federal Indian law

Tribal Sovereignty Special

Producer
KNBA 90.3 FM
Year

What does tribal sovereignty mean in Alaska? KNBA's Joaqlin Estus talks with two experts about the legal basis for tribal sovereignty, and tribal judicial systems at work in Alaska. Hear about a court ruling that Alaska tribes can put land into trust status, tax-free and safe from seizure...

Native Nations
Resource Type
Citation

"Tribal Sovereignty Special: The Our Alaska Show on KNBA 90.3 FM (Host: Joaqlin Estus)." Featured on KDLG 89.9 FM Public Radio for Alaska's Bristol Bay. Dillingham, AK. April 9, 2013. Radio Interview. (http://kdlg.org/post/tribal-sovereignty-special-kdlg, accessed August 19, 2013)

Indigenous Peoples and COVID-19: Issues of Law and Justice – Aotearoa New Zealand

Producer
Māori Law Review and Aotearoa New Zealand Centre for Indigenous Peoples and the Law
Year

A co-production of New Zealand's Victoria University of Wellington and the Aotearoa New Zealand Centre for Indigenous Peoples and the Law, the "Indigenous Peoples and COVID-19: Issues of Law and Justice" is a series of conversations focused on the experiences of Indigenous Peoples with COVID-19, particularly government response and the issues of law and justice.

Moderated by Māmari Stephens, Faculty of Law at Victoria University of Wellington, and produced by Māori Law Review and the Aotearoa New Zealand Centre for Indigenous Peoples and the Law.

Panelists:

Margaret Mutu, Professor of Māori Studies at the University of Auckland

Julia Whaipooti, Māori leader in criminal justice reform and Senior Advisor to the Office of the Children's Commissioner

Dr. Rhys Jones, Public Health Physician, Senior Lecturer and DIrector of Teaching at Te Kupenga Hauora Māori (TKHM), University of Auckland

Native Nations
Resource Type
Citation

Māori Law Review and the Aotearoa New Zealand Centre for Indigenous Peoples and the Law. "Indigenous Peoples and COVID-19: Issues of Law and Justice – Aotearoa New Zealand". September 2, 2020. Auckland, New Zealand. Retrieved July 25, 2023 from https://www.youtube.com/watch?v=ZVMzQ2E6Jzg&feature=youtu.be

HPAIED Letter to the Treasury: Allocation of COVID-19 Response Funds to American Indian Nations

Year

Dear Secretary Mnuchin,

We write to respectfully comment on the impact of the current COVID-19 crisis on American Indian tribal economies, tribes’ responses to the crisis, and on implications for the allocation of federal COVID-19 response funds to federally recognized tribes under the CARES Act and related current and forthcoming federal actions. Under federal policies of self-determination, American Indian tribes are tasked with the same responsibilities for meeting the needs of their citizens as state and local governments. Tribes, however, operate under unique and highly constrained economic and fiscal constraints that must be taken into account as federal COVID-19 response dollars are allocated by your Department. We will shortly release a longer and more detailed study of these issues. Here, we provide key points from our research findings, condensed in the hopes of contributing useful information within the appropriately tight timeframe in which the federal government and the US Department of the Treasury are working to meet the pressing challenges brought on by COVID-19.

Native Nations
Resource Type
Citation

Akee, R., Henson, E., Jorgensen, M., and Kalt, J. "Letter to the Treasury: Allocation of COVID-19 Response Funds to American Indian Nations" April 10, 2020. Typescript. Harvard Kennedy School: Ash Center for Democratic Governance and Innovation, and The Harvard Project on American Indian Economic Development. (https://nnigovernance.arizona.edu/sites/nnigovernance.arizona.edu/files/resources/HPAIED...pdf, accessed July 18, 2023.)

Closing the Gap: A North American Perspective

Year

This series of lectures is about “closing the gaps”–the socioeconomic and other gaps between Indigenous and mainstream populations in Australia. You might well wonder what a Yank academic is doing leading off such a series. I have to admit that I’ve wondered that myself. And I find myself somewhat intimidated by this audience, including as it does people–both in government and out, both Indigenous and non–who have invested not only good intentions but a lot of energy and intelligence and sheer hard work in trying to address those gaps. My knowledge of the on-the-ground problems here in Australia is modest in comparison to many of yours.

But I’m hoping I can persuade you today that there is relevance in exploring the experience of other countries, for yours is not the only one that faces this challenge. Earlier in this decade, New Zealand government policy toward Maori operated under a “closing the gaps” banner. There’s frequent debate in the news media in Canada about why the Aboriginal peoples of that country continue to languish in poverty. And my own country–the United States–has an Indigenous population that ranks at or near the bottom of the scale in household income, employment, health, housing, and other indicators, all of which lag far behind the American population as a whole...

Native Nations
Resource Type
Citation

Cornell, Stephen. "Closing the Gap: A North American Perspective." A Public Lecture Sponsored by Reconciliation Australia. National Gallery of Art. Canberra, Australia. September 11, 2008. Presentation.

Implications of the Supreme Court's Embrace of Negative Stereotypes

Year

The issues surrounding Native stereotypes should not be dismissed or diminished as merely "surface" problems. "Indian" stereotypes go to the core of the legal, political and economic struggles that Indigenous peoples confront in their work to preserve and strengthen their respective cultures and identities and create brighter futures for themselves and their children and their children's and so on. 

This talk by renowned Indian law scholar Robert A. Williams Jr. sheds light on just how deeply imbedded these stereotypes truly are in the minds of all of us, focusing specifically on how the United States Supreme Court and its sitting justices' embrace of negative racial stereotypes about Indigenous peoples govern their jurisprudence.

Native Nations
Resource Type
Citation

Williams, Jr. Robert A. "Implications of the Supreme Court's Embrace of Negative Stereotypes." Red Ink: A Native American Student Publication. Vol. 9, No. 2. American Indian Studies Program, The University of Arizona. Tucson, Arizona. 2001: 91-99. Article.

Implicit Divestiture, Judicial Activism and the Rehnquist Court: A Cautionary Tale for Tribal Advocates

Year

Many tribal advocates have likened the legal corpus known as Federal Indian Law to a pendulum that swings back and forth under the forceful hand of the United States government and its political inclinations at any given moment. While this swinging pendulum has brought great uncertainity and volatility to the status, rights and powers of Indian tribes over the past centuries, it has managed to maintain at least a basic degree of stability and coherence through its adherence to those fundamental legal principles articulated in the Marshall Trilogy of U.S. Supreme Court cases in the 1830s and the subsequent enunciation of the inherent/reserved rights doctrine of Indian sovereignty. However, the Supreme Court's constructions of the implicit divestiture doctrine over the past 25 years has essentially turned Federal Indian Law on its head, severing tribal sovereignty from its "historical moorings" (Getches 1996: 1573) and casting servious doubt on the viability of jurisdictional powers of Indian tribes.... 

Native Nations
Resource Type
Citation

Record, Ian Wilson. "Implicit Divestiture, Judicial Activism and the Rehnquist Court: A Cautionary Tale for Tribal Advocates." Red Ink: A Native American Student Publication. Vol. 9, No. 2. American Indian Studies Program, The University of Arizona. Tucson, Arizona. 2001: 100-106. Article.

Good Native Governance Break Out 2: Indian Gaming in California

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Jonathan Taylor, Victor Rocha, and Alexander Tallchief Skibine discuss gaming and its impact for Native nations in California. Mr. Taylor provides a summary of data collection illustrating change in California Native communities from 1990 to the present. Victor addresses the status of online Indian gaming in California. Dr. Skibine talks about how California court can resolve upcoming issues relating to internet gaming. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Citation

Taylor, Jonathan. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Rocha, Victor. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Skibine, Alexander Tallchief. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

John Petoskey: Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare

Producer
Native Nations Institute
Year

In this lecture for faculty and students of the University of Arizona's Indigenous Peoples Law and Policy Program, NNI Indigenous Leadership Fellow John Petoskey provides a comprehensive background of the Michigan v. Bay Mills case currently pending before the U.S. Supreme Court and discusses what Native nations can do now to prepare for each of of the case's likeliest outcomes, which are certain to have potentially significant impacts on the scope and functionality of tribal sovereign immunity.

People
Resource Type
Citation

Petoskey, John. "Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 2, 2013. Interview.

Ian Record:

"Hi, my name's Ian Record. I'm Manager of Educational Resources with the Native Nations Institute, and we are here and our honored guest is here in conjunction with a program we run called the Indigenous Leadership Fellows Program. It's a program we established about five years ago. It was designed to do a couple things. First and foremost, ensure that NNI was on the right track with a lot of its research and educational efforts that it does around tribal governance and leadership and nation building, and also give the folks that we invited to serve as fellow the opportunity to come and share their wisdom and experience, and also give them a chance to start sort of taking a step back and sort of taking everything that they've done and figure out what is it that they want to share more broadly with, certainly with Native communities and the general public. So I know some of you were here at our talk yesterday that our Fellow John Petoskey gave and for those of you, welcome back.

I should mention that all of the talks and interviews that our Fellow John Petoskey will be giving this week during his residency will be featured on the Indigenous Governance Database. Some of you received a card for that there, it has the URL on there and so within about three to four weeks we'll have all of these videos up. If you come out of this talk saying, ‘Wow, this is amazing stuff. I really wish other people were here,' you don't really need to fret because you can just send them a link in just a few weeks time. So without further ado, I'd like to introduce our Fellow John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and for most of the past three decades has served as the nation's general counsel. And so he's been right there in the middle of a lot of monumental changes that the Band has experienced over the past three decades, regaining federal recognition as a federally recognized tribe, developing a new constitutional government, building up the rule of law to help that constitution system of government function well and achieve the nation's goals. So he's sort of been in the midst of all of that and what he's here to talk about today is a current Supreme Court case called Michigan vs. the Bay Mills Indian Community. A lot of you may know of this case, may already be studying this case in your classes or certainly reading about it. There's been a lot that's been written in the last few weeks and John's here to talk today about that case and its implications for the doctrine of tribal sovereign immunity and what he sees are the likely outcomes, potential likely outcomes of that case, if it is in fact heard by the U.S. Supreme Court in opinions handed down early next year, and what tribes should be thinking about doing depending on what those outcomes are. So without further ado, John Petoskey."

John Petoskey:

"Thank you. I would like to start with a disclaimer first. I am here as an attorney that is employed by Fredericks, Peebles & Morgan, and that's an Indian law firm. We have about 50 attorneys. We're located in Michigan where I am, Colorado, California, North and South Dakota, Washington D.C. And so the statements that I'm saying have to be taken...I'm trying to make a presentation without being disparaging anybody involved in any of these cases. However, I want to be upfront with the fact that I represented Little Traverse Bay Bands [of Odawa Indians] as an attorney for Fredericks, Peebles & Morgan in the case that is currently before the Supreme Court, although Little Traverse Bay Band has not participated in the appeal because it accepted the Sixth Circuit decision for reasons that I'll explain in more detail.

So in my presentation I am not stating any position for Little Traverse Bay Band, nor am I stating any position for Grand Traverse Band, which is a tribe that I worked for through Fredericks, Peebles & Morgan as their general counsel. I worked for Grand Traverse Band from '86 to 2010 when I was dismissed and I was gone for about two-and-a-half years and then I was rehired as their general counsel about a year ago under Fredericks, Peebles & Morgan. So I represent that tribe as their general counsel through Fredericks, Peebles & Morgan and I want to be clear that there's nothing that I'm saying here that has the official sanction of Little Traverse Bay Band or Grand Traverse Bay Band.

In addition, I also represent other tribes in Michigan that have taken positions on this case, particularly the Nottawaseppi Huron Band of Potawatomi in a related case that I filed pleadings in. Anything I say here does not relate to Nottawaseppi's position that it has taken in that related case. And the discussion that I am presenting is more on an educational basis as a participant in the case that is currently in front of the Supreme Court in the early federal district court proceedings and in the court of appeals proceedings, which forms the basis for the cert petition that was granted for review. After I give you that history of the case and the...I will present what I think are the possible outcomes in the Supreme Court and those outcomes are wide and diverse, but they're indeterminate right now because not all of the briefs have been filed in the court case nor has the oral argument been heard, which will not happen until December 2nd of this year.

So I want to start with giving you the background of the case and the history of Michigan. Michigan has 12 tribes in its state. It has seven tribes that were parties to the 1993 compact. Of those seven tribes, Bay Mills was one of the tribes, Grand Traverse Band was another tribe, then it has two other tribes in what we call the 1836 treaty area that were federally recognized in 1997 by federal statute and those are the Little River Band [of Ottawa Indians] and the Little Traverse Bay Band. Michigan is shaped like a hand and so Little River is right here, Grand Traverse Band is at the end of a peninsula in Traverse City and Grand Traverse Bay. The Little Traverse Bay Band is in Petoskey, Michigan. It's sort of right here. And Bay Mills is in the Upper Peninsula on the Lake Superior shore of White Fish Bay. There's a fifth tribe involved in this case in the related issue and that is the Saulte St. Marie Tribe of Chippewa Indians.

Bay Mills was recognized by treaty in 1855. They had a statute that provided them a reservation in the 1870s and they had an IRA [Indian Reorganization Act] constitution that was provided in 1934 under the Indian Reorganization Act. Saulte St. Marie was recognized administratively by the Secretary of the Interior's delegated authority to the Michigan Agency in the Minneapolis Area Office by administrative written decision in 1975. Grand Traverse Band was recognized under the Federal Recognition Process of 1980 as the first tribe to be federally recognized. LTB [Little Traverse Bay Bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] as I mentioned were recognized under the 1997 statute. So those five tribes are all signatories to the 1855 Treaty and the 1836 Treaty.

Incident to the 1836 treaty the tribes ceded to the United States a large proportion of the State of Michigan. In the Indian Claims Commission in 1951 the Bay Mills Indian Community, as the only existing federal Indian tribe, filed a claim for unconscionable dealings against the United States when the United States authorized suits against the United States under the ICC. At that time the Northern Michigan Ottawa Association was established, which consisted of LRB, LTB and GTB, which was also a plaintiff's group since the statute the Indian Claims Commission provided that identifiable groups could file claims. I don't want to go into the detailed history of the legal history of Michigan, but essentially what happened was the...in 1871 the Secretary of Interior said that no tribes exist in Michigan and left us there to our own devices, which didn't work out too well. And so that's why there was all this later recognition and the federal statute. That Indian Claims Commission came to judgment in 1971 and then there was a statute passed in 1997 called the Michigan Indian Land Claims Settlement Act, which was the implementation of the payment of the ICC judgment that the five tribes had against the United States. So you can see how this goes back to really the origins of a lot of the tribes. Under that provision, each tribe was allowed to make payments of the judgment funds on 80 percent per capita and 20 percent for social services and each tribe elected to make their payments in identifiable ways that were diverse.

In the case of Bay Mills, they elected to take 20 percent of their ICC judgment funds, which was the Michigan Indian Land Claims Settlement Act, and to create a trust corpus from which the earnings of that trust corpus were to be used to acquire lands and the relevant language in Section 107 of the Michigan Indian Land Claims Settlement Act, which is Public Law 107.143. I don't have the statutory cite, but that's the public law number. The relevant language in that provision provided that money used to buy that land would then be held as Indian lands are held. And so there was a, in the early part of the case, there was numerous briefings on the issue as to what that meant. And Bay Mills argued that that language, as Indian lands are held, creates an automatic restricted fee status for any lands that they buy. And the reason that is important is actually another development that has taken place in Indian Country, and that relates to the Indian Land Claims, the Seneca Land Claims Settlement Act that took place in New York.

In New York, the Senecas have several large casinos. The Seneca Land Claims Settlement Act was used as the basis for arguing, that the Senecas argued that they were not subject to the after-acquired property prohibition of gaming, which is in the Indian Gaming Regulatory Act Section XX that says, ‘Any property acquired or taken into trust after 1988 cannot be used for gaming unless there's these itemized exceptions.' In the Seneca context, that exception was settlement of the land claim. They argued that the Seneca Land Claims Settlement Act, which was an ICC judgment case, was a settlement of a land claims and therefore, they could do gaming, and they did set up a number of different gaming sites. Well, it happened in a federal district court decision in New York in 2008 or 2007 that the federal judge ruled that an ICC judgment is not a settlement of the land claim and therefore the proposition upon which Seneca had predicated the authority to engage in gaming was taken away since the court ruled that the ICC was not a settlement of the land claim.

At that point, the Secretary of the Interior and the National Indian Gaming Commission revised regulations that had already been published in which they implemented Section XX of the Indian Gaming Regulatory Act. I may bounce between Section XX and 2719. 2719 is the codification of Section XX. The regulations that they implemented were federal regulations that included the prohibition that restricted fee applied to the exceptions. In other words, not only was land taken into trust, but also restricted fee, that anybody that had restricted fee after 1988 could not game on that property. After that Seneca decision in 2007, the National Indian Gaming Commission, in conjunction with the Department of Interior, revised its opinion and said that restricted Indian lands were not subject to Section XX since it was not in the statement of the language of Section XX nor was it in the legislative history. And therefore the Seneca facilities, which were restricted Indian titles incident to their unique history in New York, were therefore lawful and that's the basis upon which they continue to game that it's restricted fee title and the net effect of that revision of the federal regulations was that the decision finding that the settlement of the land claims was not applicable was obviated because there was a different basis upon which the Senecas could game.

At that point, this is hypothetical, but I just assume it occurred to somebody in Michigan that we could use the Michigan Indian Land Claims Settlement Act to say, ‘As Indian lands are held as creating automatic restricted Indian title and therefore not subject to Section XX and therefore eligible for gaming without going through the Section XX process of taking the land into trust.' That was the thought process. That's the hypothetical thought process that Bay Mills probably had. And the way I say probably had is because they did submit to the National Indian Gaming Commission a proposed amendment to their ordinance in early 2010, in the Spring of 2010, in which they made geographic specific authorization under the restricted fee theory for gaming at Vanderbilt, the area in which they did open up the casino. Just a footnote, Vanderbilt is in the gaming area for Little Traverse Bay Band, it's basically in their backyard, it's on a major highway, freeway and so it was basically going to choke off Little Traverse Bay Bands' casino patronage.

The National Indian Gaming Commission advised Bay Mills not through a letter document, but through discovery where we determined that they would not authorize an amendment to their gaming ordinance that was geographic specific to Vanderbilt. And so Bay Mills withdrew that proposed amendment, submitted a new amendment, which tracked the language of the Indian Gaming Regulatory Act 2703.4, which essentially is the same language that is used in the Indian Country definition in Title 18 or 1151, which the National Indian Gaming Commission accepted as appropriate because there's no way that they could not accept it because that's what the Indian Gaming Regulatory Act said, but that amendment did allow gaming on restricted Indian land.

So after the National Indian Gaming Commission approved that amendment on September 15th, Bay Mills on their reservation authorized gaming to take place at Vanderbilt. And surreptitiously, in the dead of night, set up a casino in Vanderbilt on a rest stop that they had bought earlier through an LLC company with proceeds from the Michigan Indian Land Claims Settlement Act, alleged proceeds from the Michigan Indian Land Claims Settlement Act, and they asserted that the act of buying that property automatically converted that building into restricted Indian title not subject to Section XX of the general prohibition on gaming on after-acquired land and that their gaming ordinance did authorize gaming under the 'Indian Lands' definition. So they opened their facility. Naturally that action caught Little Traverse Bay Band, Fredericks, Peebles & Morgan's client, off guard. It also caught the State of Michigan off guard that they were using this theory and procedure to open up a gaming facility.

Once Little Traverse Bay Band figured out the theory, there was a remedy to seek, and that remedy is in the Indian Gaming Regulatory Act and it's at 25 USC 2710.7.D.A.ii. And I just want to read the language for you on that because it's important to understand what the language says because this is going to, I'm going to make reference to it in the balance of my presentation and if you don't have it in front of you -- I was going to hand it out -- but I will just read it to you.

‘The United States District Court shall have jurisdiction over any cause of action initiated by a state or an Indian tribe to enjoin Class 3 gaming activity located on Indian lands and conducted in violation of any tribal/state compact entered into under Paragraph 3 that is in effect.'

That is the relevant statute that creates federal jurisdiction in the waiver of sovereign immunity under the Indian Gaming Regulatory Act for Little Traverse Bay Band and the State of Michigan to file an injunction action arguing that the restricted fee authorized casino gaming at Vanderbilt is done in violation of the compact. That's the dispute that took place. There was negotiations between the state and the tribe to close the facility, which went nowhere. There were negotiations between Little Traverse Bay Band and the Secretary of the Interior on whether or not this was restricted fee lands, and the Secretary of Interior did issue an opinion on December 20th that it was not restricted fee, that you could not use the Michigan Land Claims Settlement Act to automatically buy land and then to automatically assert that that becomes restricted fee eligible for gaming.

Hillary Thompkins issues a 25-page opinion that, in summary, gave in detail an interpretation of the Michigan Indian Land Claims Settlement Act and an interpretation of the restricted fee issue and opined that the gaming at Vanderbilt was illegal. Then the National Indian Gaming Commission said, ‘Well, if it's not on Indian lands under our statute, we have no jurisdiction so we have no authority to enforce the closure. We have no authority to issue a closure order because it has to be on Indian lands for us to have jurisdiction to close the facility.' So the National Indian Gaming Commission then issued an opinion saying, ‘Based upon the 'Indian Lands' determination of the Department of Interior, we have no authority here because it's not on Indian lands so we can't issue a closure order.' And so what you had was the federal government basically saying, ‘We don't have authority to close the facility so we're not going to close it,' and then in discussions with the U.S. Attorney there was another touch of ambiguity that Vanderbilt created in that the tribe, Bay Mills, is in the Western District. That it just so happened that Vanderbilt, in terms of the district's for the federal district court in Michigan, is in the eastern district and so all of the, 10 of the 12 tribes in Michigan are in the western district.

So the western district of Michigan has several attorneys that are very knowledgeable about federal Indian law and they knew the opinion that Thompkins had issued that it was not restricted Indian lands, but the people who understood it in the western district were arguing, ‘Not our problem, it's in the eastern district,' and the eastern district is in Detroit and they didn't have anybody in Detroit in the U.S. Attorney's office who understood federal Indian law and the eastern district said...I don't know what they said because I didn't have any conversations with them, but they didn't do anything. Vanderbilt was in their district and they did not file any criminal action against the tribe for violation of the Johnson Act or for gaming outside of the compact. They just let the thing set. So in the absence of the United States' failure to do anything based upon the Indian Lands Determination and the National Indian Gaming Commission's assertion that they had no jurisdiction in the western district and the eastern district not doing anything, the State of Michigan and Little Traverse Bay Band decided to do something and that was to use the provision I just read to file an injunction action against Bay Mills arguing that the gaming facility was not on Indian lands and was a violation of the compact. That's the broad setting in the case.

Now getting into the particular counts in the complaint, it's where it gets interesting. In both counts 1, 2 and 3 of both the LTBB complaint and the State of Michigan complaint, we alleged, and when I say we, the state and Traverse, Little Traverse Bay Bands of Odawa Indians alleged that the Vanderbilt facility was not on Indian lands, that it was not restricted fee, which is important for the later decision in the Sixth Circuit Court of Appeals. But we also alleged that the gaming was conducted in violation of the compact, that it was being conducted in violation of a couple different things. One, that the land was not gaming eligible. A second argument we made is that there's a provision within the 1993 compacts called Section 9, which says that for a tribe to open up an off-reservation gaming activity after 1993 it has to enter into a revenue sharing agreement with the other tribes in Michigan. That was not done so we alleged that as a cause of action. But we were relying on the proposition in that 2710.7.D.A.ii provided federal jurisdiction, created the cause of action and did a waiver of sovereign immunity against Bay Mills and that the waiver of sovereign immunity in the cause of action that we were alleging was that this gaming was in violation of the tribal-state gaming compact that Bay Mills had entered into and that Little Traverse Bay Band was a beneficiary of under Section 9 for the revenue sharing agreement. We also alleged federal jurisdiction under 1333 and for Little Traverse Bay Band we alleged federal jurisdiction under 1362. Those references are important for just a minor, but main, depending on how you characterize it, for a later development in the case.

So the hearing was held in March of 2011 after cross motions for summary judgment were entered and at the end of March the federal district judge ruled that he had jurisdiction under 2710.D.7.A.ii and that he was relying on a decision in the 10th Circuit called Mescalero, which was relying on a decision in that federal circuit called Santa Ana Pueblo vs. Kelly. And in that particular case, the New Mexico tribes had negotiated compacts with the governor, the state Supreme Court in New Mexico had ruled that the governor didn't have the authority to negotiate the compacts, and that they were therefore illegal. Some of you from New Mexico may remember this sequence back in 1997. And then the tribes sued alleging that the compacts were still in effect because there was a move to close down the casinos in New Mexico. One of the questions in that case was whether or not there was jurisdiction in the federal court to hear this cause of action and Santa Ana and Mescalero held that there was jurisdiction to determine the validity of the compact.

Paul Maloney, the federal district judge in the Michigan/LTBB vs. Bay Mills Case, relied on Mescalero for the proposition that there is jurisdiction under the Indian Gaming Regulatory Act to enjoin gaming that is not consistent with the compact, that is not in conformity with the compact and he entered an order to that effect. Bay Mills argued that Judge Maloney got it wrong, which he acknowledged in an amended opinion, that Section 1331, in the early part of the opinion, he also said that 1331 provided jurisdiction and that 1362 provided jurisdiction. Both do provide jurisdiction, but they do not provide a waiver of immunity of Bay Mills. And so he amended his opinion saying there was no waiver under 1331 or no waiver under 1362, but there was a waiver under 2710.D.7.A.ii on the language that I read and that there was a cause of action created and that Bay Mills had violated the compact.

Now Bay Mills makes much of the case, which has merit to it that the Mescalero opinion confused the standards in compact abrogation with compact waivers. The opinion in the 10th Circuit said to the effect that a tribe impliedly waives its immunity when it enters into gaming under the Indian Gaming Regulatory Act. That's not the standard. The tribe doesn't impliedly waive, it's Congress [that] has to abrogate the immunity. Nevertheless, the opinion supporting Mescalero, the Santa Ana Pueblo opinion, does hold for the proposition that there is jurisdiction to determine if the compact is in effect and we were arguing a related concept to that that the compact in Michigan had been violated and that this gaming was taking place in violation of the compact. It eventually...the case went to..."

Raymond Austin:

"We have some people in here who are not law students. Can you explain to them what sovereign immunity is?"

John Petoskey:

"Sovereign immunity is that the government -- whether it's federal, state or tribal -- cannot be sued without its consent and that consent comes in two forms in reference to Indian tribes. It comes in the form of Congress doing what's called a congressional abrogation by statutorily saying that the immunity of the tribe is abrogated by an act of Congress. The other way sovereign immunity can be dealt with is by the tribe making an explicit clear statement that it is waiving its immunity for purposes of litigation and tribes do do that all the time. They pass resolutions saying, ‘We're waiving our sovereign immunity for x, y and z for the purpose of a, b and c.' But there's two ways and there are two sets of cases that interpret what is abrogation, when Congress acts and sets standards that you have to act clearly, it has to be explicit, it can't be implied. Congress clearly has to establish saying, ‘We are waiving the immunity of the tribe for purposes of the following area.'

Congress waived the immunity of tribes in the Indian Gaming Regulatory Act in the provision I read where it says, ‘Any cause any initiated by a 'state' (Michigan), ‘Indian tribe' (Little Traverse Bay Band), ‘to enjoin Class 3 gaming activity,' (the injunction was again Bay Mills gaming activity), ‘located on Indian lands,' (Bay Mills alleges they're Indian lands, the United States through Thompkin's opinion says it's not Indian lands and the State of Michigan and LTB says it's not Indian lands, that the restricted fee, automatic restricted fee doesn't create Indian lands under the Michigan Indian Claims Settlement Act). But I want to emphasize that issue has not been even litigated or determined by cross motions for summary judgment. That's still a pending motion. That's still in the case because this case went up on interlocutory appeal on the issue of the injunction. So continue to read that -- ‘located on Indian lands and conducted in violation of any tribal/state compact' (and so we're saying, ‘Well, this is in...LTB is saying it's in violation of state compact because it's not on Indian lands and it doesn't comply with Section 9 on the revenue sharing agreement.') ‘Entered into under Paragraph 3 that is in effect,' (and Paragraph 3 is the provisions that define how the state and the tribe enter into tribal/state gaming compacts and the question is, ‘Is the compact in effect?') That was the issue in Santa Clara is that, was the compact...that was the issue in Santa Ana: is the compact still in effect? And the court in Santa Ana determined that it had jurisdiction to determine whether or not the compact was in effect and we argued the corollary concept or related concept that the court has jurisdiction to determine whether the compact is being breached or violated. We argued it was being breached and violated by gaming in areas that were not Indian lands, 4C, and also gaming was taking place without the condition preceding of the revenue-sharing agreement.

Bay Mills, on the other hand, was arguing that if you look at the allegations and the complaints of the state and the tribe, they are alleging that the gaming is not taking place on Indian lands. So if it's not taking place on Indian lands and you read the complaint and you take the complaint at face value, then they're saying that the court doesn't have jurisdiction to hear the case because it's not on Indian lands. Essentially what the National Indian Gaming Commission said, if it's not on Indian lands, NIGC doesn't have jurisdiction to hear the case. Bay Mills was essentially making the same argument -- that you had to fulfill all of the condition precedence in 27.10.7.D.A.ii in order to have jurisdiction in the federal court for the case to proceed and to have a waiver of sovereign immunity. And if it wasn't on Indian lands, even though you have the irony of the situation that Bay Mills is arguing it's on Indian lands and LTBB [Little Traverse Bay Bands of Odawa Indians] and the state is arguing that it's not on Indian lands, if you look at rules of pleading and you construe the pleading allegations of the tribe LTBB made and you take them at face value, they are saying that the gaming's not on Indian lands, therefore they're not fulfilling all of the condition precedence to have jurisdiction and the waiver of sovereign immunity for the case to proceed. That in a nutshell was the decision of the Court of Appeals, that there was no jurisdiction, there was no waiver, that the cause of action that was alleged by the LTBB and the state was defective because they said it was not on Indian lands.

Now in opposition to that, the state argues that counts 4, 5 and 6 allege that acts occurred, the authorization of the facility at the Bay Mills Reservation to open, those were on Indian lands and that that is part of gaming activity. In order for gaming activity to take place, you have to convene the council, convene the Gaming Commission, issue the license and that activity is taken place on Indian lands and that's part of gaming activity, that's just not card dealing that is gaming activity, it's also regulatory actions that the tribe has taken and that is where the gaming activity took place so it's still on Indian lands. The court didn't accept that for a couple different reasons. One was that the amendment to that complaint came in after the interlocutory appeal had been filed. Keep in mind they filed it in the spring of, the interlocutory appeal, in the Spring of 2011 and the state amended its complaint and made it an ex parte proceeding against the tribal council alleging the authorization taking place on Indian lands in August of 2011 at which time the interlocutory appeal was already in the Sixth Circuit and so the Sixth Circuit in part recognized that those were not part of the proceedings directly in front of them.

So the nutshell of the holding was a remand of the case to the district court to hear counts 4, 5 and 6 and to also deal with the underlying issue of whether or not the Michigan Indian Land Claims Settlement Act in fact creates restricted fee titles by operation of law the way I outlined it at the beginning of the presentation. The State of Michigan upon remand then petitioned the Supreme Court for cert to review the matter arguing two different things in its cert appeal. One, that the Sixth Circuit's reading of 27.10.7.D.A.ii to create the five-condition precedence was incorrect in the sense that, essentially that you could leave out Indian lands and you could focus on whether or not the gaming is in violation of the compact that is in effect. And there's a couple circuits that hold that you can address a compact for...there is a waiver if you're addressing whether or not the question is, is the compact in effect.

Now that cuts against a strong standard in abrogation of tribal sovereign immunity with explicit language, because that is holistic interpretation of the statute saying when you look at the remedial structure of the statute in total there has to be a way to get this issue in front of a federal district court so that the court can address the issue. And so the state is arguing in part that the matter should be addressed by the court, in that it met its burden to meet [27.10.7.D.A.ii] under the provisions of the compact being in effect and other case law in other circuits that have held that the question of whether the compact is in effect is sufficient for purposes of jurisdiction under 27.10. But then the state goes on further and says, ‘Regardless of that, if that is not true, if you find that the 6th Circuit is correct,' and it's a very strict interpretation on what abrogation is and you have to meet all the condition precedence of the five elements, ‘then the United States should review its sovereign immunity doctrine in case law and opine that the scope of sovereign immunity does not extend to certain categorical cases.' And it argues based upon CNL, a 2001 decision, Kiowa, a 1998 decision and Citizen Potawatomi, a 1991 decision, which were the last three principle decisions on sovereign immunity, that the court should adopt a standard that, ‘off-reservation commercial activity is not subject to the protection of sovereign immunity.' That's why the case has, to the degree it has, received significant review by Indian Country is the consequence of that decision, which are numerable, which are quite extensive.

So what we did this morning, Ryan Seelau and myself, the person at the end of the table here, we put together a chart. Once you have this background of things that potentially could happen in this case and what the likely repercussions for the tribe are and how tribes should consider responding at this point in time. Keep in mind that this, when I say this point in time, the Bay Mills responsive brief has still not been filed, it will not be filed until October 24. The brief for the state was only filed on August 30, actually September 4. They were four days late, but it was filed on September 4. There were 17 attorney generals filed briefs in support of the State of Michigan and the briefs in support argue that the Supreme Court should simply abolish sovereign immunity and they go to the extreme.

There's one brief in particular, the brief of Oklahoma, that has a footnote in it, footnote number four, that highlights all of the problems that are associated with sovereign immunity defense by tribes and basically this is the tax cases, the payday lending cases, and then there are three other cases in the country that have restrictive fee type cases also. There's the Hobie case in Oklahoma, the PCI case in Alabama and then Saulte St. Marie, getting back to Nottawaseppi, Saulte St. Marie has also asserted that they can create an off reservation casino in Lansing, which is the state capital of Michigan. They have an option on land and they are presently in the process of trying to put that land into trust, arguing that once it goes into trust under the Michigan Indian Land Claims Settlement Act that it then becomes gaming eligible and they would be allowed to do gaming. It's a related case.

And so the state's briefing chief is all this parade of horribles and they're arguing first that Judge Kethledge on the Sixth Circuit, who wrote the opinion, got the interpretation wrong on 27.10.7.D.A.ii that you had to fulfill all of the five requirements and that the pleadings did not fulfill the requirement of on Indian lands and therefore Kethledge dismissed the case. The state is arguing that Kethledge is wrong on that, that you can read 27.10 in an expansive manner on whether or not the compact is being complied with and if the compact is being breached, that is sufficient for purposes of the waiver of sovereign immunity in federal jurisdiction and that argument of the state is predicated upon a holistic reading of the statute.

Now that is contrary to the general proposition that most Indian advocates have that there should be explicitness in the abrogation language for taking the sovereign immunity away from the tribe. In fact, that was the rationale for Little Traverse Bay Band, who is our client in the case, not to appeal the 6th Circuit decision because if you read the decision, it sets up a very strong restatement in standard that in order for Congress to abrogate sovereign immunity, it has to be explicit and every element has to be met. And so the LTBB tribal council said, ‘That's not bad. Although we lost, that's not bad,' and so they didn't appeal and they are not in the Supreme Court and they're not taking a position because they in fact thought the Sixth Circuit decision, even though it went against them, was not a bad decision. There's a caveat to that. The state had indicated in the course of the proceedings that if Bay Mills did open up their facility once the injunction was vacated that the state would do a criminal action and would do a forcible closure. So the casino has never really opened back up even thought he injunction has been vacated. LTBB has not appealed because they thought Kethledge got it right. The State of Michigan has appealed because they thought Kethledge got it wrong, that you should read the statute as expansive and that it does provide for a waiver of immunity and the statement of a cause of action on the basis of the analysis of whether or not the compact has been breached.

Then the position of the Solicitor General -- who I have not mentioned at all in this proceeding -- but the Solicitor General was invited to file a brief and the position of the Solicitor General was is that Kethledge got it right, in terms of what is an abrogation of immunity, and therefore it should not be appealed. But it puts the state in an awkward position because it still has no remedy and when you read the state's brief, you can attack it for many different things, but it does present a good argument in terms of the state saying, ‘What are we to do because this casino opened up in our jurisdiction, we have to have some sort of remedy,' and they touch all of the buttons that the parade of horribles that have been identified in CNL, Kiowa, and Citizen Potawatomi over the last 20 years about the terrible things that happen when tribes assert sovereign immunity in the context of off-reservation commercial activity. And this is a principle example of a tribe doing that: opening a gaming facility where you have the illogical consequence that the state only has jurisdiction to enforce a breach of the compact when the gaming facility is opened on the reservation and it doesn't have jurisdiction when the casino is opened off the reservation hundreds of miles away from the tribe's reservation and it has no remedy and the United States is not doing anything to address the question. And so it has a very compelling, if you will, case to make that there has to be some sort of remedy. And if you're Justice Thomas certainly, Justice Scalia, Ginsberg, and to a certain extend even Breyer, you're going to be sympathetic to those arguments because they've already indicated in previous opinions that they are sympathetic to those arguments, and so you know that for the justices, based upon that past opinion, are sympathetic to the state's position. There are new justices on the bench, but it only takes five to create a bad case decision from the current case that is pending.

So what has been going on to resolve the issue? On a national basis, NCAI [National Congress of American Indians] and the Native American Rights Fund have met and tried to fashion a remedy similar to a remedy that was done in 2010 when there was a similar case in front of the Supreme Court and to resolve that case, the tribe waived its immunity and so the matter was vacated and it was remanded to the lower court to resolve the issue. Here Bay Mills has categorically stated they are not going to waive their immunity. So it's not going to be resolve on a waiver of immunity and in my view, even if they did waive their immunity, I don't think that the Supreme Court would allow the matter to be vacated and remanded because they would recognize that that was the same procedure that was used in 2010 so they would continue to maintain the case. It's all hypothetical, but in any event, Bay Mills is not waiving its immunity. Another thing that could be done that was suggested in the Solicitor General's brief is that Bay Mills could resubmit their ordinance on a geographic specific area for Vanderbilt to get an Indian lands opinion from the National Indian Gaming Commission, but they're not going to do that. Bay Mills is not going to resubmit its ordinance. It already did that once and had a negative determination so they're not going to do that. Kethledge also said that the United States could resolve the issue by filing criminal actions against the individual tribal council acting in violation of federal gaming laws, particularly the Johnson Act, but the western and eastern district of the United States Attorney's office is not going to do that. There's not even any discussion of that, particularly now since the briefs have been developed and there is an argument that Bay Mills has, that this is a good faith argument that this is restricted Indian lands and therefore by definition, if it is restricted Indian lands, under the Seneca decision it would be gaming eligible, therefore it would not be in violation of the Johnson Act, therefore it would not be in violation of the federal illegal gambling laws. So the eastern and western district of the United States Attorney's office is saying, ‘We're not going to do anything.' So the only alternative left is a decision by the Supreme Court on the outcome of the questions that are presently pending before it.

And so getting back to Ryan's table here: what are the potential outcomes? And we characterized these as sort of a hierarchy of horrors and it goes from the least worst outcome to the worst outcome. So the potential outcome with the least consequence to Indian tribes is that the case is remanded based on statutory interpretation of 1331 and 2710 that the off-reservation gaming site violated the compact. In other words, saying, ‘We are reading 2710 in an expansive manner. You don't have to fulfill all of the elements. It's a violation of the compact. That's sufficient. There's federal jurisdiction. There's a waiver of sovereign immunity and abrogation, negative on that.' It makes waivers by implication rather than by explicitness. The other thing that the remand does is that you get to the merits of the question of whether or not this is restricted fee, does restricted fee exist would be one answer that restricted fee does exist and then there are consequences that flow from that. The alternative is restricted fee does not exist. If it does not exist, then it's not gaming eligible then the thing is closed down and it's all a civil matter. That is you get to the merits of the actual problem. This means the violation of compact is sufficient to complete the requirements of 2710, that an abrogation of sovereign immunity is effective by alleging compact breach for cause of action, reverses the 6th Circuit decision on counts 1 through 3 and the 6th Circuit's five part test of 2710.D.7.A.ii. It was a five-part test that they basically construed that provision and laid out five standards that you have to meet in order to get federal jurisdiction, cause of action, and a waiver of sovereign immunity. So this is -- I know I didn't want to say any editorial comments --but it's beyond me why Bay Mills is moving the ball...this doesn't move the ball along anyplace, it doesn't move the case forward at all even with the least likely outcome. Nothing really goes forward so I don't know why they ended...never mind, I won't go there.

Case's likely repercussions for tribe -– case remanded to be determined on merits whether Public Law 105.143 Section 107.A creates restricted Indian fee, so that's the merits of the question. If it's remanded and you determine the merits of the questions, the repercussions are minimal with regard to sovereign immunity, but if restricted fee exists then the effects depend on how many restrictive Indian fee cases are ongoing in the U.S. This is an interesting question. You really have to know a lot of Indian law for this. The states with restricted fee titles are right now in the universe of Indian Country are relatively limited and those states are Oklahoma, New Mexico, Alaska and New York. If you were to look at Indian titles and you were trying to find out who has restricted fee, you would...the majority of them would appear in Oklahoma, New Mexico, Alaska and New York and that's because of the history of federal Indian law. In Oklahoma, it was the allotment processes and the Civil War and the mass movement of Indians into Oklahoma, that there are some areas in Oklahoma that do have restricted fee and you'd look at the particular statutory history of each individual tribe to determine whether or not there is restricted fee. New Mexico, it's the pueblos that have restricted fee because they were...had fee simple under the Treaty of Guadalupe Hidalgo, through grants through the country of Spain. In Alaska, there's a...which is for all practical purposes there's no market, but it's an interesting case up there because it was the variable public policy of the federal government that created restricted fee up there at various times in trying to figure out how to deal with Alaskan Natives, so there's still a lot of restricted fee in Alaska. New York has restricted fee because of its history as one of the original 13 colonies and California has restricted fee because of its similar history of the Treaty of Guadalupe Hidalgo and the grants from Spain. Arizona may have it, but I'm not that familiar with Arizona. But the whole point is if restricted fee does exist, then it's not subject to Section XX, then that's a gold mine for people that are willing to find the tribes sitting on restricted fee and that's going on right now. That's what the Hobie case is. It's a Muscogee restricted fee allotment located 20 or 40 miles away from the central government in which a town, and you have to look at the Oklahoma Indian Act, but Hobie is that type of case of restricted fee. So is the Alabama case with the Poarch Band [of Creek Indians] finding restricted fee down on the Gulf Coast. And so a favorable decision would be potentially more markets for Indian gaming because restricted Indian fee is not subject to Section XX. The thing there is to wait and see what happens, determine whether tribes have restricted fee.

The next consequence is case is remanded to determine counts four through six, which are the state law counts that are still pending, and that is that the activities of gaming took place on the reservation through the authorization, through the tribe passing a motion to authorize opening a gaming facility at Vanderbilt. The fifth count is the state law count alleging discouragement of all profits, which would mean all the machines and all the income, which is a couple million dollars, and the sixth count is a nuisance count under state law. But those counts are brought against the individuals in the amended complaint that the state filed in August of 2011 in which the executive council members of Bay Mills and the individual gaming commissioners of Bay Mills were sued in their official capacity under individual...under the Ex Parte Young version. Basically, it's implementing Ex Parte Young. The Supreme Court is saying that federal jurisdiction exists and that there's a way around tribal sovereign immunity based on the principles of Ex Parte Young.

And then the likely repercussions to the tribe on that is Stephen's descent in the CPN case, expansion on Santa Clara Pueblo's reference to Ex Parte Young. Take you all the way back to 1978, when Santa Clara was decided there was that subtext that Justice Marshall had, that although the pueblo was immune from suit that the individual council members were not immune from suit and they could be sued under principles of Ex Parte Young, but the important point in that was limited by Marshall further saying that the Bill of Rights implied cause of actions do not exist, that there has to be an explicit statement of the cause of action for habeas corpus. That was the only cause of action that existed under that ruling. So taking you a little further back to 1968 when the Indian Civil Rights Act was passed between 1968 and 1978 when Santa Clara happened, there were literally hundreds, but there were a number of decisions in which tribal members sued under quasi-1983 claims against their tribal officials and had a developing case law in federal court that was similar to 1983. And all of that stopped in '78 when Santa Clara was decided and said that you can't imply a cause of action under the Bill of Rights similar to 1983 for tribal council official action or the individual action of tribal members, but I think that will come back into existence under this new doctrine, it's potential, that's a likely repercussion that will happen. Another likely repercussion is that CNL Enterprise clearly suggested that off-reservation commercial activities is on shaky ground which was the 2001 last sovereign immunity decision and said that off-reservation commercial activity is probably going to be subject to a common law finding that is not covered by the immunity of the tribe. That's the clear trend of Ginsberg's statement of the Kiowa decision in 1998 by Justice Kennedy, that they're going to expand commercial activity off-reservation as categorically not being protected by sovereign immunity, which it is now.

So what do you do to get ready for that outcome? How should tribes consider responding? Get ready for the lawsuit against them by their own citizens. In other words, you're going to be sued by your own citizens. In other words, all that case law from '68 to '78 on tribal 1983 actions will probably now come back into existence. Some people, dissidents in the tribe, will say, ‘Hey, that's all right with me.' Other people will say, ‘Well, it's part and parcel, that's going to be a big problem for the tribes.' But the councils should get ready for suits by their own citizens and non-citizens who will be suing under the Indian Civil Rights on a theory that the ICRA creates implied cause of actions like it did prior to Santa Clara and should prepare.

So what should the council do? It should prepare declaratory injunctive and monetary damage statutes that limit the scope of the remedy. It should pass statutes that say, ‘We author...we waive our immunity for declaratory and injunction actions that violate 1983-like rights of our tribal citizens, but we limit that to prospective relief and no monetary damages.' If you get there before they do it, I think you will survive, but if you don't do it, what will happen is you'll have that decision and then people will jump in court and you won't have the...then you can't enact the statute after the case has already been filed. So you should be proactive and enact these protective statutes that do waive sovereign immunity, but limit the amount of damages. The other thing you should do is write insurance proceeds to cover the new level of risk. Amend existing ordinance to waive immunity for violations of ICRA, but limit the remedies to declaratory and prospective injunctive relief.

On the next scale of hierarchy of horrors that could happen in the decision is that the judges will say that Ex Parte Young-like relief applies to commercial plus off reservation or they could say Ex Parte Young relief applies to commercial plus on-reservation or off-reservation, or they could say, number C, that Ex Parte Young applies to commercial and governmental plus on reservation and off reservation. That would be the worst category going just completely down the line all the way. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on/off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. I think that's a very likely outcome. I think the Supreme Court will say, ‘We're going to eliminate it for off-reservation commercial activities, but we're going to retain it for on reservation commercial and governmental activities.' That's a likely outcome.

In the next category of things that could happen is number four, whether sovereign immunity is a federal common law doctrine, this gets into who controls federal Indian law, this is in deference to Frank Pommershein's law review articles about whether plenary power is located in Congress or plenary power is located in the court and the point here is that the Supreme Court may assert that it has plenary power to amend its common law and that it doesn't have to wait for Congress to abrogate a statute and they're saying, ‘If Congress is not going to do it, we're going to do it.' The Supreme Court could essentially say, ‘Under common law, we control federal common law, sovereign immunity is a creature of federal common law, therefore we can eliminate it if we want to eliminate it.' And that's in direct opposition to the current rule, is that only Congress can eliminate it under its plenary authority and so that creates plenary authority in the tribal or in the Supreme Court to eliminate this and not through Congress. That would be extreme, but it's possible that that could happen. If the Supreme Court does that, they could eliminate all or any part of the doctrine based on commercial or governmental distinction, off-reservation, on-reservation distinction. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on- or off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. This is a little more extreme from the Ex Parte Young doctrine because Ex Parte Young assumes that sovereign immunity still applies, but you get around it through the fiction of suing the individuals and the Supreme Court says, ‘Wait a minute, Ex Parte Young doctrinally is for federal law is to be imposed against state officials who are protected by the 11th Amendment. Why are we using the constitutional analysis that doctrinally does not fit to the circumstances of a tribe, which doesn't have the 11th Amendment, which is not part of the constitutional convention? So there's really no reason to go through Ex Parte Young, let's just go to home base and eliminate sovereign immunity and not create the Ex Parte Young exception, which is a fiction to begin with, and it's more of a fiction on a fiction if you're applying a doctrine to a tribe that's not part of the constitutional convention and not protected by the 11th Amendment. Why even go down that street because it's just fiction on fiction?'

So what is the likely repercussions for the tribe? Eliminate sovereign immunity in all contexts including and then the repercussions for the tribe is that general federal statutes, which are numerous, there's probably about 15 general federal statutes that govern the employment relationship. There's for example the Fair Labor Standards Act, the National Labor Relations Act, the Age Discrimination Act, the Equal Employment Opportunity Act -- all of these are general federal statutes that currently do not apply to Indian tribes because they're general federal statutes and they don't specifically identify tribes. I know there is case law out there in which some cases opine that they do apply by implication, but there's other cases that strongly hold these general federal statutes do not apply, but if you eliminate sovereign immunity, that's going to be an impact on these general federal statutes because there's nothing stopping the application then. If there's a general elimination of sovereign immunity, then there's nothing stopping the application of these general federal statutes. And then the elimination of general sovereign immunity again would create the Bill of Rights cause of action, so the 1983 actions for tribal government activities. And then the elimination of sovereign immunity will create leverage relationships. It will change the power dynamic between tribes and the state. The tribes' leverage will dramatically decrease, the state's leverage will dramatically increase and this will impact gaming compact negotiations, negotiations or cases related to tax, tobacco, gasoline, sales, use and income, payday lending, gaming, and other cross-governmental relationships that tribes have with states where sovereign immunity is one of the elements in the leverage matrix between the negotiating parties. If it's eliminated, the leverage matrix is gone, and the balance of power tips in favor of the state dramatically.

So what do you do to get ready? Well, you draft statutes mainly. You draft tribal statutes and those tribal statutes would get to that state before the Supreme Court says that new world of Indian law exists and those tribal statutes would waive immunity for contracts towards and like I said earlier limit the scope of the remedy. Those statutes already exist. Some tribes, the tribe I work for, Grand Traverse Band, has already done that. It has...not because of these cases, but because of other relations, we have a general contract waiver statute, we have a waiver of immunity for tort cases, but we limit the scope of the remedy to expectancy damages on contracts, we eliminate consequential damages, under tort we provide for compensation and for pain and suffering at 1.5 of the actual physical damages that the individual suffered on the tort. So there is a remedy there and what is more important, that remedy is subject to a determination by an actuarial entity, an insurance agent, to measure the scope of the risk so we can buy insurance to cover the scope of that risk. And in our experience, doing that actually lowered our insurance premiums because the scope of the risk was known rather than in a situation where you say, ‘We're going to depend on immunity,' and the insurance was high because the level of the risk was unknown. But I would urge tribes to write statutes that essentially waive immunity and then implement their own tribal remedies for that subject area.

The other area that will be subject to attack is trust funds that various tribes have and the thing that tribes would need to do is basically hire a great trust attorney. You're never going to get at Caroline Kennedy's trust account if you're a creditor of Caroline Kennedy because she has a great trust account with great trust protections. So you need to rewrite trust language to protect the trust accounts of the tribe, which can be done.

Okay, the last -- complete elimination of sovereign immunity of all activities based on federal common law and the courts warrant a judicial power and eliminates common law, create a doctrine sovereign immunity for all on- and off-reservation, all commercial, all governmental activities. Those, in a thumbnail, I hope, is the case. Do you have any questions?"

Audience member:

"What are the chances that you'll have a split on any of these issues, that you won't actually come down with an opinion?"

John Petoskey:

"I think it's minimal. It's very minimal. Four people have already opined where they're at and it's Roberts has not written in support of Indian tribes of the 10 decisions, and so if you just count heads and count votes that's five."

Robert Hershey:

"Hi. Welcome. I'm sorry I came in late. I was in another meeting. If you go back to the opinion in Kiowa, you'll see that the court's displeasure of that on the doctrine of sovereign immunity. It was a 6-3 decision, but even though the people voted to sustain the doctrine, they expressed great doubts about it."

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

"Yeah, Kennedy did. So I think it would be...I think something is going to happen here for sure. The ICRA [Indian Civil Rights Act] action, the ICRA says that no government in the exercise of its power shall do something. So it doesn't apply to actions against individuals in court, and that's how I can see why maybe they want to go ahead and have some sort of cause of action against individuals, but then you have some problems. You have the legislative immunity of the legislature and the tribal councils doing that. And you also have another interesting twist too is that a number of tribes have put the ICRA into their constitutions. So it's not just a federal statute, but it's a tribal constitutional right. So I think this is a significant case like you said."

John Petoskey:

"Yeah, I agree with you. There is still legislative immunity that you would argue, but most 1983 actions are against executive action implementing some legislation. And all I'm saying is that there's going to be a tribal law 1983 jurisprudence developed if the sovereign immunity is done away with."

Robert Hershey:

"I think so. So you're advocating like a tribal tort claims act."

John Petoskey:

"Right, a tribal tort claims act because if it's going to happen by judicial common law, the only way you can control that is by tribal statutory law which limits the scope of the remedy. Otherwise you have somebody filing a case seeking a multimillion dollar judgment for an executive action. In the absence of a statute that limits it, there's a stronger argument that it should go to judgment and you can't retroactively legislate once the cat's out of the bag."

Robert Hershey:

"Right. One more little point then. So if sovereign immunity is a judicially created common law doctrine, then what does this do to the immunity of the United States? Do you think the United States is covered because it has a federal tortclaims act?"

John Petoskey:

"Oh, yes. The United States is covered because of the federal tort claims act. There are interesting doctrinal issues in sovereign immunity that relate to, and I tell the story and I hope you wouldn't mind me saying this, but I'll tell the story in the relationship of Ed DuMont. Ed DuMont was an Assistant Solicitor General. He works for WilmerHale, which is part of the Supreme Court bar. One of the sad things that has developed over Indian law in the last 20 years is that there was a cadre of about 15 Indian lawyers that were Indians that actually had argued in the Supreme Court over the last 40 years, and they had actually made presentations to the Supreme Court on a wide variety of cases.

Now the Supreme Court Bar is controlled by professional litigants who are very good and they typically come out of the Solicitor General's office and then go into Supreme Court practice as their specialized area of practice. Ed DuMont is one of those individuals. He's a nice guy. He's a great guy in fact, very personable, very bright. He did the Seminole case on behalf of the United States as the Solicitor General arguing that Congress had the authority to abrogate the immunity of the State of Florida and that was held not to be valid, that the 11th Amendment was stronger than basically the Indian Commerce Clause and that Congress didn't have the authority to override the 11th Amendment and the remedy of suing the state in the Indian Gaming Regulatory Act was found to be unconstitutional. Ed DuMont also argued the Kiowa case and that was -- Seminole was 1996, Kiowa was 1998 -- and he argued on behalf of the United States for sovereign immunity in the Kiowa case. Now Ed DuMont is arguing on behalf of Saulte St. Marie in a case that Michigan has filed against Saulte St. Marie, which is the parallel case to the Bay Mills case of whether or not restricted fee lands can be created by the Michigan Indian Land Claims Settlement Act.

So just in that one person, you have a person that has taken all of the various positions in sovereign immunity litigation and jurisprudence and going forward in different capacities. I'm not saying that as a criticism. I'm just saying that as a compliment because it gets very complex. It gets very complex to argue sovereign immunity cases when you're arguing Supreme Court cases for states, when you're arguing it for the tribes, and when you're arguing it for the state. And from the import of your question, you're trying to connect, ‘if they do this to the tribes what implication is that going to have for the states?' And I'm certain there are implications, but you would need somebody like Ed DuMont, who has been on both sides of that question to answer something like that."

Ian Record:

"I had one follow-up question in terms of this category of how tribes should consider responding. You talked a lot about creating laws and statutes and so forth to sort of get ahead of the game on this and sort of do a lot of the legal infrastructure development work that Grand Traverse has already done. But if any one of these say higher-scale horrors takes place, wouldn't it also behoove tribes to seriously consider a dramatic investment, increasing their investment in their justice systems because you can imagine for instance if a lot of these ICRA cases..."

John Petoskey:

"Oh, yes."

Ian Record:

"...would be heard in tribal court, it's sort of one thing to, as you well know, it's sort of one thing to write the law and ratify it, and quite another actually to live it and enforce it. And that's...you can see a ripple effect in the entire justice system, wouldn't you?"

John Petoskey:

"I agree. It's an unintended consequence. I don't know if it was intended or unintended, but one consequence would be these 1983 tribal court causes of actions that may be resurrected that were in existence from '68 to '78 that went out of existence with Santa Clara. And if Santa Clara is overruled, then obviously tribal citizens and non-citizens would argue that the overruling of Santa Clara brings back these implied cause of actions in the Indian Civil Rights Act, which are essentially Bill of Rights-causes of actions against executive actions by the tribal executive department."

Audience member:

"So does that mean you predict the extinction of qualified immunity in all of those other forms of immunity, this could be like a floodgates argument where you..."

John Petoskey:

"Yes, it is a floodgates argument, but as the person in the back said, there's still a lot of other types of immunity. There's legislative immunity, but the jurisprudence that developed from '68 to '78 was stopping executive action by tribal council officers or departments where people alleged that the action was in violation of their civil rights. It's a basic 1983 action."

Robert Hershey:

"Or a Bivens."

John Petoskey:

"Yeah, a Bivens, yeah, more like Bivens, unknown agents, yeah."

Ian Record:

"Any other questions for John?"

Raymond Austin:

"One question is where would these actions be filed? Would they be filed in federal courts or would they be filed in the tribal courts? For example, if the Supreme Court waives tribal sovereign immunity in this case, then 1968 Indian Civil Rights Act...if it goes back to implied cause of action as you say, then where will these actions go? Would it go to federal court or would it go to the tribal courts?"

John Petoskey:

"I would say National Farmers controls, the exhaustion of tribal remedies first and if you have remedies that are there, you've got a stronger argument too. Exhaustion of tribal remedies is federal common law and that's I would argue and have argued that exhaustion of tribal remedies is something that cannot be waived by the courts or the parties and that the parties are mandated to exhaust the tribal remedies prior to going to tribal court."

Robert Hershey:

"And then you would have a Bivens-type action in federal court as opposed to an RCRA action, but you still have habeas ..."

John Petoskey:

"Right. So initially I would say tribal court under National Farmers, of exhaustion of tribal court remedies. Remedies are available there. The tribe enacted an ordinance where it had a tribal torte claims act or a tribal civil torte claims act similar to 1983 empowering remedies for breach of civil rights of tribal members but my advice is that the remedies are limited to prospective relief or injunctive relief and not limited to... and monetary damages are excluded. And most courts, whether they're state, tribal or federal recognize that standard because it protects the public treasury of the government, while providing a remedy to the litigant."

Ian Record:

"Well, thank you everybody for coming. And as I mentioned, this will be online sooner rather than later, we hope. We also are working, Ryan and myself and John in consultation with some others that are closely following this case to try to essentially turn what John has shared with you today into some sort of written output that we can share with the public. And we're not sure exactly where and when, but given the urgency of this case, we hope to get something out to the public pretty soon. So we'll keep everybody posted on that. So thank you, John."

John Petoskey:

"Thank you." 

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

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

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

"I wasn't alive then."

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

"It's a philosophical..."

Joseph Flies Away:

"It's a more..."

Ian Record:

"...Mindset change."

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

"Transparency in how, what do you mean?"

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

"Exactly."

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

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

Ian Record:

"Horizontal."

Joseph Flies-Away:

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

Ian Record:

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

Joseph Flies-Away:

"You're welcome."

Suzan Shown Harjo: Five Decades of Fighting for Tribal Sovereignty and Self-Determination

Producer
Native Nations Institute
Year

In this wide-ranging interview, longtime Native American rights advocate Suzan Harjo discusses her involvement in the development and ratification of the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation Act, and the legislation creating the National Museum of the American Indian. She also offers her definition of sovereignty, and paints a vivid historical picture of the forces at work that led to the passage of Indian Self-Determination and Education Assistance Act in 1975.

Native Nations
Resource Type
Citation

Harjo, Suzan Shown. "Five Decades of Fighting for Tribal Sovereignty and Self-Determination." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 11, 2008. Interview.

Ian Record:

"Welcome to Leading Native Nations. I’m your host Ian Record. On today’s program, we welcome Suzan Harjo. Suzan Harjo is a woman of many talents. Not only is she the President and Executive Director of the Morning Star Institute, which is a national Native rights organization founded in 1984 for Native people’s traditional and cultural advocacy, arts promotion and research, but she’s also a poet, writer, lecturer and curator. So welcome here to Tucson, Suzan. Why don’t you begin by telling us a little bit about yourself."

Suzan Harjo:

"Okay. Well, I’m Cheyenne and Hodulgee Muscogee. My mother was Cheyenne and my father was Muscogee Creek and I was raised culturally in both ways in Oklahoma. And I’m a writer and that took me to New York City and it took me to Washington, D.C. and a lot of what I write is federal Indian law. So I’ve developed the line of cultural rights for Native people for a long time from the American Indian Religious Freedom Act to the follow on legislation of repatriation and I was part of the coalition in 1967 after our ceremonies at Bear Butte in South Dakota that began work that led to museum reform to the National Museum of the American Indian to repatriation law and to the Religious Freedom set of laws and policies."

Ian Record:

"Well, great. And we’re going to talk about a lot of those policies that you’ve been involved in firsthand, but first I wanted to start at the basic level essentially and discuss sovereignty. And what I wanted to ask you is the word sovereignty means a lot of different things to different people. It’s a word when you’re working on the ground in Indian Country you hear tossed around all the time and that means a lot of different things to a lot of different people. And I was wondering if you could just talk to us and tell us how you define sovereignty for Native nations."

Suzan Harjo:

"Well, the reason you hear so many definitions is first of all we think it’s an Indian word and we don’t think it means jurisdiction and who controls the king’s animals and that sort of concept of sovereignty that comes from Europe. Sovereignty is the act of sovereignty. We as Native nations are inherently sovereign and whatever we do to act sovereign is the definition of sovereignty."

Ian Record:

"It was interesting, I was actually in a panel presentation yesterday in Denver with David Lester, who’s the Executive Director of the Council of Energy Resource Tribes and he was discussing this exact question that 'sovereignty' inherently is a western term. It’s a colonizer’s term. And he defined sovereignty as, ‘it’s our right to be who the Creator intended us to be,’ and he said it’s really no more than that. And then he went on to talk about things like economic development, for instance, is just one of many ways that we work to become the people that the Creator intended us to be. I hear that same sort of refrain in your answer."

Suzan Harjo:

"Well, when something’s inherent, it’s inherent. You are who you are from the inside out and it’s not something that’s over layered either in law or in policy and it’s not something that the Europeans brought from Europe. It is your language. Speaking your language is an act of sovereignty. Reclaiming your language is an act of sovereignty. So the way it’s used by many people is simply as jurisdiction or simply as gaming operations and that’s so limiting. That’s really myopic, but for some Native nations that’s all they have. They don’t have their language anymore or they don’t have other vestiges of sovereignty but we have those things that define us. We have our rights of selecting citizens, setting citizenship criteria, saying who we are and who we aren’t, who is not part of us. That is an act of sovereignty. Citizenship is an act of sovereignty. We’re not, where I think we’re kind of falling down is that a lot of our people are not respecting our Native nations, but that’s something that has been taught to us and laid on us by federal and state government and private people who have, teachers and others in public schools who for so many decades and generations disrespected our elders, disrespected our traditions, disrespected our languages, disrespected our children, on and on and on and said that we were nothing, we were dead, gone, buried, forgotten at the end of the 1800s. So it is no surprise that a lot of our people do not have a strong sense of civics about our own nationhood and our own sovereignty and our own personhood. We have to get through a lot of self-hatred, a lot of this internalized oppression. These are more than buzz phrases. This happened to us. When the federal government issued civilization regulations in the mid-1880s that outlawed the Sun Dance and all other so-called ceremonies, that outlawed Indian languages, that outlawed the so-called practices of a medicine man and characterized all that was traditional and fine and good as heathen and pagan and hostile and improper and illegal for which the people were punished mightily, some of them unto death. That was interference and suppression, social suppression, national suppression, tribal suppression, personal suppression, religious suppression of a high and low order for 50 years. They were not lifted until the 1930s. So when you have that kind of generational oppression, it doesn’t go away in one generation or two generations and still today, the question I’m asked most often when I work with different nations to undertake enterprises, things that are acts of sovereignty, the first thing I’m asked is, ‘Will this make them mad?’ Hey, well, and what are they going to do, take away the Western hemisphere? I hope it makes them mad. So sovereignty is the act of sovereignty. It’s whatever people do with their inherent powers."

Ian Record:

"Well, thank you for that answer. I wanted to move on now to again some of these monumental policy initiatives and changes in Washington that you’ve been a direct part of. As you know, since the 1960s and certainly the 1970s Native nations have aggressively moved to strengthen and expand their exercise of sovereignty. Can you describe this process from your point of view and your direct experience with that?"

Suzan Harjo:

"Well, I reject the premise of the question. Native nations have moved aggressively to exercise sovereignty since coming into contact with the White man. There’s no beginning in the ‘60s or beginning in the ‘70s, so I reject the premise of the question. Native nations throughout the 1900s in the Pacific Northwest, for example, were moving aggressively to carry out their treaty fishing rights and treaty hunting rights and treaty gathering rights and they were stopped continually by federal and state people who denied that there were treaty rights, denied their part of the treaty in upholding the fishing rights of the people. So much so that in the ‘70s when the treaty fishing rights case that’s called the Boldt Decision finally went to the Supreme Court and was decided in 1979, the Supreme Court in effect said, ‘This case has been before us five times this century. We don’t want to see it again.’ They had consistently ruled that the Indians were right. They had consistently upheld the treaties. So what you are asking is when America started paying attention to Indian rights, when the general public started saying, ‘Oh, maybe the Indians aren’t all dead.’ That’s not the same as Native nations vigorously pursuing and aggressively pursuing sovereign powers and sovereign rights. Native nations all over the country were trying to do what it was we were entitled to do through the orderly processes of our nations and the United States in our nation to nation relationship, which is now sometimes diminished and called a 'government-to-government' relationship, but that really is lowering the bar. So I would submit that our nations never stopped being who we are and we often were not heard or our efforts were thwarted. And why? Because one side had superior weaponry. We don’t have the nuclear bomb so of course we’re going to lose some contests. But did we roll over and play dead? No. And I don’t think that there has been a more vigorous or a less vigorous assertion of sovereignty or sovereign rights since, well, at anytime. I don’t think there’s been an ebb and flow. I think that’s a fiction."

Ian Record:

"Well, with respect to your involvement, I believe you’ve been in D.C. fighting these battles since the ‘60s and I was wondering if you could just talk about your experience there and I think in particular with respect to the Indian Self-Determination and Education Assistance Act of 1975. That didn’t happen overnight. That was the fruition of many years of hard fought battles and can you talk about those battles and how, essentially what was going on throughout the country manifested itself in this major policy shift in Washington?"

Suzan Harjo:

"Well, I didn’t get to Washington until the end of 1974, but I was outside of Washington watching the process, observing how things are done in Washington and as a journalist in part and as a radio producer in part and as a part of Native delegations to Washington. So I understood how things worked, but I was an outside person when we developed the ideas, when we envisioned the National Museum of the American Indian I was not in Washington. That was a result of our elders saying, ‘After ceremonies, don’t go away...,’ in June of ‘67, ‘...stay for meetings and let’s figure out how to do these things.’ And we came up with a whole agenda of how to gain more respect in American society and in how to elevate our status and get mummies out of, off display and that sort of thing. It was a whole agenda of respect. Now at that same time, a lot of Native people were doing other kinds of things that were developing economic development or other kinds of work in other areas and our common problem was in the way that Indian affairs were ignored in Washington, D.C. except by the Bureau of Indian Affairs and then they were controlled by the Bureau of Indian Affairs. That common realization by young people, older people, elders and people who were in tribal leadership position, people who were religious leaders and people who were, as I was at the time, a practitioner of traditional religion. We all came to the same realizations that something had to be done with the Bureau of Indian Affairs. Everyone having that realization led to an effort for Native nations to gain more control and for the BIA to have less control because in the ‘70s when we started going to...I first went to Washington in the early ‘70s, early ‘60s with my tribal delegation. They selected me and a boy when we -- Cheyenne boy and me -- when we were seniors in high school in Oklahoma City and they took us to Washington with them. And we were supposed to, it was the custom, stop by the Bureau of Indian Affairs and let them know where we planned to go. And so our act of resistance was that our business committee, our tribal leaders didn’t stop by the Bureau of Indian Affairs and we were followed around town by them as we went to the Justice Department, as we met with people on Capitol Hill and the Bureau of Indian Affairs agents would be short, right behind us and it was, and they were upset that we didn’t stop and talk with them and tell them where we were going so they had to follow us. That was their duty, that was their mission. So that’s the kind of thing that people were experiencing. The Bureau of Indian Affairs people really thought they controlled Indian tribes. So out of that, now it could have taken many forms. People really liked the title rather than the law itself, 'self-determination,' because it sounded good but a lot of people talked about it as self termination as well and weren’t quite sure that, there were some people who were very invested in the Bureau of Indian Affairs and having a strong federal agency presence because they had lived through termination and the severing of the federal tribal relationship so they wanted something that was solid and strong in Washington to act as an advocate for Indian people. For the most part though, it was not being an advocate for Indian people and the Indian Health Service was also perceived as something that wasn’t doing the job that it should do and there were so many people dying of the flu and colds and pneumonia in Indian Country, not to mention tuberculosis and the other far more serious in general society problems, but it was the common stuff that was taking its toll in Indian Country. So you had people in poverty, ill health, ill housed and the worst, the worst of the worst on the demographic ladder, Indians were always at the bottom of everything, the lowest employment. Anyway you could measure how a society was doing or how a people were doing, we were the worst. We were doing the worst. And so everyone understood that something had to be done to get more power to the tribes and to have more of the functions of the BIA -- that is money, that really translates into money -- transferred to the Indian tribes and that’s what was so important about the Indian Self Determination Act, not that it was a great law. You read it and say, ‘This is not much,’ but it was something and it was the answer to the anger that was building by everyone. Everyone was very upset, very angry and you had people in the Pacific Northwest being maimed and imprisoned for fishing under laws signed by the United States and treaties signed by their nation and the United States nation. 'How dare they do those things!' And so the outrage was very high and that was just a tiny escape valve for the federal government and good that it happened and it began, or helped, it helped further a trend that had begun under the [Lyndon B.] Johnson Administration where the Johnson Administration had tried to put a lot of social programs in the hands of tribes and make more social programs and more programs of general applicability available to the people, to the Indian people. And self determination under [Richard] Nixon/[Gerald] Ford, first the Nixon message and then the Ford law, was a furtherance of what the Johnson Administration had tried to do to get away from termination and get more money and power and programs in the hands of the people, just more local government. So that’s what that was all about. The Nixon 'Self-Determination' message, I remember Ramona Bennett who was the Chairwoman of the Puyallup Tribe in Washington State, coming to Washington and she said, ‘I came to Washington and everywhere I went the BIA, everywhere on Capitol Hill they handed me a copy of Richard Nixon’s 'Self-Determination' message. So I read it and read it and read it on the plane on the way home and got off the plane and we took over Cushman Hospital.’ And I thought that was just a marvelous example of what it set in motion. It did set in motion the self-determining of Native people that went beyond any sort of contracting law. It was sort of like your initial question about sovereignty. What is self determination? Doing what you, in their case, the tribe needed to take over Cushman Hospital and they did. And it was just funny that it was as a result of Richard Nixon’s statement on self-determination."

Ian Record:

"Yeah, that’s interesting you mentioned that example and also your characterization of the Self-Determination Act as a tiny escape valve, at least as far as the federal government conceded it because in the research of the Native Nations Institute and the Harvard Project, what we’ve seen is a growing number of native nations beginning in the ‘70s and particularly since that time have driven essentially a Mack truck through that tiny escape valve and aggressively pursued self determination to a far greater scope than the federal government I think ever conceived through this law."

Suzan Harjo:

"Well, yes. I was in part, I was one of the people that helped interpret the Self Determination-Act when I first worked for the National Congress of American Indians and we did a lot of testifying on Capitol Hill in ‘75, and ‘75 about the meaning of the Self-Determination Act, who could do what with it, what it meant and how it could be used to benefit the Native people. And so we did look for every opportunity in the Act and if the Act was silent on something, we assumed we could do it because it didn’t say no. And that was a unique way of interpreting federal Indian law. It had been interpreted in the opposite direction by the Bureau of Indian Affairs for a very long time that if something didn’t say explicitly that you could do something then the answer was no, you couldn’t do it. So we flipped that and started saying, if it doesn’t have an express prohibition against doing it, then do it, just don’t ask permission, just do it."

Ian Record:

"Just do it, the Nike slogan."

Suzan Harjo:

"Yeah."

Ian Record:

"As you know, a lot of the research of the Native Nations Institute and the Harvard Project dating back to the mid- to late 1980s -- so you’re looking at essentially a decade after this Act was passed -- has focused on why some nations have been more successful than others in pursuing their goals of self determination, whatever those goals might be. They might be economic, they might be cultural, they might be social, etc. From your perspective, do you see any common factors that perhaps empower some tribes to be more successful in that regard and perhaps some factors on the flip side that perhaps get in the way of other tribes from moving forward and pursuing their goals and achieving their goals?"

Suzan Harjo:

"Well, before Jack Abramoff, it was customary for the community of Native nations to come together for the common good and develop programs or general laws in a way that could be useful, beneficial for all Native peoples. What the Abramoff scandal brought to light was that there were Native peoples who were just behaving like any corporation and trying to get the edge over any other corporation and when I ran the National Congress of American Indians during the ‘80s, that was never ever the custom or the practice. So up until the late ‘80s, until we got the gaming law, everyone was supporting everyone else so it was a, you came together for mutual support and if one group, if one intertribal organization wanted to do something, everyone would support them in that effort or just stand back, certainly not oppose them. So this idea of just one-upsmanship and edging out another Native nation for profit, for personal profit I think is a sad turn of events in our national Native efforts, and there’s just no accounting for greed and we have very greedy people among us. We have a lot of greedy white people among us, a lot of greedy other kinds of people, and we have our own homegrown greedy people. So what accounts for the success of one nation and not success of another? In part that kind of greed, an overload of greed on the part of a successful nation willing to undercut, keep down another Native nation. I think that’s what was brought to light by the Abramoff scandal and what a lot of our leadership hasn’t owned up to and are still some of them covering up and that’s unfortunate. So the specific success by one nation as opposed to another may be as a result of dirty tricks and undermining and throwing a lot of money to see that the other nation is not successful. That has translated into other kinds of rights in other parts of the country and you see a lot of ugliness one nation to another and that’s where it’s backfiring for a lot of people and the leaders who let Jack Abramoff have his way or who encouraged him or hired him because they wanted a pit bull are being turned out by the people because they’re saying, ‘At home we don’t want to be this kind of person. We don’t want to be this kind of nation. We don’t want to have this kind of Native tribal character. That’s not who we are.’ And I think that’s really good. So we had to have a kind of pot boiler to make people decide. Now some are just saying, ‘Heck, yeah, we want that. We want to be the richest ones. We want to be the most cutthroat. We want to be the meanest ones.’ So it’s in a way like everything else, it all comes down to people and it all comes down to leadership and the people having the kind of leaders that they want to have, putting in office the kind of people they want to represent them. Now it doesn’t mean that they wanted the Jack Abramoff clones or payers or dupes. It does mean though that when all of that was done with and they assessed what had happened, they took a sharp turn in the opposite direction, whatever the opposite direction was and that’s still sorting itself out. We’ve been impoverished for a long time and we’ve only been comfortable...some Native nations have been comfortable, some are mega rich, only a handful, some are comfortable and some are still way in the depths of poverty. So we have to figure out what’s keeping the people in the depths of poverty. If it’s not other Native nations doing that and keeping them down, is it the federal government keeping them down? There are still people in the federal bureaucracy who are dying to get control of Indian tribes again and some of them are doing it through the kind of carrot and stick flattery. You see many, I’ve been in Washington a long time and I see people, delegations come in and they do cow tow to the very, to federal bureaucrats and they do sell out very, for a photo op and they don’t insist on substance. Not everyone. I’m talking about just a small number of people who do this. The most successful of the tribal leaders will not do the photo op unless they have something to back it up with, unless they’ve gotten something for the people, unless they have some sort of really clear promise or a negotiated agreement or a law or they, it’s not just, ‘How nice can we be to the white people?’ but some people still have that orientation and a lot of people in Washington exploit that because there are still people who are on the payroll or on the side of for other non-monetary reasons the people who are trying to exploit our resources and the people who are trying to keep us from not just making money on things, but having them altogether. So there are still people who are trying to take our gathering places, who are certainly trying to keep control of our sacred places. That has not stopped and there is a predictable backlash against any Native people that exercise sovereignty in any area, whether it’s water rights or gaming operations, whether it’s being too cultural. People get jealous of that and [say], ‘Give me some of that medicine.’ No matter what it is that is being exercised in a way that can be commodified, there are people who try to gain a share of that commodified entity or they try to take it away from Native people altogether and that’s still going on. There are still organized networks of people who call themselves in organizations 'anti-Indian' or 'equal rights' -- 'equal rights' is buzz word for no treaties, no special Indian rights. And this issue has been taken to the Supreme Court a lot and the Supreme Court always answers the same thing, ‘Special rights of Indians don’t interfere with the constitutional rights of non-Indians, so shut up.’ I mean, that’s what is supposed to happen, but that keeps going on. And in every way that Native nations raise a resource right or commit an act of sovereignty, there are non-Indian people who are there saying, ‘Either give me some or you don’t get to do that anymore.’ And why? Part of it is racism and an ancient fear that once in control of anything, Native people will be as bad to the non-Indians as the non-Indians have been to us. That is not our history. That is not our history. Whether you look at the Maine Indian land claim settlement of the claim to two-thirds of the state in a settlement for 300,000 acres of land, that was an act of compassion on the part of the Passamaquoddys and Penobscots in not suing every citizen in the claim area. That was an act of compassion because they said, ‘We don’t want to scare people the way our people have been scared.’ I thought that was so admirable of them and so they wanted their lawsuit held in abeyance pending the outcome of talks. They said, ‘Just talk to us.’ They didn’t want to go through an entire litigation process and hurt the people in that claim area. I thought that was extraordinary."

Ian Record:

"You mentioned sacred places, which is a good segue into my next question. As you mentioned, you were directly involved in the creation and the passage of the American Indian Religious Freedom Act. Can you just describe what...how that act came about and really what was the impetus behind it and perhaps your perspective on its impact 30 years later?"

Suzan Harjo:

"Well, I keep referencing this 1967 meeting, which was the nucleus of a coalition that became a national coalition for cultural rights and we had a second meeting, because we were mostly -- although there were people from other nations there at that ‘67 meeting in June -- we were mostly Cheyennes, Arapahoes and Lakotas, your basic Little Big Horn coalition. And we talked about a lot of things and realized that the Lakotas had different issues than the Cheyennes, even though we have so much in common, that there were slightly different things, slightly different experiences, different religions, different things that we had to do that we were being prevented from doing. So everyone had the ‘no trespassing’ signs in commons, the ‘no Indians and dogs allowed’ signs in common. We all had that in common, but what we realized was we needed to know more in order to do something that would help everyone and that was our goal was to help everyone. And it really was a, there was an emphasis on freedom. So we, and I can’t emphasize enough that we were still criminalized even though the civilization regulations had been lifted 30 years earlier, we were still criminalized when we practiced our religions and we were demonized by a lot of Native people too who had bought the whole bill of goods and who called us pagans and that sort of thing in resolutions and in letters to the BIA. So we realized that we had to do a lot of things to help ourselves and to help other people so, anytime that we tried to get to a sacred place that had been confiscated and turned into the public domain, we had to go through private property, federal property, sometimes state property and everywhere were these ‘keep out’ signs and ‘no trespassing’ signs and we were literally in order to continue a pilgrimage lifting barbed wire to get to these places. We still do that today in some places, so it’s not over, it’s not ended. So we wanted to see beyond that and make sure that in making ourselves free from a lot of these constraints that we weren’t imperiling anyone else. So kind of put out the word to different parts of the country what we were doing, what we were trying to do and that we wanted museum reform, we wanted a national cultural center, that’s what we called the museum facing the capitol and so the capitol, the people who were making laws about us would have to look us in the face. And we wanted something where people weren’t confiscated eagle feathers from us and we wanted the ‘no trespassing’ signs gone. So we got an invitation from Governor Robert Lewis to go to Zuni and so we went there, a pretty big delegation, and he had invited some other people and we had a similar set of meetings for a week and discussed what they needed and what they were afraid of and what they were confronted with and so that became, we were building a door like this and then it became a wider door, kind of a taller door. Everywhere we would go there would be another kind of issue that people wanted to be a part of this thing. So while we were building a door to get everyone through, we ended up with something that was very oddly configured and you can say the same sort of thing about all of these laws in the cultural rights realm, repatriation certainly is a good example of that, and the reason it doesn’t, these don’t look like other laws is because so many different cultures and so many different ways of dealing with issues had to be accommodated. And I do mean had to be. I mean, that was a real mission that everyone felt was we needed to be absolutely inclusive and to not have language that would restrict other people. So we just continued lots and lots of meetings like this, lots of gatherings, hundreds. We had hundreds of meetings of this kind, some later at Native American Rights Fund, some out in the open where everyone would camp, some at hotels in conjunction with Affiliated Tribes of Northwest Indians or National Congress of American Indians, and it was a very important movement that took hold in Washington and a lot of people were responsive. And the first two people I went to were Senator Barry Goldwater in this state and Senator Ted Kennedy because they were the most conservative and most liberal and then all you do is fill in the blanks in between. And both of them were so receptive and that’s when we really knew that we were going to prevail on a national Indian cultural rights agenda was when we were able to get really broad sponsorship and then in the House another person from Arizona, Congressman Morris Udall, was our champion there. So that, and if you look at the Religious Freedom Act and you look at the report of the president pursuant to the Religious Freedom Act, it was done after a year’s implementation. After a year’s implementation of 50 agencies' review of their rules and regulations in the context of Indian religious freedom, you see that it covers a lot of areas, it covers museum reform, sacred objects, sacred places. It’s quite a broad set of policies and the overall, overarching policy statement is to preserve and protect Native religious religions and practitioners of those religions. That was huge because it, the only, it had been the policy of the United States to destroy them. So that’s why we had to have an Indian religious act and why we had to have repatriation and the like, all the follow on legislation because this was a policy statement and then you go from there to make something that is specific to a topic. So that’s sort of how we got from the ‘67 meeting to just lots and lots of, they weren’t hearings, they were gatherings where we exchanged information and there was a lot of traditional knowledge sharing and learning that we were all doing. We all came away with in effect Ph.D.s in comparative religion. It was quite the thing. And I am so privileged to have been a part of that and to have been educated by so many extraordinary people. So that period was just an amazing thing. It was an, talk about an exercise of sovereignty. This was the people rising up and saying, ‘This is what we want and need and we need it to look like this.’ And that’s what repatriation was. We continued that same process from ‘78 when we did the Religious Freedom Act to ‘89 when we finally got the Indian museum and the historic repatriation provision agreement with the Smithsonian. And after that it took only 11 months to get it applied to the rest of the United States, to every other federal agency, educational institution and museum that was, that had any sort of federal tie. And that’s a pretty remarkable thing. And we literally got everything that we wanted and a process to try to do something about the things that were causing people so many nightmares. In part, our elders in ‘67 called us together because so many people were having nightmares about people who were held in these places and things that were held, our living beings, our sacred objects, that were being held in these places and they were describing them as prisoners of war. And at that point, we didn’t know exactly how it had happened, but by the ‘80s we had found the documentation to support what our oral history told us about beheadings. We knew there had to be a policy and a program to behead us and just because it was in everyone’s oral history, but we didn’t find until the ‘80s the information about the Indian crania study of the U.S. Army Surgeon General and we didn’t know until I started having negotiating sessions at the Smithsonian with Bob Adams, who was Secretary of the Smithsonian, that they had in fact 18,500 human remains, 4,500 skulls from the Indian crania study. We knew all of that from our own history, but we didn’t know how it was done until we found the paper, and thank goodness for the Magna Carta culture.

Ian Record:

"I wanted to follow up on the American Indian Religious Freedom Act and also NAGPRA, Native American Graves Protection and Repatriation Act, and just get your sense, now that there’s been obviously 30 years since AIRFA, moving on 20 years, I believe, since NAGPRA. How have those two acts worked out in practice? Are they achieving the goals that those folks that you were initially working with had set out?"

Suzan Harjo:

"Well, AIRFA is a policy statement, so it is what it is and we expected to gain more follow-on legislation from it than we have. So our big failing would be in sacred places protection and what we need are legal protections for sacred places and what we’ve been doing is cobbling together protections made of all sorts of other laws and processes and then some outright buying of areas of sacred places. We can’t obviously buy everything and some things were taken from the Indian people and we were confined to reservations and not allowed by the civilization regulations to roam off the reservation. That was an act that was unlawful, to roam off the reservation and for all of these sacred places that were off reservation, they were attempting to stop the relationship between the place and the people going there to pray. So a lot of people went there anyway of course, but had to do it underground and had to, had to make themselves criminals and hostiles and fomenters of decent and all of that and risk imprisonment, withdrawal of rations, starvation and any open-ended sentence that an Indian agent might apply in his discretion. So these places, none of these places were taken properly. They were all stolen. These were our usual and accustomed places, these were places that it didn’t occur to our ancestors that we wouldn’t be able to go there. Yet we were stopped. It didn’t occur to them that someone would take them and say, ‘Now these are ours, not yours.’ But that’s what happened. So we haven’t fulfilled the hope that we had of securing legal protections of a general nature, of a national nature for these important places to all our peoples. As far as repatriation, that is a good example of what was supposed to happen. We did do follow-on legislation. We were able to get it and I think we were able to get it because we were able to find so much of the documentation that was about an area of American life that most people on Capitol Hill had no idea existed and they would say, ‘You’re kidding. This is what the United States did? How is this possible?’ And there it was in black and white, there it was in green boxes in museums. So we had a good case, we made a good case for repatriation and I think, and we set up three processes, two laws and one process at NMAI and they were all slightly different, they had slightly different standards, the legal standard, the test under the two laws, one for the Smithsonian and one for everyone else, was or is preponderance of the evidence, which is 5941. In the NMAI [National Museum of the American Indian] trustees repatriation policy that governs NMAI, we made that a reasonable belief standard to see if that would be different in its implementation from preponderance of the evidence, reasonable belief not quite requiring a majority of belief, however you quantify these things. And it hasn’t made all that much difference, I don’t think, proving to me at least the point that everything comes down to people. It matters who’s in the delegation on the tribal side, it matters who’s in the repository receiving side and when the people get together what is their interaction and what are their motives and are they really concentrated on the good of the Indian people, the public good for education. Are they truly concentrated on these things or is it about people looking at us as if we’re the butterfly collection or our people, our ancestors as if they’re the butterflies that are pinned down. That’s a different way of looking at the world and that’s not the kind of world that we made with the repatriation laws. We made something that was interactive, that would bring together the peoples who cared most about the subject and that it was supposed to be for the good. I think that they’ve accomplished that and they’re not finished and it’s a long process. It’s a long process because Native people, it’s not a simple matter to repatriate. No one has the ceremony for what you do when people come and dig up your grave and take your great grandma or your grandma to Washington or to University of Arizona or UCLA or the Colorado Historical Society. There’s no ceremony for that except for those who have it now. So everyone, and you don’t just invent ceremony all of a sudden. You have to say, ‘Is this like anything else? What happened when there was a flood and bodies floated up, what happened? Ah, we did this, we did that.’ So people have to think of other things that it’s most like and find a way to discuss it in a way that’s not just ripping the scab off everything that’s happened in the whole of the 500 years and find a way to discuss it in a way that everyone can be put back together again. So that’s a lot and that requires a lot. Repatriation has placed a tremendous burden on Native nations, which is usually discussed as a paperwork burden. Say, ‘Wow, we’ve got a mountain of paper.’ It’s put a tremendous burden on everyone, but when it’s done best, it’s a tremendous learning process because people, well, like the teachers say, everything is a teaching opportunity. This is a teaching and learning opportunity for everyone. It’s a way of talking to the artist in the community. We want our cultural patrimony back so you see these designs. We want our people back so people can stop having nightmares about them and we put them to rest finally. So it’s a small measure of justice in a very unjust history and an unjust world. The really smart thing we did in repatriation law in both the ‘89 and the ‘90 law and in the NMAI trustees policy was to leave the implementation of the law up to the people doing the repatriations themselves. And that was, well, we had two choices. We could have guessed and we would never have guessed right, never. There are so many surprises that have come up in the individual repatriations. Or we could do what we did, which was to punt. We agreed on the general policy, we agreed that there was going to be a repatriation law, we agreed that it would be human rights of Native Americans. All of that was agreed to. And then we didn’t tie everyone’s hands with too much law. We left a lot to be, the manner of repatriation, so people looking for guidance in the law need to look to the spirit rather than the letter and then to do what they agree to do because that’s the whole point. People are coming together for a common purpose and they need to do whatever they need to do to make it dignified, to make it respectful, to make it lasting or to make it an interim thing. They might just say, ‘This is what we’re doing for now, but that doesn’t mean that everyone has to do it this way afterward,’ because it’s up to the current, to the living people to define cultural appropriateness, to do religious interpretation, to understand what the people need right now and then to, what kind of presentation? Does it need to be just something that’s written down and no one talks about it again? Does it need to be something done as a ceremony? Does it need to be something done that’s not a ceremony, but done with ceremoniousness? There are all sorts of ways to do these repatriations and the best thing is for the peoples to, on the Native side and on the repository side, to come together and to deal with it in the way that they can agree to deal with it. And that’s part of healing and that’s what we wanted to accomplish. So, and that’s what I hear from lots and lots of people who do repatriations is that they have accomplished that. But it takes a long time to get from point A to point Z. It just takes a long, long time. And sometimes you don’t quite get there, but you just run out of time or you run out of patience or you feel that it’s going in a negative rather than positive direction. There are lots of reasons that people decide that the end has been reached. Sometimes it’s a person on a particular repatriation committee knows they have three months in office or a tribal leader and they just have to get it done before then. Sometimes it’s a religious thing where the important thing is to get this back before this thing happens in the sky or before this kind of thing happens or to keep the salmon running or to keep the buffalo healthy. There are all sorts of community reasons that people do things or they just want not to deal with the subject anymore and to do, to resolve it quickly and quietly. There are all sorts of reasons for pace and style and as I said, I think that’s the smartest thing we did with the repatriation laws was to leave it up to the people."

Ian Record:

"You are also, among your many activities, one of the plaintiffs in the Washington Redskins trademark lawsuit, which has been going on for several years now."

Suzan Harjo:

"Sixteen."

Ian Record:

"Sixteen -- more than several. Just describe for us briefly why this suit was brought, what was the basis of it and what the current status of it is and essentially what larger problem it’s trying to address."

Suzan Harjo:

"Well, all roads for me lead back to our ‘67 meeting at Bear Butte, which was just eye opening for me and the people kept talking about respect and respect and respect and how we were being, we were not being respected in general society and one of the things that got tossed around was all of the, all of these sports teams that were walking all over our good names and walking all over our reputations and that that was helping keep us down and helping make everything else possible and that not enough people were speaking out about it. And that really meant a lot for those of us who were from Oklahoma, where sports are a really big deal and we joined up with the effort already underway in Oklahoma to try to get rid of Little Red who was the mascot for the University of Oklahoma and that became the first of the American references in sports, Native American references in American sports to go by the wayside. It was ended...Little Red was the first dead mascot in 1970 and after that came Syracuse and Stanford and Dartmouth and a lot of others. Until this time, when we’ve eliminated over -- we collectively, not me, but we collectively -- have eliminated over two-thirds of the Native references in American sports. So we’ve won already. Now that’s in educational sports. In pro sports, not one has changed. So you have 2,200 in educational sports have changed, have dropped their stereotypes, not one in pro sports. So there was a trademark trial, a trademark lawyer, patent and trademark lawyer named Steve Baird who was doing research on causes of action in trademark law to deal with this issue and so he wanted to interview me when I was, I think I had just stepped down as Director of National Congress of American Indians, but I was all over the record on this issue for many years and decades. And so he called and he was in Minneapolis and could he come and interview me. So he and his wife came over and we were doing an interview and the first question he asked me was, ‘Why did you reject, ’ because I’d said that we’d met many times. He said, ‘Had you ever considered a lawsuit against the Washington team?’ and I said, ‘Well, yes, but we rejected the civil rights approaches and they didn’t seem quite right for this forum that we knew we would have the hardest row to hoe in pro sports.’ So he said, ‘Well, why did you reject the forum of the U.S. Patent and Trademark Board?’ And I said, ‘Oh, well, we didn’t.’ And he said, ‘Well, did you reject or why did you reject, if you did, the Lanham Act as a cause of action?’ And I said, ‘I have no idea what you’re talking about.’ And he was so smart, he explained all of this to me about a pocketbook incentive lawsuit and how the Lanham Act said that you can’t get a trademark license if you have disparaging -- there are four tests -- if you have something that’s derogatory to anyone or anything or if it holds people or thing up to contempt, holds a people or thing up to ridicule or is scandalous and it seemed to me that we fit all of those. It was certainly scandalous to us, but I didn’t know if it was scandalous to general society. So he explained that it would be difficult to have them do it retroactively. What we would have to do is ask them to cancel the licenses, the trademark licenses that the team owners had received in the late ‘60s and, rather than going in the front end to have them not issue the license and that there were complexities in the lawsuit. So by the time he left, I had hired him as my lawyer and then I took a poll of the, I talked to the Board of Morning Star [Institute] and Morning Star became the sponsor for the lawsuit and then I made elaborate lists and called up six people and each one said yes. And the first one I called was Vine Deloria, Jr. and he said, ‘Oh, hell yes. I’m definitely for that.' We’ve got to do something to take this burden on ourselves as the responsible adult population and not have our, not pass this burden on to our children and their children and their children. So that’s why we did it. And his other remark was so much like one of the remarks that had been made at that ‘67 gathering where he said, ‘We have to tell people that this is not acceptable, but we have to say it and we haven’t done enough of that.’ And that was exactly what I had heard and I thought, ‘This is really such a smart man and such a wise elder.’ I think there were many of us who knew Vine was a wise elder before he accepted that he was and he was always very self deprecating. And so we had, I wanted seven people because seven is a really important number for the Cheyennes and we won in ‘99 before the U.S. Patent and Trademark Board. Filed in ‘92, won in ‘99, lost before the federal district court in 2003, and we’ve been on appeal before the U.S. Court of Appeals since then with one narrow question having been sent back to the lower court about whether latches, the passage of time runs against the youngest of the seven of us who was in diapers at the time that they filed for trademark protection and the Court of Appeals sent that question back with some language that said roughly, ‘There are always going to be Native Americans born and obviously some of them are going to continue to be offended. What about them?’ They were asking themselves and continue to do. So from that I concocted a lawsuit of young people who have no latches problem and again wanted to have it mirror our lawsuit and got seven, but one had to drop out. So it’s now six young Native people between the ages of 18 and 24 so there was no lag or minimal lag between them reaching their maturity and filing the lawsuit. And they filed our same lawsuit, they did that in 2006 and their lawsuit is being held in abeyance pending the outcome of ours."

Ian Record:

"So depending on how they rule on yours, they would proceed with the other one."

Suzan Harjo:

"Then they proceed, right. And it’s a different lawsuit so if they don’t, if the Court of Appeals does not reach the merits whether it’s disparaging or not to us, in our lawsuit then they have to reach it in the next one because they have no loophole, no escape hatch of latches for the Washington football club to get through. So they may escape through that loophole in ours, but they can’t through the next one and that’s just one forum and one cause of action and one tiny group of people. We’ve got a lot of relatives and there are lots of forums and all of that is to say that we’re on the downhill slide on winning this issue and, when you think about it, over 2,000 schools have gone through this process thoroughly and some at length, University of Oklahoma for almost 10 years, some of them really for a long time, before deciding to eliminate their Native references. That’s amazing. That’s really a societal sea change all around the country in the heartland, on the coast, everywhere, big towns, little towns, and almost all of those happened one by one by one except for LA [Los Angeles] Unified School District, they did it as a school district. Dallas-Fort Worth did it for half of Dallas-Fort Worth as a district. Lewisville, Kentucky did it as two counties in one school system. So other than those, though, it’s been done school by school and it’s always the same process and always the same arguments and it’s amazing how you could almost script it and say, ‘This is what’s going to be said. They’re going to say, 'You’re not offended.' You’re going to say, 'You’re not honored.' And that’s going to be the argument.’ And it has been and you almost want to say in the middle of these negotiations, ‘I know you think you’re being original, but we’ve heard it all before.’ Nonetheless, not every argument has been made in every situation and that’s what’s being played out all over America. So we’ve won on that. Whether or not we lose this lawsuit or win this lawsuit, these names are gone, these references are gone."

Ian Record:

"I wanted to wrap up with again getting back to a very general question and really what I’m curious to know from you is what do you see for the future of Indian Country and Native nations?"

Suzan Harjo:

"Well, "

Ian Record:

"I didn’t say it was a simple question, I just said it was a general one."

Suzan Harjo:

"I was the National Coordinator for the 1992 Alliance, which was from ‘89 to ‘93 really providing Native voices on the occasion of the Columbus Quincentenary, which was 1992 and one of the things that I put in place for October 1992 to kind of wrap everything up was a meeting of 100 wisdom keepers -- all Native people -- wisdom keepers, artists and writers to come together and then I co-chaired that with my old friend Oren Lyons, who’s an Onondaga Chief from the Haudenosaunee Six Nations Iroquois Confederacy. And we invited, we just put together a list of our, of the people we most admired and respected and asked them to come. What we were finding was that we knew a lot of different people and that a lot of people, I talked to Vine Deloria for example and he said, ‘Oh, I think that’d be really interesting. I’ve never met, ’ and he named several people. So we put together people mainly so we could just talk about the future and we called it 'Our Visions: The Next 500 Years,' and I will tell you that no one mentioned Columbus at that entire week of meetings and we came out with a wonderful statement, which I will get to you so you can read it into this record called ‘A Statement Toward the Next 500 Years.’ And essentially it says we’re going to be talking our languages, speaking in our languages, we’re going to be the Native people, we’re going to reclaim a lot of our traditions, we’re going to clear out some of the underbrush of stereotypes so our images come through. And it talked a lot about reclamation in a sense and who we were going to be not in relation to anyone else, but as ourselves. And one thing, it was just a marvelous, marvelous thing, and there were all sorts of people there who knocked each other off the charisma meter. Scott Momaday and Vine Deloria and Joy Harjo and it was just an extraordinary group of hundred people, Thomas Banyacya, just amazing, amazing people. And everyone came up with this statement. So that’s how I feel and as the years have gone by there have been so many examples of things that have gone away, things that have been called extinct that are now being revived, which is just, our old people on the Muscogee side say, ‘Never count out anyone, never count out anything because there they will appear again.’ And people all over the place say that about medicine plants that haven’t been seen in a long time and here they are. The teal blue butterfly, which was thought to be extinct for 100 years has reappeared in northern California. And the Pequot language, which, well the Pequots were said to be extinct and then there they were. I know they were there, I was the lead lobbyist on their land claim settlement. And what they have done with their extraordinary wealth through gaming and creating the world’s largest casino, Foxwoods, is they’ve done a lot of good. One of the amazing things they’ve done is to reclaim their language. They know how it sounds. There are lots of Algonquin languages that are spoken today including Cheyenne. No one, everyone thinks we’re from the plains, but we’re not. We’re from up that way. And they, so they know the sound of the language, they know words and there’s vocabulary, a lot of stuff was written down and now they have people speaking it and that’s an amazing thing. Now talk about an act of sovereignty. Here they are doing language reclamation and it really, this is what we in effect envisioned in 1992 when we did our retreat and said, ‘What is it that we want for the next 500 years? We want to be the Native people in the next 500 years and even more so than we are now.’ So this is what’s happening."

Ian Record:

"Well, Suzan, I really appreciate your time. I think a lot of people are going to learn quite a bit from your thoughts and perspectives. We’d like to thank Suzan Harjo for joining on us on this program of Leading Native Nations, a radio series of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit the Native Nations Institute website at nni.arizona.edu. Thank you for joining us."