court remedies, but also for some cases where it was on-reservation transactions involving tribal members. We felt that we had exclusive jurisdictions in some context and so we were very...not adamant, but we had very strong views that any initial dispute resolution should go to tribal court. The state has had ongoing relationships with the tribes and the Michigan Supreme Court and the tribal courts have had past reciprocity agreements, the Michigan court rule is at 2615 and that rule recognizes tribal court judgments and orders, subpoenas and other matters and so long as the tribe passes a reciprocal rule for the recognition of state court orders in its tribal court system. So that was the key, the existence of that rule and the history of mutual cross recognition without going through the full faith and credit analysis that had to be done previous to that, in which you had to petition the court and then establish on an itemized basis that the particular subject matter issue that you were involved in met the full faith and credit requirements of the host jurisdiction. All of that process is no longer done in Michigan because it's done via a court rule, Michigan Court Rule 2615 and Chapter X of the Grand Traverse Band court rules. And so it's become a matter of local practice for attorneys up there to understand that they can get their state court judgments enforced in tribal court and that the tribal court judgments conversely can be enforced in state court. So the existence of that rule gave comfort, if you will, to the state, and in addition we wrote statutes to reflect the agreement that we had negotiated, the substantive agreement that we negotiated, the state didn't have sign-off authority on them, but once they saw the scope of the statutes and our enforcement mechanisms that we established for the agreement then they didn't have an objection to having the agreements resolved in tribal court and we have done that. We have, in fact, enforced our tax agreement against our tribal members who have violated it in tribal court for the benefit of the State of Michigan because they are part of the revenue-sharing agreement of the taxes that are generated."

Ryan Seelau:

"Following up briefly on this Rule 2615, was that something that the tribes in Michigan fought to get to occur or do you know the history behind how that came about?"

John Petoskey:

"The history behind it was Justice Cavanaugh who was on the Michigan Supreme Court was interested in this reciprocity between tribal courts and a cousin of mine who's also a lawyer and a tribal judge, Mike Petoskey, and Justice Cavanaugh, started a committee years ago to have coordination between the courts. Justice Cavanaugh attended the Federal Indian Bar meeting in Albuquerque, New Mexico, sometime in the 1980s and that's when Mike and Justice Cavanaugh first met and developed a friendship and in part it was that friendship and the rule-making process in the court that they utilized to...in the Michigan Supreme Court that they utilized to resolve the questions of full faith and credit between tribal courts and state court systems."

Ryan Seelau:

"Are you aware of how many of the tribes have passed the necessary rules or statutes in order for this reciprocity to..."

John Petoskey:

"There are 12 tribes in Michigan and approximately, off the top of my head I don't know the precise number, but I would venture to say 9 or 10 have passed that rule and of the tax agreement, for example, again, it's the same thing, about 9 or 10 have signed onto the tax agreement. There are a couple tribes in Michigan that take a contrary view and that there shouldn't be the reciprocity agreements, there shouldn't be the tax agreements, and they have their own political views as to the source and scope and extent of the tribe's sovereign authority and how to implement that. And I'm not criticizing that. I'm just saying that people do take contrary views from the path that we have taken."

Ryan Seelau:

"I don't want to get too far into it, but in those contrary views to sovereign immunity, the mechanism by which the taxes are not being exchanged?"

John Petoskey:

"Yes. Yes. Yes, sovereign immunity is asserted as a basis for not...sovereign immunity is asserted as a basis for those tribes that continue to sell untaxed cigarettes, for example, or engage in transactions that they allege are not subject to the sales and use tax of the State of Michigan and that ties into a different question, which is, what is the scope of Indian Country based upon the exterior boundaries and the scope of the treaty provision areas?"

Ryan Seelau:

"I want to turn attention to something related and something that you've talked quite a bit about in your time as an [NNI] Indigenous Leadership Fellow and that's the Bay Mills Indian Community case and you gave a talk on the case yesterday so we don't need to go into all of the history and details, but I was wondering if you could just briefly give a quick synopsis of what that case is about and perhaps more importantly why that case has been in the news lately or what the concerns about that case going before the Supreme Court are."

John Petoskey:

"Okay. So the Bay Mills Indian Community alleges that under a statute called the Michigan Indian Land Claims Settlement Act, which implements an Indian Claims Commission judgment, that the terms of the statute created automatic restricted fee if they used resources from Michigan Indian Land Claims Settlement Act funds to buy property. They presented that theory to the National Indian Gaming Commission in a geographic specific amendment to their gaming ordinance, which the National Indian Gaming Commission informally rejected. They then revised their amendment of their gaming ordinance to basically parallel and parrot the provision of what Indian Country is in the Indian Gaming Regulatory Act. And based upon that provision of their gaming ordinance and the acquisition of an off-reservation casino located in Vanderbilt, Michigan, which is in basically the backyard of another tribe, the Little Traverse Bay Bands of Odawa Indians, they opened a casino alleging that the acquisition of the property created automatic restricted fee and that based upon the federal rules promulgated May 20, 2008 in regard to the Seneca Indian Land Claim Settlement Act, that restricted fee was not subject to Section XX of the Indian Gaming Regulatory Act. In other words that it was effectively a loophole, that they didn't have to go through the after acquired property analysis under Section XX and that restricted fee automatically became Indian Country, and if it was automatically Indian Country, they could engage in gaming and they opened a gaming facility. The State of Michigan along with Little Traverse Bay Bands sued for an injunction arguing that Michigan Indian Land Claim Settlement Act did not create restricted fee. They based their authority for the suit under a provision of the Indian Gaming Regulatory Act, which was 2710.D.7.A.ii which provides a five-part test for a state or tribe to sue in federal court to enjoin a gaming operation on Indian lands conducted in violation of a compact that is in effect. And so in that statement, there are about five elements that you have to meet for the cause of action. That provision both establishes federal jurisdiction, creates the cause of action, and waives by statutory abrogation, waives the immunity of the tribe that you're suing against. So Bay Mills argued that the complaint by the State of Michigan and Little Traverse Bay Bands was defective and did not meet all of the elements of 2710 because one of the counts alleged that the casino was not on Indian lands. Therefore if you're construing the complaint, if it's not on Indian lands and the conjunctive nature of 2710.D.7.A.ii of the five elements that the Little Traverse Bay Band had a defective complaint by alleging that the casino was not on Indian lands, if it's not on Indian lands there's no federal jurisdiction and there's no waiver of...there's no abrogation of immunity by the statute because the statutes in order to abrogate the immunity under case law have to be strictly construed and followed. That argument was not successful in the federal district court by Judge Maloney and he had an expansive reading of 2710 and relied on a 10th Circuit case that focused more on whether the gaming activity is a violation of the compact and ruled that there was also federal jurisdiction under two other related provisions, 1331 for the federal question of whether or not the Michigan Indian Land Claim Settlement Act created the restricted fee, and also that 1362, which provides authority for a tribe to sue in federal court, that that provided an additional basis for federal jurisdiction. He did modify both of those provisions when Bay Mills pointed out that the Sixth Circuit decision had already issued opinions contrary to that in 1331 and 1362, but he did reaffirm the proposition that an expansive reading of 2710 focusing on whether the tribe, Bay Mills, was violating the compact was a sufficient basis for the abrogation of their immunity under federal law and continued...and rejected their motion for reconsideration on the injunction. At that point, Bay Mills filed an interlocutory appeal to the Sixth Circuit and then briefing was completed and oral argument was held in May of 2012 and then opinion was issued by Judge Kethledge of the Sixth Circuit was the author and he essentially accepted Bay Mills' proposition that 2710.D.7.A.ii has five elements and all of the elements have to be met for there to be federal jurisdiction and for there to be a statutory abrogation and if you construe the complaints of the Michigan...the State of Michigan and the tribe, they are alleging that the casino is not on Indian land, therefore effectively they knocked themselves out of court because they are missing an essential element. So that is the case that's up on appeal. There are some ancillary issues in there that I don't want to go into that relate to the State of Michigan's argument under the Assimilated Crimes Act and also the scope of 1331. The issue that is up on appeal is whether 2710 waives the immunity in the expansive reading that Judge Maloney had in the federal district court or whether 2710 has to be read in a very restrictive manner...explicit manner such as Judge Kethledge said in the Sixth Circuit. So the state's argument, which was filed in August, argues that there's a statutory misinterpretation and that Judge Maloney is correct in his interpretation, but then they go on to an extreme position by saying, "˜And even if Judge Kethledge is right that sovereign immunity, in this particular case, should be modified by the court as part of the common law of the court, the state is urging the Supreme Court to essentially override its common law jurisprudence on sovereign immunity,' and that's where the big danger lays because the jurisprudence has established in the past through CNL in 2001 and Kiowa in 1998, there was a developing analysis of on-reservation, off-reservation, commercial versus governmental and the state is urging that the Supreme Court should adopt an analysis that off-reservation commercial activity is subject to a common law diminishment of sovereign immunity. They are urging the court to say any activities that are off the reservation of a commercial nature the tribe cannot assert sovereign immunity. So that's where the big danger is."

Ryan Seelau:

"I'd like to change topics a little bit now and talk about the sort of legal foundations of nation building. And what I want to talk to you about specifically is sort of the role of culture in legal institutions or in legal doctrine and things of that...and I was wondering how you, over your career, have seen the role of culture play out in legal systems because previously you talked about how, in the previous interview you talked about how you worked...in various parts of the country you worked with the Pueblos in New Mexico and you worked with Alaska native villages in Alaska and you've worked in various contexts and I was wondering how you see the same sort of goal, which is carrying out justice in Indian Country, how you're seeing that process change based on the culture that you were working within."

John Petoskey:

"The example that I used is actually quite dated and I don't think it's relevant to New Mexico anymore, but earlier in my career I worked at Indian Pueblo Legal Services and I worked for the eight northern pueblos and one of the pueblos I worked for was Taos Pueblo and at Taos there was an individual who was a tribal member that only spoke the Taos language and she was suffering from extreme alcoholism that impaired her judgment. At that time they called it 'organicity.' I'm not certain what that phrase means, but she would not leave the village and she was creating distress by her behavior in the village through her alcoholism. The pueblo had made numerous attempts to correct her behavior in their internal mechanisms that I'm not familiar with and then they came to the Legal Services and said, "˜Well, how do we deal with this particular situation?' And in the state law system at the time for somebody that was suffering from extreme alcoholism where they were doing harm to themselves you could petition under the New Mexico Health Code for an involuntary commitment in the district court of New Mexico to place the person in an institution against their will, an involuntary commitment petition is what it was called, but the problem in that case was that the person lived in Taos and would not leave the pueblo. So there was no subject matter civil jurisdiction for an internal relation that was taking place at Taos. So the court didn't have civil jurisdiction, the New Mexico Supreme Court did not have civil jurisdiction to initiate the process, nor would the individual come out of the pueblo. So given that set of circumstances and the language problems connected with her simply speaking the Indian language as her primary language, I met with the pueblo officials and with three caciques and explained that I thought what we should do is establish if you will a panel of caciques that would address this issue in the context of New Mexico law of the elements that you had to meet for an involuntary commitment under New Mexico law. And so they agreed with that and the panel of three caciques were convened with the person who was suffering from alcoholism and I went through the New Mexico Health Code on the elements that had to be met to prove that this person should be subject to an involuntary commitment and it was translated into the Taos language for the individual and explained what was going on and the caciques then agreed that she met all of those criteria and ordered that there would be this involuntary commitment. I then wrote up the order following the procedures that had just taken place and took that order to the New Mexico District Court and sought full faith and credit of what had occurred at Taos Pueblo and had to go through a hearing with a district judge in New Mexico arguing that the process that occurred at Taos Pueblo conformed with the procedural due process values of the New Mexico Health Code and the judge did order that the person was...could be involuntarily committed to a facility that was under New Mexico's control and that's what occurred. And so that was somewhat of a creative use of...I'm not saying that in a self-congratulatory sense. In response to your question that's what I'm saying. It was a use of using the cultural norms of the caciques having the authority that this person, the person suffering from alcoholism, respected and going through that process even though it was New Mexico substantive law, but explaining it to the pueblo officials and the pueblo officials opining that they agreed that this individual should be involuntarily committed because of her behavior."

Ryan Seelau:

"Another experience professionally that you have mentioned, which in some respects is very different from what happened with the pueblos, but on the other hand, also involved getting the sort of cultural norms into a concrete legal document was that of the Chickasaw Constitution being written."

John Petoskey:

"Oh, yes."

Ryan Seelau:

"I was wondering if you could talk a little bit about that story and what you observed and how the Chickasaw people...what the process they went through to sort of write and get their constitution done."

John Petoskey:

"So in 1908 the Curtis Act was passed and what the Curtis Act did was allegedly dissolve the Choctaw, Chickasaw and Cherokee legislature and created a system of appointment of governors for those...for the five civilized tribes in Oklahoma and that system existed from 1908 to the 1970s when the National Indian Youth Council, a place I worked at, in the late...in the early "˜80s, but in the, I think it was 1973 two attorneys, Tom Lubin and John Kelly filed a lawsuit on behalf of private plaintiffs called Harjo suing the Secretary of Interior and the case was entitled Harjo v. Kleppe arguing that the 1908 Curtis Act did not dissolve the Chickasaw legislature. So here you have a historical basis of the five civilized tribes having a history and a culture of constitutional government of checks and balances and having vibrant complex governments servicing the needs of Choctaws and Chickasaws in the...after their removal from the southeast to Oklahoma, they had a legislature, they had the Light Horsemen Cavalry, they had enforcement of their...they had a functioning democracy and a constitutional form of government. And then you had the United States basically destroying the government saying, "˜You can...we are going to destroy your constitutional government' and that's what the Curtis Act attempted to do. And the argument in Harjo v. Kleppe was that the Curtis Act did not, in fact, dissolve the Chickasaw government and the regime that the Secretary of the Interior had set up over the last 50 years of appointing the governor was clearly in violation of the constitutional cultural history of the Choctaws and Chickasaws and that the Curtis Act's implementation by the Secretary was incorrect. That argument and proposition ultimately prevailed in the federal district court and in the federal court of appeals and that was due to the litigation efforts of, as I said, Tom Lubin and John Kelly. And so when I came into the case in the 1980s, it was implementing that decision to reform the constitutional government and our clients, which were the, if you will, the dissidents against the governor of Chickasaw and the dissidents against the governor of Choctaws were leading a method that was...had to be administered by a federal supervision because of the level of animus that existed between the parties to re-establish a constitutional government and it was negotiations under federal supervision of a constitutional structure that was to be re-implemented at Choctaw and Chickasaw in a constitutionally supervised election of the constitution once it was completed. And that was basically bringing back the cultural tradition of a legislature in Choctaw and Chickasaw in the mid "˜80s and the constitution was approved and the tribe continues today."

Ryan Seelau:

"I'd like to talk a little bit now about Grand Traverse Band's justice system, ask you a few questions about that sort of along the same lines, but first I was wondering if you could just talk about maybe just a brief history of how the justice system, not how it started but when it started and what it looked like and then how it's grown into -- you've already mentioned the arbitration proceedings that are now available in the justice system, you mentioned in the previous interview about peacemaking -- and just sort of take us a little bit through the timeline of how that's grown over time."

John Petoskey:

"As I mentioned, the tribe was recognized in 1980. The tribe was engaged in litigation with the federal government over our constitutional provision on membership. At that time [President] Reagan and James Watt was the Secretary of the Interior and our membership was expansive in terms of the number of people that we said were eligible for enrollment in our tribe and then the Reagan administration and James Watt's position was essentially that the membership shouldn't grow because that's a bigger liability on the part of the federal government and therefore we're arguing for a more limited membership, and that took some time to resolve that issue because our argument was that the tribe determines its membership and not the federal government. The federal government actually alleged in letters that they would and essentially terminate the tribe again by taking away federal funding and taking away the recognition and the tribe's reaction was, "˜It takes an act of Congress to do that. You're going beyond the scope,' and so things...it took several years to resolve that membership issue. I only say that because, as a consequence, the constitution was not actually ratified until 1988. And so...but we were developing the tribal court even though we didn't have a constitutional basis for that tribal court because of this membership dispute. But in our constitution, we provide that the judiciary is a separate branch of government and is independent. So once the constitution was provided, we wanted to assure that independence of the judiciary. And one of the legislative acts that was done was to fund the judiciary on a percentage basis of our net income that did not...that could not be varied without essentially a super majority of the legislature changing that. And so that worked relatively well for the first couple of years, but then our enterprises became very successful, and as a consequence the percentage of funding for the tribal court went up dramatically given the fact that it was based upon a percentage of the net income of the tribe. And so there was the super majority to revise that allocation of funding to comport with the amount of money that the tribe was making at the time. And that's still a question that we have on how properly to fund the judiciary without using the power of the purse string to incapacitate the judiciary. The percentage method was one solution that we thought. It didn't work out because of a mechanical application of that percentage method and a rising income stream has a disproportionate impact on the amount of money that's available to the judiciary, and so I am really open to other avenues that people have on how they fund the judiciary on a basis that doesn't use the power of the purse string to limit the judiciary. That's what part of the independence question that frankly...a riddle that we have not solved. And I'm not certain how other tribes do it. I know there's that common problem in the federal government that has that. Justice Roberts is always complaining about the lack of funding that Congress is giving to the federal court systems. It's not a problem that has been solved in the greater federal system, but I think it's a problem that tribes should attempt to come up with a solution [for] if they want an independent judiciary. But having said all that on the funding, part of developing the culture of a strong judiciary is to recognize the power of the council and what it can do with an opinion that they don't like that the judiciary issues. It's easy to say that you shouldn't remove an individual or fire an individual for an opinion that has been issued and Grand Traverse Band does not do that. We have in our constitution the individual is appointed for a term of years, compensation cannot be reduced while the individual is in office and the only...but an individual -- and this is in our constitution -- individual can be removed for gross neglect, misconduct in office, and we incorporate by reference the American Bar Association Judicial Code of Conduct for a basis for removal. And Grand Traverse Band has undertaken removal proceedings against a judge on the basis of misconduct in office and that involves not a decision of the tribal council -- the tribal council is a litigant, a petitioner -- involves a decision of the appellate judiciary people at Grand Traverse Band judging a member of their own on whether or not the petition has merit for removal. So that's what I've always advised the tribal council. You can either appeal a decision you don't like, you can wait until the power of appointment is up and appoint that individual and you can use, and I know this...you can use political considerations in the appointment process. It's perfectly legitimate in my view when you're appointing a judge to say, "˜I don't want to reappoint you because you made XYZ decision that I disagree with.' That's an appropriate political exercise of the power of appointment. Or you can petition for removal under a decision that you don't like and those are the three methods that the council has used in its relationship with the judiciary. And conversely, the judiciary has removed members of the tribal council where the council members have committed self-dealing acts and the petitioner in that case is a other...majority of the council members vote to file a petition for removal against an individual councilor, the judicial panel hears the matter, an attorney is appointed for the councilor that is subject to removal and it's a litigated question on fact and law, on whether or not the particular alleged behavior amounted to misconduct in office by the tribal council. So the judiciary has opined in the past that the petition that the council filed by majority vote for removal was...had a meritorious basis and the councilor was removed from office by an opinion of the judiciary. So it goes both ways. Those are building strong institutions."

Ryan Seelau:

"We don't have a lot of time, but I want to ask at least one last question, which I think relates or is connected strongly to what you were just talking about and that's this week several times you've talked about how at least at Grand Traverse Band you've seen the sort of process...the justice system-building process as a goal of moving from an indeterminate process to a determinate one and I was wondering if you could tell us what you mean by that and explain why you think that's a good goal to have."

John Petoskey:

"Okay. This was in response to a -- which I have heard repeatedly here and also in other contexts -- that politics should be out of the judiciary, and it's using 'politics' as a negative word. My point was is that I don't think that is the appropriate description. Politics is, in some senses is a dirty word, but in my perspective it's not necessarily a dirty word because it's the process of governance of competing interests that constituents bring to the tribal council and they...this has happened on occasion that a tribal member will have an adverse decision from the judiciary and will call up a councilor and say, "˜This is a bad decision by the judge. You should do something about it.' And then people say, "˜Well, that's politics, that shouldn't happen.' My point is that that conversation between the constituent and the council member is hard to control because that's a council member listening to his or her constituent talking to them as a representative. It's a republican form of government and so the impact that the tribal citizen has is to complain to their elected official and that's what they do so I don't see that as necessarily bad. I do think it's inappropriate though if the elected official then attempts to intervene in the process and to change the end result and that's where I bring up the dichotomy of 'determinate' and 'indeterminate,' because when the elected official intervenes in the process, there are no rules that govern the elected official's behavior and the scope of his intervention and the standards that define what is permissible and impermissible. In other words, it's indeterminate. And the types of activities that should be allowed are only determinative activities where the standards of conduct and the rules of conduct and the appropriate actions are defined by past precedent in which people are arguing about standards that are already in place. Where we get in trouble is when we enter into relationships where there are not pre-existent determinate standards and that goes across the board. Everybody wants to know that what is happening is going to be resolved by a determinate process. They may not agree with the end result, but they do not disagree with the process and in the United States, Bush v. Gore is a perfect example of that. Both the partisans on the part of Bush and Gore disagreed with the end result that the Supreme Court had, but they didn't disagree with the process. Once the decision was made it wasn't...armies weren't called out to enforce it, there wasn't contrary protests of...it was over. Everybody agreed the process had worked and you continued to disagree with the opinion, but it was a determinate process that ended. And that should be the goal of judicial systems and legislative systems to act in a determinate manner and not an indeterminate manner because your constituents, your vendors, your business invitees, your tribal citizens will all appreciate that even if they disagree with the end result because they recognize that the process is determinate and legitimate. Indeterminacy makes illegitimacy."

Ryan Seelau:

"I think that's an excellent point and I'm glad that we were able to talk about it a little bit. John, thank you for sitting down with me and talking again. That's all the time we have in this program of Leading Native Nations. To learn more about Leading Native Nations, please visit the NNI's website at nni.arizona.edu. Thank you for joining us. Copyright 2013. Arizona Board of Regents."

NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

Producer
Native Nations Institute
Year

In the first of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses how GTB has worked and continues to work to build and maintain a strong, independent system of justice that is viewed as legitimate by GTB citizens. He also discusses GTB's integration of peacemaking and peacemaker courts into its justice systems as a culturally appropriate way of resolving disputes and bringing healing to the community. 

People
Resource Type
Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 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 John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and has spent much of the past 30 years serving as his nation's general counsel. As general counsel, he participates in all federal, state and tribal litigation and administrative hearings where his nation is a plaintiff or defendant. In addition, John wrote the majority of Grand Traverse Band's statutes, published as the Grand Traverse Band Code. He also currently serves as partner with Fredericks, Peebles and Morgan LLP and is spending this week at the University of Arizona serving as Indigenous Leadership Fellow with the University's Native Nations Institute for Leadership, Management and Policy. John, welcome, and good to have you with us today."

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

"Well, I have been with the Grand Traverse Band for, as you said, a long time. Prior to that I did work for Legal Services...Indian Legal Services in Michigan and importantly, I worked on one of the leading cases on off-reservation treaty fishing and on-reservation treaty fishing that was called U.S. v. Michigan, which followed the same genesis of the United States v. Washington. And when I originally got out of law school in 1979, I was lucky to participate in the trial portion of that case as a first-year law student that had not yet gone to a federal district court opinion. So that was very gratifying and enlightening to me to see how the United States' trust responsibility is implemented for tribes. At the same time, I'm a product of my history in Michigan. My father is from Little Traverse Bay Band[s of Odawa Indians]; my mother is from Grand Traverse Bay Band. And through circumstances of history, the Ottawa tribes of the Lower Peninsula of Michigan were not federally recognized under the 1855 treaty, which was a misinterpretation where the Secretary of Interior took federal recognition away in 1871. As a consequence of that act, the state of Indian tribes in Michigan, the Ottawa tribes were desolate, and U.S. v. Michigan was the first spark of hope, if you will, by reversing that decline that the tribes had been in for so long.

After U.S. v. Michigan, I went to work at Indian Pueblo Legal Services in Northern New Mexico and I worked for, in one capacity or the other, for most of the pueblos as a legal services attorney representing poor Indians in the tribal justice systems of the Pueblos and in state and federal court. Those were largely jurisdictional cases at that time in the early "˜80s. There was a lot of assertion of state authority and state court jurisdiction for on-reservation activities. So I litigated a lot of cross motions for summary judgment of no subject matter jurisdiction and I also got to participate in some unique Pueblo-initiated procedures to resolve justice questions that the Pueblos had on their reservations, which were unique because the Pueblos have a unique system of justice that is still largely indigenously driven, if you will, from their historical experience.

After Indian Pueblo Legal Services, I went to Alaska Legal Services, which does have a totally different legal history under the Alaska Native Claims Settlement Act of 1971. I was in a place called Nome, Alaska and I went out to villages in an area that was probably 500 miles in diameter surrounding Nome and provided legal services to remote isolated villages. And there you could see the coalescence of all federal Indian policy in a community of 150 people where you would have a traditional government and Indian Reorganization Act government and a local government and an Alaska Native Claims Settlement Act corporation board. So you'd have four layers of government for people, for a total population of 150 people. It was designed for failure, which that's a separate question, but those are items that are left out.

After Alaska Legal Services I went to work for National Indian Youth Council, where I worked on voting rights cases in the southwest turning at-large voting structures into single member districts, largely in New Mexico, in Cibola County and McKinley County. Then I also worked on First Amendment cases in which tribes were alleging that they had a right under the First Amendment to access to federal public domain law that was under the control of the federal government, but for historical reasons the tribes had ceremonial relationships with the land and their ceremonial relationships with the land were being impaired by the Federal Public Land Policies that prohibited their access in some cases or in other cases prohibited their access on an exclusive basis for some of their ceremonies that they needed to conduct."

Ian Record:

"We here at NNI know quite a bit about the Grand Traverse Band. A number of our staff have worked with the Band over the years. You and some of my colleagues for instance go way back to the late "˜80s, early "˜90s and the Band has also received three awards from our partner organization the Harvard Project on American Indian Economic Development and its Honoring Nations Award Program, but share with our audience a bit more about your nation, just who is the Grand Traverse Band of Ottawa and Chippewa Indians?"

John Petoskey:

"The Grand Traverse Band of Ottawa and Chippewa Indians are Indians that lived in and around the Grand Traverse Bay of Northern Michigan. Michigan is shaped like a hand. If you're from Michigan, people always say to each other, "˜Where are you from?' and they'll hold up a hand and they'll say, "˜Well, I'm from Lansing, I'm from Detroit or I'm from Gaylord.' In this case, using the hand as the analogy, Grand Traverse Band is located on the little finger. That's where the peninsula is. The historical area was a reservation that was created in 1855. Just immediately north to us is the Little Traverse Bay Band, which is located in Petoskey, Michigan. South to us is the Little River Band, which is located in and around Manistee, which is right there.

The Grand Traverse Band achieved federal recognition under the Administrative Procedures Process in 1980. It was the first tribe to go through the federal acknowledgement process under the then-developing federal regulations that go all the way back to the Policy Review Commission back to the "˜70s. When it achieved federal recognition, it had to engage in building all of the governance institutions that were necessary to establish a tribal government. Incident to that, I had met Steve Cornell when I had worked at National Indian Youth Council because he was a personal friend of Gerald Wilkinson and Vine Deloria and Dr. Cornell or Steve Cornell used to come and visit with Gerald Wilkinson and I met him initially in that time period that I was working at National Indian Youth Council.

And then after I started working as general counsel for the tribe in the "˜80s, we were engaged in the process of building these governmental institutions as a new federally recognized tribe and we had to look around for models of how to establish our tribal organization, how to establish our tribal constitution and go forward from there. And so we'd have constitutional committees drafting the constitution and we also were engaged in a fight at that time with James Watt, who was the Assistant Secretary of the Interior. And the position under the Reagan administration was that federal acknowledgement was limited to a discrete number of people on the original petition that was submitted, and our argument was that federal acknowledgement covered everybody that was eligible as a descendent from Grand Traverse Band from the last annuity treaty payment that took place in 1910. And obviously, our category that we said were eligible was much larger than the category that the feds wanted to recognize.

As a consequence, we were engaged in litigation with the federal government over the terms of our recognition, which impaired the development of some of our governance institutions, particularly our constitution, which the Interior did not ratify until after that litigation was resolved in 1986 and then the constitution was ratified in 1988, I believe. But at that time, once the constitution was ratified, we really had to come up with the procedures, if you will, for our justice institutions, for our legislative process and for our executive process. And doing research of what models to follow, I came across the Harvard Project on Economic Development and at that time, this was before the internet was widely available, we had to send away for these series of memorandums that students had written on a number of different aspects of Indian economic development and Indian governance issues. And so I basically sent away for all the memorandums and went through the memorandums and cut and paste what I thought was the best in those memorandums for GTB's situation and then went through the process of having the executive-legislature enact those provisions for Grand Traverse Band. Incident to that, I then reinitiated my friendship with Steve Cornell and Steve came up to Grand Traverse Band on two different occasions to visit and to present information and points of views on how he developed tribal institutions. Also, Vine Deloria came up a couple times because I had met and known him at National Indian Youth Council and gave brief talks to our tribal council on the historical relationship of tribal governance and the Department of the Interior and the United States. And Vine had at that time and always did have a very focused analysis of how tribal governments had been overpowered by the federal government. And so in all senses of the word, he was an advocate for strong tribal governance and he promoted that when he was speaking with our tribal council and providing advice on which way to go. So that's, in a quick thumbnail I think that's what the relationship was."

Ian Record:

"Following up on this issue of constitutional development, you said that you were one of the people charged with going out and learning what other tribes had been doing to develop governments that made sense for them and that you sort of worked to integrate the best of what you had learned from others. Was there at some point in the process a customization of some of those governing institutions to the particular circumstances, cultural values of Grand Traverse in trying to make it their own?"

John Petoskey:

"Well, yes. The process of writing a constitution is not...doesn't rise to the level of the Federalist Papers, where you have advocates writing arguments for and against different propositions that are in the constitution. In the Indian community, what that comes down to, if you will, the "Federalist Paper" analogy is a group of people sitting around working their way through the constitution occasion after occasion after occasion after occasion and bringing out their own personal experience from the community as to what will work and what will not work, and so that's what the Grand Traverse Band community did."

Ian Record:

"And how has the...in your estimation how has the constitution worked in the 25 years it's been in place? Do you feel like it's beginning to gain...it has gained widespread cultural and community acceptance?"

John Petoskey:

"Yes. The one unique aspect of our constitution that is different from other constitutions is most entities elect a tripartite system of governance where they have executive, legislature and judiciary. At the time, when we were developing our constitution, the concept of consensus through council discussion was the primary value that people brought to the table of communication of trading off what would work and what would not work. The concept of separating the executive and legislature was not high on anybody's list, and so the GTB constitution has a combined executive-legislative function, so the council meets as a group and acts by motion, ordinance or resolution and it's the majority vote of the seven on the council. There are itemized activities that the executive power has -- and the vice chair and the treasurer and secretary -- but that is still in the context of the council acting as the executive-legislative combined branch of government. So we don't have, if you will, effectively, three coordinate branches of government. We have two branches of government, the executive-legislature as one and the judiciary as the other."

Ian Record:

"Let's talk about the judiciary. I plan to cover a number of topics with you today, but first and foremost is the issue of the judiciary or justice systems comprehensively and I'd like to start big picture, and based on your vast experience in this area, what role do you feel justice systems play in a tribe's ability to exercise its sovereignty effectively, to achieve its priorities, to create a healthier more culturally vibrant community?"

John Petoskey:

"Oh, that's kind of an open-ended question. I would like to just go directly to Grand Traverse Band. In our constitution we have the judiciary as an independent branch of government with independent authority and it's recognized in the constitution to have that. The judiciary serves the function as a check on the executive and legislative actions and it also provides a forum for dispute resolution between the community and community members over behavior that is not acceptable or behavior that comes to the court to resolve disputes between two individuals.

For example, I'm thinking of family law matters, dissolution of marriages or abuse and neglect on children or cases like that, so you need a third party to resolve disputes where the question of who is right and who is wrong is an open question subject to the advocacy of the parties. I don't see the judiciary in a larger, big-picture sense that you outlined. I see it in a little-picture sense of resolving disputes and if an individual, a tribal member, has a dispute with the tribal council over the enactment of legislation or the administration of that legislation by the delegated entities that the council has set up, then that tribal council member under our system, if our constitution has the right to go into tribal court because our constitution waives the immunity of the executive and the legislature and to assert that the application of that rule to that particular person is wrong for whatever reason.

And the Section 10 of our constitution incorporates almost word for word the Indian Civil Rights Act, which is almost...with notable exception leaves out certain elements from the Bill of Rights. The Indian Civil Rights Act is modeled on the Bill of Rights and those are the, if you will, the constitutional values that the federal system has, that the state system has, and by force of this overpowering values of constitutional law from our coordinate sovereign governments, the federal government and the state government, most tribal members are familiar with the U.S. federal constitutional rights and state constitutional rights; therefore, if they have a complaint with the United...with the tribe, they frame their complaint in that context and what is not unique about our constitution, but other constitutions, also have this, is that the constitution recognizes that there's an automatic waiver for that type of cause of action by a tribal member to sue the executive and legislature alleging a violation of Chapter 10 of our constitution, which effectively is the Indian Civil Rights Act. And our constitutional members have done that a number of times.

And then we also have disputes between...we have had disputes between the executive and the judicial...the executive and legislative branch and the judicial branch and the constitution does provide a methodology for the resolution of those disputes. We have had judicial removals and it's a process of the executive-legislature filing a claim in the judiciary unit, a panel of judicial appointees are appointed to determine whether or not a judge should be removed for cause, that are established in the constitution. So when you say big picture, it's too big for me to grasp because everything that I...for myself at least, I'm not a big-picture person and look at concrete problems and how to solve concrete problems, and those concrete problems I guess do have big picture implications, but it's solving the concrete problems that I focus on at least."

Ian Record:

"Well, and that's one of the reasons we thought of you as a good pick to be one of our fellows is that in our vast experience working with tribes on the ground in tribal communities is the fact that nation building is not a top-down proposition. It really starts at the grassroots and it works from the bottom up with the problems that every day...that come up every day that tribal members face. For instance, seeking redress against the government when they feel that they've been wronged. You mentioned that Grand Traverse Band's justice system is strong and independent and NNI and Harvard Project have done a lot of research in this area and it's been pretty conclusive in terms of finding that having a strong and independent justice system is really vital to a nation's efforts to achieve its goals. And I'm curious to get your take on that finding based upon your own experience and obviously the strength and independence of the justice system was not an accident. This was a purposeful process that the tribe has engaged in over a very long period of time to build that strength, to build that independence, and I guess my question to you would be how do you see that research finding in the context of what Grand Traverse has done?"

John Petoskey:

"In the context of...well, I would support it first of all. Having a strong and independent justice system is very important. And I think Grand Traverse Band has been lucky in some of the initial judges that it had that were tribal members that served for a long time on the judicial system and the fact that they were tribal citizens gave greater legitimacy for their decisions and for the conflicts that were resolved by judicial action. When we have had problems with the Grand Traverse Band is when we have...our constitution was written in the early "˜80s and actually implemented in 1988 and the provision that we have for judicial appointments does have a proviso of appointing attorneys who are non-members, and so on occasion we have had to appoint non-member attorneys to act as tribal judges. And the argument there is, "˜Well, an attorney has training in procedural due process, dispute resolution, the framing of legal arguments for the resolution of complex disputes and is familiar with the substantive law that comes forward that regulates human relationships and governmental relationships and so therefore the attorney, even though not a member, would bring value in that position as a tribal judge,' and that argument I accept.

Nevertheless, the proviso in my experience has been that when a non-Indian, non-citizen of the tribe is appointed, there are problems that inevitably arise because the legitimacy of that judicial officer is questioned by the community. I would propose a thought experiment that people would see this analogy or this problem in another manner. For example, I don't think any tribal constitution provides a provision in which you can elect to their tribal council non-members so long as they're attorneys or that they're engineers or something else, and that's just unheard of. And so the executive and legislative branch that are made up of members has greater legitimacy for implementing a decision even if the decision is wrong because it's coming from that citizen group in that community. Conversely, when a judge who is not a member is trying to implement a decision, even if that decision is right, it has less legitimacy.

So the cautionary tale that I would have on building strong judicial departments is that you keep in mind, and I know this is somewhat of a touchy subject, but you keep in mind that those should be citizen members that are filling those positions and it lends greater legitimacy to the resolution of the problems, and maybe this is a problem just uniquely to some tribes that have that provision in their constitution for the appointment of non-Indians, but if you look at the Indian law world, all of the Indian law professors -- you could tick them off on your hand that are the big stars -- also serve on tribal courts. And so they're not bringing their membership as a member of a tribe, they're coming to serve on those courts as people that are profoundly sympathetic to Indians and profoundly conversant with the principles of federal Indian law and the principles of substantive law, but nevertheless, they are bringing the same baggage of their cultural tradition to an Indian forum for resolving disputes involving principally Indians. There's variations on that too because some of those...some people argue that tribal courts are courts of general jurisdiction so they can resolve disputes involving Indians and non-Indians and I accept that, but what I'm saying is that a citizen/member of the tribe lends greater legitimacy to the resolution of the dispute."

Ian Record:

"To me what you're really talking about are what I see as two challenges. One is there needs to be a thoughtful, strategic discussion about. 'What should the qualifications of judges be?' So for instance, obviously should they have passed the bar in the state in which the tribe resides? That's often a criteria. I think what the Navajo example and a growing number of other tribal examples teach us is that tribes really placing an emphasis on their judges having understanding of that tribe's common cultural law and being in a position to apply that. And from what you're saying that non-Indian outsiders are just not equipped with that because they haven't grown up in that environment."

John Petoskey:

"Yes. In fact there should be, and I think Navajo does this and I confess my ignorance in this, but there should be a Navajo bar exam and tribes should implement their own bar exams for the practice within their own courts. Certainly all tribes now implement admission to their bar for their court but really all that is...and I'm not saying this in a negative or pejorative sense, but all that is is motioning yourself in for admission, paying the admission fee and being admitted to the bar of that particular tribe. But, if a tribe were to develop a bar exam and it's not...doesn't necessarily have to be on the substantive elements of what constitutes a tort crime, but it would have to be on something, in the case of Grand Traverse Band, it would have to be on the substantive elements of what is the fundamental value of Algonquians or Ottawas on how you lead a good life and what is the balance in life and the aim of life that you're supposed to be doing. And there is a set of concepts interrelated that are from the tradition of Ottawas and Ojibwes that define what is a good life and what is a bad life. And being sensitive to that in the position of judging disputes in which people are arguing over and sometimes explicitly, sometimes implicitly over those received values, is important to resolving issues that come before the court."

Ian Record:

"I want to turn back to Grand Traverse Band and the strength and independence that you and others have worked so hard to instill within that justice system that you currently operate. What do you feel -- based on the Grand Traverse experience -- that tribal justice systems need to have in place in order to be strong and independent?"

John Petoskey:

"I know the appropriate answer would probably be an institutional structure that non-Indians are familiar with, but the realistic answer, if you...is you need people that are really bright and focused and from that tradition and that are committed to that tradition. They are people that are...that grew up in the tradition, that bring the intelligence of the tradition to the position and that are committed to that tradition, that is an answer that is sort of off-center, but you need an Indian jurisprudence of values that reflect the community that you're from and the way that those values evolve are from growing up in that community, and that's an ongoing constant process. There's no one set of values that control the evolution of the community. In my own life for example and my wife's life, our parents had a totally different experience from what it was to be Indian in the...they were both born in 1915 and grew up in a period from 1915, died in the "˜80s, their life experience was fundamentally different and their grandparents or their parent's life experience was fundamentally different and they were born in the 1870s and you stretch back. This may be a little far afield, but if you stretch back to my grandparents, who were in the 1870s, and you stretch to my children now who were born in the 1990s, you have 120 years of change that is constantly taking place, but all of them have the same common denominator of coming from the same group of people and going through that change together."

Ian Record:

"So basically what you're saying is that the folks that lead that justice system, if you will, need to be culturally grounded, right?"

John Petoskey:

"Yes."

Ian Record:

"They need to have roots in the community that are not sort of put down overnight, but come from long, sustained involvement in the community, whether it's residence or participation in cultural ceremonies, etc. But just to sort of throw out a scenario to you, so presume for a second that you have all that on the judicial side of the equation and then there's somebody, in your case the executive-legislative side of governance equation that doesn't...is not acting from those values, if you will, and places perhaps unhealthy pressure on the judiciary to act in a certain way, to sort of test that strength and independence of the judicial system. What sort of mechanisms are in place to -- at Grand Traverse -- to ensure the insulation of the judiciary from that sort of unhealthy interference and ensure that it can in fact enact the cultural values, it can actually judge cases based on their merits and mete out justice in a fair and a consistent fashion?"

John Petoskey:

"Well, this is not something that is in place in terms of institutions, but on the executive-legislature side, there are seven councilors and the councilors don't always agree with each other, but they're all from the community and they all have...they all bring their common experience from the community to their positions on the council and they disagree amongst themselves and they recognize that some of those disagreements have to be resolved by the judiciary. And if Councilor A has a position against Councilor B and Councilor A is going to try to influence the judiciary to impermissibly or in some manner that is not straightforward in the procedural process, then Councilor B is going to object to that and Councilor B is going to then use Councilor B's authority within the context of the executive-legislative branch to bring that objection forward. And so it is a self-policing method of checks and balances, of different policy positions on the combined executive-legislative council. And so in that sense, even though the value is consensus of trying to get to a consensus and once the council does arrive at a consensus, it generally goes forward from that position. Arriving at that consensus involves very heated arguments between the individual councilors as to what is the appropriate course of action and if that heated argument or those differences manifest themselves in a dispute in the judiciary then Councilor A's attempt to determine the outcome in the judiciary is going to violate the rights of Councilor B and Councilor B is not going to acquiesce to that and is going to take action against A in the context of the executive-legislative process. That's realistically the way that works. I don't know if you formalize that process in some other method."

Ian Record:

"I guess what about for instance if it's not...if it doesn't involve a difference of opinion with two council members, but say, for instance, I'm a citizen and I feel that for whatever reason that the case before the court needs to be decided in my favor and I call up one of these councilors and say, "˜You need to do what I ask and I voted for you,' kind of thing and this may not be something you're familiar with because it doesn't sound like this is a common occurrence at Grand Traverse. Unfortunately this is a common occurrence in a lot of other tribes that we've worked with. I guess is it sort of values and sort of community norms that prevents a lot of that from taking place or is there something formal within the constitutional framework that Grand Traverse has developed that prevents that sort of thing?"

John Petoskey:

"Within the constitutional framework the judiciary is independent. That's a categorical statement. The hypothetical that you posited has occurred and I am familiar with cases in which tribal members have called up councilors and say, "˜I don't agree with this court's decision because it's wrong,' and the councilors have come back to the council and said, "˜Judge is wrong in this basis, what should we do?' and other councilors say, "˜Well, it's a independent judiciary,' and you get back into the methodology that I was talking about earlier where A and B are arguing over the proper policy. We're lucky in one sense that one of our councilors is a former chief judge on our court and chief judge on other courts in Michigan. So that particular councilor is...has been in the shoes of a judiciary and has been involved in inter-branch fights between the judiciary and the executive-legislature. But we have not had extreme cases at Grand Traverse Band. I can...I don't want to...there have been cases in Michigan in which one where the executive branch and the judicial branch got into such an extreme dispute that the judicial branch ordered the arrest and incarceration of the executive branch, and typically it's the other way around. All of the hypotheticals that you've been positing involve the executive pressuring the judiciary, but in this particular case it was the judiciary that ordered the arrest of the executive over an election dispute where the holdover council was not vacating office and the executive branch was actually arrested and then the petition for habeas corpus was filed in federal district court to release the executive branch, that the judicial order was invalid. So it goes both ways I'm saying."

Ian Record:

"It sounds like at Grand Traverse there's a controlling dynamic within the executive-legislative function where if there is an individual council member who's being pressured by a constituent to interfere in the judicial function that the other council members remind that individual on the council of their role, what their role is and what their role is not. Speaking more broadly, what do you feel is the role of elected leadership in supporting the strength and independence and supporting the growth of justice systems, because for instance at Grand Traverse, your justice system has grown by leaps and bounds over the past 20 years and won an award from Honoring Nations for the incredible work it's been doing and not just building a strong and independent court system, but also making sure that that system is culturally appropriate and reflecting and enacting the values of the people. What do you feel the role of leaders are in supporting the justice function?"

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

"Well, my response would be if you look at other systems -- the federal system, the state system -- there have always been disputes over the scope of judicial power in the...in federal court, in federal jurisdiction, what is the appropriate scope of federal jurisdictional power and what is the scope of its ability to resolve disputes. Justice Breyer makes a big point of this if you look at the election dispute between Bush v. Gore, it was a decision that was by the Supreme Court that was widely recognized as invalid in terms of its substantive analysis of the law, but nevertheless the whole country said, once the decision came out, "˜Well, game over,' because there's a strong judicial system and once the decision was rendered, good, bad or indifferent, that's it. Everybody folded their respective tents and went home and George Bush became president when he probably should not have been president on the substantive law basis, but a wrong decision on the merits is still a final decision and the parties respect that. And so you would hope that tribal court systems would evolve to that level of behavior where people would see that finality even for a bad decision. Of course Bush probably didn't think it was a bad decision, but they would evolve to that level of behavior that even for a bad decision, it's the final decision and you go forward. Nobody brought out the Army or guns or anything to enforce Bush v. Gore. The only thing that was done was Scalia saying, "˜Well, this case shouldn't be cited for any other precedent, just for the unique circumstances in George Bush as president.'

And the other cases, Justice Stephens and the other Justices, Stephens in particular, forcefully argued that it was a sad day for the judiciary, but they were arguing on the merits of what the decision was. Nobody was saying, "˜Well, are people going to abide by this? Are they going to follow this decision?' and ultimately that didn't even come up. The values were so engrained that everybody just followed that decision, but that was a hard-fought value because you go back to Brown v. Board of Education. When that came out, you had George Wallace standing at the entrance of a public university screaming, "˜Segregation now! Segregation forever!' saying, "˜I will not move and allow black people into this university,' and tremendous fights, killings, murders, just tremendous pain and suffering for the implementation of the Civil Rights decisions. So when you look at Indian Country, Indian Country is not something that is any different because we're all humans trying to resolve complex disputes and we're using different methodologies to resolve those disputes."

Ian Record:

"And I think it would be important for folks to keep in mind that while a lot of these justice systems are working...tribal justice systems are working to integrate, enact longstanding cultural values, the systems themselves are relatively new in many cases in that these were justice systems that were established in the "˜50s, "˜60s, "˜70s, "˜80s many of them, and it takes a long time in many of those communities for those systems to gain the legitimacy that you're talking about. Your colleague Frank Pommersheim, I had opportunity to interview him and he made the exact same point that the true test of a strong independent judiciary is, 'Do people respect the decision even though they disagree with it, particularly elected leadership?'"

John Petoskey:

"Yes."

Ian Record:

"That's the true test. They may not like the decision, they may not like the outcome but they're not going to blow the place up over the fact that they disagree with it."

John Petoskey:

"Right. That is a good test. And that...and nobody arrives at that without some pain and suffering, and that's why I brought out Brown v. Board of Education. Here you had the Supreme Court saying, "˜Segregation in education is constitutionally impermissible,' and you certainly had southern states saying, "˜It is not and we're not going to allow the decision to be implemented. Impeach Earl Warren.'"

Ian Record:

"So one of the things that in terms of how Native nations and governments and the other branches or functions of government can support tribal judiciaries...one of the things you and I were talking about yesterday was this issue of funding and what we've often heard tribal judges lament about is the fact that, "˜In our tribe the elected leadership treat us like we're just another department when really we serve a fundamental function of any society, which is to resolve disputes, which is to in many instances serve as a check on the abuse of power, the abuse of authority by the other functions of government. How important is it for leaders of nations...of tribal nations to have that mindset that the judicial system is more than just another department of government and fund it accordingly and really place an emphasis on putting the judicial system sort of at the top when it comes to allocating budgetary resources for instance?"

John Petoskey:

"Well, obviously my point is that judicial systems should be funded and the de-funding of judicial systems for political purposes should be categorically impermissible, because today's decision may be something that you support but tomorrow's decision may be something that you oppose and so the funding of judicial decisions based upon past precedent of the courts or decisions that they made shouldn't be in the equation of how you fund the judicial system. The conversation that we had was that I haven't seen any information on the relationship of how you...what the ratio is of the federal government's funding of its judicial system over its total budget, and I'm sure it could be easy to figure out, but I just haven't seen that in print someplace. At Grand Traverse Band, we have a revenue allocation ordinance and we did set up a system of funding the judicial system by a percentage of our income, our net income that we receive from various enterprises, largely gaming. At the time that we passed the RAO [revenue allocation ordinance] it was, I forget the exact number, but it was something like four percent or seven percent is going to go to the judicial system. And just through circumstances of gaming, like a lot of tribes over the last 20 years, the net income of gaming has risen dramatically like a jet taking off into the stratosphere. Those are numbers out there that everybody is family with. So we had this RAO number of four to seven percent that the judicial system received as a direct level of funding that was not to be...it was enacted by the statute and so once our enterprises took off, the amount of money that the judicial system was receiving was extraordinary. It got very high very quickly and because our enterprises were successful."

Ian Record:

"But I would imagine that as your enterprise got successful you're engaged in more commercial dealings, there's more disputes, there's the case load of the court system grows."

John Petoskey:

"Yes, yes, there is that argument, but my point is I haven't seen any good research on how you arrive at the appropriate level of funding for a judicial system. You do have the method of GPRA, of performance-based funding for projected future funding on outcomes with present resources and that's how you do programmatic funding for activities and then you have federal funding where federal priorities come into smaller communities and those are competitive grants that we look at and then you have what are called the self-governance BIA [Bureau of Indian Affairs], AFA, annual funding agreements through self-governance taking over certain sections of what is known as the 'green book,' which is the budget book of the Department of Interior for funding and they have a number of formulas that are in that book based on the appropriate level of funding for different activities that the BIA is engaged in in administering an Indian reservation and just in a thumbnail in self governance is a tribe has shown that it can administer those programs just as well as the BIA through no audit exceptions, therefore they get control of that line item in the green book to administer the program or to reallocate to any other function. My point that I was getting to is that I don't see the formula for tribal court funding. Clearly funding should not be a political animal in terms of past decisions or future decisions, but there should be some formula methodology to determine what the appropriate level of funding is."

Ian Record:

"So Grand Traverse, by all accounts, has operated this strong and independent court system for quite a while that it consistently and fairly dispenses justice. What sort of messages do you feel that that sends to outsiders that interact with Grand Traverse in terms of how it does business, how it governs? Do you feel that there's been a positive ripple effect of the way that Grand Traverse dispenses justice that supersedes the reservation boundaries?"

John Petoskey:

"Well, yes. These sound like leading softball questions, but yes. Some of the things that we do at Grand Traverse is what other tribes do and some tribes do it much better than we do. I haven't looked at their site recently, but I know Ho Chunk had a very good site on their judicial opinions and we try to model our site on our judicial opinions. We set up all of our opinions into VersusLaw and into WesLaw and so they're categorized into the WesKey number system. They're available... we try to make them available... before the internet came online we did create a... all of our opinions available in the local law libraries when everybody was using hard copies to do research. We made arrangements with the county law libraries that they would have copies of our code, that they would have copies of all of our opinions that were issued. And then several years ago, it hasn't been updated, but Matthew Fletcher, who a lot of people know in the Indian law world, is a member of Grand Traverse Band and used to work at Grand Traverse Band as an attorney, assistant general counsel for about four years, and after he left he wrote a restatement of Grand Traverse Band's common law based upon all of the opinions published up until that point. And so we direct people to that on a regular basis to tell them, "˜This is the restatement of the common law as of X date. It hasn't been updated, but these are the opinions on a chronological basis that you can find that are available.' Our statutes are published online. We do have a qualified, when I say qualified, it's not as detailed as the Administrative Procedures Act, but we do have a process of legislative enactment in which we publish proposed bills for comment by our tribal members and before enactment and comments come in and the tribal council reacts to those comments either accepting or rejecting, and making appropriate decisions based on the comments and some bills as a result of that comment process have taken a long time to get through to enactment because some of the issues are extremely contentious internally with the tribe over the appropriate standard that the bill is implementing on the standard of behavior.

So I think the common denominator of what I just said is transparency throughout the whole process. Transparency throughout the judicial process in terms of the court publishing its opinions, making them widely available to individuals, the transparency of legislative acts being widely apparent to individuals. Grand Traverse Band is now going for its executive-legislative function to publish their proceedings online so that people who are tribal members...and this is an open question on whether non-members would be able to access it, but clearly tribal members would be able to, citizen members would be able to access council meetings to review what took place in the meeting and the process and procedures that were utilized in the meetings. There's discussions right now of doing the same thing for court proceedings that... of tribal court TV, if you will, to make transparency as the same value. So I think the value of transparency is something that is accepted by the majority of the participants in the political process and that has enormous benefits in a cultural norm of checks and balances, if you will, because everybody knows that everything is subject to review and all arguments are...can be developed after the fact, too, because you can look at something or you can be involved in this conversation that we're having right now, it's being recorded and later on I may be sitting at home thinking, "˜God, I should have said that or I should have said this,' and other people will have that same reaction."

Ian Record:

"Doesn't it all boil down to, when it comes down to transparency and the different ways that Grand Traverse is seeking to achieve that, is people who interface with the government, whether it's citizens of the Band or outsiders who may be dealing with the tribe commercially or may live within the community on allotment land or whatever it might be, that they understand not only the decisions that have been made, they're aware of the decisions that are being contemplated, but most importantly they're...they understand the rationale underlying the decision-making process. What is the common law that's driving this or what are the values that's driving this? Is that really at the crux of the whole thing?"

John Petoskey:

"The crux of the whole thing is not to have an indeterminate process; it's to have a determinate process that participants can enter the process at various points and figure out what happened, why it happened, what the future decision is going to be, what the arguments for and against it can be and an indeterminate process, what I see is a situation where the participants and the people who have to suffer the consequences of the decision don't know why something happened or what's going to happen in the future because there's no agreed upon procedure statutorily or there's no agreed upon cultural norm of transparency. And so it makes for an indeterminate future and an indeterminate past because the rationale for some of the decisions in the past were arbitrary, and these are words that are used in administrative law, but are arbitrary and capricious and they're not subject to analysis because they're indeterminate. And so I think the value that Grand Traverse Band is trying to achieve is a process of determinate decision making in its executive-legislative and judicial process, where participants in the process and the people who are subject to the process either as citizens or non-citizens can understand what occurred, why it occurred, and what will occur in the future."

Ian Record:

"So I wanted to wrap up with a few questions that get into a little bit more detail about Grand Traverse Band's approach to jurisprudence. We've been touching again and again on this issue of cultural values, common law, common tribal law and I'm curious, several years ago the Grand Traverse Band formally integrated the peacemaking approach to dispute resolution into its justice system. Can you talk about how that came about, what was the impetus, what does it look like, how does it work?"

John Petoskey:

"Well, the value of the peacemaking court...first of all, I want to acknowledge that Navajo Nation started with peacemaking court and I'm not familiar with the full scope of that, but I know that they had a peacemaking court long before other tribes did and brought in their values and cultural tradition to the resolutions of disputes that were involved on family relations. And at that time, our chief judge, his name is Mike Petoskey, he's not my brother, we're often confused because we're close in age and look alike. He is my first cousin. He was our tribal judge and had been our tribal chief judge for about 15 years and he was familiar with a lot of Navajo judges because he went to law school at the University of New Mexico and he had a common experience with some of these judges based upon their military experience in Vietnam and similar life experience even though these people were from the interior of Navajo, Lukachukai. So it was Ray Austin that he was a good friend with. I think Ray has published a book on the Navajo judicial systems. And Mike and Ray had been friends for many years, well, going to law school and had a common denominator even though they were widely geographically dispersed and culturally dispersed, one being Ottawa and one being Navajo. And so Mike was dealing with the types of problems that come up in Indian communities that are families-in-crisis problems and part of the way of resolving those problems in the non-Indian society under child abuse and neglect and families in need of supervision under the state model, if you look at their codes, are very destructive to the individual family unit because the resolution is, "˜This is not going to work so we're going to terminate the parental rights. We want to take the child away. We're going to sanction the parent and the family is dispersed.' I'm not saying that across the board, but that is one model that the family law in non-Indian society uses to resolve families in crisis and that may work if you have a larger group that you're...of people that you're dealing with and larger resources. But the tribe didn't have the larger resources and the group that it's dealing with is a common core of people that are related to each other across time and terminating and dispersing the family is not something that is...that the tribe wants to do, because a lot of the historical experience of the tribal members is suffering the state system of termination and dispersal of the family and then slowly finding your way back to the community. And so an alternative is to try to fix the destructive family patterns that exist within the family in question or whatever family it is. I don't have any family in question, I'm just saying this is how or what the situations that came up and the way to do that is to bring in other members of the extended family into a whole process of saying, "˜Well, what is the problem and why are you behaving in this manner that creates destructive consequences for your children or destructive consequences for your husband or wife or for your mother or father or for your aunts and uncles?' The behavior of one individual has a ripple effect like the stone in the pond that goes out into the whole community. And so the concept of peacemaking is to recognize that and to bring all of the people in the pond, if you will, that feel that ripple effect into the process to resolve that stone and to engage in dialogue, and there is a value within the Ottawa and Ojibwe tradition that all of our inter-family relationships are really community-based relationships and extend out to everybody and that a resolution of those community-based relationships of necessity involves all of these people that it extends out to because your actions today do not just impact your nuclear family, your husband, wife, mother, daughter. They also impact your aunts, uncles, brothers, sisters, grandparents, and so bringing that whole group together or the principles within that group to work on the solution for that behavior is better than viewing it as a nuclear unit of a family, husband, wife, children and that's it and that as the scope of what the community was that had to be fixed. And the peacemaking court was to say, if you look at the larger community which everybody is impacted by this behavior and you try to bring the larger community into that process with the individual that is misbehaving, if you will, and saying, "˜This is what your behavior is causing to the whole community and we are here to help you to resolve that behavior,' and to bring the person back into the community by explaining what the impacts of their behavior has on the whole community. That's the fundamental concept. There's a long Indian word that I can't pronounce that my wife [Eva Petoskey] can, and so you might bring that up with her, and she has a better grasp of the language than I do."

Ian Record:

"So how in your estimation has it worked out so far, the use of peacemaking for Grand Traverse?"

John Petoskey:

"It's worked out well because it...there are a lot of people in Indian Country that are in pain and suffering for a variety of...this is sort of a leftist orientation, but of historical trauma, of what your parents and grandparents went through and so that has an impact on your present life and when I was talking about just looking at my own life, I'm 61 years old and I can look back to see my grandparents who I knew were born in the 1870s and there's been tremendous change from where my children are right now who were born in the 1990s and are in graduate school in college and going through different changes of their own, but we're all connected to this one place and we're all from this one place and we all grew up there. But the change is constant and for Grand Traverse Band since 1980 in the scale of things change has been positive for the community. The community has reasserted its traditions and reasserted its control over its community and when it lost its control over its community it lost control over its traditions because we weren't directing our lives, we were being directed by other people and so directing our lives even if it's in an impaired and fractured community is a process of healing that community and so that peacemaking court in the method that I just described is a process of resolving a lot of disputes that are very, very difficult and very difficult to resolve and that take a lot of time. It's not ever going to be perfect and it's not ever going to be over, it's always going to change."

Ian Record:

"As a final question, what I'm struck by in hearing you and others talk about the peacemaking approach is that often the western adversarial system, which is focused on punitive measures tends to focus on the symptom, which is the misbehavior whereas, peacemaking really seeks to get at the root cause of what's driving this behavior and sort of...and attacking that root cause to prevent that from happening again rather than punishing someone for what has already happened. Is that basically how it works?"

John Petoskey:

"I would say yes, but again I would say my wife has a better handle on that, but it's bringing in the community and the impacts on the community and saying to the individual, "˜You should have empathy and compassion for the acts that you're doing and the impacts on people that you have relationships with, long-term relationships with.' Sometimes they're loving relationships, sometimes they're not loving relationships, they're stressful relationships, but the point is everybody has a consequence for their behavior and those consequences are felt by the whole community and it's trying to say to the individual, "˜Your behavior affects the whole community and the whole community is here to try to tell you that to change your behavior so those consequences don't impact us,' because they do."

Ian Record:

"Well, John, we really appreciate you agreeing to serve as a fellow with the Native Nations Institute and agreeing to sit down with us today and sharing your thoughts, experience and wisdom with us. And this is part one of a two-part interview. We'll be interviewing you again this week in more detail about some of the work you've done in terms of developing Grand Traverse's legal infrastructure and I'd like to thank you for your time today. And that's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2013 Arizona Board of Regents."

Joseph Flies-Away: The Role of Justice Systems in Nation Building

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Joseph Flies-Away, citizen and former chief judge of the Hualapai Tribe, discusses the central roe that justice systems can and should play in Native nation rebuilding efforts, how justice systems serve as platforms for healing and cultural renewal, and what Native nations can do to create strong and independent justice systems capable of facilitating nation rebuilding.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "The Role of Justice Systems in Nation Building." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 20, 2009. Interview.

Ian Record:

"I'm very pleased today to be here with Joe Flies-Away, who's a member of the Hualapai Tribe and also, until recently, the chief justice of the tribe for the tribal court system. And we're here today to talk about tribal justice systems and specifically the role that they can play in Native nation building, rebuilding Native communities. And so that was actually going to be my first question to you is, what, based on your vast experience not only as a tribal judge, but also in the other capacities you've served for your nation as a legislator and also a planner involved with developing the economic development arm of your nation, what role or roles can tribal justice systems play in rebuilding Native nations?"

Joseph Flies-Away:

"Well, the first question to look at or the first issue is what is a justice system? A lot of people just think it's a court, but a justice system may include many parts. And so if it's just the court system, judicial system, the judges and that, that's one part, but then the whole system...so people need to always think about, what are they talking about? But a good judicial system, a court system would contribute to stability and peace and harmony and the things that people talk about. In economic issues or economic development, it creates a plane on which other people may want to be a part of or invest in. So there's a lot of different ways to look at it. I break things up when I talk about these issues in four parts; the people, the policy, the place, and the pecuniary possibilities. The people part, the court system or justice system, can create peace and harmony or goodness between people or solve conflicts, resolve issues between people, parties, whatever. The policy is the law, common law. Court systems help develop common law. The legislators will write law but a court system will develop court orders, which will create a common law. So that policy section is about law and government structure. The third, place. Place is like environmental support. So issues that may be clean air, clean water or contributes to good environment types of things. And then structure, like water and sewer and all that type of thing. Some governments are billing for water usage, sewer, solid waste and all this kind of thing. So that area, they can help make good decisions when someone's in conflict with a utility company. So that's the place. The pecuniary possibility is the economic development. They could help in decisions that create a good place for people to feel comfortable about doing business, about doing commerce, about entering into contracts, those types of things. So all of those areas can be covered by a good judicial system if it is functioning well and the parts are running well. A lot of times, however, that may not be the case."

Ian Record:

"So what does a...you talked about judicial systems, justice systems and you talked about it in a broad sense. What do those systems look like or maybe what do those systems require to be effective?"

Joseph Flies-Away:

"Well, I guess one of the things to look at with that question is it depends on that tribe. A lot of tribes will opt to develop a court system that's modeled right after the Anglo-American state court and they want to just, ‘Okay, we should be just like that.' Other systems may want to be a peacemaker court or more culturally based, culturally accordant type of system, where it brings in elders or brings in panel of people to help solve an issue, consensus-based issue or consensus-based decision making. So it would depend on what system they're in. But if they're doing a, say an Anglo-type state court system, they have to have all the parts. They have to have the ability to file papers, the ability to have that claim be processed in a court docket by court clerks, go through the system, be timely, mailed out, timely served, timely set on the docket schedule hearing and all of those parts that you would necessarily need to have a hearing, and then the decision process with the judge or jury -- or if it's a civil case, depending on what it is -- all those parts need to be well working. But sometimes there's always a problem with one part and so that may mess it up, but all of those, if it's an Anglo system-like model, then all those things.

The peacemaking side, it would be up to the tribe. That's a development that tribes are doing. They can create a system any way they want to make it. The one thing they need to have -- that I tell people when I talk to them -- is, ‘Just make sure you give notice to all the people and due process. If you do all that and however you do it is going to be great.' So how they fashion that system is going to be based on whether or not they give good due process and notice to the parties. ‘Here, this is what you need to come to court for and this is what we're going to talk about, be prepared. And these are the people who are going to be there to help decide,' and what not. But all the tribes, they can create... like Navajo has peacemaking. They have a peacemaker that comes in and that person will sit and hear all these parties, the families, everyone, and go through maybe a day-long discussion or maybe longer. A peacemaking in that sense... culturally accordant decision or dispute resolution systems like that, they actually take a lot of time, which we don't always have. That's the conundrum.

So it depends on the tribes. If you have a state model, it's those things that are necessary which most of us maybe can see. Well, hopefully you haven't been to court all the time. But if it's a tribal system, a culturally accordant system that's based in their culture, then I don't know all those parts. It would be based in what they have developed and it would be unique, and again, as long as they have due process. So there are different ways of looking at it. Justice systems in Indian Country are for Native people. They can be so creative if they really want to be, but a lot of people have chosen not to be yet, so hopefully they'll be developing more."

Ian Record:

"You mentioned some tribes that...or the fact that tribes can be very creative in developing their justice systems and reclaiming their justice systems in many cases. Do you...can you possibly share some examples of tribes that have been creative?"

Joseph Flies-Away:

"Well, I've...the Grand Traverse Band [of Ottawa and Chippewa Indians] up in Michigan, they have a peacemaking-type person who does peacemaking and they do that. Karuk, they have peacemakers. Navajo Nation, they have peacemakers. They have sentencing circles up in Canada, places like that. So there are...and in Alaska, they'll have a panel of five elders...but they had five elders come and they sit there and they heard a lot of juvenile cases and they would sit there and lecture the kid for whatever he or she did wrong and so they can create all that. The problem...and like in Bethel [Alaska] they kind of do similar things or up in Barrow [Alaska] they would have a group of judges not... and maybe some elders but they would make decisions collectively. The collective decision-making process is a very tribal practice. So that's how they do it. Sometimes the issue is writing down their decision. Who's going to write it down? And we need again to have...that's part of the due process -- a decision that's a record, record a record, keep the record, make a decision, give it to them. Sometimes that doesn't happen very well, but those are places that have tried to do that and others are trying to develop wellness courts or drug courts. State court systems have what they call drug courts, Native courts have healing to wellness courts and they kind of follow the same process, but they have a team that helps make decisions and the judge helps make the decisions for an individual person who's dealing with drugs and alcohol problems, so then they're doing different things in that. So different tribes are doing those types of things."

Ian Record:

"So essentially what you're saying is, as tribes are reclaiming control over their governing systems, you're seeing an increasing amount of diversity among justice systems in Indian Country?"

Joseph Flies-Away:

"Yeah, some are just, like I said, modeling, but a lot of others are trying to do something that either is like what they used to do or is a hybrid of what they used to do, because we can't go back and do it exactly the same. We can't go back and be exactly how we were, but you can find ways or maybe the spirit of it and bring it forward and put it into a structure or process that models something that was in the past, and I see that happening in some places."

Ian Record:

"A lot of the Native Nations Institute and Harvard Project research has focused on this issue of court systems and their role for instance in creating that environment you talked about, an environment for investment, an environment of confidence, of stability. What...and what the research has shown is that among nations that have what are termed independent court systems where there's...there are, essentially those court systems render decisions, practice jurisprudence free of interference from the other either branches of governments, functions of government, elected officials who represent those other functions of government. Those nations tend to perform better in the area of economics and things of that nature. What from your experience do independent court systems require, justice systems require?"

Joseph Flies-Away:

"Well, that's a separation of powers issue, and I might not agree with all the research that's there, partly because...and I would suppose it's true that they do better if there's an independent court system, but even though...and there's very few who have a constitutional separation of powers court. The latest is maybe 30, 35, 40, I don't know. Somebody would have to do that research and figure it out. Not many people have that. They do it by statute to create a separate branch that is independent. However, what gets in the way...you can write that down in a constitution and a code, but yet the persons who come into the positions of council or even the judges, they do not effectuate it. They act in ways that go against separation of powers. A councilman will go see the judge, the judge will go see councilmen and they talk and it gives the people the appearance of, ‘Well, they're talking, they're in cahoots.' So even if you have a structure, it may not work that way because of the people who are part of it -- people, policy, place, pecuniary possibility -- so the people are always going to be a part of it. But I agree, however, that when the legislative branch or administrative branch of government does not interfere with the judge or go over there and say, ‘Hey, you've got to do it this way,' sure, it's going to be...it will make the decisions feel that they are right or fair and without anyone getting in the way. And it creates an environment where people will say, ‘Well, I'm going to participate in that or try to participate in commerce there because I'm going to get a fair deal.' So, yes, I would agree with that and out there it does work. There are places where there's no separation of powers, however, and it kind of works, too. There's many tribes, so looking at all of them might be very difficult, but again it goes back to the people. If you have a person in the judge job and people in the council job who in their minds understand the importance of separation of powers, say, ‘We don't mess with them, we shouldn't get in their way.' They have no law, they have no constitution, it could work there, too. So it goes back to that human part of it. And I've seen that a lot of time, which the research that people quote doesn't take that into account as much as I think it is there in Indian Country."

Ian Record:

"So yeah, there's this issue of what's culturally acceptable, it may not...or socially, it's expressed through the social mores versus something that's hard and fast on paper."

Joseph Flies-Away:

"Well, in a lot of tribes there was a distinct separation of powers between individuals. Chief did this, medicine man did this, head man did this and gosh, in the Pueblos, very identifiable. You do this, you do that and you don't do this. So it is a cultural base of separation of powers. But there is also this collective decision-making process so...but we have been, since interruption by Anglo-American people we get confused. And so we were, ‘Oh, we knew back here,' but then all these people come and mess us up and we're kind of like confused here and we're trying to move forward and make it right again. But I think there is a history of that. We've just got to find it, appreciate it and maybe there are places where it was always a collective decision and we are so different. That's one thing people should realize. Tribes are very different in the United States, in Canada, all Indigenous people all over the place are different and they can't say, ‘Oh, well, they're Indian and they're going to do it all the same.' We aren't all the same and so individuals working or individuals seeking to do business with them or in commerce or any other way they need to know what type or where they're coming from or where that group is coming from."

Ian Record:

"You mentioned about this issue of investment, that when you have an effective court system, an effective rule of law in place and working in the community and the nation, that it creates this stability and this confidence for investors in commerce as you mentioned, but doesn't it also hold true for citizens of that nation, for members of the nation to say, ‘Hey, if I have a dispute or something, it's going to be resolved fairly on the merits,' that sort of thing?"

Joseph Flies-Away:

"It goes to that, too. Custody issues, divorce issues, all of those types of things will be effective beneficially by a good court system that isn't tampered with by anyone, that they are listening to the information, the evidence presented, they're listening to the parties only and they're making the best decision based on the law written or the law and custom and what is told to them and any kind of dispute that is brought, elections, all types of things. If there's no tampering with it, the independence of those institutions of dispute resolutions then create a better environment for everybody in all those ways."

Ian Record:

"So you mentioned there's a need...in order for tribal justice systems to be effective, not only to be effective, but to be legitimate, viewed as legitimate in the eyes of most importantly the people that it serves, that there has to be a sense of fairness and the sense of essentially political support. So support by elected officials in the other branches, if you will, that this is their function, this is their job. And you also mentioned previously that this issue of...for tribal justice systems to be effective, they need to have effective bureaucracies within those systems. We've heard tribal leaders from other nations lament the fact that in their communities often fellow leaders don't view tribal justice systems as essentially a stand-alone branch, but they view them more as a department of the government and perhaps as a result don't fund them accordingly, don't really support them to the degree that they need to be supported. Is that something you've experienced, and how critical is that issue?"

Joseph Flies-Away:

"I experience that in my own court, yes. It is unfortunate, but it's the same with the United States government. When the U.S. Supreme Court was created, they were in the basement, they were in the closet, they were in the bar, they were in the old place where the legislator was. It wasn't until 1958 that they got their own building, and that's like 150 years. So we're just following them. But yes, tribal governments, some of them will tend to not give the full -- I'm not sure of the word -- but they don't give it all to that court system and say, ‘You are a branch of government,' particularly in those that are branches, for instance at Hualapai. Hualapai there are two branches of government, the judicial system and the legislative, but the judicial system does not get all the resources it needs. It doesn't have a building, but maybe we have to wait 150 years like the United States Supreme Court, which I guess isn't so bad. But yes, and then they think of it because they are funded by consolidated grant funds from the Bureau of Indian Affairs. It's like, ‘Well, we're just giving them money and it's a programmatic decision and so they're just funding them at this amount.' The court system there though gets a lot of money from that grant. But it's not enough for that branch of government to really do the best job possible, to really be the...make the best decisions. To do what it needs to do for the people, it needs a lot more resources and that's the same for a lot of places that I've been. I've been to a lot of court systems and a lot of tribes from Alaska to Florida seeing what they do in different ways and that is a story that's similar, that the governments need to pay more attention to their...particularly if they have a constitutional branch of government, support it like a branch and not like just a program. And it would do them well. But it does go on, but you see little efforts like at other places where they're building big buildings like Gila River, Fort McDowell, they can see some contribution or some investment in those court systems, but that's just the shell. What's inside of it there are sometimes issues with. Pretty shell, the feeling isn't yet solid. So that also needs...but then they're at least going in a good direction."

Ian Record:

"Among those nations that perhaps haven't realized the importance, do you think it's in part this sense of, they're either dismissing or not understanding how important tribal justice systems can be as a vehicle for advancing their nation-building priorities?"

Joseph Flies-Away:

"Well, that goes to a leadership issue, so that's a whole other realm of things, but tribal leaders sometimes are new, they're just figuring out what their decisions must be and they are bombarded with papers and papers and papers and people and, ‘Can you do this for me?,' and all this stuff, so there is so much volume of requests and responsibility, that part of it is just that, 'I can't get to it,' and they don't have enough time to really study and appreciate that part of their government. So part of it's just that. Other part says, well, they might not like the court system. Maybe the court did something bad to them, I don't know, but I think the main part is they just don't have enough time to devote to really understanding that. And again, they are new sometimes, they're young, they haven't spent much time and they have a...councilmen have a particular focus sometimes. They wanted to be on council maybe for a particular issue and then they're spending more time on that -- environment and economic development -- but yet if somebody was really teaching them, like if NNI [the Native Nations Institute] was really showing this, that how is that all related. They have to see that and somebody needs to bring it altogether. And sometimes I see a lot of training that's always separate and it's not whole. So there's different issues why, but I always just think sometimes...I guess it's a positive reason, they just don't have enough time. There's too much to do as a council leader, council member and it's...they're drowning in work."

Ian Record:

"One of your judicial colleagues, a woman named Theresa Pouley, she's a judge at the Tulalip Tribal Court, who...they've become one of the pioneers in Indian Country in terms of reclaiming their justice systems. They started essentially a restorative system of justice."

Joseph Flies-Away:

"Yeah, I think it's the heart, 'good-heart' thing. Is that them?"

Ian Record:

"I can't remember, but the reason I bring her up is we had occasion to bring her here to address one of our assemblies of tribal leaders for one of our seminars and she said something, which really struck me, which was that many nations are really missing out on the opportunity they have with tribal justice systems to use those systems, to use the form of a tribal court, for instance, as a vehicle to express the core values of the people, to really...to share those core values, to advance those core values among the people because in those scenarios within that forum, you're dealing with issues of family, you're dealing with issues of community, of society and this is where we have a real opportunity here. And she said that's what they're trying to do at Tulalip is through this, developing this common law through this restorative justice approach, to really re-instill a lot of those core values."

Joseph Flies-Away:

"Yeah, the court system is...our judicial system -- or whatever you want to call it -- is one of the places that will save the culture, if they look at it that way. A lot of people don't see that. Any issue brought to the court, the court...there's written law, but then if they could look and see, well, 'What was the practice, common practice, the culture in this area?' And upon decision -- and if they have appellate court and goes through and solidified there -- a cultural understanding of something can be written down and recorded, and that is the way it will be from hence on. Yes, a lot of tribes don't think of that and that is one thing that a judicial system can do, if the people in it know, but a lot of times, the players don't know that. They want to be the judge or there's a judge and they're judging, but they're not thinking about that and...but it is...a judicial system is a way to save culture in a way and it's just not used that much all the time."

Ian Record:

"So I want to talk...we've touched on this issue of political interference in tribal jurisprudence and I guess I will just ask you flat out, based on your experience, what are some of the impacts, I would assume a lot of those impacts would be negative, when politics is allowed to interfere in tribal jurisprudence?"

Joseph Flies-Away:

"Well, it creates a system where people can't believe there's going to be good decisions -- inconsistency: ‘Well, this guy's going to go over there and have the judge do something different, but then another person will come and it'll be like the one before.' It creates inconsistent decision making, favoritism, and altogether in that situation. I've had previously council members try to say to me in writing, ‘This is what you should do.' And I would write back, ‘No, you can't tell me to do that.' And it's only happened twice to my recollection, because we actually have a separation of powers by constitution; there's laws there. But in other places, it does happen, and unfortunately that's where the people then start having no belief in that system. They'll say, ‘Why should I go there? It's only going to be changed or so and so is going to be able to change it or affect the decision,' and they don't feel comfortable, there's no comfortability in the decision-making process, there's no faith in it, and then again inconsistent decisions because X will get this and Y will get that because of the interference. And it may happen in different ways directly. One way that I think it does occur is by money. Sometimes the legislative branch will say, ‘Well...' or the administrator might say, ‘Well, you're just not going to get all your money,' and then the judge, ‘I guess I have to do something else,' or something. So it's different ways it can happen. But I think that's becoming less and less, I would hope. I would really hope that that's how it is because when I talk to judges, we only talk and they have that sense of -- particularly if it's written down -- you can't do that, but even if it's not there, we all understand as judges there's a separation by practice or just by feeling, I guess, that judges make the decisions and they're not too affected, and a lot of us understand that and they do their best. Unfortunately maybe in some places some judges come and some judges go, they get fired and that happens, too."

Ian Record:

"So in that situation when you have a justice system that is experiencing political interference and you have that...essentially the people in the community receiving that message that you're talking about. Well, this shows them that this is the way things are being done, it's inconsistent. That message also ripples beyond reservation borders, does it not, to the outside world?"

Joseph Flies-Away:

"Yeah, it would go beyond. It goes through to other people in the next communities and they'll call it a 'kangaroo court.' There are...we're looking at courts in California and Public Law 280 states and some people would prefer not to go to the court system, their own court, if they had one. Some have one, some don't. If they were going to develop their court system...I remember one individual saying to me, ‘No, no, I don't want to go to a court system here. My decision...they'll tell everybody what happened.' They have the faith...no faith in that, so they would even choose, even if they had a justice system... a court system on the reservation, go to the state system because they have jurisdiction as well on certain issues. So that's just among the members, but then people talk, they'll say, ‘Well, god, our court system is ridiculous. You can't get a good decision there,' and it goes beyond and then it creates a whole system where no one wants to deal with the court. But again, I am believing that that's less and less. I'm hoping. I mean, people probably could tell me, no, that's still happening, but I would hope that it's becoming less and less."

Ian Record:

"Switching gears just a bit, Joe, I'd like to talk a bit about this issue of tribal jurisdiction and what from your perspective are the major challenges facing tribal jurisdiction today, kind of just in the panoramic sense, and then how can Native nations overcome those challenges and specifically how can they use their own justice systems to overcome those challenges?"

Joseph Flies-Away:

"Well, the jurisdiction question is just by itself a question that judges have to ask [in] every case: ‘Do I have jurisdiction in this matter,' and while in some cases it looks obvious, sometimes it isn't and...but I believe court systems or judges for tribes should push the envelope on jurisdiction as much as they possibly can legally anyway, if they're a member and something happened over here, but they're still a member and it says you have jurisdiction over members and why not. I've had judges tell me, ‘No, you can't because it happened over here, the incident,' but you still have jurisdiction of the member and we kind of go back and forth on it. But I would push it a little bit because it... the more jurisdiction you exercise, the greater power, the greater sovereign power you're exercising. So it's a bigger thing. But there are other jurisdictions next to you, or even tribes actually argue over cases, kids' cases for instance. One party's here, one party's there, and there's a kid involved. I've had discussions with judges where, ‘That's my case,' and ‘No, no, no, that's my case,' and I'm, ‘Come on, we've got to...let's figure this out.' And so I've been able to talk with judges and we would figure it out. ‘Okay, well, you do this part of it until that part's done and then we'll finish it over here,' or vice versa. So even tribes have jurisdictional questions that they can work out. I know a lot of judges who have talked together and we call each other on certain cases. It's the state system if you're Public Law 280 or [it's] unknown who does have jurisdiction, like it happened here to a member or something. I've talked to state judges before asking them, ‘Are you going to take this case or what are you...,' like a probation issue, something happens on probation over there, on probation here, something happened at both places and sometimes they'll say, ‘Well, you can just handle it, I'll waive it over here,' and go back and forth on it. So it's that having the power to deal with something is something all courts have to first decide and then you get into issues. Well, if there's another judge thinking the same thing, then you have to deal with them or the lawyers do that. In some cases there are no lawyers in tribal courts. So the judges play more of an active role. When there's no advocacy like that, judges do a little bit more. As more and more lawyers come to tribal court, then maybe we'll do less and less of that, but...because they're really supposed to do that, but a lot of tribal courts don't have the lawyers to say, ‘You don't have jurisdiction here, judge,' and, ‘Yeah, you do,' kind of thing. But the court I believe should assert as much jurisdiction as possible if they can find it in their law and they have a good basis to do so, because again it supports their sovereignty. If they don't do that, if they're always letting it go, they can always say, ‘Concurrent jurisdiction exists, they can do it too, but we're going to do it too,' then they're letting go bits of their power, bits and pieces of their strength to somebody else and that's not a good thing. So it's...that's a question again, every judge has to ask each time a case comes, ‘Do I have jurisdiction?' and in fact in your findings the court has jurisdiction pursuant to a section of the code or whatever, we always have...we should be saying that in our findings. I think for certain tribes, it's much more easy when it's a tribe that's like Hualapai that's all trust land as opposed to like Salt River or Gila River where there's checkerboard fee land involved and all of those types of things. ‘Oh, it's on the reservation, it's fee land,' and every...all those questions you have to ask and certain tribes have it a bit easier, other tribes have it a bit difficult and in Public Law 280 states, a lot of questions."

Ian Record:

"So what I'm hearing from you is this goal of pushing the envelope of jurisdiction is essentially a strategic exercise, where you have to say, ‘Okay, what is going to serve our best interests,' because there's certain areas you could get into but it may not serve you."

Joseph Flies-Away:

"Well, the first priority is the case. I can't think like a tribal council member when I'm a judge, but you look at the case first and if there's a question about jurisdiction that you think you have it or not, then you would, I would push the envelope on jurisdiction if it looks like by law, because that's exercising sovereignty. But I shouldn't be making the decision, ‘I'm going to exercise jurisdiction just because I can,' it should be based in something before I do it, but I think in those decisions a judge would extend their jurisdiction, the long arm of jurisdiction that other courts do, they should do that in the best, in situations when they believe they have the power to do it. Not just...I've seen some cases where judges have just did it and they had no jurisdiction, tribal court judges. It was...they lacked jurisdiction, but they just did it. I don't know if it was a mistake or ignorance or whatever or just being cocky, sometimes that happens."

Ian Record:

"So have you seen some trends emerging in this area of pushing the envelope of jurisdiction through tribal justice systems that you could share, maybe some major areas? I know you mentioned child custody and things like that, but..."

Joseph Flies-Away:

"Well, not specifically, but courts...like in these cases with civil traffic in a road that runs through a reservation. The state has a right of way and then the tribe...it's the tribe's land and they're both going to, there might be a little speeding, they're already giving tickets like that, but some other issue happens and they're going to take that case, but at that same time the county judge is going to want that case because maybe a state officer has filed it there. And then if there's a...then sometimes they'll -- maybe they'll talk, I would -- but some tribes don't talk to their county, they don't get, they have no communication, so things like that where there's ambiguity or there's concurrent jurisdiction. In divorces, it's like if the law on a tribal reservation says, ‘Had to live on the reservation for 90 days, 60 days,' and... but the person actually... it's not... the fact is not so clear and they may assert jurisdiction over that and then the other party might go to the state court and there might be a little issue there and then somebody would really have to present some facts to figure out what law applies and who's going to...but if you believe it, if you believe you have it and I...judges I know, they would probably assert the jurisdiction if they could see it in the pleadings, in the law, they would tend to do that, I believe."

Ian Record:

"I want to switch gears here at this point. We're going to wrap up with kind of a general discussion of what tribal justice... strong, effective tribal justice systems require, but I wanted to touch a bit on this issue of federal Indian law, which is not only a huge issue for tribal judges and tribal justice systems, but it's a huge issue for Native nations overall and certainly a topic that Native leaders need to keep abreast of. And with that in mind, I wanted to ask you a few questions, the first of which deals with something that you as a lawyer are well aware of and that's the Marshall Trilogy, the Cherokee cases, which were handed down in the 1830s and..."

Joseph Flies-Away:

"I wasn't alive then."

Ian Record:

"You weren't alive then, yes. We'll be sure to get that on the record but...and talking with...the federal Indian law experts still universally regard it as the foundation of federal Indian law, and I was curious to know from your perspective how those three Supreme Court decisions continue to impact Native nations and tribal jurisdiction today."

Joseph Flies-Away:

"Well, the one that I think about of those three...Worcester...I can't even say it -- Worcester v. Georgia, I can never say that word. The 'domestic, dependent nation' line and I'm pretty sure it's that case, but I once wrote domestic dependent nation in something I wrote, but our dependent domestic nation, I wrote it backwards, I guess. But that one line in those cases where it deemed a tribal government a nation, I believe has a lot of strength to it. The dependent domestic or domestic...when I teach federal...when I taught federal law, I taught once, I teach in circles and I draw a big circle. Well, I draw a circle and a circle, and then I tell the students, ‘This is a tribe and this is the United States,' and then we do a history. And then I go, ‘Here's the United States,' this is after conquering and we're in the middle and then we throw the state in there at some point, but I do it in circles and I have them say, ‘Okay, here's where we were,' and then as we go...and there's a dotted line, too, because they can come into it, a solid line means you've got no say so like membership would be...and then you have a circle with a circle and in that middle part what you can share and the parts you just don't. I teach it like that and so domestic dependent is, well, you're a circle within a circle, you're within that bigger circle, but you still have a lot of say about what's inside. But I ask the students this question, and I would ask tribal leaders if I taught this...well, I do, I actually do this. I did this at Ysleta del Sur [Pueblo]. I said, ‘What is it, how do you see these circles with Texas with the United States,' or if I'm in California, ‘with California and the United States,' wherever I'm at, I'll include the state and I'll put them through this exercise of drawing these circles, and it's very interesting to see how they all come up with it. And then I'll talk about the nation part and then domestic...but dependent meaning, ‘Well, yeah, we get a lot of money from them, we're dependent on them,' but yet we go through that discussion, but I leave at the end, ‘But we're still a nation,' and that that one case, we should always remember that, that tribal leaders should be conscious of the fact that we're nations. A lot of tribal governments like to use the word 'tribe' and in fact at home some say, ‘Why are we using the word 'nation'? We use the Hualapai Nation and then some like Hualapai Tribe.' Well, the word 'tribe' is a very small word as compared to 'nation' and in English, 'tribe' is a small group of people, 'nation' is a bunch of tribes. And in fact, Hualapai was 13 bands of people and so there was a Pai nation and Hualapai was one band. And so actually if we want to push the thinking to our people that we are a 'nation,' then use that word. If we continue using the word 'tribe,' which some do and that's their decision and that's fine, but it's a smaller sense of it. So I look at that case and I think about the nation and where we fit and the goal however is how we started out. Here's Hualapai or whatever tribe and here's the United States. Go through all of these circles mingling in and I...he processes or the exercises I have the student go through how they all mingle with each other, but the end is to be again like this. The only way you're going to get there, though, to be an independent nation is to do a lot of economic development, to be able to pay for your own things, should not be dependent anymore, to come out of that circle to be not domestic. But that's going to be hundreds, thousands of years away perhaps, but maybe not. I don't know. Some places maybe could do that. So when I teach federal Indian law and we talk about those cases, I really concentrate on that aspect of it and the court was saying, ‘Well, these tribes, though they were conquered...,' and they use all that stuff, Doctrine of Discovery and all those types of things in there, that... Justice [John] Marshall was saying, ‘But they still have a lot of power to themselves and Georgia's laws aren't going to matter, that state's not going to matter to Cherokee.' And so you've got to pull out from those cases what empowers tribal leaders and what empowers tribal members to think like a nation and if you don't do that, we're going to be thinking about a smaller group of people always within a larger group of people, always under their wing, always being under them and never being their own and I think that tribal people need to pull out of that. And if it's just by the meaning of that word, that's one way to do it. So I use those cases to try to pull out those things and of course the legal issues, but I think they're more empowering in a way rather...not just a legal thing...I mean, that's important, but how we are thought of and what we can take from that forward for our people. That's what I think of that. So it may not be such a legal..."

Ian Record:

"It's a philosophical..."

Joseph Flies Away:

"It's a more..."

Ian Record:

"...Mindset change."

Joseph Flies-Away:

"Yeah, the change...because we've been conquered and cowed people and so we're like, ‘Oh, we've got to pull out and become out here like we started.'"

Ian Record:

"So a more general question, your thoughts on what impacts colonialism, the assimilation policies, and other federal policies generally have had on...had on preexisting Indigenous systems of justice, of dispute resolution, and I guess I would speak to the gravity of the challenge facing many nations in terms of having to rebuild those systems."

Joseph Flies-Away:

"Well, again, if we started here and these people came and interrupted and said, ‘You're going to be like this,' and a lot of us ended up being like this, it took away who we are here. It took away the practices and the ways of our people, of the common practice culture, it took away that. It took it away completely or it took parts away, but a lot of places it just completely took it away. So while we had previously a certain way of doing things, the interaction or the coming of these other people just took away the practices so we aren't who we were. Now tribes can go back and try to reclaim that, but you can't go back and be exactly like that. There are certain practices, like at Hualapai a long, long time ago, if you were really, really bad, they might kill you. There was... I was reading this one thing and I asked my great grandmother, there was medicine people who did not heal, if you didn't heal, they'd beat you up or might kill you. So malpractice was an issue because there was a lot of medicine men back then and they must have been healing because otherwise they would have been out. So we won't do that. The death penalty, tribes probably couldn't do that anymore. So you can't go back and be exactly who you were, but you could pull from that and bring it forward and you can incorporate it. And a lot of people are merging the new way with the old way. I hear people like at a conference like today where they're trying to be back here, but yet all people grow, you go forward. I have this thing, which I wanted to share with them, but I didn't do it. The people gather, ground and grow. That's my community nation-building statement -- that people gather, ground, and grow, and now I say 'green' because of all the green stuff. So they... whoever the people are, they come together and they gather and they figure out their structure and how they're going to relate to each other and they ground themselves and they build structures and institutions and grow, they get stronger and they're going to keep doing that. So it... in that growth portion, they can bring the past forward and take what was powerful and good -- language and what they can remember -- and bring it forward and ceremonies and if they've forgotten all the ceremonies or have in parts of it, well, they can recreate parts of it and bring it forward and put it into now. So tribes can reinvigorate things, and if they did that, then perhaps they'd be a lot more stronger, but when all those people came and messed everything up, they really screwed Native people up. But we have the power to move forward and build better things, better and new things, if they can just see that. Some are, some aren't, some are lagging, some are moving forward, but I think perhaps that's just how they're meant to be at that moment and then perhaps later they'll do better, or maybe not."

Ian Record:

"So I asked you generally about colonialism's impact on tribal justice systems, one of the major watershed pieces of legislation that Congress passed for Indian Country was the Indian Reorganization Act, which was passed in 1934. Many Native nations still operate to this day with essentially the boiler plate system of government, the boiler plate constitution that the IRA set in place, and I was wondering if you could speak to the legacy of the IRA for tribal justice systems."

Joseph Flies-Away:

"Again, if we looked at who we were and interaction and then a specific legislation like that -- again, not all tribes signed that, not all tribes are IRA tribes but Hualapai, many are -- it created a constitution for them. It basically said, ‘This is how you're going to be. And it took away the previous way or the way that they were prior and they rearranged their whole structure basically. And it formed a structure of government that just was antithetical or contrary to what they were before. So we're stuck in that in a way. We have at Hualapai a council government. Actually had a 1934, 1955, 1991 constitution. We used to have in one of the previous ones, a chief sit on the council, but for some reason they took that out. I thought that was kind of cool when I found that out, but that's gone, but we could have had like a representative on council from each of the 14 bands. If we were knowing what we could do, we might have done it differently, so when the big-circle government said, ‘This is how you little circle governments are going to do it,' they really interrupted how we were, and I think we struggle with that. I heard someone today talk about Robert's Rules of Order. I said, ‘Who the hell was Robert and why do we care, right?' A lot of people want to follow these rules and why? We could develop our own. When people brought in all these things, a lot of our members, our leaders perhaps, they think we have to stay like that, and we don't have to be that way. So it kind of just stifled everybody. But maybe...and for the sake of it, some of them take it and they do well with it. So there are, but I think a lot of us struggle with that form of government that was told to us, ‘You have to do it like this now,' whereas, it wasn't the way we were. But I think over time, if it's been 100 years, going to be 100 years, maybe they have then adopted it because tribal people are very...they're good at adapting. You gave the people the horse and they became the best horsemen. So if you gave them the IRA government, maybe they're going to make the best of it. I'm thinking positive. But it just...that legislation, however it came when they...one thing I should say, however, when they were trying to do that, that was...it was a way though to give more power back to the people too, I guess. They were saying, ‘Here, you have a way to be...' It was a way of saying, ‘You're going to do your own government,' but they gave it...they gave them a form. They should have said, ‘You have the way to do government, figure it out.' But they didn't -- they gave us structure. So it in a way is good, and then I think now tribal leaders are beginning to say, ‘Well, wait a minute. We don't have to be like this. We don't have to be exactly like United States with a three-branch government and all this kind of stuff.' Hualapai has two branches of government. We can do different things. And I think that that kind of thinking is becoming more and more. So there was many, many years of just stifling. But people did well with it. There was also the corporate shell situation, which they were able to start doing business without being sued and whatnot, so some of that was good. But it is a way...you go somewhere and...it's almost like you see nowadays when America goes all around the world and say, ‘Here, you're going to be like us.' And they're still doing that. They should think back, ‘Wait a minute, we shouldn't be doing this all the time. Let's just kind of help them out, but let's not tell them how to be.' And they don't think they're doing that, but that's how it seems. So there was just an interruption and maybe now we're kind of coming out of that."

Ian Record:

"So you mentioned that Hualapai back in the 1930s adopted the Indian Reorganization Act and what we've seen a cross a lot of tribes who did adopt the IRA is this, essentially this boilerplate clause that left in the hands of the council or the legislative body, the authority to create a court system, and that was essentially the only mention of a judicial function in these governments that they set up. Is that something that Hualapai struggles with, is that something you've seen other tribes struggle with, this trying to reconcile this to say, ‘The judicial function really needs to be a separate function or have its own identity'?"

Joseph Flies-Away:

"In '34 we had that boilerplate. In '55, it was similar. But we had a -- what do you call those courts -- a CFR court. And though we had a tribal policeman do all the things that the superintendent guy would tell him to do, it was '91 that we got our own separation of powers. So from the ‘80s to the ‘90s, consultants or lawyers, people are saying, ‘You guys got to do this.' I wasn't around at the time, but it happened and we separated it and we became a two-branch government, but we're one of the few, there's not very many. I don't know what happened back there in the past, but I know there were tribal judges in a tribal court since 1950-something, and a tribal person would be sitting in that chair making decisions for the people, after the superintendent was no longer doing it, and the tribal judge was deciding, but it was more like a CFR court and they were following the laws of the white man. They weren't able to apply custom and tradition or they were told that that didn't matter, I'm not sure, but that wasn't what was applied. It was the old code that the American government gave you, ‘You can't do this, can't do that,' and they would then have a sanction and they would sanction. Whereas before, perhaps they would sit all in a group if you were acting bad and say, ‘You were acting like this or you did this to my family and we're telling your family. If you keep doing it, we're going to beat you up or we're going to throw you in the canyon,' or whatever it might be and in front of everybody that person will be told what will happen if they continue acting in a way contrary to the norm, in a bad way. And that's kind of how things were decided. If there was an issue and it was too close for that particular band, they would ask perhaps a head man or a chief of the next band over or someone not actually related to come in and listen and help decide. We don't do that anymore. But there's no reason why we cannot bring that back. I would like to do that, but we're...but our system is so embodied or entrenched with that Anglo adversarial system, partly because other people who've come to our tribe, outsiders, Natives even come to our tribe, they promote that because that's what they know. People come with what they know. I would rather just [whirring sound] and go back and try to bring something better, but it's hard working for your own people, so I don't know if I'll ever do that but tribes can do that. If they are told...but like I also tell judges and tribal leaders, developing a government, developing a judicial system takes many lives. You're going to be like Moses, if you know who Moses is. You're not going to see the promised land, but you're going to contribute to it, put some seeds in there, and then hopefully someday you'll get there. That's how I look at it, just kind of move it in that direction, but I won't see the end."

Ian Record:

"Back to this issue of the federal Indian policy arena and...I want to ask you a question specifically about what's going on currently in the U.S. Supreme Court. And I was curious to get your opinion on how should Native nations view the current U.S. Supreme Court given its current composition, its recent cases with respect to Indian Country, and perhaps maybe some thoughts from you on what you would advise tribes to do in response to kind of strategize about how to approach the court given what's going on."

Joseph Flies-Away:

"Cases probably shouldn't be brought there right now. I don't know. I have my own theory about certain things with Supreme Court Justice [Antonin] Scalia and his originalist thinking. To me, if that's...that's what he...you're supposed to go with what they said back then. Well, back then, they thought of tribes as nations. Then why do you keep stripping it away. He's hypocritical in my thinking. So the only strategy I can think of is if you'd go to court, argue with the Supreme Court, you'd play on him and you'd say somehow in an off way how hypocritical he is if he doesn't go back to the originalist thinking by thinking tribes are independent nations, how they thought of [them] back then, because when it comes to tribes, that's the only time he goes the other way, it seems to me. But other than that, I wouldn't go to that court, not with those justices, but that's the only thing I see there, unless I'm wrong. I've bought all these books on him and I'm reading them because it seems to me that's the only way with him. He talks this way and then he's going to be a hypocrite if you don't...a case comes to him and you push original thinking and he goes the other way. How could he do all these cases that way? It would be bad. But other than that, I don't know. I wouldn't want to tell anybody what to do, not now."

Ian Record:

"We've heard other people respond to that question, essentially echoing what you said, which is probably in tribes' best interest -- unless they have an unbelievably strong case -- is to not take a case up there. And absent that approach of taking cases to the Supreme Court, doesn't that behoove tribes...wouldn't it behoove tribes then to become innovative -- which we're seeing a lot tribes do -- becoming very innovative in terms of making sure that their rights are protected, advancing their rights in other ways, whether it's through MOUs with other jurisdictions, things... you've made allusion to this issue of concurrent jurisdictions working together on certain things rather than just butting heads."

Joseph Flies-Away:

"Yeah, the one thing about nations is nations have to deal with the other nations and they have to talk and communicate and they have to make deals or they have to work together. Sometimes tribes don't want to deal with the next person or the jurisdiction next to them, don't want to share information, but being a sovereign, that's part of being a sovereign. To be a true sovereign, you work with some other sovereign, you don't stay away from them, you've got to work with them. So in order to be more powerful, you have to deal with that sovereign and you make agreements, you make laws that work with theirs, you make your own laws that...or you lobby their lawmakers to do things that help you. So there are a lot of things that tribes can do and are doing and are becoming a little bit more creative. And that's again like giving the horse, tribal people are going to be thinking about it not like these people, they're going to think about it and then maybe come up with some other way and they're going to be, ‘Ah, we've got this and we're going to do it like this.' So there's different ways to do it and not...taking something to the Supreme Court is on a specific issue and whatnot, but you want to not have those issues, you want to start dealing with them up front, you want to start working things out. Nation building, part of my model is confrontation, communication, compromise and concord. So you confront the issue, you communicate it, that means talk about it, you compromise, you give and take, and then you reach that peace, concord. So you would move in that direction and tribes need to start doing that before it becomes an issue that needs to go to nine people or five people in cases that will make a decision that will go totally maybe bad for everybody, not just them. It affects everyone, unless it's such a specific matter that it only pertains to them, but most of the time in federal law, it's a huge issue like the Carcieri one, those ones before 1934, they are...after they can't put land into trust. It affects those people, but it wouldn't affect us or certain tribes, but that kind of creates these tribes against these tribes. So you want to start...again, being a true sovereign is working with other sovereigns and dealing with them and communicating with them and making compromises with them. So we can't stay away from people, we have to do those things. But a lot of us are kind of hesitant, either because we don't know how to approach, we don't know how to deal, but over time we're learning that. One time I called the judge and he said, ‘I've never heard from a judge from Hualapai before.' I said, ‘Well, this is me and I want to know something,' and so we talked one time. So it's happening and it's just a matter of time when we get really, really good at it. But again, as Moses, we might not see that part, but I think it's doable."

Ian Record:

"In fact before I get to those last two questions, what you just mentioned recalls another question I wanted to ask you and that is this issue of transparency in jurisprudence is something you've alluded to, and I was wondering if you could speak directly to that issue and how important transparency is to having effective justice systems."

Joseph Flies-Away:

"Transparency in how, what do you mean?"

Ian Record:

"Transparency in how the verdicts are rendered, transparency in the process."

Joseph Flies-Away:

"Well, it has to be fair. When I think of the word transparency, it's like they know exactly...well, the process they should be aware of how it works, but sometimes like in certain cases they don't, they can't know everything that's presented, certain things. But the process should be open...sometimes they want to close a criminal matter, but by law we're supposed to be open case. So the process should be open, everybody should know how it works, and then it should be consistent. And that to me is how I see transparency. It's consistent, people know what's supposed to happen; it's not going to change. A lot of tribes, however, have problems when they don't have court rules because when you don't have court rules, and this happens actually a lot. A pro tem judge like myself will go somewhere and there are no rules and something comes up, previous judge did it differently and I do it differently. That happens a lot when a tribe doesn't have rules. But everybody knows that so that's not a problem. They're going, ‘Oh, it's a different judge, he's going to do it differently or she's going to do it differently.' But in general, people should know how the process is going to work generally, and then they should be aware of it and kind of see it go through and follow it to the end, to the decision making and not be secretive and the judge goes into the back with the prosecutor or something like that. It shouldn't be that way at all."

Ian Record:

"I want to ask you about a topic that the Native Nations Institute has been spending an increasing amount of time looking at and that's this issue of sovereign immunity, and we convened an executive forum a couple years ago with leaders from nations, experts, lawyers in this area that are working in this area. I was wondering, from your experience, if you can comment on the issue of sovereign immunity and specifically how it can be used as a tool to advance tribal sovereignty."

Joseph Flies-Away:

"It can advance and not advance. So let me start at what sovereign immunity comes from. Sovereign immunity is a doctrine that comes from Anglo Saxon, the 'king can do no wrong.' So we have to ask, ‘Do we have kings?' Native Hawaiians, today, maybe they do. Maybe they say, ‘The king can do no wrong,' that's applicable in their culture. In tribal systems, maybe they had a chief kind of like a king and maybe they believe, ‘The chief can do no wrong,' so if that's applicable, then that's cultural, they can apply it, cultural law. But in other places it's not like that. Some tribes believe chiefs can do wrong, people can come tell you. You meet together and say, ‘We don't like this.' So it may not be applicable, that concept, ‘The king can do no wrong,' or, ‘The chief can do no wrong.' What I see sometimes is lawyers, if a tribe does something perhaps to a non-member Native, for instance, they do something bad to him or they do something that is a volative, basically under the Indian Civil Rights Act or whatever it is. That person can't sue because of sovereign immunity. The lawyers are going to say right away, present the defense of sovereign immunity. Now if we want justice, that's not providing justice. That's helping the tribe because they can't be sued, but it's not helping generally justice because if a tribal council made a decision...because certainly in my mind tribal councils can do wrong, they can make bad decisions, and I have seen it. And it may not be because of just spite or meanness or whatever, it could be just lack of knowledge or they acted hastily at whatever it was or whatever it is. But they make bad decisions and it affects human lives or it affects somebody. Now if that person has no recourse...and my idea about what they can do isn't they can sue for all the money, that's not what I'm saying. And somebody misconstrued what I was saying one time. I'm not for that. It's more of an equitable relief. If a council makes a bad decision, a person should be able to take them to court or take them to the judicial system and say, ‘Hey, you violated due process or you violated something,' particularly if they have their own bill of rights, which a lot of tribes now are doing. And that decision then would be vacated and they'd be told, ‘You did wrong, do it again.' And if there's a little bit of something that person deserves if they like got $20 taken...whatever it is, parking ticket, something...they should give them that, but not a million dollars. It's not a...my idea of being able to sue tribal government is not for monetary damages. It's for equitable relief and just that fixing what you did wrong because like I said before, tribal council members could be young or naí¯ve or not knowing, not knowledgeable in certain things and make a collective decision that affects someone else and is a bad one and it hurts them. I don't believe that doctrine should always be thrown out and lawyers do that all the time. And they'll say...and they'll write...I've seen many motions, ‘First motion, motion to dismiss, tribe is immune from suit for sovereign immunity.' And I wrote a couple opinions...I just...’No, it doesn't work that way. We have a constitution at Hualapai. It says, ‘Every person has these rights. It's not member, it's not Hualapai; it's person.' So if you're a person and if I define person as a corporation or whatever, if this council did something wrong, that person has the ability to go to court and sue something in equity so just to make a better deci...or to redo the decision or vacate it and do something differently.' But not for money and I'm very firm on that and other people will say, ‘No, we have to have that because it supports economic development.' Well, to me, if you're going to keep making bad decisions and screwing people over like that, that's not good for business. People won't do business with you any more, they're going to know, ‘We won't go over there because they'll do something bad, go on a contract with you, breach it and you can't sue them.' That doesn't help no one. So I don't...I don't even know why tribes even say the term. They should be saying something in their own language, but not using 'King So and So's' words because those English kings back then were horrible people. They would cut your head off. I just don't know why we even want to be close to that. And maybe some of us did the same thing, I don't know."

Ian Record:

"It's interesting: you talked earlier in your answer about how the fact that they may invoke sovereign immunity and it helps the tribe in that case, but then you make allusion towards the end of your answer that in the long run, it doesn't help the tribe much at all because people get the message pretty quick that..."

Joseph Flies-Away:

"Yes. They won't do business with you."

Ian Record:

"Exactly."

Joseph Flies-Away:

"And they won't interact with you. They'll just say, ‘You don't get a fair shot at that place. They're just for themselves.' And they say that in certain places now. You can't...because it's always thrown out that way, ‘Well, we're immune from suit.' Even the businesses, even the corporations, even the casinos, first thing is immunity. They get insurance and they do all those things, they should be able to do all that stuff and protect themselves. And I'm just saying if they did something wrong, something bad. If it's not that, then..."

Ian Record:

"And what we're seeing is a lot of Native nations are using sovereign immunity as a tool as I mentioned pretty innovatively, and in fact when they do waive it in a contract with an outside vendor perhaps, they're waiving it into their own court system."

Joseph Flies-Away:

"Yeah, they should do that first because that is their place. They may have to negotiate. Some people won't...they may do a clause, choice of law clause where it takes them to an arbitrator or takes them to something else, because if that person's just not going to do business with an Indian tribe, some tribes have to do that with these people. But the best thing is to bring...but they're going to look at that court system, they're going to look at, 'Who's the judge?' And I've even had someone say they did research on our court to see who the judge was...at me. So they'll do that before they agree, because they don't want to invest or put money into something where it's not going to be fair. And it's just so common-sensical. It's a good business practice. But I see too many right away, in my court, other courts, ‘Motion to dismiss, tribe is immune from suit.'"

Ian Record:

"Do you think some of that comes from a confusion among the people who call the shots in a particular nation that if you waive 'sovereign immunity' you're somehow waiving your 'sovereignty'?"

Joseph Flies-Away:

"Well, this goes back to acting like a sovereign, you have to work with other sovereigns, and waiving it or to do business with someone else, that's a part of it. That's being a sovereign. That's acting like a nation. So the tribal leaders, many times they confuse sovereignty with sovereign immunity. They're not the same thing. Sovereignty is the ability to be your own nation, you're one to yourself, you're your own country or whatever it is. Sovereign immunity is just saying, ‘Well, you can't sue me no matter what I do.' They're kind of related, but they're not the same thing. And some council members just make it the same -- if you waive sovereign immunity, you're waiving the sovereignty. But it's not like that and we need to educate them on the distinction between the two and maybe...I wrote an opinion one time in a case that...it was a trial court [case], but no one appealed it. I said, ‘Native people and at Hualapai have the concept of fair dealing and fair trade generally.' And you know, good trade, you see it on Dances with Wolves or whatever, I think that goes across all Indigenous people, it's kind of fair. You treat each other fairly in situations so that goes...that's a cultural concept that goes full with business. So you can't screw over these people, we have to be fair to them. And so that's why part of the basis why sovereign immunity in that case wasn't going to work and plus we had a constitution that says persons have rights, etc., etc. So those things together, the written and the cultural I put together and said, ‘No, we're not going to have that right now, not with this.' But then I said, ‘But it's not...' The person would not ever...we never got...it ended after that first hearing. But a person suing is not going to be able to sue a tribe for all its worth. I agree that tribes have to be protected from...we don't have any money. We didn't have any money, right. But it has to be in equity, it has to be just the fairness, the fairness that I believe is cultural to tribes. We've got to treat people fair and there has to be a mechanism in that court system or something, some...maybe it's an outside...maybe it's another branch of government, maybe it's a program, it's somewhere where they can go and say, ‘I was treated unfairly, I need a hearing and a review of this act,' and they need to have that. And if they're found to have done wrong or something, well, then redo it and make it fair. Equality and fairness I believe is a concept genuine to Native people, most people I think. I think it's a human thing really across the board. Some people just don't recall it and remember, they do it badly.' But the sovereign immunity by itself is something -- it's not tribal, it's not traditional, for most of us. Some tribes, I actually have heard them say, ‘No, we could never do nothing to the chief.' I heard them say that. Well, if that's true, then okay. They're being...they're applying their culture, but I don't see that in my tribe. I mean it's not what I've heard and read."

Ian Record:

"Wanted to end with a kind of nuts-and-bolts, everything-in-one question here, I guess a wrap-up question and that is...and this is kind of the topic we started with which is how can strong, independent justice systems serve as a tool for Native nations to meet the contemporary challenges of nation building and specifically how can Native nations or how do those justice systems empower Native nations to achieve their strategic priorities?"

Joseph Flies-Away:

"Well, the justice system again is a place where people go to resolve conflict and throughout all human existence and the rest of it, until we blow up, there's always going to be a problem, there's always going to be controversy, there's always going to be conflict. As much as there's going to be cooperation in the world, there's always going to be a conflict. They're balanced, they're one end of the spectrum, I mean one conflict...total cooperation-conflict, so it's going to be there. So a justice system is a place for the tribe where any disputes can go and be resolved. Now as...I go back to the people gather, ground and grow. They're going to gather, they're going to ground and grow and throughout this process there's always going to be those problems. A justice system or a place for dispute resolution, a good one or one that works from a 'good heart' kind of place, is going to contribute to that process, it's going to help them move forward in that community and nation building process. NNI and Harvard, they have the nation-building thing. I don't see it like that only. I see community and nation building. You have to have the people get along and we are related and we have links and relationships like the clanships and all that kind of thing. We're...that's the membership thing, we're members together. The citizenship thing or the nation-building thing is hierarchical. The community building is vertical or wait, no, which one's this way?"

Ian Record:

"Horizontal."

Joseph Flies-Away:

"Horizontal, the horizon, I always have to think of that. Community building is horizontal, this one, and nation building is vertical, this one, and so you have both. So that you have to...as the people gather, ground and grow, they're going to get along or not and they have a place to go, but as they build institutions and become more hierarchical and citizens and defining where you fit in the government, they're going to be like this, but that court system will help resolve problems as it moves forward. But it's never an end...it never ends, until we blow up like I say. That's how I...maybe someday it would happen. That process, the judicial system or whatever they're going to call it...people don't have to call it that, it's just we get that from Anglo words. It's going to help the people in their community- and nation-building journey in all aspects and if they have that there, then things will be a lot lighter, things will be easier, things will be consistent, things will be something where they will have faith in the ability to even do things, because if there's a problem, there's somewhere to go to resolve it. And so if all tribes had that, then their path to some end is going to be a better place or a better end...no end, but a better journey because they're going to keep moving in that direction. If they don't have that, they're always going to be hurting, they're always going to be fighting, they're always going to be not going in the direction that they should. Things won't be resolved, people get hurt, the feelings that...a lot of people don't in court systems want you to bring in your feelings, but you have emotion, human beings have emotion, so it's a part of that and I think tribal people are very emotional, we really hold on. So that will be affected. My paradigm, nation-building model also incorporates a spirituality of law model, which means, well, basically it's a healing thing. When law brings people together, it connects them, it builds ties and connections. A good justice system will identify how we're connected. Legislative people should write good law to tell us how we're related and how we get along, what our relationship is in whatever business or whatever. But when there's gaps, the court system can say, ‘This is the filler. This is how we should get along or not.' So when you build those kinds of connections, you are healing each other, so the spirituality of law in a court system is, the better the court system's able to identify how human beings are related and linked and are tied together, the more healing. When you are untied and disconnected, it causes sickness. Justice Yazzie says...used to say or he says still, ‘A criminal is one who acts like he has no relatives.' That means he doesn't act like he has any connections. So a criminal needs to be tied back to his family, to his tribe, to his people. So the court system should be able to do in ceremony or in process, in procedure, even if it's a trial, retie the lost links, which then would create healing, which is a good thing. If we don't, we leave them to be sick and lost and untied and disconnected and that's a bad thing. So that's how I see...that's how I see my work. That's what I try to do. But when we're doing it under the...in this adversarial system given to us, it's a very difficult task, but I still try to do that. That's how I see my role as a judge but not just as a judge, as a human being, as a community nation builder person, that's how I see that."

Ian Record:

"Well, Joe, I really appreciate your time. I thank you for your perspectives and your thoughts and yeah, thanks."

Joseph Flies-Away:

"You're welcome."

Karen Diver: Nation Building Through the Cultivation of Capable People and Governing Institutions

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Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Chairwoman Karen Diver of the Fond du Lac Band of Lake Superior Chippewa discusses the critical importance of Native nations' systematic development of its governing institutions and human resource ability to their ability to exercise sovereignty effectively and achieve their nation-building goals.

People
Resource Type
Citation

Diver, Karen. "Nation Building Through the Cultivation of Capable People and Governing Institutions." "Leading Native Nations" interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 17, 2009. Interview.

Ian Record:

“So I’m here with Chairwoman Karen Diver, who is the chairwoman of Fond du Lac Band of Lake Superior Chippewa. And previous to that, she served as Director of Special Projects for Fond du Lac, so she has a wide range of experience, which is precisely why we’re having her sit down with us today.

The first question I’d like to ask you is a question that I ask everyone I sit down with and that is, how would you define Native nation building and what does it entail for your nation?”

Karen Diver:

“It’s almost straight out of the textbook: aggressive assertions of sovereignty backed up by capable institutions. You come into tribal government and it’s at different phases in its growth. And given that most tribes have really not been self-governing for that long, often times, we’re plugging the gap or reformulating. But if the basis of your decision is always putting self-governance first and self-determination, generally you can always plug in the gaps of your institutional capabilities along the way. But it’s the legitimacy of the actions and then backing it up with the way to actually implement them.”

Ian Record:

“You mentioned 'legitimacy in the actions,' and the Native Nations Institute and Harvard Project research holds that for Native nation governments to be viewed as legitimate by the people that they serve, they must be both culturally appropriate and effective, which is a double-edged challenge for a lot of nations, particularly those that have not governed, essentially been in control of their own governance for a very long time, and had that determined by outsiders. So how do you view that assertion that for governments to be legitimate, they have to be not only effective, but also culturally appropriate?”

Karen Diver:

“I think for tribes, we’re not as removed from government; government is very personal. Tribal members can walk in at any time, we employ our tribal members, we’re related to one another, so it’s not impersonal in a way that I think traditional government is. And when you’re decision making, the actual impact on real people in their real lives really has to be primary. And for that to work, you have to take into account the circumstances in which they live. It could be as simple, for us, making sure that our policies and procedures account for the ability to participate in cultural activities like wild rice leave, for example, is actually in our personnel policies. It’s a week-long endeavor; people need to do it when the crop is ready. Or it can be as broad based as, what do your family leave policies look like? Recognizing we have extended, large extended families, the grieving process is a community process. So just giving a bank of leave time might not be something appropriate. You might want to have some flexible use of leave to take into account that our families are large, complicated, and primarily their employment serves to take care of them and their families. So you have to have that balance. So cultural traditions matter, and to balance those with the needs of both governmental and the economic entities that we serve; that’s the only way we’re going to have a successful workforce.”

Ian Record:

“So I want to next run a quote by you that we reference often and it’s a quote by a Native leader who once said, ‘The best defense of sovereignty is to exercise it effectively.’ Can you speak to that statement?”

Karen Diver:

“To me, that really means once again building up those capable institutions. Everybody likes to know, ‘What are the rules that we’re playing by?’ Especially if you’re dealing with outside entities that you do work with, whether it’s governmental or through your economic development efforts, but also that you’re defining what those rules are and whether you’re dealing with a local unit of government, the feds, bankers, auditors, they don’t get to define the playing field. You’re defining the rules, you’re communicating them, and you’re saying that, ‘Your work with us is going to be defined by us.’ A lot of that is understanding the tenets of Indian law and explaining it to people and making distinctions between, ‘Who are we as a race?’ versus our political status and those are often confused by many people. So as long as you keep your political status separate than our cultural traditions and who we are historically and currently as a people. To me, that’s real basic and that’s really one of the main elements of sovereignty."

Ian Record:

“You, as I mentioned at the outset, you have served your nation both as a senior administrator and as currently, as chairwoman. I was curious to learn, what, based on your experience, do tribal bureaucracies need to be effective?”

Karen Diver:

“Well, that’s real key. We all know when it goes wrong. It’s the deviation from what is normal and it’s viewed as political graft or having a brother in power so to speak and that’s where…for the average citizen they feel that tribal government isn’t really serving them; it’s inequities in service delivery or access. And sometimes that happens at the service delivery level or the program level or institutional level with hiring and things like that. I think for tribal government, monitoring those activities, putting those systems in place, building accountability and transparency of the rules ends up being key to having equitable service delivery and equitable systems. And for our band members, the expectation that it doesn’t matter who you elect, the level of service you receive and your opportunities are the same.”

Ian Record:

“So it essentially supports stability and expectations among the people when they don’t…they see consistency. They see fairness and they can see consistency across administration so it’s not just, ‘Oh it was this way for this term,’ and then the new term comes in, new administration comes in and things change.”

Karen Diver:

“Well, you’re proving capability in government, too, because the reason you would elect people changes then it becomes about their effectiveness and their skills and ability to do the job rather than your personal connections and how you might gain from that. So it changes peoples’ I think reason for how and why they may vote for tribal leadership.”

Ian Record:

“And being a chair of a nation, you must experience this firsthand, this challenge of the dependency mentality. Where the expectations, at least on part of the citizenry, is rooted in, ‘What can the government do for me?’ or, ‘I’m going to go to the government and get the goodies,’ rather than really viewing that government as serving the nation, as advancing the nation’s long-term priorities. Is that something you struggle with and how do you do you work to overcome that?”

Karen Diver:

“Yes, I’ve struggled with it, but I’ve struggled with it in terms of, once again, how do we build those systems in place so that they serve the needs of our citizenry, but also changing the expectations of our citizenry? And the current tribal council has been a part of kind of changing the mentality of, ‘What our citizens should expect from their tribal government?’ And I usually say to folks, ‘Don’t ask me for a handout. Ask me for a job, or if you’re not ready for that yet, why don’t you tell me what you need to get there?’ And the framing of it is fairly simple. What I tell people is, ‘I care about you enough that I’m not going to put a band-aid on your issue because it’s going to come back. Unless I know what’s going on, we need to create or refer you to something that creates a long-term fix because I don’t want you to have to come back.’ And I really feel that promoting dependency within our own community is a part of the reason why we haven’t been able to move as forward as we could be yet because I’ve turned into a social worker now instead of an administrator, instead of someone who assures that there’s good systems. And I also think it’s not fair to our people to say to them, ‘The way that you get services is by telling me a lot of your personal problems that are going on.’ I need to know them to the extent that I need to identify any gaps in our system, but I also shouldn’t put my own people -- if I care about them -- in the position of having to beg, and there is a difference. I’m not doing it to satisfy my ego because I can feel really good about what I’ve done for you. I care about you enough to say, ‘Let’s look at a long-term fix instead of a short-term band-aid.’”

Ian Record:

“Right. So it’s essentially, ‘Let’s look at the root cause of your problem or your challenge,’ versus just simply addressing the symptom, which will be sure to reoccur at some point.”

Karen Diver:

“Right. And it helps me identify where we might have gaps in service, whether it’s combined case management, stabilizing your housing, where you really need some service delivery, whether it’s health issues, we should make sure that each of our systems are coordinated enough that there is a holistic response to the issues people face in their day-to-day lives.”

Ian Record:

“You mention this issue of building a holistic response, or the capacity to do that, to whatever issue is at hand or that you’re facing. And this really gets to this issue of developing a systems-based approach to service delivery, which we hear about more and more, and we see a lot of that sort of activity in Indian Country with nations saying, ‘The status quo is not working. We’ve got our programs and services going a million different directions, they often duplicate one another. We’ve got to take a systems-based approach that gets at these root causes that you discuss.’ Is that something that you’re working to do, take care of?”

Karen Diver:

“Oh, actively. And both as a staff member and then once I got elected. I’ll give you an example. One of our projects that we’ll be breaking ground here within a month is supportive housing. Supportive housing is what transitional housing used to be. It’s for folks who have had a hard time getting on their feet and for every step forward it might have been two back, chronic homeless, multiple episodes of homelessness. Well, homelessness isn’t the lack of a house, it’s a circumstance, a set of circumstances going on that are preventing people from being stable. In order to do supportive housing, you not only have to build the housing, but you also have to develop service delivery that looks at what are the needs of the family and they may be multiple. You’re also committing to staying by them whether or not they take that step forward or step back, and that’s why they call it permanent supportive housing, because unlike transitional housing the two years are up whether you’re ready to be independent or not. And what it really does is say, in terms of case management, what does the whole family need and it’s self-determined by the family. So much like for tribal government, it’s saying for families, too, to say, ‘What are my needs right now?’ and their needs might be simple in the beginning. It might be having adequate health care and getting their diabetes under control so they’re not facing chronic health issues. It might mean helping the family say at some point that they’re chemical dependent, coming to the realization that it is fueled by underlying mental illness, but there’s a safe place to be able to say that and get at the root causes of why people anesthetize themselves with drugs and alcohol. And what you’re trying to do is reduce the episodes of homelessness and instability in the family so that children can stay in longer, the same school longer, they can maintain their level of health care and what you see over time is school social workers are talking to mental health case managers. We know that health outcomes are affected by the lack of housing; we know that school performance is affected by that. Working together stabilizes the need for service delivery by multiple systems, but they all have to be at the table and integrated together. It’s a model that’s been shown to work outside Indian Country, not yet being implemented to a big extent within Indian Country. The model’s perfect for us because we know our families best. We need to be talking to each other and the family will be the one that hopefully will move forward because of it. So it’s an example, but we’ve built silos in Indian Country, much like we’ve bemoaned in larger systems that are out there, but we’re better contained within ourselves to actually break those down.”

Ian Record:

“So you mentioned you know your families best. And hearing you describe this approach of supportive housing, that requires an intimate understanding, intimate awareness of what’s going on in your community, what their needs are, what their challenges are, what their priorities are, what they need from the tribe in order to be made whole, or put them on the road to self-sufficiency, whatever it might be, that’s not an approach that an outsider can develop and implement. Is it something that has to be done at the local level by the people who it’s designed to serve?”

Karen Diver:

“Absolutely, because at any given point in that service delivery or that plan that the family develops, you’re going to have to have culturally competent service delivery. You’re going to have to understand that for a family to break their cycle of chemical dependency that it might be isolating to them for some of their other family members, and that’s a hard thing to do. So you’re recreating family systems and showing them a healthy way in a way that doesn’t deny their ability to still remain a part of a larger community. It’s understanding that children are served best when they’re with their families and an easy fix isn’t putting them in out-of-home placement, but intensive services for their extended families. It’s building even the actual facilities in a way that understands that we tend to congregate together and you never know when you might have a niece coming to live with you, and it shouldn’t upset your household composition because that’s what your housing rules say. So it requires us to be flexible. And I think that’s one of the beauties of self-governance is when you determine your own rules, you can be flexible enough to meet multiple demands, but in a way that’s also accountable so that everybody has the same access to that flexibility.”

Ian Record:

“As I mentioned, you were once a senior administrator of your tribe and now you’re the chairwoman. And I was curious to learn, having served in both of those capacities, can you speak to the importance of delineating clear, distinct roles, responsibilities, authorities for each of those key decision makers, implementers? And what happens when those roles aren’t clearly defined?”

Karen Diver:

“It’s an over-used phrase, but I think many people have heard it. If you don’t know where you’re going, it doesn’t matter which road you take. I think that for both tribal government and tribal administrators, it’s all about the plan. Where do we plan to get in two years, five years? I’m a big fan of strategic planning. I’m a big fan of understanding who is responsible for the items in the strategic plan. Who’s monitoring the outcomes and making sure that we’re holding staff accountable? Has there been community input to the plan so that we’re actually serving them and going in a direction that they care about? And we are just starting to undertake now a whole community-wide strategic planning process that will inform tribal government and it’s a difficult transition. Last year I thought, ‘I’m just going to get the staff kind of primed and say give me a few goals and objectives for the year,’ and I almost started a mass revolt. I had the flurry of emails saying, ‘What did you mean by that?’ ‘Well, I want to know what you plan to do next year. This is not a trick question, what do you plan to do,’ because at the end of next year I’m going to say, ‘Did you accomplish what you had planned?’ And you’re actually going to maybe make presentations to tribal council about that. Also understanding your role, there’s a plan and each department should understand who their stakeholders are. Human Resources, for example, they think of the applicants and employees as their stakeholders, but they don’t necessarily think of their other divisions that they do the work for as their stakeholders and at the timeliness of their work and the quality of their work can have a big affect on operations. So right now, our tribal council has three of our members were in administrative positions before so we were on the other side of the tribal council table. It’s made a huge difference in terms of our understanding of the importance of their work, not frittering it away, making meeting time productive time and they’re happy. They’re happy because being accountable to us is different. It’s in terms of decision making, not necessarily these huge processes that takes up a lot of their time but doesn’t necessarily accomplish anything. So very important on both ends to understand, ‘What is our role?’ We’re an approving role, they’re doing the work and they’re bringing us their recommendations.”

Ian Record:

“So it’s essentially -- and this gets to what my next question’s about -- what are the respective roles of elected officials and those administrators and bureaucratic employees because you’re seeing it less and less, which I think is a good thing, what you see in some Native communities is still the mentality among the leadership where they have to do it all, and a reticence perhaps to delegate authority. And I’m curious to learn from you how you envision the roles and the separation of those roles and where does one’s work stop and the other’s begin, perhaps?”

Karen Diver:

“I think we’re fairly typical of every tribal government and it comes up during campaign time and when we have our open meetings with our citizenry, they say, ‘The reservation business committee, they micromanage.’ And what I tell people is, ‘You expect us not to micromanage, you want us to take big picture, our appropriate role is in policy making, procedure development, setting vision and long-term direction of the reservation.’ I said, ‘But you want that until the issue involves you, then you expect us to micromanage and fix your problem, and if I go back and tell you you have the ability to provide a grievance or you can talk to the program manager and resolve conflict that way,’ you say, ‘you’re not taking care of my issue.’ So it goes back to that, how do you balance the personal aspect of tribal government, because we are all interrelated, we’re a community, a tight-knit community with the ability to put good governance systems in place and good business systems in place and there’s no perfect science to that, because first of all you’re never going to develop a policy where you’re going to expect to hit every possible outcome or gap. That’s why your policies are a work in progress and need regular review and updating. Also people come up with some really personal circumstances that you may want to accommodate. So I think that there’s a balance there.

The delegation of authority ends up being a lot about control and hiring capable staff and letting them do their job is really key in getting all of the work done because tribal government has a breadth unlike any other form of government. We are corporate, we are government, we are like non-profit service delivery agencies, environmental, education, health. We have to rely on content-area experts. However, I also think being a context expert, they don’t always recognize the big picture they operate in because they’re looking at it from their silo of expertise. So I think tribal government role -- if you look at it in terms of dialogue and challenging each other -- we can help them see the big picture, they can help us understand the peculiarities of their particular area of expertise. That’s where you come up with the win-win. It’s when it’s directive or when you impose upon them, but if you set up the right processes, we often say government-to-government consultation, well we need to have consultation within our organization as well so that we can come up with the best possible scenarios up front and tweak them along the way and see where we may have missed something.”

Ian Record:

“So you mentioned in part of your previous response about the expectations of citizens, particularly come campaign time. For instance, where internally between elected officials and administrators, bureaucratic employees, you may have a clear understanding of who should be doing what, but then there’s the citizen’s expectations that are always causing friction against that. How important is public education about the separations of authorities, about the checks and balances, about the delegations, about who does what? That it’s incumbent upon Native nation governments not just to have a clear internal understanding, but also to make sure the community understands so that it allows you to keep your momentum going?”

Karen Diver:

“It’s a difficult process, I’ll be very honest about that. And one of the ways I characterize it in some of the one-on-one conversations I have with tribal members is if all of my wishes could come true for our own people, one of them would be that it really didn’t matter who you elect, because it didn’t have relevance in your day-to-day life. That as an individual and as a leader in your family, you were able to get and/or acquire those things you need to meet the needs of your own family, whether that’s through employment educational opportunities, social services, that you knew what was out there and you could access it and you were using those resources to build your own self-sufficiency to the point where once it came to the ballot, it was much like traditional forms of government. Who has the skills to do the job? Do they have the background? Do they have a plan? And it changes your expectations. So I think that’s something that comes over time. But also, when people understand that in their best interest, they can self determine their own needs and you’re creating the systems for that to happen, I think it’s going to change the dynamic of what individuals expect out of tribal government.”

Ian Record:

“And isn’t that where strategic planning is very important because the community understands, ‘There’s a larger goal at work here. It’s not just about the now, it’s not just about what I need personally or what my family needs at this moment, but it’s about where we’re trying to head as a community.'“

Karen Diver:

“I think the economic crisis has really changed that a bit. I think in Indian Country -- especially for tribes who have been building a private sector economy within their borders and really using that as a surrogate tax base -- you’ve been able to plug in some of the gaps and funding in order to create programs or supplement them and access other sources of funding. And I think that the downturn really let people know that it’s not a given that tribal government’s going to continue to grow, it’s not a given that the things that are here now will remain. And we’re a per capita [distribution] tribe, so that’s one of the things we’ve been able to do purely as a poverty reduction; nobody’s getting rich off it. But people understood that maybe that isn’t a given and that we have to be smart about our resources, and maybe the best use of tribal government time is looking at economic and governmental stability and not necessarily the day-to-day issues that arise in tribal council’s life. They’re taking a little bit more ownership and more what we’re doing is more information and referral, ‘Did you know that this is available to you and this is available to you?’ rather than direct service, one-on-one."

Ian Record:

“So I want to switch gears a little bit and talk about economic development. And a lot of what the NNI-Harvard Project research looks at is the two polar opposites when it comes to economies that we see in Indian Country. One, you have essentially the dependent economy, which is largely born of constitutions and governments that were imposed or systems of governments that were imposed by the outside. And then you have productive economies, which we’re obviously seeing more and more of as tribes take control of their own affairs, as they begin to launch and build diversified economies. I was wondering, from your perspective, how do Native nations move from a dependent economy, heavily reliant on outsiders, the federal government, to a productive economy where they themselves are in the driver’s seat of economic development? And in that process of moving from one to the other, what are some of the most important building blocks?”

Karen Diver:

“First and foremost, social capital. You need to develop your own citizenry to be a part of that. Talk to a lot of young people and say, ‘What are you going to school for? Liberal arts? Great. We need people to do services to our own band members, but gee, do you also know we need accountants? We need internal auditors; we need dentists and healthcare delivery people, teachers.’ So I think building that social capital so that the cultural competency comes from our own people serving our own community is real key. We can’t always use neighbors and people who aren’t familiar with our own community because then you miss that cultural competency piece. A lot of good people in Indian Country who are Native, but we really need to grow our own and provide the role models. The other part of it is purely regulatory. Do you have the systems in place where economic development can thrive? One of the gaps in our own system right now is we don’t have uniform commercial codes. So that’s kind of on the block. Developing systems of conflict resolution that are transparent and you know who’s rules you’re operating under. Once again, the tenets of Indian law, if you’re working with outside parties, do they really know what dealing with a sovereign is and the context with which this business relationship will be taken out? Regulatory control is also things as simple as what’s your background check policy? Are you going to be able to meet outside commitments that you’re making, for example, under the Indian Gaming Regulatory Act? Do you understand their rules? If you’re in a banking relationship, what are their rules, their operating on and how do you mesh that with your own? So I think that a lot of homework goes into building a community where economic development can thrive. And part of it is do you understand your role in it and the role of your people and all of your different departments? For example, if you’re going to work with an outside agency that’s looking at some resources within the reservation, like mining, do you have your regulatory capacity there to look at environmental issues, for example? So, identifying those initiatives and seeing what you have within tribal government that needs to be involved, having them all on the table up front, and identifying your gaps, and either developing it or bringing in consultants who have it so you can have informed decision making.”

Ian Record:

“You mentioned this issue of, or the importance of investing in social capital, particularly among your young people. Not only finding out what their interests are, but saying, ‘Hey, we have needs in this area.’ That’s, but that, isn’t that the first step because then you have to make sure that the opportunities that are available are stable, that they’re consistent? That you’re not going to have the political turnover, ripple effect where the administration comes in and they clean house, which our research has shown causes this horrible problem of brain drain where people say, ‘I’m not going to invest my time and resources in the future of the nation because I can’t be certain I’m going to get a return on that investment.’ So I was wondering if you could speak to that issue of making sure that those opportunities are stable and that the environment in which you’re asking them to participate is reliable.”

Karen Diver:

“Once again, I think if you start to change and really have a conversation with your community about what do they feel is the appropriate role in tribal government in their day-to-day life, that then starts changing the stability of the workforce. And you’re right, we’ve invested heavily in education, both by creating our own institutions and through scholarship funds and telling people, ‘There’s a big world out there. Go learn things and bring it back home.’ Only for them to not be able to have the ability to worry about their sacrifices of their own stability in their family, and that’s sad. It’s sad and it’s unfortunate because you’re right, it creates brain drain. With the capable institutions, and with some emotional maturity and changing your expectations of what tribal leaders should be both personally and professionally, I think you get towards the bigger picture of, ‘If I’m here to serve my people, that means also dealing with my political detractors, as well as my political supporters,’ and they still end up being tribal members and deserve service whether they like you or not, whether they care about you or not, or whether they believe in you or not, you do your best by them. And I think it’s developing some political maturity to say, ‘Yes, I may not be meeting your expectations, but over time, can we find your place here within this community as well?’ So I think it’s a little shortsighted. We think we want to be surrounded by loyalty, but that’s a moving target. On any given day, you’re going to make a decision that may affect people in a way that they may not want, but it’s whether or not your transparency of government helps them understand why you’re doing it, that it’s not personal, that you were going to make this decision because it’s good for the whole and yeah, it might not work for everybody. So I think a part of it is just your skill at the politics of communicating why decisions are made and whether the transparency was there in the decision making so people understand why and then don’t take it personal.”

Ian Record:

“And doesn’t that really get to this issue of rules? The NNI/Harvard Project research clearly shows that rules are more important than resources in terms of building vibrant economies. Can you speak to that issue?”

Karen Diver:

“Yeah sure, it’s interesting because when I talk to folks and I’m in the unfortunate position of having to tell them I can’t do something for them, one of the things I usually preface it with or end with it is, ‘I know you want this, but one of the rules we follow here for this tribal government is if we can’t do it for everyone, we can’t do it for one. And so if…do you think if I ask the tribal membership if we should do this for you, what do you think their answer would be? Would they be supportive of this decision?’ And generally, when you put it in that context, people will understand that you are making rules for all, not the few. On the other hand, sometimes you come up with one where you say, ‘Geez, we should do something about that and would we be willing to do it for everyone? Maybe, maybe not because the circumstances matter, but it’s justifiable and you knew if you put the whole circumstances out there, our community would say, ‘Yeah we don’t maybe don’t want to make that a practice,’ but in this instance, for their set of circumstances, it’s the right thing to do because we do care about our community. But it’s justifiable in a way so you almost have the litmus test of community voting. And you’re saying, 'How would people think about this?' And if you constantly keep that in mind, and the fact that it doesn’t matter who’s in your office, assume you’re telling everybody because everybody will know. Your actions are public and if someone asks, ‘What’s going on with tribal government?’ you have to be willing to tell them. That transparency is what keeps government honest. So day by day, you take it as it comes and take each circumstances, but if you use that litmus test of, ‘If I put it to a referendum vote, or no matter who walked through the door, would you behave the same?’ generally, you’re going to get pretty close to what you need to a capable government whose rules are not only transparent, but consistency ends up being the biggest key.”

Ian Record:

“And when you have those consistent rules in place that are consistently enforced, isn’t that liberating for you as an elected official, because you then are in a position where you can say no to someone and have it not be personal? And say, ‘Here’s my reason. We have, for instance, a hiring and firing dispute, which I’m sure you encounter in an economic development entity of the tribe or within tribal government. You say, ‘Hey, we have a personnel grievance process for that. I’d be overstepping my bounds as an elected official to take on this issue, to even consider your complaint.’”

Karen Diver:

“Very much so. It is liberating in a way and it’s something that the current tribal council, in terms of building our own capacity to govern and also for our own stability in making sure we’re all behaving in the same way even when we’re not in a meeting, when we’re having different interactions, is to actually have those conversations with each other, have a set of board norms, take some planning time and say, ‘here’s something that you don’t necessarily need a policy for, but it’s something we’re confronted with. How do we behave? Let’s be consistent, all get on the same page.’ Your answer then can be, ‘Gee, I hear you and I understand but the council made a decision that this is the way that we’re going to handle it,’ and speaking with one voice. A lot of this goes to whether or not you’re building a capable board that’s cohesive and all operating off of the same page, so speaking with one voice. You have those arguments. It’s kind of like mommy and daddy, you argue, but you don’t let the kids hear you kind of thing. We have that time where we work things out amongst ourselves but once we come to talking about them in a public way, whatever answer prevailed, we all stick with and support and so a lot of it goes to good governance from an internal perspective as well. And you’re right, it is liberating. It gives individual members a way to say, ‘We all stick together.’ You can’t go from one to the other and try to get a different answer because we’re all going to talk about it and then give you our decision as a whole rather than an individual.”

Ian Record:

“One final question I wanted to ask you, and it was interesting, we were interviewing another tribal leader earlier this morning, and he likened being an elected leader of a Native nation to drinking from a fire hose, which I’m sure you can identify with. I was wondering if you could talk about, how can leaders manage the often overwhelming pressures they face, in order to lead effectively? How can they manage that load, forge ahead, implement that strategic vision, guide that strategic vision, so that the nation can achieve the future it wants?”

Karen Diver:

“I think it’s management principles, and I think as we develop our own folks and they decide to serve through elected leadership, they’re going to bring different management capabilities to the table. And I usually tell new managers or people who are also feeling that -- because it happens all through the organization, not just at the top -- is prioritize, delegate and advocate. You prioritize. I liken it to going to the casino’s buffet. You only get one plate at a time, but you have all those choices so you pick that first plate carefully. When things are going well, you might even start with dessert, but when they’re not going well you might start with your meat instead of your salad. So you prioritize and pick that first plate very carefully. You put out the fires, but you pay attention to what precedent are you setting. Don’t just make it go away for going away’s sake 'cause you’re setting precedent, but you put out the fires first and you kind of look at your organization methodically. Right now we’re lucky; we have no fires. So what we’re looking at is that middle layer of management that is actually broader than the emergencies, but has more long-term impact. Does our organizational structure fit the service delivery we need to do, are there gaps, are there efficiencies to be found so you prioritize and you clip your way through it. Delegating is you don’t have to do it all on your own. You have a hierarchy in place. Make sure the hierarchy is working for you. Use content-area experts; hire them if you need to. I think one of the biggest failings of tribal government is to not admitting what you don’t know and asking and listening to those who do. I couldn’t have done a lot of the work in the last year without listening to my environmental staff, my education staff, my health staff. In many ways I take my orders from them. What are your priorities? What do you need me to talk about? Who do you need me to call? And let them do their jobs. Advocate ends up being important, because a lot of I think doing with tribal government work is educating people around and within you of the role of tribal government. What are our boundaries? How do we get partners in to do our work? We’ve been so busy building our self-governance, we forget we have allies out there, different funding sources, the legislatures, building relationships with townships and counties, which I think is actually going backwards lately because of cuts in local government aid and the economy and they see tribes not as partners anymore, but how do we get into their pocketbooks. So maintaining those relationships and advocacy sometimes happens in a crisis, sometimes in a proactive way, but really saying, ‘Hello, we’re still here, we have an impact, we have a role to play. It might not be the one you define, but there are areas of win-win, let’s talk about those,’ and telling that story. And if you can slowly clip through it that way, it becomes a little bit more manageable. What I usually tell people is tribal government, we’ve only really been self-governing in any meaningful way, probably for thirty years. We’ll continue to get better at it and we’ll make mistakes along the way, but it’s what works and so we have to prove that. So prioritizing and making sure you’re hitting those things and trying to prevent them from becoming those fires ends up being really important.”

Ian Record:

“Well Karen, I appreciate your time today and thanks for sharing your wisdom and your experience with us.”

Karen Diver:

“Thank you, my pleasure.”

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

Producer
Indigenous Peoples' Law and Policy Program
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NNI Indigenous Leadership Fellow: Rae Nell Vaughn (Part 1)

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, discusses the critical role that justice systems play in the rebuilding of Native nations and shares how the Mississippi Band of Choctaw Indians has worked to develop its justice system to reflect and promote its culture and meeting the evolving challenges that it faces.

Resource Type
Citation

Vaughn, Rae Nell. "NNI Indigenous Leadership Fellow (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Ian Record:

"What role do tribal justice systems play in rebuilding Native nations?"

Rae Nell Vaughn:

"It's been my experience that it plays a significant role in regards to tribal government. One thing that I have found within the 11 years of my judicial experience is the fact that tribal governments as a whole have had to play a role of catch-up, fast tracked. In regards to Mississippi Choctaw, we established our constitution in 1945 at a point in time where we were living in very oppressed conditions. Of course, as you know, historically the tribe was removed to Oklahoma and we're the descendants of the members that chose to stay. No federal or state recognition at that point up until the time of recognition and the development of our constitution, and it was a building process. You had a number of leaders who would step up and were wanting to form a strong government. Of course, the justice system itself came in years later, but overall they've had to try to fast track a government in order to provide the people with services, and it was a struggle, it was a definite struggle. And of course ultimately, a justice system was developed under the BIA [Bureau of Indian Affairs], a court of regulations, a CFR [Code of Federal Regulations] court, and that had its challenges all on its own because you have the mechanisms but not the resources to provide law and order. And your reliance was on the BIA and it was a definite struggle during the early years of this system. You had a membership maybe at that time of close to 3,000 possibly.

Now going back historically, the membership dwindled down in the early 1900s to less than 1,000 because of the influenza epidemic and here we are in 2009 and have a membership of 10,000. And you talk about a flourishing economy at some point with the successes of this tribe, but you also talk about the population growth and with it coming the social ills and influences that impact a community. And so I've seen this system evolve, even prior to my interaction with it, becoming a judge. It's grown by leaps and bounds. They started off with a staff of maybe three: a tribal member judge -- when it was under the control of BIA -- and maybe one or two folks that also participated. And to this point, once...during my tenure as a judge, we were up to 32 employees. You had 11 members on the judiciary, which is so unheard of, but for me it was a signal from the government [that], 'This is important. A justice system for this government is important and we are investing in our government and in our people to provide them a fair form of justice.' Knowing where we're at, we're located in Mississippi, and the struggles that minorities have faced, Native people have faced, has always been there, an underlying issue. And so being able to have our people be in a forum that's fair for them, being judged by their peers was the most important thing. But also it was the fundamental exercise of sovereignty, operating a system, a judicial system, which not many tribes have had the ability to do and maybe not to the degree that we've been able to do it. That's not to say that there haven't been any challenges. There are, just like there are with any system, whether it's a tribal system or non-Native system, but it's a work in progress. Codes are forever changing and you have to keep your hand on...keep on the pulse of what's happening nationally because what happens nationally will ultimately affect you locally.

And so cases such as Nevada v. Hicks, issues of jurisdiction, those have far-reaching ramifications. So having a stable, consistent, and well-educated and well-trained judiciary is very important, and those are the things that I think tribal governments really have to take a look at and recognize the investment that you're making."

Ian Record:

"And I would assume that in that understanding of what's going on nationally, it's not just the judiciary that has to understand, it's elected leadership and particularly the legislators, the ones that are making those laws to say, "˜We've got to be out front on these issues so we're not stuck in a corner one day in the near future having to react defensively to something we're not prepared for.'"

Rae Nell Vaughn:

"Exactly. We have to be proactive. It hits every area of government: economic development, education, healthcare. We have to be very diligent and we have to go the extra mile in making sure that we're protecting our sovereignty and at the same time being aware of what the landscape is looking like politically. There have been times in previous [U.S. presidential] administrations where they haven't been quite so favorable to Native Americans. And we may be here at a time of renaissance where there's going to be more participation, more of us as Native people at the table speaking on our behalves, on our own behalf. As a Native person, this is where I've been, this is what we've gone through and this is what we can do and this is what we want to provide for the people, because at times Native people get lost in the shuffle of all the social programs and issues that the federal government itself is dealing with. There are some tribes that are very fortunate to have the additional revenues to provide for their tribes and some aren't. How do we all work together to make sure that each of these tribes are able to have the type of support to be able to function and exercise as a government?"

Ian Record:

"Mississippi Choctaw's court system was recognized by the Honoring Nations program at the Harvard Project in American Indian Economic Development just a few years ago. And in large part it was recognized because of its ability to exercise or to be a vehicle for sovereignty for the nation. Based on your experience in that system, in that court system, I was wondering if you could speak to this issue of strong independent court systems and what those look like, what do those systems require to be effective?"

Rae Nell Vaughn:

"That's a very good question, because it's a challenge that all tribal court systems face. And let me say that the Honoring Nations program was such an excellent exercise for us, because as a system you're in the trenches every day and you don't realize the things that you're doing have such far-reaching impact. And so when we began this process of going through the rigors of the Honoring Nations project program, I was just so amazed. "˜We're doing so much here, we're looking at alternative resources and programs, we're trying to look at things more holistically versus using the American jurisprudence of dropping the gavel and that's it,' because we recognize that within Native communities we're going to be among one another. I'm not moving anywhere, you're not moving anywhere, we're staying in this community, and it's trying to ensure that we have healthy communities and using the justice system and possibly not just going before formal court, using our peacemaker court, using teen court, using our healing-to-wellness court, are other alternatives that are available to the membership and it goes back to our own Native teaching of who we are. We were never a people -- as with other tribes -- that all we wanted to do was fight amongst one another, but of course all of this takes place based on social influences and evolution of things and prosperity. And so going back to your question, it requires due diligence among both sides of the aisle, the legislative body, the executive as well as the judiciary. And it's a really hard balance because I'm a member of the community, I have children who attend the schools, I'm a voting member, I see people at the post office or at the grocery store, I attend ceremonies, I'm involved just as all the other judges are; simply because we put on a robe during the day doesn't mean that that robe ever really comes off, but we also have to be able to be participatory in our communities. And it is, it's a hard balance, even with your legislative body because we all know each other, we've all grown up with one another possibly or they've seen you grow up and know your mother and there's this tendency of picking up the phone and saying, "˜Hey, what's going on and do you know da da da da da?' And it is, it's a really hard balance because of the close ties and the close knitness of the community and it's that community mentality that you have. But we work diligently to ensure that the people recognize that this is a very independent justice system. Now granted, in the case of Mississippi Choctaw, we're a two-branch government. The court system is developed by statute and is controlled, maybe that's not a good word, but is under the oversight of the tribal council as well as the executive. There've been times where it's been challenging because you wear two hats. Not only are you a member of the judiciary, but you have to be an advocate for the system, and so there's that give and take, development of codes. How can I not be somewhat participatory in the development when I'm the one who uses that code in order to...we're creating law basically, and there are several instances where it's almost a gray area that you enter, but knowing what the spirit of the law is and where we are as a judiciary and what we're trying to accomplish I think speaks volumes because the people see the separation. And it's something that you have to work at every day. You just, you have to."

Ian Record:

"So in your role as advocate for the system in strengthening the system, do you find yourself compelled at certain points to say to the legislature, "˜Look, there's...I'm dealing with these...this area of jurisprudence, these types of cases are becoming more prevalent. There's nothing on the books that tells me how to interpret these cases. It's up to you to get out in front of this,' as you mentioned, "˜and develop law that I can then enforce in the court system?'"

Rae Nell Vaughn:

"Exactly. One case in point is the Tribal Notice Act and that's very important, especially if you have two parties coming in and there's an issue that could possibly have a detrimental impact on the tribe, maybe possibly in regards to jurisdiction. And the tribe needs to know; the tribe needs to be noticed. And so we worked towards getting that on the books and we were successful. And it's a mechanism or a code that's been used a number of times. And so things of that sort, because you recognize or the people recognize the legislative body and executive body, they're dealing with so many different issues from economic development, healthcare, education, housing. There's not one person or one area that they're focusing in on. So I would not be doing my duty if I didn't bring things to their attention that I think could provide betterment for the system and also protecting the people as well."

Ian Record:

"So you're also, in addition to your experience, your 11 years as you mention serving on the Choctaw judiciary, you've since...you left that, your tenure with the judiciary, and you've been working to evaluate other tribal court systems. And I was wondering if you could speak to this issue. We discussed this recently about some tribes, some tribal leadership not really treating the judicial function of their nation as an independent...as an independent function, as a true arm of the government, whether you want to call it a 'branch' or what have you, but rather treating it as a program. And we hear this a lot from particularly tribal judges who lament that fact that, "˜We're just considered another program.' I was wondering if you could speak to that issue and what you're seeing on the ground."

Rae Nell Vaughn:

"Oh, yeah. And it's not so much with the work that I'm doing, but additionally with my participation with the national organization, the judges association, as well as my own experiences with Mississippi Choctaw. There's the thinking that tribal court systems are more situated or in the organizational things as a program, and either we fund you or we don't or...there's not that understanding of the importance of justice systems and how in regards to economic development, justice systems are key. And a lot...I've heard so many war stories about how we are treated as -- I hate to use the term -- as stepchildren. We get the hand-me-down equipment, we get the little bits of whatever is additional that we can get in our budget, but what I found throughout my work and my experiences with the judiciary is the fact that there are so many good people out there in Indian Country, members of their own tribe who want to provide a forum, a fair forum for their people and they work diligently with what resources they have. Now if it was a perfect world and we were able to get all that we want, that would be ideal, but it's not and a number of tribes who don't have the additional resources struggle, and for some of these tribes it's a really challenging thing because you're also not only at the mercy of the government, but at the community as well and there...if you don't feel that support from your government, then obviously the community's not going to support you as well and those are some key things that have to happen is to have that support. 'Now you and I may argue here, but when we step out as a judiciary and as a government, we need to be unified, because each of us as a legislative body and as an executive body and whether we're a judicial branch or a statutory court, we still have to work and maintain as a stable government,' because if your leadership is bad mouthing your judicial system, what does that say of the leadership?"

Ian Record:

"What does that say to the outside world?"

Rae Nell Vaughn:

"Exactly."

Ian Record:

"So this issue of treatment by the leadership, by the community of the justice system as a program versus something more, among those tribes that tend to treat them as the latter -- just as a program -- aren't they missing the boat essentially on the importance of justice systems as a vehicle for not only advancing sovereignty, but also creating viable economies on the reservations and pretty much all around?"

Rae Nell Vaughn:

"Exactly, because a lender who is thinking about doing business with the tribe is going to ask, "˜I need to know about your court system. I need to know where litigation is going to take place,' and if they can't see a system that is stable and consistent, you're possibly missing an opportunity to bring strong economic development to your area and that's key. I think a lot that has to happen is education. Now again, I go back -- I recognize there's so much that tribal government has to do. They're overloaded, they're understaffed in some instances, and they're trying to do the best they can do, but at the end of the day it's important to make sure that each of your areas of government are strong and are working together and that's where your checks and balances are. It's basic civics."

Ian Record:

"One other issue we discussed recently was this issue of...this treatment of tribal justice systems as nothing more than programs may emanate in part from this sense of, "˜Well, that's where the bad things happen.'"

Rae Nell Vaughn:

"Oh, yes."

Ian Record:

"...That's where, kind of the social ills bubble up, that's where the kind of the underbelly of the community, the negative parts. "˜We don't want to deal with that. It's too painful,' or 'We don't...we're at a loss as to how to resolve these issues.' How do you get beyond that mentality? How do you get to a point where -- as you've told me -- where the people, the community, that the leadership will treat the justice system as a vehicle for not only restoring, as you say restoring health to the community, but also as a way to, for instance, teach the values of the people to say, "˜This is how we operate, this is how we resolve disputes.'"

Rae Nell Vaughn:

"One of the bad things or the negative side of the judicial system is the fact that a lot of things happen in the well of that court and at the end of it all, "˜It's the court,' "˜It's the court's fault,' or whatever it may be because it's surfaced, it has bubbled up as you said, it's surfaced and there it is black and white, right there in the well of that court. And ultimately it's the judge and their discretion as how they rule or decide or what it is that they end up doing for that particular case, whether it be a habitual offender, whether it be a family in need, a juvenile delinquent, a vulnerable adult. All of the social ills of your community hits right there and it is challenging more so again for your legislative body and your executive because what do they do, what can they do? We've developed so many different social programs, but we're not going to cure every ill, and unfortunately a lot of those things surface through court. And as I shared with you earlier, that's why we were looking at, in regards to Mississippi Choctaw, of other alternatives. We recognize these are social illnesses. This is not working, going through formal court. Something has to happen and it also has to happen not only with the individual, but with the family: accountability, responsibility, bringing in the people who matter the most to you and who you value, who are your mentors or your grandparents, your minister, your family to sit down and talk with you, help you in a peacemaking-type situation, a circle of sorts. Healing to Wellness [Court] is set up in that very same way, that we have there at Choctaw where the offender comes in, meets with a group of multi-disciplinary team and there's a check, there's this constant check, and we've had so many success stories come through there. Is it 100 percent? No, it's not, and it probably will never be, but there is an alternative, and with the one case that you have a success in, [it] ripples out to the family, to the community, to the nation in regards to the offenses, health issues that may have come from it, all the different things. And that success just can only breed more success because if you have this individual whose gone through this process, you see the community, see that individual being successful and others who are coming before the court say, "˜I want to try that because I'm ready to make that change,' then there's that vehicle."

Ian Record:

"So I would assume under the CFR system, there's no way that you guys could have developed these restorative functions."

Rae Nell Vaughn:

"There is no way, no."

Ian Record:

"So essentially by developing your own court system, by taking ownership of that critical function, you provided yourself the freedom to say, "˜What's going to benefit our community in the long run? What's the best way of doing things, because the status quo is simply not working.'"

Rae Nell Vaughn:

"No, it's not working and it doesn't work in Indian Country. And what may work for Choctaw, what may work for the tribes in the east may not work for tribes in the southwest or in the west or in the northwest or in the midwest or northeast. It works for us and looking at the different models you can see things that will work. There's this term I use, "˜Choctaw-izing it' -- making it your own, bringing in Choctaw values, culture, customary law into this model and it works, and it works, and the people understand it. That's the thing, the people say, "˜Hmmmm, yes, I know what you're talking about.'"

Ian Record:

"So can you give me just a...you mentioned this term 'Choctaw-izing' it. Can you give me one example, maybe one case of how the court system applied a core value of the Choctaw people to essentially try to bring that restoration to the community?"

Rae Nell Vaughn:

"As I shared with you earlier, we have a teen court process and in that process the individual, the juvenile delinquent goes through the formal youth court system. Teen court is more of a sentencing type court, but the uniqueness of it is they are judged, are sentenced by their peers, other teenagers in the community. We had a particular instance where there was this child who of course offended, committed a crime against the tribe, was found delinquent. The case wasn't or the offense wasn't to the level of the judge issuing the sentence so he transferred it to teen court and it went through the process, but the uniqueness is -- and this is where the cultural aspect came in -- is we had the judge bring the mother and the grandmother and auntie because we are a matrilineal society. And before the sentence was rendered by the peers, by the jury, the women stood up and they talked and they talked with both sides of the parties who were there -- because this was a boyfriend-girlfriend, teenager-type thing -- and how it was important to respect your family, respect your parents, to listen, and if that wasn't the most empowering thing along with their peers giving them the sentencing, I don't know what would be. It was so powerful and moving. And let me tell you, people sat up and took notice and you gave respect, you listened. And that's one instance where that...we were able to have that and that was just such a learning tool for our young people to sit there and go through that and to listen. Even though they weren't the offenders, but they knew exactly, they knew exactly. It was almost like a reawakening. "˜I know this, but we don't do it all the time,' and like, "˜Whoa!'"

Ian Record:

"So in that instance, the court was not even an intermediary between the community, the culture, and the issue at hand. They were actually just a mechanism for connecting those two."

Rae Nell Vaughn:

"Facilitating just basically, just putting those people and things together. And it's...one thing of...and when I first entered the court system I served as a youth court judge. And the one thing I would tell our kids, when they'd come before the bench and with that attitude, being rebellious, and "˜You can't tell me what to do,' is, "˜The offense you've committed, you think maybe committed against this particular individual or this particular family or to the school, vandalism, whatever.' I said, "˜But you're not hurting those particular individuals, you're hurting the tribe, and in essence you're hurting yourself. So what has to happen here is you have to make this right and you're making it right at the end of the day for yourself.' And for some kids it didn't click, of course being rebellious and angry and everything, but for some it did. They understood. And again, you never really had a lot of successes. You had some successes and statistically Native American Country and as well as in dominant society you knew that there were higher chances of your young people moving into the adult system, but we tried very hard and that's why we were looking at all these other alternatives. Many Native communities have such small memberships, and so when you have a lot of delinquency going on, number-wise it may not appear to be a lot, but there on the ground it's epidemic and that's one of the things governments need to recognize and why it's such an important thing to make sure that you're supporting and investing in all of these types of things that keep your system, your justice system strong, consistent and stable."

Ian Record:

"So what do you see as the major challenges facing tribal jurisdiction today?"

Rae Nell Vaughn:

"Oh, my goodness. That's something that tribes are facing all the time and it's amazing to me how we do have the jurisdiction that we do have. There have been challenges locally, and as I'm trying to think back here, we've had a number of cases that we've dealt with ourselves at Mississippi Choctaw where you have a civil matter that came before the court and they were running concurrently with the circuit court, the federal court. And it was an issue concerning a, it wasn't a loan company, a bank, it was a bank and a big problem with a salesperson going into the community and of the lender reneging of sorts -- just a really basic background of that case. And tribal members who had signed up for this service, which I believe was a satellite case, then did a class action against the lender. The party then went to the federal court, the federal court in turn sent the case back telling the parties that, "˜You have to exhaust tribal jurisdiction before you can even attempt to make it here,' which I think said a lot for not only our tribe, but for tribes in Indian Country to have a federal court say, "˜You have to exhaust all remedies before you even make it here.' Now you and I both know that that's not commonplace and I think that sent a very, very big message. Why would that have ever been decided? I think a lot of it had to do with the court itself because it was a functional court, it is a functional court, renders opinions, clear decisions and it's consistent. And I think that had a lot to do with why we were able or the federal court made the decision it made.

Now Indian Country, tribes in Indian Country are constantly faced with issues of jurisdictions and I can't speak so much for these other tribes, but just from the readings I've seen and in the issues that I've heard about, it's constant. For example, I know that there was a tribe in California that had the state come in wanting to look at employment records. If that wasn't a clear crossing of the line, a failure of respect of another sovereign, I don't know what is and that's clearly overstepping jurisdictional lines. But those types of things happen and that's where you really have to, as a government, make sure that you have the type of legal representation for yourself to protect you as a tribe because you have it coming from every angle, from every area of wanting to chip away at what jurisdiction you do have. It's bad enough that we don't have criminal jurisdiction over non-Indians and as a gaming tribe there's a lot of issues that we have to deal with and we're at the mercy of the county or we're at the mercy of the federal government and its system. It makes no sense to me. Logically, we know when, I know when I cross the boundary and I go into Philadelphia, if I commit a crime, I'm going to be dealt with in Philadelphia court. It's a no-brainer. And this is an issue that's been talked about time and time again. I know I'm not going to change it, but I'm going to give you my two cents. It sucks, it's not productive and there are people who agree. There are people on the outside who do agree that you should have the ability to incarcerate, to judge any individual who commits a crime, an offense against the tribe or this jurisdiction. And we don't have that ability. And then you have the civil jurisdiction, which is always being tested and it's just so important that when we have issues that come up through tribal court systems that as a judiciary you're giving well-thought-out opinions and it's iron-clad so that you can't...it won't be unraveled and then there you go, you've lost more jurisdiction."

Ian Record:

"And it's not just making the decisions, it's actually documenting those decisions and having those ready in an accessible fashion, and that's where it's important to build the system of justice not just have judges making decisions."

Rae Nell Vaughn:

"Yes, exactly. You're exactly right because you have a lot of these systems that are in varying degrees of development and I am a big believer of having tribal members sitting on the court. Unfortunately, you don't have enough people who come to the court, come to the bench with a legal background. I'm not law trained. And so it's challenging and it's a struggle. Fortunately, our tribe made investments of having individuals on the bench with the juris doctorate providing us with legal technical consultation so that we're not standing there twisting in the wind, "˜Well, what do we do?' And so we're able to have this body of law, opinions that come from this court, that are guiding tools for not only us as a tribe, but also for other tribes should they wish to use it. I know that there are different companies or organizations who collect all of these opinions across Indian Country, which is good so that there is a body of law for other tribes to go in and take a look at and look at precedent and things of that sort. And we need more of that, but what we also need to do is be able to reach out and get this information to people. As I said earlier, you have a number of people whose systems are at varying degrees, tribes whose systems are at varying degrees and there are times where I think we do a disservice. Again, I am a big proponent for having tribal members on the bench, but you also have to be able to have someone there who is knowledgeable and can understand law, the analysis, the logic and to be able to generate really good opinions and good decisions. Are we right all the time? No, not necessarily, even those who have the jurisprudence isn't right all the time, but it's based on interpretation."

Ian Record:

"So it's really important then for tribes to invest in capacity in not only of people...tribal members who eventually will be judges, but also those clerks and other people in law enforcement."

Rae Nell Vaughn:

"Because let me tell you, those clerks are down on the ground doing all the work and there have been instances where I have seen they have ultimately become judges and they come in with all the knowledge of working every facet of that system in the sense of dealing with attorneys, looking at orders. It's amazing to me. Some of these clerks that I've talked with in my travels would say, "˜Yeah, I knew that wasn't what needed to happen.' It's just amazing the knowledge, the experience they gain and I have seen many instances where some of these clerks did step up or were appointed to serve as a judge and made excellent judges because they had the hands-on training and going through the process of the documentation, the order development and things of that sort. So it's key, it's very key in regards to having strong judges training and education."

Ian Record:

"So backing up a bit to what you were discussing a few minutes ago and this issue of...essentially, what you were talking about was transparency and jurisprudence, that it's not enough just to make decisions. You have to make sure that those decisions are clear, that they're open to not only the citizens of the nation, but to the outside world and that they're understandable and that they're accessible. Is that what Mississippi Choctaw has done? Is that what you're seeing other tribes starting to do? Are more nations really beginning to understand the importance of transparency in jurisprudence?"

Rae Nell Vaughn:

"For Mississippi Choctaw, yes, it's something that we strive for; it's not cloak and dagger, it's no big secret. Whatever decision is rendered and the opinion is generated, we had a procedure where we informed all arms of government, especially if it was something that was very critical, maybe a jurisdictional issue, something that would affect the tribe. They received notice, they received a copy of the opinion, and then in general opinions that were generated from the Supreme Court, that's 101. You need to get them to see this and also there may be messages in these opinions that say, "˜Look, this is how we ruled, but if we don't make changes to the body of the law that we have, we're going to hit this time and time again. You might want to think about it, but we're not telling you...we're not changing the law, we're not going to change this piece of legislation, but we want you to think about it.' And so it is, transparency is important. Again, going back to the issue of where tribal courts are and the varying degrees they are, those more established courts such as Navajo Nation have a large body of opinions and a body of law there that you can...I tap into it. I've tapped into that as well as Eastern Band of Cherokee -- your bigger, more established systems. And so you have that transparency there, but again it goes back to where the systems are in development."

Ian Record:

"I want to switch gears a little bit and talk about an ever-present dynamic in tribal jurisprudence and that is tribal politics and there's a reason why you're laughing. I assume you know exactly what I'm talking about."

Rae Nell Vaughn:

"It's the bullseye right there."

Ian Record:

"But I wanted to get your sense of what you've seen in terms of the impacts of political interference in tribal jurisprudence and dispute resolution and essentially how far-reaching those things can be."

Rae Nell Vaughn:

"There are many tribes that face this very question of political interference. And it's a hard line to walk, it really is. I think a lot of it has to do with who you are as a person and your integrity and what you yourself are willing to allow and not allow. And at the end of the day, just like I tell my children, "˜If it's an issue that you're really passionate about and you know this is what you need to do, sometimes you're standing by yourself,' and as judges that's ultimately what we end up doing is end up there standing by ourselves and telling whomever it may be, "˜No, you cannot cross this line.' Are there ramifications for those choices? Yes, in some instances there are. And that's unfortunate because of the messages that it sends not only to your community, but -- again as we talked about earlier -- to the outside world. If an individual makes a decision and in the eyes of the government it's perceived as a bad decision and it possibly wasn't in favor of what they wanted and they make sweeping change, who is going to want to step up and serve if there's the possibility of failing to comply or abide by what they're wanting. When you step up and become a judge, all of what you may have supported or your political views all fall by the wayside. Your primary concern is the interpretation of law, dealing with that case that's before you, that's it -- not what the politics are because they cannot be influential, they cannot be influential to what you're doing because if that's the case, then why have a court? Why not let the tribal council run the court? They want to, I know they do, but it's again checks and balances and the maintaining of independence. And I see it time and time again. I've heard so many war stories."

Ian Record:

"Yeah, we see some tribes that still have, particularly with those tribes that have Indian Reorganization Act systems of government where the standard constitution said, "˜The council can create a court system as it sees fit,' essentially and..."

Rae Nell Vaughn:

"Oh, in our code it does state that. It says, "˜If funds are available,' and I thought, "˜Well, what does this mean?' But for the time that that code was developed, that's again going back to, "˜Well, is this is a system or is this a program?' It's clear even in our general provisions, "˜If funds are available, we will operate this court.'"

Ian Record:

"Yeah, some of those IRA [Indian Reorganization Act] systems you still see to this day where the root of appeal of a tribal court decision is back to the council."

Rae Nell Vaughn:

"And we do have that in Choctaw in some instances. Example, if there's an election challenge the court has no...there's no venue in our area. It goes directly to the tribal council once it goes through the election committee. And there is a valid challenge then it's ultimately the tribal council which makes the decision whether to say, "˜Yes, this is a void election or no, it's not.'"

Ian Record:

"You mentioned a few minutes back the messages that are...the very clear messages that are sent when there is political interference and tribal jurisprudence and I was wondering if you'd maybe perhaps talk about that a little bit more specifically because you mentioned messages not only to the community but to the outside world. What kind of messages do those send when you do see that political interference? And perhaps how does that impact the tribe in the long run?"

Rae Nell Vaughn:

"Oh, yes. It does not put tribal government in a very good light when you have that type of interference. Sometimes it comes across as being more of a dictatorship versus a democracy. It really makes greater society doubt in the ability of that government of being able to provide for the people true leadership. And I know as a sovereign nation there have been other tribes and this is just from my travels and visiting with other jurisdictions and sharing war stories. We are under such a microscope, not only the judicial system, but the overall tribal government in Indian Country. We are constantly being held at an even higher standard. Yes, we need to be at a high standard, yes, but it appears when there's just a small hiccup or a small misstep it's magnified 100 times. "˜Well, you see, that's why we don't deal with that tribe,' for whatever reason it may be and it could be miniscule, but for the outside world it's like waiting. They're lying in wait for you to trip and fall. Choctaw itself has had its ups and downs. There's not a tribe that hasn't. We've seen successes, we've seen challenges, but we continue to persevere because of our membership. We're not going anywhere. At one point we were the third top employer of the State of Mississippi providing economic development, providing income for this state and that speaks volumes. Now we're dealing with the issues of the economy, the national economy and the effects that it's having on our tribe and we're having to act and react to those things and it's not been favorable, but we also have to be sustainable for our people and there are hard decisions that we have to make and we've made those decisions, rightly or wrongly, whatever may be perceived on the outside world, as a sovereign we have to maintain for the people."

Ian Record:

"You mentioned this issue of outsiders are looking very closely at what tribes do and in many respects they're waiting for tribes to mess up and using it as an excuse to say, "˜Okay, either we don't want to deal with them or they shouldn't have sovereignty,' whatever it might be. And I think that's really where court systems are critical because in many respects they're the most tangible connection, the most visible reflection of what tribes are doing and what tribe's abilities are, what their capacity is, how they make decisions. Is that something you've experienced at Choctaw?"

Rae Nell Vaughn:

"Yes, very much so, very much so. We've been fortunate. Legal communities -- whether it's on the reservation or off reservation -- are small and word of mouth is very powerful. People know what's going on, whether they're on the reservation or not, they know what's going on and it's really key on how you bring these people in and how you...and also educating, educating them about what we are and who we are as a sovereign nation. One of the things that we provide as a system is a form of a bar meeting and providing them training, bringing to them things that are happening on the national level, educating them, and that's key -- going out and educating. And that's a lot of what I did as well during my time with the court. I've gone to Harvard, to Southern, to University of Southern Mississippi, to the University of Mississippi Law School, to Mississippi State [University], to a lot of the local universities within the state to talk about this very system. And they're so amazed at one, we're not just this casino that they see talked about on TV. Secondly, that there is a functional government, but what they're also very surprised at going back to what we've talked about earlier is the fact that there is no jurisdiction over non-Indians and that's always been the big, "˜Ah ha. Are you kidding me? How can that be if we're in this country of the land of the free and our constitution, our U.S. Constitution,' but that's what the cards we're dealt with. And that's how fragile these systems and governments are because I'm sure if the federal government wants to, and again looking at how governments are exercising their sovereignty or lack there of, they would be more than willing to come in there. It just says that we have to provide you with health and education, but it doesn't really say to what degree so I can...you'll take what I give you and that's where as sovereign nations we really have to be diligent about our exercise of government and of our sovereignty. We have to be. I know I sound like this...I sound like this caped crusader, "˜We've got to be. Somebody has to be at the gate and it's going to be me,' but there needs...there really needs to be more development of people who understand public service of giving back to the people and we've got to cultivate that."

Ian Record:

"So you've made references to the incredible growth of the Mississippi Choctaw's economy over the past several decades and I'll ask you a very blunt question. Could Mississippi Choctaw when it comes to economic development be where it is today if they, for instance had what's often referred to as a 'kangaroo court'?"

Rae Nell Vaughn:

"The short answer, no, I don't believe they could be. This system was and is, continues to be an evolving system and I think with the right leadership it was determined that there are certain things we're going to have to put in place in order to be successful and strengthening the court system was one of them. This system was taken into management of the tribe in 1985 and was operating with a very skeletal group of people and then they expanded the service. And then in 1997 there was another reorganization where they developed very distinct divisions of court. This would give the system the capacity to handle all civil matters. We had well over 1,000 people working for the tribe in the hospitality portion of it and of the industrial arm of it. The majority of these people were non-Indian. Where are civil actions going to take place? In our court if they're working for this tribe. You also had, once gaming came into play and tribal members were receiving per capita, a rush of people wanting to enroll and so our enrollment jumped by leaps and bounds from 3,000 to 4,000 to almost 10,000. And so you had to have the ability to handle all the issues that come with the economic growth and the court system and law enforcement are the people that deal with a lot of the day to day issues that come with that prosperity."

Ian Record:

"So in many ways the court system is the primary vehicle for managing growth for tribes."

Rae Nell Vaughn:

"I would say so. People may disagree but I would say so."

Ian Record:

"So I wanted to ask you a bit more about this issue of justice systems and how they maintain stability in law and order and how does that... how does the justice system at Choctaw provide that for the people?"

Rae Nell Vaughn:

"Well, we've been fortunate that the tribe has taken over, like I said earlier, management of the law enforcement division. It's now the Department of Public Services, as well as the court system itself. The tribe itself has also contributed to our legal community and I include law enforcement in that and detention as well by providing legal counsel for the tribe. We have an attorney general's office that's set up as well as a legal defense, which is the equivalent of legal aid for individual tribal members and so we have a pretty diverse legal community there. This provides for the community, for the people the ability to be represented within our system, but not only within our system, should there be issues that occur off reservation they have the ability to use legal defense to represent them as well in issues such as maybe child support type issues if it's a non-Indian and Choctaw union and the marriage dissolved and there are challenges and things may end up taking place off reservation for whatever reason. Also, the ability if they need counsel in federal cases as well because you know as well as I do that there's always challenges there where the level of adequacy of representation at the federal level. We've seen time and time again where Native people have just not had proper representation, which also dovetails into the additional work that I do as a commissioner for the Mississippi Access for Justice, ensuring that all people have the ability to have legal representation for their issues. But for the people, just knowing that there's law enforcement, there's a police officer there who is not out there on his own. There's a strong department and when I call I know they'll be here not in three hours, maybe within 30 minutes or 15 minutes depending on the location because we are managing our own law enforcement. What does that say for the greater communities? We're able to assist them as cross-deputized officers, peace officers, to assist them with whatever issues may be taking place. Again, going back to jurisdictional issues, there's always, "˜Well, where are we? Are we on Choctaw land or are we on county land? Where are we?' And so it's a tough call at times. Sometimes somebody has to pull the map out and say, "˜Yeah, well, here's the line.' And so it speaks volumes as to partnerships that have to be developed and strengthened to show stability, for them to see the stability of this system. And it spills over even into the court. We had an instance where there was an issue off reservation with two tribal members being dealt with in the county court and the court was familiar with our peacemaking, Itti Kana Ikbi, court, our traditional form of court. And he called up our peacemaker and said, "˜Look, I have this issue here. I think that it should be better resolved...it could be better resolved with you and peacemaking.' That is unheard of for a county court to turn its jurisdiction over to a tribal court. Even I was taken aback. But societies are changing and there are times of tension in race relations, yes, we recognize that. And to see something like that happen only proves more to me that we as a people, not only tribal members, but as people are changing and recognizing that we are just as capable as our counterparts are and that also signals stability."

Ian Record:

"I think in that particular instance, part of to me is them probably saying, that county court judge saying, "˜Hey, those guys do things, they do it right, they... yes, they have their own systems, their own principles that they administer justice on, but they do it consistently, they do it fairly and I have confidence in turning this over knowing that they'll resolve this dispute in a good way.'"

Rae Nell Vaughn:

"That's exactly right. That's exactly right. And so that generated even more conversation and we have a very good rapport with the county courts and so there have been times where other issues, other instances have taken place, but that was just the turning point. And to be quite honest, I never would have thought I would have seen things like that happen in my lifetime. There's always been this sense of separation and I'm sure it is with other Indian tribes. "˜You're the Indian tribe, you're over there. Here we are metropolitan society. You do your own thing and we'll do our own,' but we're all members of the community, of our communities, and it's being able to interact with one another and working for the greater good of the entire people because don't forget, it's the people who are living outside that are probably working for the tribes on the reservation. So there has to be, whether they like it or not, there has to be a relationship."

Ian Record:

"Yeah, we hear this more and more often, this refrain from tribal leaders of, Native nations aren't islands and they can't act like there are. They can't exercise their sovereignty in isolation, that for them to advance their strategic priorities they're going to have to, of their own volition, build these working relationships with other sovereigns, with other jurisdictions, with other governments, with other municipalities in order to advance their priorities and create a better community."

Rae Nell Vaughn:

"Exactly, and I think that's what has been the successes of what has created an environment of success for our tribe, for Mississippi Choctaw, has been those relationships whether it's local, state or federal, having those relationships not only within your executive branches and legislative branches, but also within your judiciary. Maybe I was in the judiciary the fifth year of my tenure and I had the opportunity, and it was such a very moving moment, when I had the Chief Justice of the State of Mississippi and his associate justice come down. He came down to Choctaw and sat down and had a conversation with me, the Chief Justice of Choctaw Supreme Court, his counterpart to talk about, "˜How can we help one another?' And that's something that is...I couldn't even imagine that happening. And I shared with him... and we got to know one another and we've become good friends and I said, "˜It had to do with the people and the timing.' Everything just came and lined up and it worked. And so we were able...and we have and we've continued that relationship even with the new Chief Justice, that there continues to be and as well as my new counterpart, there continues to be this continuation of the relationship and it has to be. And it's good that it's now recognized."

Ian Record:

"A couple more questions here. This issue of...getting back to the issue of when you have a justice system creating this environment of stability, of law and order, of certainty, of essentially offering a fair forum for the resolution of disputes where people feel that, "˜If I need to go have a case heard, whether I'm an offender or the one that's the victim in this case, that it will be resolved or adjudicated based on the merits of that case.' Doesn't that send a pretty powerful message to not just those outside investors, but also to your own people that, "˜Hey, this is a place where I can come or I can remain and invest my time, invest my resources, invest my skills, my ideas and the future of the nation.'"

Rae Nell Vaughn:

"One thing that I know people struggle with is understanding the system and once you enter in and begin going through all the different processes, they then realize how difficult it is to go through the court system per se. And it may have been designed specifically for that, because you certainly don't want frivolous actions coming before the court. You certainly don't want a manipulation of the system and so it's holding all parties accountable. And the messages that it sends to the people, I would hope, and that was always our hope, was that, "˜You will receive fairness here when you walk through these doors. You will see an individual there who is going to render justice, whether it's on your behalf or not, whether it's for you or it's not.' Of course when the person fails to get the decision they want, you have that as well. But I know that in my dealings with the legislative body, they recognize it as well and at times you have to let the community member vent. They're also your constituents and so you've got to let them vent, but also talking them through, "˜Well, this is what it is but you also have the ability to appeal,' which is the beauty of it all. There is still another forum to go to if you're dissatisfied and if it's a true error of law, then you do have another venue to go to. In some instances, most tribes don't have that luxury."

Ian Record:

"Several years ago we were talking with Norma Gourneau, she was...at the time she was the vice chair at Northern Cheyenne, and they were dealing with this issue of...the court judges were just getting steamrolled by councilors every time...they were having a big issue for instance with automobile repossessions by off reservation dealerships and these off reservation dealerships would get a default on a car loan, they'd come on the reservation to get the repo order enforced so they could actually come on the reservation and pick up the car. The tribal member who was in default would go to a council member and say, "˜Oh, I need my car.' The council member would lean on the judge, the judge would rule on the tribe's behalf. Before long nobody's selling cars to tribal members. And so what she said was they put a fix in there. They did a constitutional reform, they insulated the court from political interference and she said, "˜What I found was I had a lot more...I found myself empowered because I wasn't dealing with those issues anymore. I could now...I wasn't putting out those fires of having to interfere in the court system so now I could focus on what was really important for the tribe, which was where are we headed, where are we going and how do we get there?' Is that...do you see that as an important dynamic to have when the court system is insulated from that essentially liberates elected leaders to focus on those things?"

Rae Nell Vaughn:

"I wish there was more of a way to make that happen for all of us because we all deal with those...again, it goes back to what we talked about earlier -- political interference -- and again it's up to you as an individual of your integrity whether you allow it or not. Yes, they can be pretty quick to apply pressure on you. Yes, we've dealt with those types of things. It was always astonishing to me when a vendor would call and say, "˜Well, this is happening and I'm not getting service, I'm not getting the court system to react quickly enough.' And our council would be so quick to step up for those vendors and I'm like, "˜You have to allow the process to take its paces. It has to go through its paces. You can't speed anything up for anyone in particular. It doesn't matter, it just does not matter.' But yes, we have experienced in the past where because you had a number of tribal members defaulting on a lot of things, businesses begin then questioning, "˜Well, do I really want to do business with a Choctaw?' Not so much about the judicial process itself, but if I'm not going to be getting my money back or if I'm not going to get paid for whatever service I render, is it worth my time? Which is a much bigger question, but going back to insulating yourself, we as a judiciary, as many judiciaries, have canons of ethics and it depends on what those things mean to you. The legislative body as well as the executive body, unfortunately in our instance, don't have canons of ethics and...but those are to me things that are internal. You should have those types of ethics. You should know that it's not proper to go to the judge to say, "˜Change your decision.' It's not proper. You would feel...if there were clear lines of language that said, "˜No, you cannot approach the court,' then the atmosphere would be different. The atmosphere would be very different. Yes, there are tensions, there are questions, "˜Well, what's going to happen with the impact of this decision I've made? How is that going to affect possibly my appointment? Will I still be here in four years?' But if there were that...if there was the ability to have that happen where language could be developed and there were clear separations, you would be able to be in a position to judge more effectively without the fear of repercussion. You would. It's bad enough you have a lot of other things that you have weighing on you as a judge, to have that extra layer put on you and the sad thing is it's your own people, these legislative members are also your members, members of your community and of your tribe. I've heard one councilman tell me...he told me once, there was a case that was being dealt with and he was insistent on trying to get involved, to come in. And I said, "˜It's clear in the code, you can't stand as an advocate. It's clear in the code that you cannot post bond for this...bail for this individual.' And he would tell me real quick, "˜Well, out in this county I'm able to call the judge and da da da da da.' And I said, "˜Well, you know what, that's that court system, not here.' Needless to say, he wasn't my friend anymore, but that's the whole point of it. It's where your integrity lies and you have to. But again, it's also educating, educating the legislative body because of the evolution, the changes of a justice system, what justice systems mean, fairness and that, "˜No, you can't go and ex parte the judge.' It's about fairness and not so much about control. And that's the problem, it is an issue of control."

Ian Record:

"So the tribal code for Choctaw prohibits elected officials from, I guess, involving themselves in court cases in certain respects."

Rae Nell Vaughn:

"Yes, that's correct. If I as a tribal member would ask a councilman to come in to serve as an advocate or a speaker on their behalf of sorts, it's not allowed. They're not allowed to post bail or bond for anyone. It's right there in black and white, but they still continue to try to do that. I've always told my staff, the judges, when we look at the canons of ethics, "˜It's there to protect you so use it,' tell them that this is what the canons of ethics tell us in regards to appearance of impropriety, of political influence and things of that sort. That's what it's there for. And it's a struggle, it is a struggle and this is something that I know a lot of tribes face, a lot of judges face. It's a hard...it's a hard line to walk because again you are a member of the community, you do not have the ability to blend in with the general populace. It just doesn't happen. Like I said, for our tribe, we're a membership of almost 10,000. We have on the reservation over 6,500 people."

Ian Record:

"Do you think part of it, when elected leaders feel that impulse to interfere on behalf of a constituent, that they maybe haven't gone through the paces perhaps as you've termed it to think, "˜What's the long-term implication of my action here? Because I might be helping,' because that's their feeling, "˜I'm helping this person. I'm helping this person, but am I really helping the nation in the long run because this is going to be the ramifications of this. There's a ripple effect to what I'm doing.'"

Rae Nell Vaughn:

"Yes, and you're exactly right. I know in some instances their intentions are good, their intentions are good, they do want to help their constituent. They feel that someone needs to step up for them, someone needs to represent them, and maybe for whatever reason the different programs may not be able to help that particular individual, for instance, a vulnerable adult, an elderly person who may be being taken advantage of with his grandchildren taking the monthly check. And so I can see that, but when you don't allow the process to happen and if you don't follow the letter of the law, then the messages that it sends out is that, "˜Well, you can change the rules whenever you want,' and you can't do that. The rules are the rules for everyone, whether you're the community member, whether you're a member of the council, whether you're the chief, the rules are the rules. And although some people may think they might be able to change those rules; that's where the strength of your judiciary is the test not to allow those things to happen. I know within...in Indian Country those things happen where they're tested all the time. Like we talked earlier about jurisdictional issues, everyone is coming at you from different angles and let me tell you, being...living the life of a judge is not an easy thing. It's rewarding at times because you're providing a service to the people, the successes that you see make it worth all that you have to go through, but the political side of it can be at times very disheartening, very discouraging because you're having to deal with this mountain of things that are coming at you and you're trying to do the best you can do for your system. And sometimes people just don't see it the way you see it and it's trying to reach consensus with people, to get them on your side, get them to understand. Education, it's...it always goes back to education, teaching the membership, teaching the legislative body what these systems are all about and how important it is because at the end of the day that's going to be what makes you successful as a people, as a community. For me, it's always been my philosophy that tribal courts are the guardians of sovereignty. It's our job to make sure that we protect this sovereign through the well of the court, through this legal system and it's something that when you take on this judgeship, it's not about the notoriety, it's about what you provide, what you bring to the bench and the protection of the sovereign. That's the bottom line of all of this." 

Stephen Cornell: The Task of Reclaiming Self-Governance (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Key Things a Constitution Should Address: 'Who Has Responsibility for What?'," NNI's Stephen Cornell provides an overview of the fundamental questions that Native nations must ask themselves as they reclaim control over and then redesign their governance systems.

Native Nations
Resource Type
Citation

Cornell, Stephen. "The Task of Reclaiming Self-Governance (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation highlight.

"When you think about governing yourself as a nation, reclaiming self-government as an Indigenous right, an Indigenous tradition, an Indigenous practice, what does it mean? And you could probably add a whole lot of stuff to this list, this is not a complete list, but it means things like this: you've got to make law. Under what law will your people live? Arizona law, U.S. law, you may not have choices on some of that. You live under U.S. law, but what about your own law? And if you think about it, how do you make that law and how do you enforce it? How do you make decisions as a people? The [U.S.] Supreme Court releases an opinion and suddenly your world changes and you've got to react. How's that going to happen? Who does that? You're approached by a Fortune 500 corporation that says, 'We want to partner with you to do this on your land.' Okay, you need a decision. Who makes that decision? Or a family comes to you and says, 'We've got a problem with kids and we need the support of the tribe,' and you've got a decision to make. So you've got to think about who's making those decisions.

Disputes. I think some people who are non-Indigenous have this sort of harmonious idea of Indigenous communities as places where no one ever disagrees with anybody, all harmony and consensus and so forth. Well, we're all human beings; life isn't like that, we have disagreements. And the question is what do you do when you disagree? Do you let disagreements rip the place apart and become the issue in the next election so that we can throw those guys out because they're nuts and put our people in? Or do you sit down and figure out a way to resolve the dispute that lets the nation keep moving forward, keep pursuing its goals, not get distracted, but also deals with if we've got a real issue here let's deal with it. So how do you do that? Who does that? You've got to interact productively with other governments and they're not necessarily going to sit there and say, 'Well, we'll do whatever you want.' No, they're going to want to sit down and negotiate and sometimes they're going to be tough and they're going to be brutal and you've got to figure out, what are we willing to compromise on? And where do we draw the line? And how do we make sure that 10 years from now we can still work with these guys because neither of us is going anywhere? We're going to have to. Facilitate and implement a strategic vision, thinking about what kind of nation you want to be seven generations down the road or even five years down the road. What kind of community do you want when your grandchildren are your age? And then there's just the daily needs of your citizens that somehow the nation has to try to address. This is all governance stuff. It's what we mean when we talk about self-government. It's saying, 'From now on, we are going to be responsible for those things just as we were once long ago and we're going to reclaim all of that.' So then the question comes, okay, how do you do it and who does what?"

NNI Indigenous Leadership Fellow: Jamie Fullmer (Part 2)

Producer
Native Nations Institute
Year

Jamie Fullmer, former chairman of the Yavapai-Apache Nation, shares what he wished he knew before he first took office, and offers some advice to up-and-coming leaders on how to prepare to tackle their leadership roles. He also discusses what he sees as some keys to Native nations developing diversified, self-sufficient economies that can be sustained over time.  

Ian Record:

"So, Jamie, you served two terms as chairman of your nation. I was wondering if you could share with us what you wish that you knew before you took office that first time."

Jamie Fullmer:

"That's a great question. There's a lot of things I wished I knew before I took office, but when it gets right down to it I think that politics is a unique and challenging role, because in essence you're a public servant to the community, but you also have responsibilities as a public figure. And so I think one of the initial challenges was not recognizing how much of both of those things took of my time and my life and so had I known that before I would have been able to prepare for it before getting into office. But it consumes you rather quickly and your time becomes very precious because you have few moments of time to yourself and you have few moments of time when you're not expected to be in the public setting. And so with that said, I think that's the first thing I wish I had known before taking office. I think the other thing is, having never been involved in politics, not really knowing the process of any of the formal processes of running government, and so it was kind of a 'learn and lead at the same time' process, and if I would have been able to know initially what kind of steps I could have taken I might have been able to do some homework and really have a good feel of how to move the legislative process forward, how to take advantage of team building opportunities early on, and then also I think learn more about how to better enhance the institutional framework of information sharing. Not only being able to have access to it, but having everybody else have access to it so that we were on the same page when we were dealing with political issues or community issues or economic development issues in that sense."

Ian Record:

"So you mentioned time management and we've heard this from other tribal leaders that that's one thing that you just...you can't anticipate in many respects coming into the job. I remember Peterson Zah, former chairman and president of the Navajo Nation, said once that that really puts the onus on you as the tribal leader to first prioritize your work and then in those places where you can, delegate your work to those people that are within the administration of government who've been hired to do those sorts of things."

Jamie Fullmer:

"Sure. The delegation issue is sometimes challenging, because even in the delegation process you have to meet and learn and get to know the staff and they may not be staff that you've chosen. And some political systems have a system where a new leader comes in and they're able to choose their executive team. Our system wasn't like that. The executive team that's in place is what you work with and it's really a council decision to choose those folks. Of course the chairman has a say, but if there are people already in existing positions you'd like to hope...especially in my case, I believed that the chairman before me had good sense of who they wanted. And so if they felt it was good for the nation, I respected that I could keep that same frame of thought. That challenging part though is getting to know who has the skill sets in different areas. They might have a certain title, but they might have skill sets in other areas that are a good fit for delegation of duties. And I think the other process in that is that there's the time management issue, it's also important to have good support staff to help manage the front end, the telephones, the documentation that comes in in stacks daily, and kind of arranging a schedule that helps you to meet not only your daily priorities, but also to address any of the community issues that come up where members want to have some time with the chairman in the office, and then arranging that with the travel that's necessary to do business on behalf of the tribe. So you live in a suitcase part of the time and then when you're home, you're really relying on others to keep you on track and on task."

Ian Record:

"What advice would you give them? It's somebody that's never served in an elected office before -- what advice would you give them as somebody who's either considering running for office or say they do get elected and are getting set to take office, what advice would you provide?"

Jamie Fullmer:

"I think the best advice I would give in starting out is [to] remember the promises that you make you have a responsibility to keep. And so I believe that part of the political process is one of the challenges we face, because there's so many promises made in the pursuit of getting elected -- both in Indian Country and we've seen a lot of promises going on right now during the election season at large -- but when you get into office you are only a part of something that's much bigger than one individual and you can play an important part and you can play a very important role in the advancement of your nation, but the advice I would give them is, "˜Be aware and take the time to learn what the struggles are, take the time to learn what the system needs to help it move forward, and before you make any promises to the community, take the time to learn if those promises can be met.' And I think that's an ongoing challenge, so that I thin, that's an important part. It's also valuable and what I would tell the person is, be ready to commit your time. You're raising your hand and swearing an oath to your people, to your nation, and to God that you're going to follow through to the best of your abilities and it's a challenge to give the best of your abilities all the time. And so I think you need to figure out at the front end how you deal with your down time and how you deal with your low moments so that you can keep a good presence about you as a leader."

Ian Record:

"You mentioned the fact that keeping promises is really important once you take office, the promises that you make maybe on a campaign trail or as part of your platform to get elected, and you began to touch on this. Doesn't that make it your job to be very careful about what promises you make and really think strategically about the promises in terms of are they promises to maybe just a certain portion of the citizenry or are they promises to the entire nation, because as an elected official are you not representing the entire nation?"

Jamie Fullmer:

"That's a challenging question, because I think that obviously you serve your entire nation, but many tribes are organized where there are clans and there are familial priorities that take place, there might be village priorities, and so you may be really wanting to get in to address those issues. And depending on if it's a council position, that might be your role as a district councilor or as a village councilor, and so you do go in on those points that you're prioritizing. So with that said, I think the way that I reached out to the community was through goals. I had set goals based on what I had heard that the community wanted and that I felt like could be achieved in the period of time of the term in office or at least get some headway on historical processes that had gone on that hadn't been completed. And so there were some things that were challenges that I felt that I had the skills to help address and to put closure to that other leaders and other councils long before me had established and put into place and then there were other issues that had been initiated over time that I felt like needed to be at least started to being addressed. And so, rather than making promises because it's too difficult to make a promise, it was goals that I had set for myself and for our nation that if I were elected I would work on those goals."

Ian Record:

"And those two different terms send very different messages to your citizens, to your constituents don't they?"

Jamie Fullmer:

"I believe so because the goal is something you work toward, a promise is something that you try and keep."

Ian Record:

"Yeah. And you also mentioned this approach that you took when you took office which was continuing the priorities and the initiatives of previous administrations and that's not an approach that every tribal elected official takes. In fact, we've seen many that take the exact opposite approach. And I was wondering if you could talk about the difficulties you ran into with that or if it made your job easier, the fact that you were building on the momentum that had been generated before you came along."

Jamie Fullmer:

"I think there's a point that's important. Really for me it wasn't about having the credit for getting anything, it was having our nation have the credit. And so my role was as the chairman, in my opinion, was to go in and assess our government, assess our enterprises, assess our community, assess our programming and look for areas that I could help strengthen it. And it didn't matter whether I was to start it or if it had been started by somebody else. It was obviously a priority to the community if it was already in place. And so maybe those needed to be updated or changed or some of the structures needed to be adjusted, but the idea wasn't to do any of that with the intent of getting credit for it. It was doing that because it needed to be done and accepting on the challenges that the community had set upon me about getting...there were certain priorities that they wanted addressed and so I felt it important to address those that I could."

Ian Record:

"You've been working with a number of tribes across the country, particularly in the Southwest and Pacific regions, on diversifying their economies. In that capacity -- in working with other tribes and also based on your experience with your own nation -- I was wondering if you could paint a picture for us of what you believe a full-fledged Native nation economy looks like."

Jamie Fullmer:

"Sure. One of the challenges, the initial challenge that I see is that people have a different viewpoint of what 'economy' means. There's a lot of different arenas that are placed around the idea of an economy, but from a governmental perspective and from a societal perspective, that economy is a tumbling effect whereby, when revenues come into the system, those revenues advance themselves throughout the system. And I'll give an example: money generated from gaming comes to run the government. There should be something...then the government pays its employees and then those employees use that money to buy goods and services or pay bills. And so from an economic point of view, your ambition is to keep the money that's generated in a nation in that nation as long as possible. And so from that point of view, the economies are built to create more opportunity and generate more cash flow and protect the money that has come into the nation and keep it there for awhile. With that said, economic development is the process by which tribes create those kinds of business enterprises that will generate that opportunity.

And a lot of times, what gets confused there is the idea of economy has taken on, at times, the viewpoint of small business development. And I am definitely for small business development, I think it's a central part of an economy, but there are also other ways that generate economy, like creating infrastructure creates a baseline to build small businesses on, building housing creates opportunities for people to stay in the community so that they can pay and live in the community, which creates another set of economic values. You also bring in your, you keep your talent pool localized when you have job and work opportunities for those folks; they don't have to move away to go get a decent job. And so there are a lot of things tied to economy but I think the...my idea as a strategist and what I do with my company is we really focus on where the tribe's at and its structure, because economies are really tied to strong structures and institutionalized systems. They're really planned out and thought because there's a lot of money at stake in any type of venture -- business venture, enterprise development venture, acquiring businesses -- and so government is usually a reactive type of system, most bureaucracies are reactive in nature because they're political and business is more proactive in nature because it's usually driven by goals and end-production processes. You want to reach a certain budget, you want to reach a certain level of profit, you want to reach a certain level of job creation. And so with that said, there's more planning that takes place at the front end.

So from a tribal perspective and looking at tribes as nations, as sovereigns with the ability to create whatever they'd like, economic development to me takes on a number of scenarios. One is developing a strong government of laws, which include economic development, commercial laws, corporate laws, zoning laws, taxing laws, any other kind of law that can benefit the nation as a government. With that said, then you also have to have the legal system that can enforce those laws. A solid legal system is another key component to a strong economy. Another piece to that as well as that is the ability to create opportunities for individual members within the tribe to build business and so creating programming that will raise the initiative to have small business and entrepreneurship in the community. Those are other opportunities. And the government itself being proactive in supporting and promoting business within the community really takes on another level of public relations and commitment to helping to share information about the tribe and the tribe's capabilities and abilities, because many times when tribes are trying to develop an economy they want income and finances from other places to come in to generate more income locally. And so if you're looking for investors or partners or joint venture opportunities, it's very important for a tribe to recognize that they're going to be scrutinized by outsiders if they choose to take that path."

Ian Record:

"So really what you're...within this discussion of laws and institutions and structures and infrastructure, you're really describing essentially an environment-based approach to economic development and not just a venture-based approach to economic development, where you as a tribal council are trying to figure out, "˜Well, what business are we going to get into?' But really what you're saying is that tribal leaders need to be focusing on, "˜Let's create this environment for economic opportunity, whatever that opportunity might encompass.'"

Jamie Fullmer:

"You are exactly right with that point of view, because the environment is where the government has the most control, creating the laws, creating the systems, creating the policies that guide the direction. With that proper environment, the tribe or its members or private investors who come in to do business in the tribe have an opportunity to actually be successful because the environment is an environment of success. And so with that thoughtful planning at that -- in the environmental process -- it allows your economic development arm or your planning arm or whatever a tribe calls it, some call them 'authorities' and some call them 'enterprises' or 'boards,' it allows that arm to really do a good and effective job, because first of all they have something that they can go and promote and secondly, it challenges them to stay strategic in their thinking. If you have a specific zone where commerce can happen, you know the limits and the boundaries of where to do the commerce. It's just one example."

Ian Record:

"I also wanted to follow up on another point from what you were just talking about and that is you were describing this tumbling effect that you should be building towards in terms of how you structure your economy and you mentioned this point where the tribal government, for instance, or the nation raises revenues through gaming or whatever other enterprises it may have. It may, for instance, collect taxes on sales by citizen-owned businesses, whatever the form of revenue might be, comes in the tribal government, it funds that government, it pays the salaries to those tribal employees and then you mentioned those employees go out and buy goods and services. And this is where the research shows, this is where that tumbling effect tends to stop in so many nations because there aren't places on reservation to spend money on goods and services. Isn't that really one of the biggest challenges that Native nations face is creating those on-reservation outlets for consumer spending?"

Jamie Fullmer:

"There is that challenge, but I think in that challenge there's also a broader challenge that we many times in Indian Country all over America don't view the value of us buying from each other, doing business with one another, purchasing goods and services from tribal members or Indian-owned businesses, because that's part of a larger economy, the Indian Country economy. And I believe that when Indian Country comes to terms with adding that type of value and seeing the value in really committing to ourselves and our own success that we will have the ability to create a very powerful economy, sub-economy in the United States. But breaking that down to the individual level and the individual tribe, if the money that is made from whatever enterprise the tribe has only comes in and it goes directly out, it only benefits the tribe in that one sense. If that money were to come in, for example...an example that's challenging, but that some tribes have done would be a valuable one is a bank where people, where the money's made and then they store their money in the tribal bank. Well, now the tribe has access to use that money to do other kinds of investment and lending and create another revenue stream. A mall that has groceries and services that the community and the employees of the tribe would use is another way because you create...the money stays in the community, people spend it there, and you create more jobs with the same original money that was brought in, but it has now doubled its value. And so the ambition of a tribe should always be to see how they can vertically integrate the economy so that it will...there's an opportunity for it to stay there and it can be broken down in a number of arenas. Tribes buy all kinds of different products and goods and services. It would seem reasonable that they are able to create business opportunities for themselves as a tribal government owning enterprises or for membership and buying and selling those goods and services from individual Indian tribal members or other tribal enterprises or their own tribal enterprise."

Ian Record:

"You're working with the American Indian Business Network, which is an initiative of the National Indian Gaming Association on this issue of Native nations and Native citizens 'buying Native,' and really on a more macro level where you're talking about an Indian country-wide proposition, where it's not just Native nations and people buying internally within their own nation but actually buying from other nations. So I was wondering if you would talk a little bit about the motivation behind that project and how it's taking shape so far."

Jamie Fullmer:

"Sure. I'm real proud of National Indian Gaming Association's commitment to developing the American Indian Business Network firstly because they are very close to a very powerful economic tool for Indian Country -- which is gaming -- and they see the value in tribes diversifying their economies. With that said, the American Indian Business Network was created by NIGA as a separate entity owned and operated by NIGA to develop a network whereby tribes could partner and do business with one another, that they could promote and establish a way to sell their own products and services of their tribal-owned businesses that they have and then also to look at partnering with other Indian businesses and also really for the small business owner or the entrepreneur that tribes would consider purchasing goods and services from those Indian-owned businesses. And with that said, with all of those levels of involvement and investment, we're really ultimately helping Indian Country, all of Indian Country by doing that because all along that chain, that food chain, Indian households and Native American families are being fed. And so we're really being more self-serving and self-sufficient, but not only that, we're also able to help the non-Indian economy because many of our employees are non-Indians, many of the businesses that we have are in partnership with non-Indians, there's a lot of non-Indian investment in Indian Country, and so the idea is not to exclude people or to make it exclusive, but to make it inclusive where Indian tribes, their enterprises, their buying power and their selling power gives a value to sharing resources across the country in one form or another, which could lead to a number of different opportunities. But just the concept is a very powerful one where we're not just looking, we're not just saying, "˜I want to take care of my tribe.' We're saying, "˜We want to take care of all tribes,' not by saying we're going to have to spend all of our money on other tribes, but by saying that we're willing to commit to buying Indian goods and services when they're at the same quality and level of the non-Indian goods and services."

Ian Record:

"So it sounds like a rather immense, untapped economic opportunity that will have kind of transcendent benefits not just for Native nations, but for the larger economy."

Jamie Fullmer:

"I believe so, yes."

Ian Record:

"I would like to talk about another topic, broach another topic that's rather sensitive in a lot of Native communities, particularly among those who have experienced this newfound wealth and prosperity through gaming, and that's the issue of per capita distributions of tribal revenues. Yavapai-Apache Nation has a per capita distribution policy where it distributes a certain portion of its revenues to individual citizens, I believe on an annual basis, is that right?"

Jamie Fullmer:

"Yeah, that's correct."

Ian Record:

"On an annual basis. And I was wondering if you could talk about how Yavapai-Apache Nation went about developing the policy, what it took into account when developing that policy, and how the policy and how the process of distribution actually takes place."

Jamie Fullmer:

"Sure. The per capita distribution and obviously the tribe's process of distribution was created for the membership -- and I won't get into any details to that because it's not my place or my authority -- but the distribution process was established because the community itself, as shareholders of the casino enterprise, felt as though there should be some distributions of that wealth. And the leaders over time had made commitments to doing that. When I got into office, it was very apparent that that was one of the things that was a priority to the people to get done. And so I made it one of my top and I think it was my first major initiative to move forward in office. The idea behind it was is that if we viewed the tribal membership as owners or shareholders of a corporation or a major enterprise -- which they are -- we viewed it much like a stock program in a private corporation whereby every year when business enterprises do well they might give their shareholders a revenue, a dividend, where they're sharing the dividend and that's how we really viewed it, that there's a percentage taken from the casino revenues and distributed to members each year at the end of the year based on the profit. And so with that said, I think the challenges; there were a number of challenges.

The first one is that when we put it together, there's the challenge of going through the process with BIA, and the Bureau of Indian Affairs takes its time in approving these kind of things, and so that was a challenge. And then internally the debate was, "˜How do we treat the dollars with respect to the individuals? Do we just give it to the adult members, do we give it to all members, is there any parameters that we want to put around the money?' Because it's not a lot of money. The council members at the time said, "˜We'd like to get the program started and we'd like for it to be shared and provided to all members.' With that said, we had to create a minors' trust program and so in that trust, there's an accountability of the money that comes in each year and how it's preserved for the individuals until they turn 18, which is the age that we gave and those dollars are accounted for by a separate accounting system. And I think the protections that we put into place or the monies don't come in through the tribal government, they go directly from the casino to the per capita account and then the money is distributed from there. And so that is helpful, too, to protect the integrity of the separation because it was approved, it was agreed on in our revenue allocation plan with the Bureau of Indian Affairs and so we really stay steadfast to that. And at the time, when we rolled it out, I think the challenge was is the people I'm sure wished that it was more than what it was and then I think the next challenge is that as we moved along we learned more about it because we would say, we would just...when we started, we wanted to get it out. And then along the way over the years we would kind of adjust it as needed, but the first year, the first issue was, "˜What if you turn 18 in the middle of the year? Do you get the money at the end of the year or do you have to wait?' And so that was one challenge. And then the next...so we had to set some timeframes on. If you turn 18 by a certain time during the year you are eligible for the dollars at the end of the year. So that was one challenge.

And I think another challenge was in dealing with elderly issues, that it might affect their Social Security benefits, and so we did try and find ways to manage that as well. But because it's young -- I think it's only been in place around four years or so now, maybe five -- but it was, we knew that we would have to work out some kinks and I think when it will be an impactful decision making down the road will be for those very young people that were maybe not even born or born when we started it that they'll have 18 years worth of revenue saved for them and at that point they may want to start considering some...putting in some safeguards for the individual, some requirements for them to get their money and those kind of things. But I think all in all, there's a lot of different positions on whether per capita is good or whether it's not good. I think in our case, because we viewed it as a distribution based on a shareholding, we had a little different viewpoint on it. Our ambition wasn't to subsidize the individual's life, it was to share in the overall profit of the, in our case, the casino. And so my own self, I have my own mixed emotions about whether it's good or bad, because I'm more in line with that the funds could be better spent providing programming, but I also recognize that the whole idea of gaming was to create an opportunity for quality of life of members. And so as you know and as we all know, every little bit counts, especially these days with everything being so expensive. And so if we create job opportunities, we create education opportunities, we provide social programming, and we are able to give distributions to help enhance the quality of life, then it's a positive thing."

Ian Record:

"You touched on a couple of the issues that the Native Nations Institute -- which recently published a policy paper on per caps and what Native nations needs to be thinking about as they develop their policies -- you touched on a couple of these critical issues. One of which is, when you issue a per capita distribution -- for instance particularly one that may fluctuate based upon the performance of the businesses or the enterprises from which the revenue for those distributions is coming from -- you have to be careful about what that's going to do to the eligibility of certain of your citizens for programs that they rely very heavily upon like Social Security."

Jamie Fullmer:

"The other challenge to that is if you expect...if you receive this much the year before and you only receive this much the following year, nobody's really happy about that. So one of the challenges as well is just growth, population growth. If you have a set percentage that you give and even if you make more revenues, if you have more births or enrollments in the year, it's still going to decrease the total payout. And so sometimes people assume that we are making less money when in fact, we're making more money, but we're growing faster than the money's growing."

Ian Record:

"Yeah and that's...I believe Native Americans are the fastest-growing population in the United States. That's going to be a huge challenge for those nations that issue per capita distributions moving forward, is it not?"

Jamie Fullmer:

"I would think so, and I'm not real privy to any other distributions and values, but I would think that just that natural growth, something's got to give. If you've got a limited amount and you're growing here, well, something's got to give, whether it's programming or actual dollar distributions or both. It really depends on how well the tribe is planning for the future and that growth."

Ian Record:

"And it really gets back to this issue that we talked about earlier in our discussion about citizen education really, that you have to...because these issues like per capita distributions, these governing decisions that you have to make or at least lead in as elective leaders that you have to educate the citizens about what exactly all of this means. For instance, why is the per capita distribution amount down this year, or what does it mean when we're doing a performance based per cap or a profit based per cap based on a percentage of the revenue versus a flat amount every year?"

Jamie Fullmer:

"That is again another struggle area because not everybody understands money, especially in the context of being one piece of a percentage. And it's challenging for those that understand money and so it's even more challenging for those that don't, and I'm talking about the percentages and how the common person in their thinking, they think about themselves and, "˜Hey, my check's less than it was last year. We must be making less.' That's the common sense approach to things, but when you look at the bigger picture and you realize and recognize that, as you said, if it's performance based, if the performance isn't as good, it's going to go down. If the performance is as good and you've grown and your membership has outgrown the dollar amount, it's still going to go down and so there might be two reasons that it's going down, two very different reasons. One is maybe a not so good of a reason, the other one is a good reason. Having great performance and growing as a nation is what we hope to do. So again that leads into the whole idea of diversifying where tribes should be considering, how do they create other opportunities, not just for per capita, but if the tribe itself is growing and continuing to grow then all of the programming is going to be effected: the education programming, the health care programming, the social programming, how the governments are staffed, staffing issues, the space allocations, the building sizes. You can go on down the list all the way down to the size of the pipes for sewage and water and it's not a bad thing to grow, but it's an expensive thing to grow and I believe that's one of the challenges, getting back to the challenge of the finances, is the common citizen doesn't take that into account. And sometimes when you lay it out there and it is statistically done and drawn out, it's hard for people to really connect to how those statistics affect the future growth."

Ian Record:

"So it seems to be two things that jump out of what you're saying about trying to meet that challenge or fight that struggle is strategic thinking and planning first of all: anticipating what the demands are going to be on tribal governance and tribal administration moving forward with the rapidly growing population, the strains that's going to put on programs, services, infrastructure, etc. And then it's the issue of not just citizen education, but education in laymen's terms, that most every citizen can understand."

Jamie Fullmer:

"Financial education is a very important next step for Indian Country, well, the whole country, but when we focus on Indian Country, that's a great next step because tribes have gone from over the last several decades, many of them were very poor and there was a lot of poverty. There still is a lot of poverty. I don't want to take away from that, but for those tribes that have been able to climb out of poverty, now they have to learn how to protect their wealth. It's not just a matter of generating it, but how do we protect it once we've generated it because it is very easy to spend. They always say, the more money you make, the more money you spend. It's very easy to spend the money when it comes in because there are always needs and there are always wants that people believe are needs and so there's a never-ending demand for services and programming and opportunities for members. But at some level, the institution, the government, the Native nation government needs to look at how do we prepare for our future growth. So they have to do some trending, they have to investigate their current size, they have to investigate their future needs, whether it's land needs or water needs or space needs, they have to look at the need for civic buildings and growth in that area and then they need to look at what kind of enterprises do we need to do. A couple of things: bring in more revenue to the tribe itself and bring in more opportunity for the tribal members. And so that isn't just increasing per capita, it's increasing the quality of life per individual. And that's I believe most of our goals as leaders is our ambition is to create a quality of life for our people that is comparable to what's around us."

Ian Record:

"And ultimately, as a nation, it's really about promoting independence and self-sufficiency not just as the collective, but among individuals."

Jamie Fullmer:

"Sure. I think there's a little bit of I guess it would be backlash at times when a tribe becomes wealthy, people get angry about that. And it's really challenging in America that's supposed to be a country that is proud that people can go from poverty to wealth and they promote it in every other major arena and every other major setting, but when Indian tribes become wealthy, there seems to be a backlash that we don't deserve to be as wealthy as the other individuals that have wealth. I think that's another challenge that we face is we're still viewed as...that we may still carry on some of this second-class citizen status when we're well beyond that in the 21st century."

Ian Record:

"I wanted to wrap up with...first of all, I want to get your response to a quote and this is a quote that we heard first from, we've heard it from several tribal leaders, but we heard it from one in particular, Chief Helen Ben from the Meadow Lake Tribal Council up in Saskatchewan, and this really gets it back to this issue of governing institutions and she said, "˜My job as a leader is to make myself dispensable.' And really what she was getting at is, "˜My job as a leader,' and she expounded upon this, "˜is to put our nation in a situation where we have that infrastructure,' that you've been talking about, 'that environment in place of rules and policies and codes where when I leave office not everything falls apart.' There's a sense of stability and continuity there. And I was wondering if you could address that issue with respect to your own nation and what's going on in that respect."

Jamie Fullmer:

"I think that my nation has been around for a long time, and there's been a lot of strong leaders and it's traditionally and culturally appropriate for us to have strong leaders. I think there's a balance between leadership and having a strong institution. Ultimately, I believe you need both because you can have a great institution, but if there isn't leadership steering it and keeping it moving and accepting the challenges that come up, then it can also stagnate. So I don't think that leadership is ever indispensable in my opinion. I think that leadership is a necessary part of everything that we do. With that said, a strong institution sure makes it a heck of a lot easier to be a strong leader and because you know what it is that you're wanting to accomplish and you know how to put to work the institution so that it can bring about the changes that the people want and need. And I think finally -- in my own nation as I said -- my ambition as the chairman was just to be a part of the growth, the ongoing growth, and I've never seen myself as anything more than that, never wanted to be more than that. That if I could say in my life that I contributed to my nation's growth in some way, then I feel like I have done my responsibility, and that holds true throughout my life. I feel like I can offer those same kinds of contributions to Indian Country as a whole and that's why I do what I do as the owner of Blue Stone Strategy Group. But back to the whole point of, I do believe that you have to have leadership, but I also believe that if you have a capable institution that you can plug folks into leadership roles, and as long as they have the necessary skills and ambition that there can be successes."

Ian Record:

"So in a nutshell what you're saying is that good governing institutions essentially empower the leaders to be effective."

Jamie Fullmer:

"I believe so. And there are those magnanimous figures out there that can, they don't need all of that around them to make it tick, but most of the people that sure does empower them to make wise and thoughtful decisions as opposed to reactive and crisis-oriented decisions."

Ian Record:

"Well, Jamie, we really appreciate you taking the time out of your busy schedule to be with us. I've certainly learned a lot and I think Native nations and leaders across Indian Country will learn a lot from your thoughts and perspectives on not only what your own nation has been doing, but what's going on in Indian Country. We'd like to thank Jamie Fullmer for joining us today on this episode of Leading Native Nations, a program, a radio program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit our website: nni.arizona.edu. Thank you for joining us." 

NNI Indigenous Leadership Fellow: Jamie Fullmer (Part 1)

Producer
Native Nations Institute
Year

Jamie Fullmer, former chairman of the Yavapai-Apache Nation, discusses the importance of the development of capable governing institutions to Native nations' exercise of sovereignty, and provides an overview of the steps that he and his leadership colleagues took to develop those institutions during his tenure in office. He also stresses the need for Native nations to fully and specifically define -- and distinguish between -- the roles and responsibilities of elected officials and tribal administrators.

Ian Record:

"Welcome to another episode of Leading Native Nations, a radio program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I'm your host, Ian Record. On today's episode of Leading Native Nations, we're lucky enough to have with us former chairman of the Yavapai-Apache Nation, Jamie Fullmer, who since he concluded his second term in office is now serving as Chairman and CEO of the Blue Stone Strategy Group, a company that works with a variety of Native nations on diversifying their economies. Jamie, I'd just like to open with giving you the opportunity to introduce yourself."

Jamie Fullmer:

"Thank you, I appreciate that. My name again is Jamie Fullmer. I'm the Chairman and CEO of Blue Stone Strategy Group and we work with tribes doing economic development and growth strategies. As was mentioned, I'm also the former Chairman of Yavapai-Apache Nation located in Camp Verde, Arizona, and very proud to have served my nation and have completed my terms in office with the term limit in our constitution. And since then I've founded and am the chairman and CEO of Blue Stone Strategy Group."

Ian Record:

"So Jamie, I'd like to start off with just a very basic question, but a very critical question for Native nations across the United States, Canada and beyond and that is, what is governance for Native nations in the 21st century? What does it entail?"

Jamie Fullmer:

"That's a very good question. It's the question that we as tribal leaders ask, and in the modern sense I believe the ideal of governance has grown for tribal nations. The reality of governance as a tribal chairman or tribal president or governor is that you not only have to take the responsibility of being the head man of the community or head person of the community, you also have to take the responsibility of really running an intricate government with all of the nuances of any other municipality or state or federal government system. With that said, governance is really exhibiting the responsibilities of that nation, expressing the sovereignty of the nation and also finding ways to meet the challenges of the community itself."

Ian Record:

"The work of the Native Nations Institute and the Harvard Project on American Indian Economic Development, its sister organization, has really revealed what tribes are facing these days, what Native nations are facing these days and really the governance challenge is a complicated one. As you say, it's a complex one that involves various entities that transcend reservation borders and among other things -- as the research has shown -- that it's not really about just reclaiming your rights, but what you do with those rights once you have them. It has less to do with what rights you claim than with what kind of nation or community you want to be, really enforcing that or creating that strategic vision of where you want to go as a nation. For instance, it has less to do with other governments than with your own, the sense that it's up to us to shape our future, it's not up to the federal government. We can't wait for them anymore. And then finally, it really has no endpoint. The rights that are lost or won are fought for or defended when challenged, that challenge never stops; the governance never stops. It is a constant task. So those are some of the key findings of the Native Nations Institute and the Harvard Project, and I was wondering if you could speak to that in your own experiences with that challenge at the Yavapai-Apache Nation."

Jamie Fullmer:

"Sure. The transition from the private life of a citizen of the community to the public life is a challenge in and of itself. Then the ideal of governance is learning, 'What does that mean?'

The tribe itself has been around from time eternity as we believe, and our ambition as [leaders] is to play a role in that continuance and that existence continuing on long after we're gone. With that said, governance and the challenges that are faced is based on what are the current challenges within the community itself, focusing attention on finding ways to help the people grow, to help the government stay stable, to help create economic and social resources, to maintain our future, and also to provide opportunity for our young people to be educated.

And so governance and the idea of what we claim versus what we express are important challenges because sovereignty is an unwritten rule; it's there. You express it by what you do to grow, and within that, though, what you claim is based on the structures that you develop. So in the modern sense, as a nation moves forward, the process and the ideal of sovereignty is, 'We are here, we express ourselves, we accept the challenge and responsibility of governing and seeing our own path forward.' With that said, we also have to interact with not only our community and our own issues and our own priorities and cultural concerns, we also have to face that as a dependent sovereign and in the United States we have some rules to abide by that aren't our own.

We have the United States federal government laws that govern the relationship in Indian Country that we have to address and deal with in our own communities. We also, being, a lot of times, neighbors with other regional municipalities not in Indian municipalities have to learn more about how to interact with the non-Indian communities so that we can protect our sovereignty through positive relationships and interaction and communication and dialogue. So the expression of our right of sovereignty is really one where we not only have to support what's been done in the past, what leaders have fought for and what our people have sacrificed in order for us to be sovereign in the 21st century, but we also have to recognize it's our responsibility to educate those around us.

And so really one of the roles of governance or expression of our own sovereignty is sharing with others what that means because in the mainstream systems not everyone really understands ever in their lifetime what a tribal nation or a Native tribe [is], what the relationship is with the federal government, the uniqueness. A lot of times we're placed in the same subset of a minority group, where in reality there's a constitutional relationship that predates all of us here and that relationship is bound in treaties and it's re-bound in the formation of individual constitutions that each tribe may have developed or within those trust and treaty relationships there may be a traditional government that's been formed and people have carried on the torch and forwarded down the road. And with that said though, because of that we look at the modern challenge of, of course, protecting our unique way of life, finding ways to create a safe and prosperous future for our community members and then also looking at, 'How do we continue to move forward with economic growth and expansion so that we can create a revenue base to maintain ever growing governments?'

And one of the challenges going back to my own leadership time, one of the challenges and key challenges I faced was that once you start offering services and you start offering programming, the demand for those programs and services never go away. And so you have to find ways to meet the increasing demands while at the same time manage and create a sense of accountability in how you spend the money. And so I would think that that challenge is universal for tribes and in my own tenure as chairman I saw that we would...we were growing. Our young people were growing, the population of our young people was beginning to outpace the adults -- the 18 and older population -- and that's a very positive thing, because we know that we're a nation that's growing, but with that said, the challenges and the responsibilities in the programming were changing. In other words, we would be...there were more requests for supportive programs around education and daycare and prenatal care and just a lot of other young familial issues, whereas there were still the ongoing demands and need for the elder care and providing job opportunities and resources for the adult population. And so governance is providing services that meet the needs of the people while at the same time the challenge is recognizing that there is a limited amount of resources, financial resources.

Most tribes don't have tax bases and so their resources, like my own tribe, were gained from...the primary revenue stream came from gaming, from our casino. And so with that said, a growing community, growing needs, growing programming, pretty set amount of revenue streams coming from the gaming facility. The other challenge then of governance is how do we develop economic development systems and how do we manage and create an accountability of our existing enterprises? Those two things I think are a critical path -- dealing with the realistic social issues and the ever-changing population needs and at the same time managing the expenses and finding new ways to create revenue streams. With that said, there's also an important process in there and that's the political process.

The political process in Indian Country is sometimes very complex, and a lot of times the challenges in that process are based on cultural values, they're based on priorities that have been not necessarily asked for but given to us because of federal laws and circumstances and financial limitations in circumstances, and so the political wrangling within our internal systems becomes one where we deal with trying to meet the social needs, trying to also address the governance needs, but also creating a new body of law that represents the modern time. And so many councils and leaders in this...as we move very strongly into the 21st century are facing a multitude of program differences, the challenges of a social...creating a childhood program is different than an elder program. The challenges of creating an economic base is different than managing the existing enterprises. They're still all responsibilities that lie within the role of governance.

There's another, I think, challenge and that is many tribal leaders when they come into office, they're expected to make change and they're expected to make change fairly quickly. That's maybe what ticket they ran on or what their constituents supported them on were new ideas or changing some of the old ways of thinking or making the system more accountable, and yet they're just one of more than likely a group of five or ten or sixty council delegates that might need to make the decisions. And so there's an important process in there where leaders...young leaders or fresh leaders, new leaders coming in need to take on the responsibility of learning their role as a legislator and learning their role as a community planner, but also limiting their...the natural tendency to move into trying to micromanage because that doesn't benefit the system in the long run and in fact there may be negative repercussions from that. You might lose good people, you might question areas that are really not based in fact, but are more caught into a rumor and so it's really important for tribal leaders to investigate, but to also recognize and define their role as a councilor or as a tribal leader. That is another challenge I think in the world of governance: it's making the laws and institutionalizing the laws, but also following those laws. And so that's another challenge, is that there's usually a separation between...within the government and understanding that separation and how it works is a critical path as well."

Ian Record:

"There's a couple quotes from fellow tribal leaders of yours that always stick with me and one of them is, "˜The best defense of sovereignty is to exercise it effectively.' And the second is, "˜Sovereignty is the act thereof -- no more, no less.' And really at the crux of those two quotes is this issue of building capable governing institutions, and I was wondering if you could talk just a little bit more about that."

Jamie Fullmer:

"Sure. Building capable governing institutions involves a lot of hard work. It really involves several different levels of hard work. The first one is examining the existing institution. And a lot of times when you're thrown into a leadership role, you've gone out and spent your time campaigning on issues and priorities and then when you get in, especially for new leaders, there's not really an understanding of what body of laws or what body of institutionalized policies and programming are in place, and so there's really a critical path of understanding that needs to happen for, I believe, to have sensible governance. With that said, you're asked to do that with a team of other political leaders. And I use the word 'team' because for effective governance to really take place, it involves the entire team. That's not to say that everybody and every leader agrees on every issue, it's to say that if you've chosen a republic style of government or a democratic style of government, that once there's a vote and there's a confirmation of the vote or it's voted down, that everybody respects that. And so I think governance from that level is a critical path: the actual focus on the system and the act of sovereignty, the expression of sovereignty.

One of the critical portions of that is defining sovereignty. We've always heard sovereignty...in our Indian communities we've heard 'sovereignty' -- that word -- a lot and we've heard it in a lot of different scenarios. But there's also a legal terminology of sovereignty and there's also an expression of that sovereignty. And sovereignty is indeed the act thereof, but it is also understanding that it's important for us to redefine it as time allows us. There are things that we as Indian tribes and nations couldn't do 20 years ago that we can do now because people were willing to exercise and express the sovereignty and push the boundaries. And really those leaders and those tribes that took on those challenges, those spearheads, allowed the rest of us to be able to stretch our own boundaries. And so in a sense, sovereignty of a tribal nation is really being able to govern ourselves, to define what we consider to be wrong or right, to create laws to govern that, to find ways to protect and support our people and our way of life, and also create laws to protect that.

And then I think the idea of defending sovereignty is ongoing, because even as we move forward there's always attacks to our way of life, there's always attacks on the fact that we have the sovereignty in another sovereign nation and it's challenging for many people to understand that. They don't see how or why Indian tribes have that unique relationship and it's not for us to see how or why, it's for us to express it. And so moving forward, the idea of defending sovereignty is if we create quality set of laws to govern ourselves that people understand both internally and externally, that's one way, because sovereignty is really a legal expression.

Another way that we express our sovereignty is by pressing our boundaries of what we consider to be our rights as Native tribes and as Indian people in our...both in our reservation communities and in our ancestral homelands. There might be principle-based battles that we fight in the name of sovereignty. It's not on our existing trust land, but we have an ancestral connectivity; many of those battles are fought in the sacred realm, and we have to fight legal battles to protect our religious artifacts and our sacred land spaces or air spaces. And so those are ways to express sovereignty as well.

Finally, in closing on the idea of sovereignty is...sovereignty I believe is best expressed when we ask not what we can do, but why can't we do it. The question we can ask is, "˜Why can't we do it?' We're not asking, "˜Well, can we do that?' We're asking, "˜Why can't we do that?' Have others prove us wrong and not have to prove ourselves wrong first."

Ian Record:

"You've been quoted in the past as referring to your nation, when you took office, as "˜having the form of a jellyfish.' Do you recall that conversation?

Jamie Fullmer:

"I do."

Ian Record:

"Essentially, that your nation was like a jellyfish and that it needed to gain a backbone. And I think this really crystallizes what you've been talking about with this issue of building capable governing institutions. I wonder if you could talk a little bit more about what you meant by that and how your nation came to gain a backbone during your time in office."

Jamie Fullmer:

"Sure. The idea...it was a...the way I could relate it to myself is our nation has been around forever. It has...it's full of life, it's real, it's there, but it's also caught up at the time with the waves and the currents of whatever was coming at us. And so from that point of view is that we were a reactive-based government and the idea of that is that we are very strong still to this day at reacting and handling and managing crisis, but the movement that I likened it to was going from a water creature that had to react to the flow and the ebb to this jellyfish type of flowing -- kind of being tossed and turned at times -- to a land animal that had a backbone. And the idea for me of a backbone is that structure, creating a formal structure that would help to stabilize our government while at the same time still allows us to be very fluid and withstand the things that go on. So in a sense, my explanation of that backbone had to do with formal structure, moving from a very informal system, which I think is important, and so I definitely don't want to downgrade that part of who we are, but the idea of a formal structure as a government protects our sovereignty in a number of ways, both internally it helps us to be more accountable to ourselves and externally it helps other people to understand that we're very real, that we do have it on paper, and that we do have a process for accomplishing the things that we want to accomplish. And I think the final piece to that is that the idea of that structure also allows us to move into the next stage of development as a nation, which was really looking toward the future and planning. If you have a solid structure, you can make plans to help move that structure. If you are more based on personality-driven systems, then when those personalities aren't there the structure doesn't move the same way. So I think that's a pretty clear way to express what I meant with that concept."

Ian Record:

"You stole my thunder with this next question and I really wanted to focus in on this issue of strategic planning, that when you gain that backbone as a governing system, you move...it helps you in a tremendous way in moving from this kind of reactive mode of governance where you're kind of constantly fighting fires and in crisis management mode to a kind of proactive thing where you can...you've got this basis from which to operate. Is that the experience you had at Yavapai-Apache Nation?"

Jamie Fullmer:

"Sure, and I definitely will not take credit in having any of those thoughts first and foremost. That thinking and that type of leadership had always gone on in my nation. I think what had happened at the time that I came into office is that we had gone from a major transition of a long period of extreme poverty to a decade of having, generating an initial wealth to grow. And so we had kind of like popcorn. I always...the way I express it, you have the corn on the pan and when it gets hot enough it just pops. It's no longer that small kernel of corn, it's a big piece of popcorn and I think that's...when you have that, it's really hard to manage that type of growth. So you move from 30 employees to 250 employees in a relatively short period of time. So the idea of creating the structure and the goal setting was really to help manage the ongoing, day-to-day efforts of the programming while at the same time giving us the opportunity as leaders to really take time to vision what we would like to see the future of our community. With that said, before I had gotten in office, there was an initial planning process that had taken place where the community had been involved and there had been a lot of time and effort taken to develop that, but it had gone...it didn't take hold and the plan itself was tabled. And so when I initially got into office, because I had taken part in the planning and in my role prior to being the chairman, I felt like it was a good document and it was a good foundation for us to really begin to hone in on what should be our main priorities as we look towards a long-term future. And so we moved from a long-term, 30-year visioning process to an annual and multi-year planning process with action plans and objectives to reach and a process to get there. And that included the financial goals to meet with that, so that while we were moving forward that we were also dealing with and looking at what were the financial costs of executing these plans? And so I think that for nations that are moving towards growth or have been in gaming for a while, the next natural movement or actually the next important movement is taking on the responsibility to do diversification planning and then also growth strategizing for both the long term so that the community can kind of get out on paper and on the table their priorities, and the short term so that leadership can work together to find common ground and then also common purpose in moving forward."

Ian Record:

"And also isn't it about to a certain degree the...when you have that strategic plan in place, when you've gone that community...when you've had that community dialogue about where you want to head as a nation, as a people, as a community it gives you a lens through which to make decisions?"

Jamie Fullmer:

"Sure it does."

Ian Record:

"So it provides, in a sense, provides you that context because what we've seen with a lot of nations is they experience this tremendous growth particularly in revenues through gaming or some sort of other enterprise and then they're making decisions with what to do with that revenue essentially in a vacuum because they haven't done that visioning process. I was wondering if you could speak to that a little bit.

Jamie Fullmer:

"Sure. There's a fine balance there in the community perspective as well. The challenge of the community perspective is a lot of people in their own worlds and in their own thinking, they don't take the time to look at the big picture, and yet that is the leader's responsibility is to take that time. So the individual might think in their minds, "˜Why can't we build a substance abuse clinic here,' which is a great question and it's a great challenge. The answer to that is, "˜We probably can, but it will cost this, it will take this much time, we will need to have these structures in place, these laws to govern it, these management objectives in place,' and so there's a whole list and cadre of questions and planning that needs to happen for that to take effect. The idea of that as a vision is an important thing because that can be done over time, the planning, setting aside the land, the building of the building, creating the processes for that to happen; this is one example. That can happen through a visioning process with the community. Breaking that down with the community is also very important because the community should understand that everything that you're doing takes time and it takes money and it takes resources -- human resources and sometimes physical resources and maybe land space resources. So there's opportunity cost to doing whatever you do. But involving the community at that front-line thinking process gives them the opportunity to hear the responses to some of these challenges that they raise and it also I think along the process allows them to either vent historical frustrations or create current challenges or make current requests based on what they see their own needs are and then as a group what the needs kind of come out as. There's an important balance that needs to be stricken there or that needs to be weighed out in that process, and that is that you can also turn those ongoing meetings into just dialogue, running dialogue. And so you might have meeting after meeting where you have nothing but dialogue and interaction and yet there's nothing that goes beyond that. At some point, the leader, the leaders in their seat of authority need to say, "˜We've heard enough. We've taken it all into consideration. We need to start moving forward with actually making some of this happen,' because you can actually get so much on your plate that you can't accomplish any large amount of it. I found very quickly in my term in office that I...when I initially ran for office, I had 10 goals to reach for on behalf of the tribe and I shared those goals as I was out in the community. When I got into office, I quickly found that I could not accomplish all 10 of those goals and I refined that to five goals. And I worked on those five goals my entire time in office."

Ian Record:

"And as you've pointed out before, those were goals and not promises."

Jamie Fullmer:

"Those were goals. The idea of promises is that as I said, you have to work with an entire team. It's a very big challenge as a council member, especially because you're only one vote in a group of nine or 19 or, as I said before, it could be larger, but you are a decision maker with a body of...a group of other people. As an executive branch head, you have the challenge of not only do you have to work with that team of legislators to try and get passage of budgeting and support for initiatives, but you also have to manage the government to make certain that you have the resources to reach those goals once you've set them. And so that's the...the kind of the separate challenge of the executive branch versus the legislative branch is that you have to interact with not only your team at the leadership level, but you have to interact with your team at the management level as well, and you have to find some way to get those broad, large, encompassing goals down into a management system that handles the day-to-day movement towards reaching those goals."

Ian Record:

"I want to backtrack just briefly because we've been essentially talking about, how do you manage growth, how do you ensure that growth moves your nation forward according to its own design. And the reality is that for so many nations across Indian Country because of gaming, because of other economic opportunities that they've capitalized upon, the growth that they've experienced -- particularly in the area of economic development -- has been astronomical over the past 15 to 20 years. And the challenge that a lot of them face is, "˜How do we ensure that we capitalize upon these revenues, that we move these revenues through our system into our community in a way that does in fact promote self sufficiency, promote independence not only of our people as individuals, but our people as a collective instead of simply promoting dependency, continued dependency.' I was wondering if you could talk a little bit about that, about that sort of challenge."

Jamie Fullmer:

"That challenge is I think the most difficult one that leaders face, because as a political leader you find out what the community's wants and needs are and you try and promote yourself to being able to help solve some of those issues. That might be the ticket that you run on. And so when you get into office the people might say, "˜Well, we would like to have more cash distributions. We'd like to see more funding in certain areas,' and yet those areas might not be -- when you look at the system institutionally -- they might not strengthen the role of the government or the role of the family. I think the challenge that I faced is...I have a background in social work, I have a Master's in social work. And as a social worker, part of that field was community development and in the ideal of community development you want families to come together and work together to grow and to face challenges together. What happens, and what I've seen happen, is that a tribal government wanting to share the wealth, so to speak, that has been created from gaming and other resources creates programs that take the place of family. And the challenge in that is, yes, it's warranted and the people want it, but where's the role of the family in the process?

And so, in a sense, the government is taking on the role of the family member, and at times that's a positive thing and at times, I believe, that's a negative thing and that's a balance that every leader when they get into office has to strike is, what is positive? Yes, it is positive that people have more cash in their pocket to do things, to pay bills, to go on vacations, to spend more time with family, but that also can be seen as a negative because some people might view that as their way of life now. "˜I don't need to take on some of the challenges and responsibilities of self-sufficiency because I can rely on the welfare system of the tribe.' And so I think that's an ongoing challenge and every tribe is unique in its characteristics. Some tribes are more independent natured and want their people to be independent, and others are more communal in their thinking and they want the people to be really spend time in communal settings, and others are work-minded and they want to create jobs and create a working class citizenry, and other tribes are culturally based and they want to spend a lot of their time protecting and sanctifying and expressing their cultural values through ceremony and through song and dance and through commitments in that way.

And so the balance of a leader is, 'Where do we lie in that spectrum? Where do we spend our time and energy as a government and where do we spend the people's money in that? Do we spend it on making the programs bigger, do we spend it on making the programs better, do we spend it on both of those things, do we spend it on developing future economies by investing the money, do we invest the money into passive investments with just a return to protect the wealth and to grow the wealth, do we take that wealth and use it diversify our economies?' These are the real challenges of maintaining the integrity of the tribe's monies through the fiduciary responsibility of leadership. And there's no one right answer and even the answers that you think are right might end up wrong because, for example, the economy itself, the greater economy affects us and now we see slumping areas of...in business across the board, whether it's in the mainstream or in Indian Country. And so those are challenges that we have to face, too, is we don't completely have the control over it that we'd like to, and we as leaders, we listen and we learn and then we have to act. And we may look back in time and say, "˜I would have done that differently if I would have had more information, knowledge,' but that's what life's about is learning from that kind of thing."

Ian Record:

"A lot of your thoughts so far have really focused on this issue of elected leaders needing to understand the big picture, to be in a position where they can take a step back, understand the spectrum -- as you mentioned -- of everything that the tribe has going for it in terms of assets and not just financial assets, but human assets, cultural assets, natural resources, etc., and understand that big picture better than anyone else and then conveying what the options are to the people so that they can then in turn decide on a course of action that the leaders can then implement. And that's really hard when you're down in the trenches every day fighting fires or perhaps micromanaging a program."

Jamie Fullmer:

"It is really hard. The challenge of leadership is exactly that -- it's a lot of times when leaders come in they feel as though they need to know it better. They don't necessarily need to know it better, but they need to take the time to know it and they also need to trust the experts that they have on board to help guide them through some processes. That's another challenge is we need to utilize the resources and at times we need to look outside of ourselves and bring in third-party, unbiased opinions so that we can hear it as an unbiased point of view as opposed to a political point of view or a community point of view. Looking at best practices, internally it's a challenge because each of us think that what we're doing is the best way to do it, and yet if we heard it from somebody outside of us who's looking at us from the outside in, they might have a completely different idea of what we're doing and how it might make better sense to do it differently to make it more efficient and effective.

So I think the challenge of leadership is we get that feeling that we need to know it better than everybody else. I don't believe that at this point in the game, and as I look back and reflect I think it was really relying on the people that we had in place to do their job and to make certain that I was communicating the desires and the priorities that leadership developed and then also that I was executing my role of governance and management of the tribal government and tribal enterprise oversight. And inclusion was really the best tool for success in some of the things that we were doing, inclusion of the tribal council members at the governance level, at the decision-making level, and then setting the boundary of, 'We've made the decision, we've agreed upon it, now it's my responsibility to execute it using our resources.' And if we don't have the resources, reaching out and bringing in resources that understand this and do know how to do it so that we can make certain that it gets done on behalf of the people.

So the people play a major role in that the people vote in who they think are going to help that process or change that process and that's where they have the ultimate control. Then, once the people are voted into leadership roles, they have a responsibility to take action and part of that responsibility is the challenge of defining the role that is both positive and respectful of the institution. And it is a lot funner to go in and micromanage a program than it is to develop a commercial code. It's more...you get more...it's more tangible results. You get to see people move and you get to see action happen, whereas creating a body of laws that's going to impact the entire future might take months and months and months of discussion and debate and it's all in legal terminology and it's long days and hours sitting reading and discussion and debating why that law is valuable."

Ian Record:

"And not only that, but the results of it may not be seen immediately."

Jamie Fullmer:

"The results may not be seen immediately because that body of law might not even get done until the next set of leaders come in and say, "˜Let's finish this off.' And so that's the challenge of leadership is long-thinking, creating and supporting growth, and enacting laws and governance structures that will protect the nation or tribe long down the road while at the same time facing the day-to-day challenges of the fire drills and the crises that come up and the community expectations and the social and cultural priorities, and doing that in a balanced approach that respects the people's view of you as a leader, but also respects the institutional rules that have been set up for you as a leader. That is the ongoing leadership challenge."

Ian Record:

"Yeah, and it's a difficult balance. We've heard this from a variety of tribal leaders from a variety of nations talk about the position you want to get yourself to, one of the major reasons that you go through this arduous -- as you've just described -- arduous process of building these capable governing institutions, building these laws, these codes, these policies is to get yourself to a point where you as a nation, you as a group of elected leaders are sending a different message to your people about what leadership does, what it cannot do, what you, for instance, as a councilor or as a chairman are able to do for them and what you're not able to do for them. So when you say 'No,' for instance, to a relative that comes to you with their hand out for a job or something like that, you can say, "˜I can't do this for you. We have a policy in place. It's not personal, but this law, this code, this resolution says that I can no longer act this way because it's against the best interests of the nation as a whole.'"

Jamie Fullmer:

"That's a challenge in itself because it's a lot easier said than done. It can be written on paper and you can say, "˜That's the best practice,' but when the family, the individual, the group is in your office, you have to make a decision then and there. And I think that's another challenge of leadership, because leaders themselves as politicians have been voted in to make some decisions that they maybe have made promises on. And so it's just like everything else: if you give your word on something, you want to be of your word. So that is the challenge and it's an ongoing challenge, it isn't going to go away, it doesn't just happen in Indian Country, it happens in every political seat in every...at every level of government in every country in the world. And so that, I think, is unique...the unique status of it in Indian Country is most of the larger municipalities and state and federal governments, you've got a lot of buffers to go through to get to the decision-maker. In Indian Country you only have...the only buffer is usually the door, and usually the door's open and they walk in. And so that I think is a critical path that -- once you institutionalize policy -- that you also are able to follow through with that policy in a respectful way. And sometimes you need to make a crisis-call decision that goes against the policy, but that should be the exception not the rule, and it shouldn't be based on just the ideal of nepotism or the familial relationship, it should be on the merits of the problem.

There might be a crisis where...I'll give an example where something that came into my office, I'm sure it came into a lot of them. An elderly couple, tribal member -- they have no money for gas. They need to travel to a ceremony. They come to the tribe for that and you think about it and you're like, initially you think, "˜Well, why aren't you going to your family'. Well, you know that their family has no resources either. And then you're saying, "˜Well, part of our responsibility as a government is to respect...we've been promoting cultural advancement and protection of culture.' Here's a perfect example of that. So the recommendation to them might be, is that something that you can give from the cultural program since that's a cultural, I can see that as a cultural thing. If you can get the support of that director, I don't have a problem approving it, that...kind of saying that you don't have a problem, because in our particular system you had to have a director's approval and then the chairman would sign off on it. So in that kind of scenario...and it can go across the board to a child, a mother without resources. They've just moved back home, they've been away, they have no place to stay, they'd stay at the parents, but the parents already have another of their siblings and families living there. You can go from one end of the spectrum and every scenario and the challenge, and I think the reason that you become a leader is to make that decision. But those are the exceptions, those are not the rule. The rule is, "˜Well, we've got a policy for that. Here, I can help you. Let me call the director and have them come in and meet with you and then they can take you down to the right office that you need to be at.'"

Ian Record:

"A lot of what you've shared about the tremendous growth at Yavapai-Apache Nation has really culminated in changes in the community for the better, essentially translating the resources that have been generated, the financial resources generated through gaming, your other initiatives, your economic initiatives, and translating that into real-life quality of life changes at the community level. And I was wondering if you could talk about how Yavapai-Apache Nation has approached using economic development as a tool to better the quality of life for your citizens."

Jamie Fullmer:

"I think economic development is one of the critical responsibilities or arenas within the ideal governance, that as tribes grow and as tribes have the opportunity and the responsibility to develop economies that economic development within the tribe itself is one of those processes that really needs to take a priority within the tribal mindset. The end results of that are obvious on a number of levels. The first one is that when a tribe takes time to build the economic avenues within the community that creates job opportunities. And so you have opportunities for the people to take...to get work, to create their own lifestyle based on their commitments to working. And that's an immediate opportunity, but then as well once a tribe is also able to start to create a strong management of its financial resources and begin to diversify and to invest those dollars, it creates opportunities for tribes to grow and protect wealth. Now that's not say that everything that you invest in is going to be successful, and in our nation we had successes and we had failures, but I think the one thing that our nation and many other nations have been able to do is learn from those mistakes and find ways to make better systems the next time we do it. I think the key there for leadership is being willing to have the courage to try again if you fail. In every tribe, in every particular avenue there's been a failure in something.

For our particular nation, we've been fortunate in that most of what we've done in the last decade has been...we've at least had the opportunity to create jobs locally, create revenue streams to diversify from gaming and then also begin to, 10 years into this and right now we're at 13 years into it, out of the beginning of gaming, begin to diversify and to build other opportunities and other businesses. With that said, the revenue streams can also help the tribe to stabilize the infrastructure. Once an infrastructure's put in -- I'm talking about your basic piping and utilities and water systems and waste systems -- now you have an opportunity to build upon that. Once you have infrastructure in any area, you have the opportunity to begin looking at can we create a commercial corridor here? Is there opportunity to build an outlet or retail mall? What can we add value to our own...to our gaming enterprise by building? What kinds of things can we create for the membership so that they can build their own businesses? And so there's a lot of positive results that come from economic development.

The challenge is obviously always the same as the rest of the governance responsibility; what do you do today and what do you try and establish for tomorrow and how do you strike the balance between the current demands and hopes of the community with regards to developing and what do you have to really plan well for because it involves a lot of moving parts? Economic development is very challenging because you have to reach out and do a lot of planning and the planning takes a long time and people grow impatient with that. And then when you begin to build larger types of businesses or even buildings, those take years to build and so that's just the initial stage. Once you actually do the development locally, you have to look at, 'What challenges are there within the framework of the laws and the lack of laws and what kind of policies and protections are in place for a business?' So I think those are some of the challenges of economic development.

I think the other arena of economic development is trying to create revenue streams coming into the reservation community. What kinds of things can we do to not only generate wealth, but keep the wealth locally? Examples would be grocery stores and shopping stores which the tribal members themselves can use and maybe they've earned money by their job for the tribe, the government or one of the tribal enterprises, and now they spend that money in the community, which creates more jobs. And so that compounding effect is something that I believe tribal leaders need to understand from an economic point of view, that's not to say that everybody needs to be an economist, but it's to say that what's going to add value to protect the wealth that we've established, to generate more opportunities, to diversify so that we're not relying so heavily on one revenue stream. And in many nations, my own nation included, gaming is the primary revenue stream. And everybody that I've talked to in the back of their mind has the idea that we believe that gaming can't last forever. What can we do to begin taking some of the pressure off of the gaming as the main and only revenue stream? A lot of tribes these days are looking at not just building locally, but buying and acquiring businesses off reservation to start to bring that revenue stream from a different place into the reservation community and on the tribal nation's lands. And so those are very important processes for tribes to learn more about and actually very, very carefully plan and develop execution or strategic plans to actually make those things happen."

Ian Record:

"You mentioned, you touched on the importance of tribal leaders in particular again taking a step back, looking at that big picture and seeing in building...systematically building an economy, one of the things we have to attend to is the need for us to create on-reservation outlets for spending, which as you mentioned not only creates jobs, but keeps those dollars circulating within the community so they don't automatically go off reservation to the nearest Walmart or something every time you have a payday. And one of the things that your nation did recently was I thought very interesting was the creation of discounts for tribal citizens, to encourage them to spend their dollars in on-reservation, nation-owned ventures, and I was wondering if you could explain a little bit about how you went about that process."

Jamie Fullmer:

"Sure. A couple of things: because we're not an immensely wealthy tribe from gaming and gaming basically helps us to kind of run the government and take care of some of the social needs of the community and it doesn't take care of everything by any means, but one of our thoughts when I was in office was, "˜Is there a way that we can provide value to the tribal member and then also at the same time provide that same value to the tribal system?' And what we thought about was is that on our tribal membership cards we ended up putting on a magnetic strip on the back and so with that the member can use that and get a percentage reduction in fuel at the tribe's own convenience store or even the membership verification allows them to get a discount on the restaurants in our...that we own and even down to getting discount on the cement products and on some of the other enterprises that are owned by the tribe. With that said, the value is that for membership, that because you share in the value of ownership you should also be able to get some of that value back. And that's a challenging thing when you don't have enough resources to do everything for everyone, you can at least try and find ways to try and provide some sense of value to the membership."

Ian Record:

"Among the most successful nations -- Native nations across Indian Country that we've seen in terms of achieving not just their economic development goals, but their community development goals, their priorities as a nation -- among those nations you typically see or in many cases you see leaders who understand that they're not just decision makers, that their job when they come into office is not just to make decisions but then also educate their citizens about why they made the decisions they did, also engaging the citizens to make sure that they're making informed decisions that respects the community's position on a particular issue. I was wondering if you could talk about the importance of that and how perhaps you tried to implement that during your time in office."

Jamie Fullmer:

"It's definitely a principle that I believe in. I believe that the challenge for it is the amount of time that it takes to do it. As a leader -- as you pointed out -- you don't have just the responsibility of leading, but educating. And to educate the masses, it's a challenge at times, and at what level and how far in depth you go to do that is really another challenge. But while I was in office, one of the things that we instituted was a quarterly report where we would share the government's goals and objectives, the tribal leaders', the council members' goals and objectives, how we were doing with regards to creating a chart that showed our expenses of the government, talked a little bit about each of our enterprises and where we were at in the growth process with those. And the idea behind that was that at least we could share to the best of our knowledge what was going on and that information sharing would be helpful for the community so they felt they were informed. We would also hold community meetings and we'd go and present those reports. I'm proud of the new leadership that's in place now because they're still continuing on with even more assertive types of community presentations. I think they're doing it monthly, which is very good for the community and it helps them stay informed.

The challenge is always going to be that as you get enough initiatives going and moving forward that really there might be times when not a whole lot is going on because you're in a hurry up-and-wait mode and so you're not reporting anything different and then the people think that you're not doing anything. And that's some of the challenges, especially with community development and infrastructure development and when you're doing planning and law creation. A law isn't a law until it's on the books. It might take you eight to nine months, a year, a couple of years to create that law, but if it's not on the books, it isn't a law and so the people will say, "˜Well, we thought you were working on this law.' "˜We are.' "˜Well, it's taken you a year, why aren't you done?' Those are some of the challenges of what and how you share that information. But the process is still a very valuable process, because at some point you pass the torch and you hope that you've at least laid enough groundwork that if the leadership that takes over doesn't understand what's been done, at least your employees and your community understands where your community lies and maybe helps to create the expectations for the continued movement forward."

Ian Record:

"So following up on that, there's really...in building these capable governing institutions like Yavapai-Apache Nation's been doing for the past decade plus, perhaps even longer..."

Jamie Fullmer:

"Probably longer, yeah."

Ian Record:

"...There's a process of education that has to take place after those governing institutions are built, because essentially a lot of those laws, codes, rules are either filling voids in the current system of government or in the pre-existing system of government or they're overturning something that was pre-existing in that system of government and essentially, there's changing things on the books and then there's changing things in the political culture that's been long at play in the community. I was wondering if you could talk about that challenge."

Jamie Fullmer:

That again is another...you're really raising a lot of the important and difficult challenges. The institution itself has...for example, our nation has been in place since the IRA days, 1934-1936, in that period and was around before that. And so...but once the nation and the tribe had accepted and acknowledged the constitutional government and started to formulate law and create written law, there's a whole body of law that's maybe almost a century old. Some of that law is outdated; some of that law has never been utilized or worked itself into the framework, not because the tribe didn't want it to because they voted it in at some point, but because it got lost in the shuffle. I think that in this modern setting that it's important for tribes to maybe take a look at using technology as a tool to help gather information and store information. Moving from a paper system to saving information in data files that can be brought up so that during council meetings there can be a cross reference immediately to say, "˜Is there a law on the books that has to do with water rights that we've passed in the last decade and if there is, what is it?' and maybe be able to answer some questions that new lawmakers or lawmakers that have come into office recently don't have an understanding on. So I think the challenge of that institutional knowledge is that there's not a good firm grounding in communicating that institutional knowledge and sharing that institutional knowledge and transitioning that institutional knowledge forward as new leadership takes hold and takes steps to move into place. And so that challenge I think can be met by utilizing technology. Not all tribes are ready for that, but it is a tool that can be used to start storing, saving and creating collection systems that can categorize the laws so that it can be done more rapidly and in real time as opposed to, "˜We'll get back at that at our next meeting or next set of meetings or somewhere in the future.' So those issues can be addressed while they're hot, as opposed to waiting for them to go cold or transition into new leadership and it's been left out without being completed."

Ian Record:

"How important is transparency to the effective exercise of governance?"

Jamie Fullmer:

"I think transparency is a very important portion of it. And again, I always get to the idea of the piece of, how much do you share? And it's not a matter of withholding information, as much as when you give too much information it's overwhelms people. When you give the details of a process that's taken years to encompass, you've got years' worth of information to share. And so I think that in some respect, you have to look at, how much information do we share to make sense and how much information do we share to inform the community, while at the same time a lot of decisions are sensitive to the tribe itself and they don't want them open to everybody. So how do we share that in a way that is open and yet private from people that the tribe or the membership doesn't want to have included in the information chain? That's another challenge that tribes often face. And so what happens many times is bits of information gets shared in the spirit of transparency and that information can get twisted and it's just like when you go around the table and you tell one person a secret and it goes around the table and it comes back as an entirely different thing. That happens in every political system as well. And so it's important to have information, to be clear about it, to be concise about it, but also to make certain that you're protecting the tribe's interests."

Ian Record:

"And it's not just a question of how much you share or what you share, but also how you share it."

Jamie Fullmer:

"Sure."

Ian Record:

"You mentioned community meetings and that sort of thing, what other ways does the Yavapai-Apache Nation ensure transparency in government in relation to the people?"

Jamie Fullmer:

"Well, I would think that...well, when I was in office and I'm certain that they're still working on and through this, not only the community meetings, but the chairman and vice chairman share in our tribal newspaper their issues and then in the council meetings themselves, they're all held and members can go and get that information, can request a copy of the transcripts of any of the general sessions. And I think that part of that is internalizing that mechanism. Another part of it is defining how often, how much, and what kind of information gets shared. I mean, there are a lot of, not speaking of my nation specifically, but there are a lot of opportunities now with technology to share basically everything...the tribe's history, I've seen a lot of tribes have really creative websites and a lot of information on those websites that really help people understand who they are. And I applaud those tribes because I think that's an important way to do it and it seems like these days that's something that people do. They go and Google© or search, look through search engines to try and find information so that they feel well prepared and are respecting...if they have a meeting with the tribe or want to reach to them. And a lot of tribes have members that are distant from the community but still want to stay involved at least in the information-sharing process."

Ian Record:

"So from what you're saying transparency and openness in government is not just important for a nation's citizens, but also those outsiders that the nation chooses to do business with or chooses to, for instance, enter into some sort of working relationship with?"

Jamie Fullmer:

"Sure it is, and that's where the struggle of tribes that are private and confidential happens with regards to...being confidential is not the same as living in a vacuum. There's still information that you have to share, especially when you have outside business relationships, especially when you're looking to partner or to find ways to find funding for projects, and so those kinds of things...as well as safeguarding your relationship in the region that you live in. That information might be shared in a way so people understand and know what you're doing so they themselves don't get concerned of, "˜What's going on over there, they're so secretive they must be doing something wrong.'"

Ian Record:

"And that sort of mentality prevails within the community too when you're not actively educating your citizens."

Jamie Fullmer:

"That's a human issue, that isn't...I don't think that's focused on one race or another. That is the human element. We always look to the idea that if people aren't sharing it there must be something wrong with it."

Ian Record:

"One of the most important governing institutions or perhaps policies that came about at Yavapai-Apache Nation recently and that is the development of a code of ethics. Maybe give us an overview of what exactly is included in your code of ethics, the process by which the nation adopted that code and how it's played out so far. For instance, how is it enforced? What's the reception of the community been to it? How has it come into play perhaps?"

Jamie Fullmer:

"The code of ethics was really developed because it's written in our constitution that the tribal council can create a code of ethics for the policing and how the tribal council conducts itself in leading the nation. And so back again in office, this has been a couple of years ago now, we worked on building a code of ethics that included a lot of things such as conflict-of-interest issues, the discussion of how a tribal council member conducts themselves when representing the nation, the idea of information sharing, raising issues of concern when they're brought to their attention if it's about or with regards to another council member. So really it was a means to try and protect the integrity of our nation's leadership and at the same time give us a way to be fair with one another and then also show the community that there was that fairness and equity and that we were doing tribal business in a legitimate fashion. And so the code of conduct was established as a means for the tribal council to identify areas that were concerning, that had been brought up by constituents from this date all the way back to whenever it was being brought up, that were considered concern areas that tribal council shouldn't be engaged in or should be concerned about or that other tribal council members should be made aware of if that was to happen.

And so by doing that, I think that again -- since I'm not there in the last six months -- I'm not quite certain how it's working for them now, but in that first year of putting it in place, we were able to deal with a lot of issues that had come up in the past where there weren't answers and we were able to deal with them in an upfront fashion using our code of ethics to determine, "˜Is there a violation of the code of ethics?' We would let our attorney general review it if it was a legal discrepancy or if it was a conflict-of-interest issue, we would let there be a review by the attorneys and separate it from us so that there was a third-party, unbiased point of view on it, and then we would follow through with that, the recommendations on that depending on the level of severity if there was one could lead up to removal from office, but it could be a suspension, it could be just a discussion and being made aware and clarifying. The code of ethics, I think in the long run, will really help maintain the integrity of the tribe. How it was viewed by the people, I think the people, the reason that we put it together I think was a response...in response to the people's request to have some way of assuring fair government."

Ian Record:

"And I assume part of that code of ethics covered the interference by elected officials in, for instance, program management."

Jamie Fullmer:

"That's correct. It prevented micromanagement. Council members weren't allowed within the code of ethics to go and address a director. They had to do it through the executive branch using the chain of command that has been approved by the council. The organizational chart in our system is approved by the council. So they had to actually utilize that organization chart and the chain of command in order to address the issue. It doesn't mean the issues don't get addressed, it means that there's a respect for laws that leaders have put into place and structures that leaders have voted in as acceptable structure to follow through with. There are...definitely one of the goals was to prevent ongoing micromanagement if there was any. The ethics code really helped to minimize that."

Ian Record:

"We see a lot from the top down the impact of micromanagement in terms of...for instance if an elected official micromanages nation-owned enterprises, particularly for instance if it's forestry or something like that, transforming the business from one built on profitability to one run as essentially an employment service."

Jamie Fullmer:

"Sure."

Ian Record:

"We've seen that in a lot of places. I was wondering if you could talk about the impact of micromanagement by elected officials from the management end, from the program end, and what messages does that send to those people who are trying to manage the nation, who are trying to carry out those programs and those services when an elected official walks in and starts trying to run the show."

Jamie Fullmer:

"I believe that from that point of view that one of the protectors is not only the code of ethics, but the structure. Part of micromanagement comes when there's a lack of structure for people to really understand, what is your role and so they have...everybody has their own belief about what a certain director role should be doing and if there's no clear job description or policy of how that program or department runs, then it leads to, in a way, the micromanagement coming up because people are saying, "˜Well, I don't believe that's part of your authority or your responsibility,' and so that oftentimes leads to it. So one side of it is the management side, that there needs to be that structure to help everybody be on the same page. On the flip side of it, back when I was a director, the concern issues weren't so much...they didn't so much have to do with people coming in and making their complaints and making their requests as much as when a decision was made, if that decision was reversed or if a decision was made and that decision was trumped. That is very hard to run a solid program if your decisions aren't supported at the leadership level. So from a management position, if you don't have the structure in place from the management side, you're going to assume that you have certain authorities over your department and program based on your experience in running departments and programs or lack of experience in running departments and programs. So of course you develop a boundary that you think that works. What happens is you might overstep that boundary unknowingly or someone else sees that boundary as either being bigger or smaller. And so I think the challenge for management, when there is micromanagement from leadership is, should I even make the decision or why should I make the decision? If I make the decision, they'll just reverse it."

Ian Record:

"So they tend to sit back and cool their heels and not come up with innovative answers or solutions?"

Jamie Fullmer:

"I would think that's one of the challenges. I can't say that I did that. I would always move forward with the idea that I have a responsibility to run the programs as I see fit based on my ethics as a social worker, but with regards to that, if I made a decision where I told someone 'no' and they went around me and went up into leadership and that was reversed, there's not much I was going to say because that's the leader's prerogative. The challenge was is that if you're running a system and you're getting that from eight or nine different leaders that are saying, "˜Why did you do that?' "˜Well, because the other leader did that.' And so you get caught up as a manager in a political struggle or can get caught up in a political struggle and I don't believe that many managers at any level want to get caught up in that or they would have run to be political leaders themselves. When they're a manager, they just want to manage their program, do the best job they can and try and help serve the community at whatever capacity they can in their professional role."

Ian Record:

"Ultimately they want to do the job they were hired to do."

Jamie Fullmer:

"They want to do...most people that I've ever met in a professional role, they want to do the very best job they can. But without rules to do that job, there are people that make up their own rules and there are people that don't do anything. It just depends on the personality of the individual."

Ian Record:

"While we're on the topic of programs and services, the all-encompassing bureaucracy of the nation, you've stated to me before that one of the major challenges that you faced when you first came into office was kind of this unmanageable bureaucracy. And we see this across Indian Country, where a tribe's bureaucracy over the course of several decades is essentially, just this collection, this kind of assortment of programs; there's kind of this horizontal structure. We call it the 'silo effect,' where you have all these individual silos; a lot of these silos may actually duplicate services that the other one's doing. I was wondering if you could talk about what that looked like when you came into office and what you guys did about it."

Jamie Fullmer:

"Well, when I came into office we had a lot of program directors and a lot of programs. I know it was over 40, I think it was up there. The problem with that was exactly what you pointed out. There were silos. It was ineffectiveness and inefficiencies in some of those areas. And these are critical path areas: health care, human services, police and public safety, trying to find ways to provide better housing and community programming for the tribe. With that said, when I first got in office, I worked with our tribal council to try and refine the organizational chart and the tribal council was in agreement that it was too...spread out too wide and we looked at, 'Well, how do we make it more like a pyramid, like a true organizational structure?' And so we limited those program directors and brought our programming into five major programs and within the five major programs, we put all the other programs under those departments. And so now we had accountability, we had a chain of command and we had also a program where there could actually be built into it a set of policies and procedures and guidelines for how people do business. So we created the administration, the public safety, housing, economic development, and finance and everything fell under those five processes. And we did that to match our own system. They could have been...we could have called them different titles and different processes and we put some in other areas because there were better fits individual-wise not necessarily programming-wise. So we tried to make certain that we made those fits without completely disrupting the existing course of business. But it did take a little while to get used to and there was a challenge initially because people that were directors now became managers and they weren't necessarily happy about that. But in the best interest of the tribe and how business was done within the government, the bureaucracy of the government, it made things more sensible. We could call on one person and they could deal with their issue within their department as opposed to maybe there are four or five. Before, you'd have four or five people coming in to represent a case or an issue that was brought to the council. Now you had one person and it was their job to bring in who they saw fit to deal with the issue, but the council and the executive branch and the administration were only dealing with the director."

Ian Record:

"So it sounds like overall it helped to eliminate waste and make the operation of government more efficient."

Jamie Fullmer:

"Well, definitely that was our goal. Our goal was efficiency and accountability within the government. And I believe we did that. We were able to come under budget all the years in office."

Ian Record:

"And isn't it at some level about reclaiming your government because a lot of those silos...that silo effect is so often created by federal grants coming in from the outside and the sorts of requirements that they have and the structures that they mandate and that sort of thing."

Jamie Fullmer:

"And a lot of people don't recognize it, but in a way creating programming and utilizing everything under grants, you're really giving the authority to the granting party because most of those grants say, 'You have to do this, that and the other,' and when you sign the documents you've acknowledged that you're doing that. So yes, the answer to that is yes, you do get the authority back and one of the principles that we established there is that we don't create programs based on a grant. If a grant fits our programming, we'll go after it, but we're not going to create programs based on a grant. There's another key piece to this and I want to bring it up because it has to do with efficiency and that is that in our government we had a three-branch government. And so we had a court system that still, even though they were separate, they still had administrative responsibility to be efficient. And so we would still challenge them not on any of their court cases or anything like that because that was totally in the hands of the judges and the appeals court, but the way the system would run. They got a budget just like the rest of the government and they would have to tell us why they needed the funds that they needed and how they were working towards accountability and efficiency."

Ian Record:

"So you touched on it without actually saying the term, but in terms of this bureaucratic reorganization, this streamlining, this creation of accountability within that structure, this issue of kind of a wholesale shift away from the 'project mentality,' as it's sometimes referred to, to program management where a nation's programs, its bureaucracy is predicated on finding the next grant and if we have to create another program, let's do it and that's how that silo effect is created. So you were...it sounds to me like you were trying to get away from that, consciously."

Jamie Fullmer:

"Consciously, it was one of our goals is to reduce the amount of reliance on grant funding that didn't make sense or didn't meet our needs. And so we restructured our grant program to only reach out to grants that would fit in some requirements that we established. The other part to that I think as well is that when I left office we were working on...we had moved through stages of development within that and we were actually working on accountability-based budgeting, so the goals of the department would match the budget and so that there would be an accountability of you would know whether or not a department was doing well by their reporting and how it matched their initial goals that they wanted to achieve before the end of the year. I'm not certain if they're still moving in that direction, but that was the direction we were taking in 2007."