Courts of Indian Offenses

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

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Indigenous Peoples' Law and Policy Program
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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.

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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."

Robert A. Williams, Jr.: Law and Sovereignty: Putting Tribal Powers to Work

Producer
Native Nations Institute
Year

University of Arizona Professor of Law Robert A. Williams, Jr. provides an overview of the U.S. government's centuries-long assault on tribal sovereignty -- in particular the ability of Native nations to make and enforce law -- and stresses the importance of Native nations systematically building their capacity to exercise jurisdiction over their own land and affairs in this nation-building era.

Resource Type
Citation

Williams, Rob. "Law and Sovereignty: Putting Tribal Powers to Work." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 23, 2011. Presentation.

"I'm always humbled when I get to read through the list of folks who attend these events and you're all very busy and you're all doing very important things and good work. And it really is an honor to be able to address you, and that Steve [Cornell] and NNI are kind enough to sort of turn me loose for an hour and to see what damage I can do.

What I want to talk about today is 'Law and Sovereignty: Putting Tribal Powers to Work,' and I particularly want to focus on the role of tribal courts and tribal law making in that equation, those aspects of sovereignty. There's lots of different aspects of tribal sovereignty, self-determination, but this idea of law-making is an important one. Let me just throw a fancy legal word out there to you and you can really impress people back on the rez. It's Latin. It's called 'jurisgenesis.' Juris -- J-U-R-I-S -- is law, juridical, jurisdiction. Jurisgenesis. 'Genesis' -- you don't have to be Latin to know that. That comes from the Bible, the beginning, the beginning of law, the creation of law. Jurisgenesis is the creation of law, that we are law-making communities. Some of the examples are, for example, the Amish make their own law. They always argue to be exempt from Social Security and from sending their children to secular schools. We know that the group, a community of Hasidic Jews in New York, control a very ancient network of diamond trading and they have their own law. They don't use the courts of the United States. They have their own jurisdiction, they assert their own law. They engage in their own creation of law, their own acts of jurisgenesis. And that's what I want to talk about today.

The United States Supreme Court, in the most important case affirming tribal sovereignty over the legal affairs of the reservation, called Williams v. Lee in 1959...my colleague and co-author Charles Wilkinson says that Williams v. Lee really inaugurated the modern era of Indian rights, 1959, before the Supreme Court. And in that case a Navajo had bought goods on credit from the local Indian trader and that Indian trader then tried to sue her for defaulting on the contract for those goods in state courts. And up until 1959 that's what had always happened. In Arizona, in South Dakota, and many of the states you're from, everyone just assumed that if an Indian owed you money you sued them in state court. But in this case the Navajo re-established their own tribal legal system, their own tribal courts, an act of jurisgenesis. And the Supreme Court said that state jurisdiction over this contract, which took place on the reservation, would invade the sovereignty, would violate the sovereignty expressed through that strong, independent tribal judiciary. And really the birth of the modern tribal court system springs from Williams v. Lee and that affirmation of the jurisgenerative power, the law-creating power of Indian communities. And one of the things that Justice Douglas, one of the great justices...I mean when you go to law school, you learn about the all-star Supreme Court justices. Who are the great ones? John Marshall, Earl Warren, Louis Brandeis, William O. Douglas. And Douglas in Williams v. Lee makes one of the most famous pronouncements in all of Indian law. And he said, 'Here's the question of whether Arizona has jurisdiction over the Navajo reservation, absent governing acts of Congress or treaties that took it away.' The question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them; infringed on your sovereign right to make your own laws and be ruled by them. That affirmation of your jurisgenerative capacity to create law from your own customs and traditions is one of the most powerful sources of recognized sovereignty in the United States Constitution, and it's still alive in your own communities today.

So that's what I want to focus on. Before I do that -- because what I'm really talking about is the challenge you face -- how do you take up that challenge of becoming jurisgenerative communities that take responsibility for your own law over every aspect of life on the reservation -- whether it be child welfare, whether it be criminal jurisdiction over Indians and non-Indians, whether it be civil jurisdiction over contract disputes, jurisdiction over employment actions at the reservation -- all the different things you can and will assert jurisdiction over? How do you meet that incredibly important nation-building challenge? Because your ability to build your nations is really going to be directly related to your ability to build strong, independent judiciaries or legal systems or mediation systems. You're going to have to choose the model to recognize and empower your jurisgenerative capacity. It might be a system in which everybody walks in with black robes and bangs a gavel, it might be a system of peace makers, it might be a system of sentence and circles, but one way or another you're going to have to respond to the challenge of becoming jurisgenerative communities, because you're not sovereigns, you're wasting your sovereignty if you don't step up to that challenge. So to understand that challenge, no matter where you're from -- I do a lot of work all over the world with Indigenous communities -- and this desire, this aspiration to engage in law creation, to go back to the old ways and see what might fit to meet the challenges of the new, and a lot does for those communities that have engaged in this jurisgenerative act to recreate, to renew -- the renaissance of tribal law making that's going on around the world -- is what I want to talk about.

But before I can talk about that, I have to set the stage so you understand where you're coming from. Because where you're coming from in many ways informs, shapes, controls, threatens, complicates where you want to get to. We all know that. My tribe's the Lumbees. We have a saying, ‘If it wasn't for family, what else would hold you back?' You don't have that saying? Something like it, right? Something like it. And your history holds us back. We're fighting our history every day. We're colonized people; we're traumatized. We suffer the psychic harms. We have the generational trauma. This stuff has been confirmed by social science that this trauma is handed down generationally. You just don't wake up one day and say, ‘Oh, we've reformed our constitution and got a new one. Now we're just going to forget our history, forget our past.' So I think it's important to understand the history of federal Indian law and policy because we know Indian people, even the stereotypes. We always think ahead seven generations and we're tradition bound, so we always want to know what the elders did and what our traditions tell us to do, and we learn from the wisdom of how our elders responded to crises because we think life is a circle, it's going to come back. And so with that, I think it always helps -- many of you know pieces of this story, some of you may even know the whole story, I doubt it -- but in as short a time as possible, I'm going to try and at least give you an overview of the story of the history of federal Indian law and policy and help you understand some of the characteristics and challenges so you can sort of get a lay of how the land has laid out for your elders before. [Because] if you see the terrain and the paths that they took and the decisions they made -- some bad, some good -- you learn from that. That's what Native knowledge is all about. That's what common law is all about, right? If a decision worked before to facilitate contract exchange, let's keep doing it that way. There is value, there's knowledge in the past, and our job is to sort of pull that stuff into the present to understand how it might or might not apply. Sounds a lot like what we do as lawyers. That's what the challenge is.

So I always like to say before Europeans came here -- the pre-constitutional era, about 1532 to 1789 -- what's going on then is that Europeans are asserting their rights as superiors. Basically the theory comes from the Crusades. So Europe has been fighting tribal peoples and infidels and savages and barbarians ever since the Romans, we know that. The Romans went out and conquered the tribes of Western Europe; the Normans came in and conquered the tribes of England. The West has been -- don't take it personally -- it's not an American thing, it's not a Western hemisphere thing. The West has been persecuting tribes for 3,000 years. They just don't like you guys. In fact, it's so inbred that you can find it in the very first book of The Odyssey and The Iliad by Homer. How many people have heard of Homer fighting the Cyclops, the one-eyed man eating Cyclops? He says, ‘We came to the land of the lawless and inhuman Cyclops who neither plant nor plow but who rely on providence to provide them but their land is goodly abundant with grapes and wild things that grow.' Sound familiar? Uh oh. Boy, that's going to come back to haunt us, isn't it? They've been doing this for 3,000 years. So it's nothing personal. And so in the 15th century Columbus comes over here and he says, ‘You know, these people are just like all the other non-Christian savages and infidels that we claimed total sovereignty and control over in the Middle East or in the Crusades, Charlemagne, the Teutonic Knights.' The Teutonic Knights, they were just Christians empowered by the Pope to get on their horses and terrorize the pagan Lithuanians until they submitted to Catholicism. And of course the Lithuanians say, ‘Oh, yeah, we're Catholic.' And then the Lithuanian knights would leave and they'd go back to their pagan tribal ceremonies and the knights would have to come in again. Sound familiar? So essentially the Europeans are doing what they've always done. Wherever they find dark-skinned, different people who don't believe in God, they claim superior sovereignty over them. And that means everything.

There's this great case in England written by James Coke. And I mention that name because he not only was chief justice of England but he was the lawyer who advised the Jamestown Colony. Yeah, I know, conflict of interest but we didn't have the ABA [American Bar Association] code back then. And he actually drew up the charter, which James signed, authorizing the Virginia Company to go and bring the infidels and heathens living as savages to civility in the Christian gospel. Go conquer. So Coke also issues this case called Calvin's Case. And what he says is that when a Christian king invades the kingdom of an infidel, he doesn't have to pay any attention to their laws [because] they don't follow the Decalogue, the Ten Commandments. And so therefore their oath is no good, they can't swear to God. So therefore they can't have any rights that the king will recognize in an English court. That's the reasoning. ‘You're savages, how can you have rights against white people? How can you have superior rights to your land when you just roam and wander and hunt?' Ever see 'Monty Python'? When you hear people talk about wandering savages, just do the Monty Python routine [because] that's what they think. That's what their ancestors did. How many people honestly, you meet a white person, they say, ‘Okay, do you ride a horse?' Right. Yeah? I've had 60-year-old grandmothers tell me guys walk up in the airport and ask them that question, ‘You riding a horse?' ‘Oh, yeah, sure. I have to.' You know.

So essentially the precedents are all set. You've all been conquered or decimated by disease or lied to or had your land stolen or your women disempowered. Because many of the North American Indian tribes of the east coast, the women controlled the property and they controlled the naming of chiefs, and that was one of the first things that Europeans subverted through bribes and machinations and getting the chiefs to sign the treaties. Now it's amazing when you look at those treaties from the 1660s and 1700 [because] all the chiefs are signing the exact same name. I can't believe thousands of chiefs signing the exact...what's that name that they all sign? X. 'Zorro?' 'No, I'm an Indian, it's 'X.' Have my land, take Manhattan.' All right. So the formative years are when the U.S. comes in and they basically adopt the principles of the English. They assert the rights of discovery that whoever discovers Indians has jurisdiction and sovereignty over them. But they do some other important things that you need to know about.

They enact a constitution, and because their experience had been that the yahoos in the states were the Indians most deadliest enemies that they had to make Indians exclusively federal affairs, because the states were crazy. They would go out and form posses and militias and just engage in massacre. And then what would happen is the Indians would go up in rebellion or the states would totally ignore a treaty that had been negotiated to quiet the Indians down. And so then it would be the Indians go on the warpath and the states, they don't care. And it's the federal government that has to raise the army to go and quiet the frontier. So the [U.S.] Constitution is absolutely clear -- and think about this, I'm going to play a lawyer's trick -- it's absolutely clear that the Constitution comprehensively puts all of Indian affairs into Congress's power. And they do that by one simple statement. So think of the founders. These are the guys drafting the Constitution. And you're really trying to understand, what do they really think about Indians? And I'm not... just think about it. Have you ever wondered what the founders really thought about Indians? Well, I'm going to tell you because it's in their constitution. So what the Supreme Court says is that we know that the founders gave Congress all the power they needed over every aspect of Indian affairs. This power includes the power to take away their criminal jurisdiction, this power includes the power to destroy their religion, this power includes the power to break up their land and distribute it in allotments, this power includes the power to steal their kids out of their homes and send them to Indian boarding schools, this power includes the power to break treaties with them [because] they're savages. Now you would think that the Constitution would really spell that out. You would hope, right? [Because] that's a lot of power that the Court says Congress has under the Constitution. And you know how Congress took care to make sure that they got all that power? They said -- write this down [because] it's very long, I'll go very slow -- ‘Congress has power over Indian commerce.' That's the only time Indians are mentioned. Why? Because -- as I tell you -- you were basically a business proposition to the founders. And that's all they needed over you [because] the only business they cared about was getting your land, and everything else is immaterial. That's your legal status under the Constitution. But remember that. And the Supreme Court has consistently affirmed in the United States v. Kagama that the people of the states where the Indians are found are often their deadliest enemies. So the state has no jurisdiction on your land, over you or your people or your land, never has and continues to be the law of the United States.

We get treaty making. How many of you here come from treaty tribes either in Canada or the U.S.? Incredibly important documents; they're an Indian invention. Wampum belts, you know those things that savages carry around, the beads [because] we like beads. Those wampum, well, they're sacred treaty documents. And the English and the Dutch learned right away if you want to make treaties with an Indian, the 'X' stuff didn't work, when the Indians outnumbered the colonies very early on, that X stuff wasn't going to work. You put it down in a treaty belt [because] that was a sacred text that the sacred keeper of the belts would come out and interpret and remind William Penn and remind the governor of Montreal called Onontio. How many people here are from Canada? Onontio, Governor [Charles de] Montmagny, Onontio. What does Montmagny translate into? Great Mountain. Onontio is the Haudenosaunee word for 'big mountain.' He was adopted into the kinship system. Those treaty, what I call North American Indian diplomacy, those traditions go way back before Europeans. And when Indians were in a position of strength able to assert and exercise their sovereignty, Europeans negotiated according to those protocols and those traditions. And that's why the treaties, particularly the early treaties contained some pretty good language and some pretty good promises. They formed the legal basis of much of your sovereignty, but it's a recognition of what is inherent in you already, for U.S. Indian law recognizes that whatever hasn't been taken away remains. You're sovereigns only if Congress limits it.

Of course what begins to happen is that the United States goes through a Civil War, builds a railroad, acquires essentially what used to be Mexico -- we're standing on Mexican territory, O'odham territory -- the United States acquired this through the Mexican-American War and the Treaty of 1848 and that allowed them to build a railroad connecting the country. And so all those Indians we had put out in Oklahoma and were running around out there on the prairies and plains states that we never thought would be in the way, well, now we kind of need to build a railroad through there. And some of the best routes will be through where the Sioux are and the Cheyenne and the Comanche and the Navajos. So we better make some treaties with them and get those people rounded up and into control and on tighter, confined reservations. And so Congress in 1871 basically [because] the House is PO'd at the Senate for ratifying treaties that contained sweetheart deals for the railroad companies say, ‘You know what, we ain't going to appropriate any more money for your treaties.' What did I tell you? You're just a business proposition. ‘We're not going to appropriate any more money for your treaties and we're only going to break this stalemate if you promise never to make any more treaties with Indians again.' It's the only time -- are you listening to this? It's the only time in the history of the United States that both houses of Congress had voted to divest themselves of the constitutional power. Never happened before, never happened since. There is no other incident in history where Congress has said, ‘Oh, we have a power in the Constitution? No thanks. We don't want it. Okay, we promise never to touch it again.' It's that, Wow, it's mystical. Ooh, the treaty-making power. Put it away in a box. Lock it [because] we can't be doing that any more.' But nonetheless you have those treaties and they're recognized in the United States law -- know where they come from.

And of course what happens is that once the court says that, because you're savages and infidels and under our guardianship, we need to be able to administer your property in a way that you might not appreciate. We're going to pass the Allotment Act over your objections and we're going to allot all your entire reservations. But the problem is you have 144 million acres and we have lots of Irish immigrants and Eastern European immigrants who want to move out there and you've got the lands all tied up. So here's what we'll do, we'll divide up all your reservations into 160 acre allotments and what that'll do is reduce your 144 -- are you writing? -- your 144 million acres of land. If we divide it up into heads of households 160 acres each, that will reduce your 144 million acres of land under the treaties 90 million acres. So you'll get about 48 million acres, much of it marginal, much of it unwatered, much of it dirt and rocks, because the other 90 million acres we're going to give to homesteaders. And what will happen is, because they get all the lands that are around the rivers and the really good lands, you can watch how they grow crops and you can learn how to do it from them. They will civilize you. That was the idea behind the allotment. Courts of Indian Offenses. My god, we've broken up your land holding patterns, we've broken up your family patterns, we're sending your kids to boarding schools, we've divided up your clan and kin just purposely to disaggregate you through allotment. That was a purposeful policy, was disaggregating clan and kinship relations by placing brothers in different corners of the reservations with their individual allotments. And they even know if it was a matriarchal society to move the aunties around. They got really good at these sorts of practices of colonial governmentality.

And so of course what happens is a breakdown of law and order. And we know there's a breakdown of law and order [because] if you look at the Courts of Indian Offenses and their statutory authority, one of the first things they talk about is polygamy. We've got to cut down on polygamy. Well, you're killing off people left and right, you're killing off the men, you've taken away all the food. Have you ever thought about why there might be sisters, cousins, grandmothers, husbands, nephews moving in together into relationships you have no understanding about? But that gives you authority under the Courts of Indian Offenses to go and prosecute those crimes.

Then there's a big depression. It hits Indian Country incredibly hard. If you talk to your grandparents, ask them what it was like before the Wall Street crash. Indian Country was feeling it as were many of the more poor areas of the country. And when the depression hit it just devastated Indian Country. And the [Franklin Delano] Roosevelt administration comes in with a broad mandate to shake things up. And so what he decides to do is, as part of his New Deal, is reorganize Indian tribes and passes the Indian Reorganization Act along with those other famous reorganization acts establishing the Bureau of Irish Affairs, the Bureau of Jewish Affairs, the Bureau of Hispanic Affairs. We all know those great bureaus. You can go to Washington and see the big buildings and the huge bureaucracies built up around those different ethnic groups, who were all reorganized. No, you were the only people that needed to be reorganized [because] they'd screwed you up so much they had to start all over, is what they thought. So we're going to reorganize Indians and we're going to give you written constitutions and we're going to give you tribal councils. And literally, it's -- I'm not going to mention the name of this reservation but it's one I know very well -- when they asked the Indian agent, ‘Well, gosh, we established elective districts, 12 elective districts. And we've got to figure out how to divide that up? We don't gerrymander here.' And they said, ‘Well, do you have a cattle range map?' ‘Yeah.' ‘How many districts does that have?' ‘Twelve.' ‘Use that. That's how you select your political representatives through the way, the pass that the cattle roam.'

I'm going to give you the resume of the guy that Roosevelt picks to head up the Bureau of Indian Affairs: a Communist labor organizer in New York got his head beat in by the Pinkertons; left his wife and children and shacked up with a Broadway actress in a West Virginia river, lived the life of the wilderness; got bored with that, left her, moved to Santa Fe and shacked up with George O'Keefe and D.H. Lawrence and Isadora Duncan. And his first book on Indians, which qualified it [because] he was a born and bred Commie, was called Red Atlantis. John Collier, that was your Bureau of Indian Affairs director during the Roosevelt administration. Oh, I'm not going to tinker with these Indians am I? Gosh, what an interesting sociological experiment I've been given. Let's see what happens.

It starts getting better. Not really, because then Termination comes. Now Termination is like the height of the '50s. And if you read the Argo of -- sort of -- international foreign relations, the only other place you see the word being used is to describe the operations of CIA agents in foreign countries. So we're terminating dictators that we don't like and Indian tribes. And basically it just means end the treaty rights, end the constitutional status of Indian tribes [because] we're tired. And guess where we want to turn you over to? The states. That everybody's in the federal governments for hundreds of years has said [is] our deadliest enemies. Why would you do that? Because we want to promote your civil rights. That's how the Termination Era was used. It was, ‘Oh, blacks want to integrate. We'll try it with you Indians living in a communist society there on the reservation. We're going to turn you on to corporate shareholders and take Menominee's timber mill and turn it into MEI Enterprises; give you punch clocks and consultants and everything else. Then you'll be happy. Look what we did for the Native Alaskans, turned them all into corporations.' It's easy. Snap! Just like that [because] that's the power that Congress has. They can terminate you tomorrow if you piss them off enough. Don't say I didn't warn you. ‘Oh, gosh! Professor Williams told me this might happen. Why weren't you there at that NNI event, at that workshop? He told us. You didn't believe me.'

So Indians really did fight back. That's the birth of the NCAI, people like Vine Deloria. You start getting into the 60s and the Self-Determination Era, 1961. The [John F.] Kennedy administration repudiates Termination. Indians start joining the civil rights movement but they are trying to articulate their own unique voice. We don't want integration; we don't want assimilation. We want our treaties honored; we want the historic relationship between Congress and the tribes, that trust relationship enforced in a meaningful way consistent with emerging international human rights law principles of the state's duty of protection of Indigenous peoples. Isn't that what trust is? It's a duty of protection. And that's exactly what the International Human Rights Covenants say. The state has a duty of protection of all forms of culture, of all languages, of all religions. You can't go exterminating it because it happens to be economically inefficient. You can't go exterminating it because they happen to be a different race who you don't want to disrupt the purity of your own blood as in South Africa. People have fundamental human rights. And Indians start picking up on that discourse and begin to challenge many of the assumptions about what they wanted. And they begin to assert their jurisdiction.

I always love to tell this story cause I...so I was born in 1955. So like I was a teenager when my mother wouldn't let me go out to Alcatraz and join all the other Indians there. I swear since that time, everybody else went [because] everywhere I go there's like a million Indians who were at Alcatraz. ‘Yeah, I was there. Wounded Knee, too!' How many were there? Come on, look at the pictures, it's like eight guys and three women. Y'all hid if you were there. You were there at the BIA takeover? ‘Oh, yeah, I got mimeo copies. Look at that.' That's cred to me. If you've got the mimeo copies from the BIA records then you've got some cred but otherwise...But like Vine Deloria used to tell me, he says, ‘Man, it was great being an Indian leader back in the '60s. We'd go out there with Brando, we'd get shot at and he'd be ducking. We'd be going to fish-ins and we'd be trashing the BIA. Being a tribal leader today sucks. Man, sitting in budget meetings all the time, going to Washington, dealing with lobbyists, having to go in and talk to those idiot Congress people.' At that moment I swear to god, [Supreme Court Justice William] Rehnquist walked by. Rehnquist walked by, [because] we had him as a guest lecturer and Vine -- and he was old -- and Vine said, ‘Who is that, Williams?' I said, ‘Well, that's Chief Justice Rehnquist.' He said, ‘Man, he looks like S.' I remember that story very well.

But it's hard being a tribal chairperson today. It's hard being a tribal councilperson. It's hard running a tribal program. It ain't much fun. How many people had more fun days last week working than not so fun? How many fun days did y'all have? Give me one fun day that you had last week. [Sighs] Well, now you know why I do comedy [because] you guys need it. But I hope you understand there's a serious message here. Creating an independent tribal judiciary is hard work, because my uncle used to just pick up the phone and call the tribal judge when there was a problem. Why can't I do that? Or my aunt used to go attack the tribal budget when her nephew was in jail and she felt he didn't belong there. Or I remember the old council battles where they wouldn't fund the tribal defenders office [because' it just wasn't important enough. ‘Those kids were all guilty. Let them rot in jail without a lawyer.' I won't mention the community but I went up and gave... I used to give real fancy talks as a professor: 'This is why we need a juvenile justice system...' Until one day some of the aunties stand up and say, ‘We ought to go back to custom and tradition.' I go, 'Yeah, that's what I've been saying. Beat the hell out of them, then they're good.' ‘No, that's not the message. That's not what I meant by custom and tradition!' (That's just my first slide. Steve's getting really upset.)

So the good old days are over. It's hard work. You're in what I call the Nation-Building Era. I tell my students the good old days, the Self-Determination Era, in the sense that you all know what the boundaries of your self-determination are [because] you're pushing up against them every day, that's what the -- if you're a tribal leader -- the hard work of being a tribal leader is pushing those boundaries. But you know where they are [because] you get the AG upset or you get some judge sitting in Pima County ticked off or someone calls from the governor's office or something. So you're pushing those boundaries but you know what they are.

We know there hasn't been significant Indian legislation that tribes have aggressively pushed for that really created meaningful reform and recognition of rights since the Indian Child Welfare Act. It was that recognition of fundamental human rights, but we've been able to expand our jurisdiction over other Indians, right? The Duro Fix, the [U.S. v.] Lara case. Tribes were told, ‘We'll let you exercise criminal jurisdiction over other Indians as long as you don't even bring up Oliphant [v. Suquamish Indian Tribe] and the fact that case says you don't have it over non-Indians.' Okay. [Because] we'll get this and we'll prove we can do it and then things will, we'll see how it develops and see if we can mount that next challenge for that tribal [jurisdiction]. That's how we do things. It's hard work. We build step by step. And one of those important steps is putting the pieces in place to meet these challenges. And one of the most vital pieces is a strong tribal court [because] you've got limits on Indian self-determination defined by Congress and the courts, not tribes, the Indian Gaming Regulatory Act. And a lot of you are probably spending money on lobbyists beating back assaults on that.

Now you're dealing with labor unions. Okay, so, labor unions. We all know the stereotypes. I feel sorry, as someone who worries about Indian stereotypes, I feel sorry for people in labor unions and some of the stereotypes they have. But this is not something that you want to deal with. Labor relations are knock down, drag out. They come in, and let me tell you something, my father-in-law is in the labor movement. I have a tremendous respect for what these people do. Their ethic of belief in the labor movement is every bit as strong as your ethic of belief in tribal self-determination. And so if you're confronted, it's really hard work to sit down and work out common ground so that you can work together or maybe not work together. But at least do it in a way that's constructive and doesn't alienate all the employees in your establishment for example. So that's a challenge.

If I had told Billy Frank that you are fighting on the banks of the Columbia River for the right to avoid NLRB [National Labor Relations Board] certification, he wouldn't have believed it. No one knew where the struggle was going to develop. You don't know where it's coming next. You've got an incredibly hostile Supreme Court. Again, I love the people at NARF [Native American Rights Fund]. They're brilliant lawyers there. I've worked with them. And they and a bunch of other Indian lawyers said the best strategy now for Indian tribes before the Supreme Court is don't go, stay away. And it's hard work just to kind of get the cases through the circuit level in a way that the court won't pick them despite your desire not to have them go.

So you've got horrible cases coming out. You've got anti-Indian groups, anti-affirmative action. We just passed a proposition in this state that outlaws affirmative action in financial aid and in admissions. It's going to have a devastating impact, particularly on non-federally enrolled tribal kids. A lot of Indians can be full blood but they're not federally enrolled. And so since they're not federally enrolled, they're really a minority. And so you have these totally arbitrary distinctions where you have 100 percent Navajo and Pueblo kid where you have the flip on the matriarchal/patriarchal membership roll. And they're 100 percent, but they don't belong to the tribe. And under this bill, they're not entitled to affirmative action and financial aid or in admissions. They're in the pool with everybody else.

We've got shrinking federal budgets, rising health costs, No Child Left Behind, rising crime, unemployed youth, gangs, drugs, poor infrastructure. Let's throw some in. This is a cleansing ceremony. Anybody want to throw one in there? Come on, shout one out that I didn't include. Suicide -- oh, my god, yeah, good -- bad, horrible. Good in that, exactly. The voice coming from where it's happening at, you know. Domestic violence -- ah, good. I'm going to add the index of misery, the hard work. If you took one of these issues and made it your life's work and moved the ball ten yards down the field, you'd be Hercules, you'd be the new Amazon woman they're casting. To take all of them on at the same time with the resources you have, it's hard work. And your enterprises are competing inan increasingly multi-cultural, multi-global environment. [So where am I at on time [because] I want to leave time for questions? What time do I have here? Good, I'm going to wrap this up and then I'm going to let you fire away.]

So, here's where I kind of tie-in the nation-building stuff. We know that the real keys are practical self-rule. Well, think of what a tribal court does for you. It takes your tribal law and custom, its traditions, your constitution, the codes, the statues that you enact and apply them every day in a transparent, rational, non-political, non-partisan way so that everybody on the reservation -- Indian and non-Indian -- feels they are treated as equals with equal dignity and respect as human beings according to our tribal customs and traditions. A tribal court keeps you guys honest. You need that oversight, you need that accountability, you need somebody who has the final say on, ‘Just what the hell were you doing with this expense account report?'

Strategic orientation and leadership -- we've been talking about that. But you need something else. You need a legal framework for nation building. Remember your tribal powers. Remember your tribal constitution. Some of them may date back even before the IRA. How suitable are they to your needs today? Think about the way you treat issues of waivers of sovereign immunity. Think about your criminal codes, your juvenile codes. What have you done to make your nation stronger in those areas during your tenure on the council, during your leadership of a tribal program, in the classroom?

I want to kind of give one test to ya'll. I'll leave you with this and then I'll open it up for questions 'cause this'll get you thinking. Hopefully, I've provoked you enough to kind of think about where you're at in meeting this challenge. But this is a university and we like instruments. We've got to have data. So I collect this data, I promise they're writing it down. If you want to be anonymous, okay, but I want you to take this quiz. This is the tribal leader's executive education test for whether your reservation has an independent judiciary. And this'll tell you whether or not you really need an independent judiciary as part of your major nation-building task. On my reservation, the chair is related to the chief justice, yes or no? Just mark it down. On my reservation, the chair is poker buddies with the chief justice? On my reservation, judicial review means the council can review any judge who makes an unpopular decision and fire him, yes or no? On my reservation, checks and balances are something the tribal finance office can't ever seem to keep track of, yes or no? This is serious. You're compromising the integrity of my study by laughing. On my reservation, separation of powers means the council doesn't ask questions about the judiciary's travel expenses and the judiciary doesn't ask questions about the council's? Oh, my god. I've had people pass out. So just let us know, raise your hand if you're feeling...I've given this test [at] hundreds of workshops. These are the oldest jokes in the world. Come on. Okay. On my reservation, the question of whether the tribe should ever waive its sovereign immunity is something that only a fool would bring up in council? Serious question.

Okay, so here's how you judge yourselves. Six to five no's, you have a very independent judiciary. You don't have any work to do in that area. One to two no's, it's kangaroo [court] city baby. So where are you at? Are you hopping up and down trying to figure out where you're out in this nation-building challenge? Are you going to tackle it head on? Well, let's talk about that. We have a few questions. Let's talk about that challenge in some of your questions about this need for an independent judiciary to really recognize all those things we're talking about gelling together, the synchronicity of the nation building model."

Q&A Session

Audience member:

"How do we fight as a collective body and as individual tribes those of us that are fighting that white man's colonial rule? We were in court a couple weeks ago and we're dealing with...we've had contact since 1640 when our tribal system was set up in the 1700s based upon that trusteeship of put three people in a, three men in water, they're going to control everything and we can control them. Give them a bottle, they can sign their X and we get their lands and all. And how we deal with their water rights and their land rights and who can do what on their land and...so you just don't have any rights anymore. How do we fight that, and what is our recourse for those things?"

Robert Williams:

"So do you hire outside law counsel to do this for you?"

Audience member:

"We have our own and we have outside law counsel. We have tribal lawyers."

Robert Williams:

"And how's that work divided?"

Audience member:

"Of course the white man is getting more and the tribal member lawyer gets this much..."

Robert Williams:

"And what do they bill you per hour?"

Audience member:

"Probably $700 and our trial lawyers maybe get $125. What did my sister say? She gets 38 cents per hour."

Robert Williams:

"It's a tribe around here. Because I've been associated with them so long and have been intimately involved with them for so long, some of the details I don't remember. So I'm just going to give you a basic narrative of what happened when I came here in 1987 and was asked to be a judge at the Tohono O'odham tribal court. There's a guy there named Ned Norris...I love Ned as a brother. And we used to sit in the trailer at Tohono O'odham court. I remember going down there -- they asked me to be judge -- and I'm looking for a building and I can't find it. And I call up and Ned says, ‘The trailer, dummy. What'd you think, we had our own building? This is tribal court.' So I go in the trailer. And the library is like 30-year-old volumes given out by the law school that were eaten away and it was just absolutely horrible. And Ned's sitting there thinking, ‘Rob, one day I'm going to run this place.' I go, ‘You can have it, man!' But Ned had vision, you know what I'm saying? Ned had vision.

And you know what I saw over the course of 25 years, I saw people like Ned and chief judges and tribal council members and great tribal leaders who started...They had an attorney general and they had like one lawyer and basically their job was to farm stuff out to the big firms in Phoenix and to Tucson and to New York on their water rights litigation and they were spending hundreds of thousands of dollars. It sort of constrained their ability to assert their sovereignty and it also constrained their ability to pick their battles and to strategize [because] they had this firm doing that and that firm doing this and you had two guys or women in there who just really didn't have control. They weren't having strategic control, they were like insurance adjustors. Don't answer, but if that sounds familiar you see where I'm going. And you can begin to see the lessons, because what I saw happen there was, they said, ‘We need to protect the rights of people here. We've got a crime problem, we're going to invest in our police, we're going to do community policing, we're going to build our own jail, we're going to stop sending our kids to Pima County where they hang themselves and nobody cares. We're going to provide alcohol counseling. We're not going to lock up people as a first resort; we're going to give people a second chance. And that's going to require investing in lawyers and tribal advocates and training and judges and that's going to cost money.'

But guess what? They started training their own lawyers. And some of those lawyers that started out as advocates went to law school and then went into the attorney general's office. Again, this is going to be a really radical proposal, but I bet you all agree. I would rather have a tribal attorney who understands the tribe really well than who understands a technical area of law really well. Sound familiar? These people -- whether they're your own tribe or other Indians or non-Indians -- who come and work in those entry level positions, they learn the community, they learn who to talk to, who not to talk to, keep your head straight, know how the community feels about certain things. They become valuable instruments. And they started moving into the AG's office and instead of paying Phoenix $500 an hour, they were paying those folks a salary of $80,000, but a lot less than $500 an hour -- do the math -- to work on their water rights case. And I've seen that legal department. And again, it's a feeder system. They're developing their own and you've created a legal system. Remember the requirements, the legal infrastructure? You've got a strong AG and they can take on your water rights cases and you've got a strong legislative legal counsel who can help you draft your codes and your ordinances. And what you find on very successful reservations is somebody's resume -- they've done three or four of those jobs -- and the good ones go in, get the office in order and are asked to take on a new challenge. And you're investing in people rather than in some stupid law firm's mahogany desk."

Audience member:

"We're at that point now. We just got our federal recognition after a 32-year fight. We've been a state-recognized tribe, so we have run our own things, but we are in the process of doing tribal courts grant so we can put our law enforcement and our tribal court in place. We are working on constitution, not ratifying what was drafted yet, but trying to look at it. And that's why we're here to help put our governance in place with that and all. But again, it's like we're fighting. You have the state attorney general...now we're in...we went for federal recognition so that the feds would take up our land claim case, which now with Carcieri [v. Salazar] and everything else, the game's changed. The rules changed."

Robert Williams:

"Strategic orientation. That sounds what's key for you guys is to keep your eye on the prize. You're fighting fires every day. Prioritize, strategize, learn, build resources as you go along, and pick your fights well. And you'll find out that one fight well fought teaches them a lesson. Let me tell you something that I learned. I've done some litigation with some very good litigators. And the first thing a good litigator told me was, focus on your opponent's greatest strength and turn it into a weakness. And in this area, I hate to say your law firms are your opponents, but when you look at those monthly billings sometimes, ‘What does this guy got against me?' But their greatest strength is their expertise and knowledge. If you build and invest in that expertise and knowledge as part of your strategic orientation, if you invest in judicial training, think about the cost that you save when you can bring cases in your own tribal courts. Imagine if you have a tribal contract and it gets flipped into state court. Then you don't have anybody who's ready to litigate that case. You're going to be paying $500-600 an hour for state litigation. Whereas if you were confident enough to waive your sovereign immunity into your own tribal courts and you had independent judges who could hear that case and the outside business community knew they would get a fair shake and your guy can walk out that trailer to the court next door and doesn't have to bill you to go into Pima County Courthouse, think of all the money you save."

Audience member:

"Or federal circuit court."

Robert Williams:

"Thank you. Boy. I would. No, I wouldn't want to see your billings but I bet you pay for Kleenex for these guys. If they pack Kleenex in their suitcase, they charge you. Other questions?"

Audience member:

"Can you comment a little more on waiving sovereign immunity for economic gains?"

Robert Williams:

"Yeah. Many tribes, I think, ‘the most successful tribes.' Now, what do I mean by successful tribes? There's lots of ways to measure success, but to me these are tribes that have healthy, vibrant communities. And you go there, you just feel things are moving forward, that people have a vision, that there's a shared sense of responsibility and reward that we're doing things the right way. What I find is those tribes have tackled the issue of their sovereign immunity. Twenty years ago, it was very rare to see tribes willing to address the issue of strategically choosing when to waive sovereign immunity for certain types of businesses and business entities. And there are still tribes and many of the old-line tribal council members who feel that a waiver of tribal sovereign immunity -- no matter how carefully crafted and strategically thought out -- is a surrender of sovereignty. It's not. It's using your sovereignty. It's a tool. It can be a bargaining tool. It can make you stronger. It can make you think about where you need to use it and where you don't. You can think about how it can leverage other investment opportunities.

For example, I've seen this at negotiations and the negotiations get hung up on choice of form. ‘Okay, well, we're going to...we want to put this contract dispute,' it goes into Oklahoma court. And the tribe sits there and says, ‘Well, we're not going to waive our sovereign immunity.' And that's it. The deal goes away. Think about the tribe saying, ‘Uh, we don't have anything in principle about defending our actions. We're entering into this in good faith. We know we're going to honor our obligations but contracts break. Sometimes there's problems, but we'll waive our sovereign immunity but we'll do it in our own courts. And we'll invite you to sit in on our courts and see how they work. And we'll show you, we'll introduce you to our judges and you can look at their resumes and you can see their training. And we can guarantee you a fair hearing and we can point to other litigants in our tribal court -- some of whom have won, some of whom have lost. We can refer you to outside attorneys who've been in our tribal court and you'll see if you're willing.' So at least it gets you to part two of the deal. Instead of the door closing, you've opened up another issue for negotiation and you've kept the deal rolling.

So I think that the tribes that I think have been kind of most thoughtful about how they use this tool and when they use this tool and the power it gives them have been the ones that I think have been able to do things economically. And both in terms of housing, community development -- there's a whole range of issues where tribal sovereignty can stand as a barrier to the hard work that needs to be done. And quite frankly, you can go and insure up to an amount. Again you can limit your liability under an insurance policy. You can make the Republican legislators happy by eliminating punitives in tort cases. They love that. That's what the whole fight over medical malpractice is. Many tribes have eliminated punitive damages in their own courts. And so the only people who are going to end up upset about that are trial lawyers."