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NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

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

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Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Interview.

Ian Record:

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

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

Honoring Nation: Lance Morgan: Ho-Chunk, Inc. Economic Development Corporation

Author
Producer
Harvard Project on American Indian Economic Development
Year

Ho-Chunk, Inc. CEO Lance Morgan share the lessons he and the Winnebago Tribe of Nebraska have learned about the keys to creating an economic development environment capable of fostering successful nation-owned enterprises. He stresses the need for some Native nations to engage in constitutional reform in order to create that environment, in particular staggering the terms of elected officials to ensure a nation's institutional stability and, in turn, the strategic direction and advancement of the businesses it owns and operates.

Resource Type
Citation

Morgan, Lance. "Ho-Chunk, Inc. Economic Development Corporation." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Santa Fe, New Mexico. February 8, 2002. Presentation.

Miriam Jorgensen:

"My name's Miriam Jorgensen. I had the opportunity to talk to some of you yesterday. I'm the Research Director for the Harvard Project on American Indian Economic Development and I'm more recently the Associate Director for Research for the Native Nations Institute. And as many have said already, that one of the most exciting projects they're involved with is the Honoring Nations program. And it's through the Honoring Nations program that I personally met our next speaker and then had the opportunity to get to know him even better through the program that Gail Christopher, your lunchtime speaker, runs, the Innovations in American Government program, because I got to do the site visit to Lance's program this past July and met with him, and he shared a lot of information about what he's up to both with the business, what the tribe is doing and about some of their ideas and goals. And that work then led, his work that I wrote about for the Advisory Committee, led to the award that he received for Innovations in American Government.

On one hand, Lance doesn't need a lot of introduction. The experience that I had with him is that he's just a remarkable guy, because one of the things that happens is that you spend just a few minutes with him and he leaves an incredibly strong impression. You feel, ‘Boy, I really know this person and I'd really like him as my friend and if he isn't my friend, I really don't want him as my enemy,' because this is one smart guy in terms of strategy, in terms of politics, and in terms of getting things accomplished. There are a couple things I want to say about Lance, that it's just a real honor to introduce Lance Morgan. He's a Harvard Law School graduate, he is a member of the Winnebago Tribe of Nebraska. I grew up in South Dakota and we tended to just kind of ignore that state down there. And he's a real family man. One of the things I really enjoyed about the visit that I made to visit his program is I got to meet his wife and one of his two daughters. He's somebody who really believes in investing in community and using his smarts to help move his community and his nation forward. He's really bright with economic development. He's a very savvy politician. He can tell many stories about how he's really stood up to the States of Nebraska and Iowa and the federal government and won his way in terms of sovereign rights for his nation and he's a real fighter for Indian issues. And the last thing I want to say about Lance is, when he takes the mic you never know what he's going to talk about. So he may talk about his winning innovation and he may talk about other things but I'm sure you're going to come away moved so I give you Lance Morgan of Ho-Chunk, Inc."

Lance Morgan:

"Wow! I'm really glad I caused something to talk about. I really appreciate that introduction. Miriam came and took the time to really spend some time and get to know us and we really enjoyed her visit. And I think it was really instrumental; our experience with the Honoring Nations program was really instrumental in us winning the Innovations in Government Award, which I think is kind of the big brother of this award, I'm not sure, but they seemed awful similar. And so I really appreciate the time and effort that everyone in Honoring Nations program...they put in on our behalf to do that. And I really appreciate coming down to do this. I've been traveling a lot lately and I was trying to think of a way that I could reasonably not come, because my family's been really pressuring me to spend more time at home, but I thought it was important to come down and share some of our stories and I really came down to talk about Ho-Chunk, Inc., but I've really decided that I don't want to talk about that all and as the time that I've spent here, just like Miriam suggested. I really only have one point to make and it's going to take about 15 minutes. I'm starting to take after my grandfather I think. What I'm going to do is generalize a lot and I kind of want to apologize in advance for that because every tribe is very, very unique and I think in order to do this without all these kind of side issues coming up or all these caveats or all these exceptions, I'm going to talk in very general terms. So I want...and I really don't want to offend anybody in this situation so I want to just apologize right up front.

Since we won the Innovations in Government Award and the Honoring Nations Award, I think we've really struck a chord and we've been visited by over 30 tribes, and we've put our information together in a package and we've sent it out to 40 or 50 other tribes. And so what's happened is, over the last 18 months, we've learned a lot of things and that's what I want to share, some of the simple insights from that. And we've really been on almost like a crash course of tribal economics. And what we've learned are really two simple things. And the first thing is something that's very obvious is that almost all the tribes are suffering from the same problems. We all seem to be having universally the same issues that we're all dealing with. And the second thing -- and this one came as a bit of a shock to me -- we were really forced to think about why we were successful. And the reason it came as a shock because I was thinking it was me and that's not the answer. And it hurt a little bit, but I'm over it now. Why we were successful, what are the reasons behind that? And what are the reasons behind some of the other tribe's reasons why they continue to struggle all the time? They had...we're not...we don't have a lot of money in our tribe and our corporation has grown to the point where we're projecting $100 million in revenues, which strikes me as absolutely insane. In 1995, Ho-Chunk, Inc. was in my apartment in the second bedroom, and so it's amazing. Our tribal casino makes $3 or $4 million a year. And how have we been able to take -- and Ho-Chunk, Inc. does nothing with the tribal gaming -- so how have we been able to go from literally zero to $100 million in revenue in that period of time? And I think it...this is why I was taking the credit, I was thinking it was me, but really it's a...we're really a product of our environment and that's what I want to talk about a little bit.

We've boiled down some of this that we've learned to a couple of really, really simple points and some of them have kind of coalesced here just in the last day doing some of these roundtable discussions. Harvard says sovereignty matters. Harvard says -- I've been saying this for years -- institutions matter. They say that culture matters. That's right, of course they matter, but what conditions in a tribe allow the development of the institutions that can effectively use sovereignty and still integrate culture? Well, in other words, the real question we should be asking is not the what -- what did Ho-Chunk, Inc. do to be successful -- is the why. Why were we successful, what was behind it? And to be honest, what we have done from a business standpoint to be successful is meaningless to this discussion because you should do something else. You should do what works for you. But the why, the why our government was willing to make such a radical change, was willing to do something we'd never done before and commit, at that point, 20 percent of all of their money to starting Ho-Chunk, Inc., everything they had, and a very poor tribe. Why were we willing to invest in that institution on a long-term plan when we were suffering from huge social problems and huge unemployment issues? What caused our tribe to make that radical decision and to also let go of that authority, that micromanagement over it, and set a system up that had a chance to kind of flourish and develop? And to me, that's really the issue.

And I didn't understand this, because Ho-Chunk, Inc. was set up in late 1994. I graduated from law school in '93. I worked at a law firm. I showed up and thought it was me, but really, as I've been there, I've realized that it was the product of a very, very long process. The tribe even tried to do this in the ‘80s and that I was...that my plan was really just the next step, was really just the next logical basis for it and the only reason we had a higher chance of success is because we had some gaming dollars; before they were trying to do it with smoke and mirrors. And so I've learned a lot. I've really been forced to think about that. We've learned that success in tribes seems to happen kind of randomly, somewhat randomly. One tribe does this here; the neighboring tribe is not doing very well. But there really seems to be two circumstances under which a tribe is successful and one of them involves kind of the really good individual, the great individual or this group of individuals, the super-motivated person. A tribe is a very unique place you get to work at because one person can make a difference there. You can...and if one person is highly motivated, they can bring others into the fold and make a difference. And I wonder, what I wonder when I see some of these programs up here, I wonder how many of them are motivated by, are the result of great individuals or great systems. And I think that if you're relying upon the great individual, it's probably a mistake because they probably don't come along that often. And so I think that you're better off waiting for number two or working on number two, which is the tribes who are successful tend to be successful because it's kind of a natural and kind of logical evolution of some of the systems that they put in place, the systems that kind of allow long-term continuity and stability. In other words, the success isn't random; it's really a predictable kind of factor in their environment if they have these systems in place.

So since the individual's topic is too hard to discuss because it's too random, I really want to focus on what I think that we learned about continuity and long-term stability. And all this is leading up by the way to the simplest of points and will be obvious soon. Most tribes are structured around their tribal council. Think about your tribal government. In the structure, the organizational structure of a tribe...I've seen lots of neat charts, but really what they are, the typical organizational chart in reality is very wide and very flat with everybody reporting up to the council, businesses, departments -- everything has to go through the council. And what that means is that a lot of times things aren't necessarily dealt with efficiently, they're forgot about, they're dealt with only when things go negatively. And it also has the additional side effect of making your tribal government incredibly dependent upon the skills and knowledge base of that tribal council. So the system is designed to funnel through the council and it's only as strong as the individuals on that council and that's a weakness, that's a weakness in my view. I'm going to back up a second here.

How can we ensure that those council members, since we're so dependent upon them, are good? And I was thinking and I want to say that I'm not an expert on this because I'm going to talk about Winnebago and what we used to do traditionally. And I'm just going to say what was told to me and I want it very clear that it's not my place to talk about this kind of thing typically. Traditionally in Winnebago, our leaders were the head of each of our clans and those leaders were selected by the women in those clans because it was felt that their concern for their family and their children automatically meant that they would pick somebody who they thought was knowledgeable...that was the best person and typically they picked the eldest person within that group, family group and the most experienced. Not always -- sometimes they would take somebody younger. It wasn't a rule that it was the eldest, it just typically was. So what we had was a system, a rational, traditional system based upon knowledge and experience. We had it kind of built into what we already did and change usually occurred at death. Not the next election. The reason we had this is because if we didn't, we would make mistakes and people would probably die. We had a cultural imperative for a rational system and that changed when the federal government forced kind of these constitutions on tribal governments and that changed the system dramatically. And when they did this, I can just imagine some lawyer in D.C. typing this up in the ‘30s, saying, ‘Well, this is a good idea', and someone said, ‘Sure, fine.' And there wasn't any thought whatsoever as to how to kind of institutionalize or introduce some of these already very rational processes that we had in place. It just happened. And we've been dealing with that for the last 70, 80 years.

The majority of tribes in our area have a tribal council that's elected every two or three years. This system is horrible, absolutely horrible for long-term continuity. I'm going to list a few things that it does and this stuff to anybody who's been with the tribe, this is not going to be earth shattering, but I think it's helpful to put it altogether. It creates kind of...these elections become all-or-nothing events and it creates a highly negative political environment on the reservation where attacking is the way to get on. There is no kind of getting on board, being part of the team. It creates a possibility of complete turnover of the elected representatives every two or three years. These new council members in this negative environment are often elected by attacking the current system. You don't get elected by praising the existing government. And so...it hasn't worked for us anyway. It used to be very...when we first started Ho-Chunk, Inc., it was very common to get elected by attacking Ho-Chunk, Inc. It was a very good way to get elected in Winnebago. It was very controversial at the time, which was almost the best way to do it. But this attack system almost forces the new council to tear down what's there. They almost had no choice. Their electorate expects it. It also leads to kind of inconsistent political strategy. You have no relationship with the local, the state, and the federal authorities. They don't even know who the next guy is. And it also hurts business dramatically. It really hurts your strategy. You have no continuity over a period of time. Business needs to be continually moving; it can't wait and stop for the election. You can't wait for the hammer to fall. You can't replace the CEO every couple of years and hope to have any kind of consistency in what you're doing. And the other thing is it also creates a lot of short-term thinking; both right after the election, you've got to make your big splash, and right before an election.

We joke that...one time we gave a dollar raise, the council did, to every employee at the casino before an election and we calculated how much that was over the period of a year and I said, ‘We only have...' I mean, you could win our election with 120 votes. We tried to work it out per vote and only a third of the employees were tribal members and it came out to an astronomical number per vote, what that cost the tribe. It was something in the tens of thousands per vote. But it was a very popular decision at the time and the tribe had money then to do that. And so before the election at least all kinds of really random short-term thinking and decision-making that has long-term implications that screws up long-term planning. And it makes it even worse when they don't...when it doesn't work and they don't get re-elected and the new guys come in and have to deal with that and tear that down and there really isn't any sense of long-term strategy in that stuff. So these tribes are in this kind of cycle, this perpetual cycle of starting over and unless the tribal electorate is incredibly rational in a very negative, in an environment that's likely to be very negative -- because that's your system for success to get elected -- unless they're very rational and elect the same people consistently over and over again, which does happen in some tribes -- some tribes they're all up for election and they reelect generally the same people -- unless they do that, the possibility of any kind of long-term cohesive strategy or continuity is very, very minimal in a tribal government that has its election every two or three years and everybody's up to bat.

In Winnebago, we're lucky and I didn't realize how lucky we were really, I mean I knew it was a good thing, but I didn't realize how lucky we were until we visited with these other tribes. We have staggered terms. We have nine tribal council members. Three of them are up for election every year and usually two or three are re-elected again. I'm going to list the nine, just the number of years that each council member has been on our council to give you an idea of what I'm talking about. And a lot of people when they get older will leave the council and they'll kind of designate some of the younger to start cycling through. It's very much a logical system, really kind of based behind the scenes on families and clan membership and stuff. But our council members are one year, three year, three year, four year, five year, five year, eight year, 14 year, 16 year and our tribal chairman is in his 16th year. And so I was going to do the math on it and do the average number of years there but I didn't have a calculator. My math skills are worse since high school. My guess is that's around six, six or seven. And what does that do for long-term strategy? Our tribal chairman was there in 1986 when we first tried to start a corporation. The Winnebago Business Code of 1986, he was there, he was behind it. So in 1993 or '94 we started again, of course he supported it. This made more sense, it was the next evolution in this process and these staggered terms, they have several kind of natural results. It reduces the kind of emphasis on the elections themselves. It prevents this kind of radical short-term thinking that we were talking about. There isn't this great push...because only two or three of them are going crazy before the election, but the rest of them can kind of hold them in. It also allows kind of naturally a long-term planning and a long-term kind of projects to continue to move forward. It automatically allows for kind of an institutional knowledge base to continue to grow. There is no starting over here. And the elections, I've never seen an election that's resulted in a firing of a key employee. I've never...because it doesn't happen that way because the rest of the people obviously support that person. And more importantly, I think it allows kind of a system where these institutions can naturally evolve because they're really focused on the long-term perspective. I think this not starting over is very positive. And I didn't know, I didn't really think about this in these terms until very recently. And I'll give you the two reasons or the two examples that popped up that caused me to start thinking why, that caused me to start thinking about the real benefit of an institutional kind of knowledge base in these situations.

And the first one was, somebody asked me recently, we have our corporation, we recently formed a planning department to go after government grants and a non-profit corporation to also bring in additional funding into our community. And someone said, ‘What made you think of that?' And the answer was, ‘Well, in '95 I was totally against it, in '96 we got a grant to do this.' So I said, 'Hey, that's pretty cool.' In '97 we didn't do anything. In '98 we got a low-interest rate loan through our own kind of efforts and we said, ‘Hey, this is a pretty good deal.' In '99, we got another one. In 2000, we got a grant to build a new office building. It was great for business because we didn't have to pay for it anymore; we got a new building. But in 2001, we learned that all these opportunities are out there that we're not tapping into. The non-profit will do it. And so one day I come back to my office on a Monday and there's a note on my computer from Friday that says, ‘Form a non-profit you big dummy.' It was to me, I wrote it because I didn't want to forget by Monday. But he asked me that question, ‘What made you think of it,' and it caused me to think, ‘Well, I didn't think of it.' It was the next step in the natural evolution of the internal knowledge base that we built up.

And the other example that integrates not just Ho-Chunk, Inc., but that integrates kind of the governmental side is, we recently just signed a groundbreaking tax agreement for gasoline on our reservation that recognizes our jurisdiction over non-Indians. And somebody said, ‘How did you do that?' And I did the same thing again. In '95 we took over the tribe's grocery store and you used to have to sign your name and write your ID number and get your refund from the state and I said, ‘We're not doing that anymore.' I said, ‘This only applies for Winnebagos,' and we said, ‘Any Indians a good Indian, we'll send you your money instead.' And so that was kind of a big deal for us. In '97, the Omaha Tribe next to us started a cigarette factory and they ruled that that's tax-free because they make the cigarettes on their reservation. I said, ‘Hey, that's pretty interesting.' In '98, they start selling gas tax-free, we supplied it to them through a loophole in Nebraska law. In '99, Iowa threatened to sue us because we were taking it to that state. So we went into negotiations, which went poorly and then they cut off our supply of fuel, which really just made me mad. And they were saying bad things about us, called us ‘shady characters.' And so we got in trouble. We called the governor and we didn't appreciate that. And so they said they would negotiate with us but they never got around to it and they didn't really...they put some feeble efforts in. And so we said, in June of 2000 after the second crack at negotiations, we said, ‘We're going to start our own tax.' And six months later we figured out a way to make it legal and essentially all we do is take the alcohol and blend it in with the gasoline on our reservation to make a charter product, similar to...and it's a manufacturing process similar to what we learned the Omaha Tribe did in '97. They made a manufacturing process and said, ‘Well, this is just our manufacturing process.' And it really threw them for a loop and we implemented kind of a political...we learned how to do that because we had a gas station business. Now, by the way, we have seven trucks and we sell 100,000 gallons of gas a day. This is like a year and a half later and we sell it to seven tribes now, but that's a different story -- all because Iowa really pissed us off.

We put together kind of...we learned how to do this from our business side but we had a legal element -- I'm a lawyer, our tribe's lawyer -- and we learned from the Omaha Tribe's legal experience in '97. And we had a growing kind of political knowledge because of the success of the tribe. And so we put together kind of a sophisticated political, legal, business-oriented strategy. We already had de facto control, we owned all the stations so we could pass any tax and apply it to us. And we offered to negotiate right off the bat. We always kept the lines of communications open. And anyway, that was in 2001, just a few weeks ago the governor signed our tax agreement that gives us, that locks in, that recognizes our jurisdiction and locks in a real good price advantage for our businesses that helps 70 of my employees keep putting food on the table. And that took years of natural kind of development both on the governmental side and both on the operational business side. And that kind of knowledge didn't just happen. People always...they come down to visit and say, ‘How'd you do it?' and really, it's a hard thing to say because it took a long time. It's a hard question to answer and this format has caused me to really think about that, how important it was to have the government stable and learning and developing relationships, how important it was for us to have a stable business environment that was learning these things and that was taking pieces from elsewhere. This strategy that we evolved would not have happened if the lawyers in a council meeting would have said, ‘Hey, we've got this problem.' They'd have said, ‘Well...' The lawyers probably would have only said, ‘This is how you'll end up in jail,' or ‘the state will do this to you,' and we probably wouldn't have went forward. But we had a business imperative to do this. We had jobs at stake, we had money at stake, and we found a way to do it using our knowledge that we had learned over a period of time and the reason we were allowed to do that is because our government is a highly stable environment.

And in summary, that's the point I want to make. In order to have any chance at long-term success, the tribes really have to structurally institutionalize continuity and that's a lot of big words in a row. But really what I mean to say is you need to change your constitution. And I'm not talking about the big changes, the ones that, the committees, the general councils, ‘We're going to go back to the old ways.' I'm talking about one simple tiny little change that will give you a chance at some of these kinds of successes. They'll be different than ours obviously, but just stagger your terms, allow your tribe the opportunity to have a chance at continuity and that will allow the natural kind of abilities and instincts and knowledge to form and flower on your reservation and that should lead to the kind of environment where these institutions develop, institutions that can take advantage of sovereignty, that get smart, that are Native American, and go forward on a cultural basis. And I realize that it's a very, very simple recommendation to make after the big introduction I got, but I think sometimes that's what you need to do, the simplest answer is the easiest. And I don't know if I have any time for questions but I'm done essentially."

Miriam Jorgensen:

"We do have time for questions, so if Lance would take a couple of questions it'd be great, so if you want to just raise your hand and pose the question to him, Lance will probably answer it. Are there questions?"

Audience member:

"Lance, in some of your fuel acquisitions and some of that, how have you dealt with kind of adverse public relations issues such as the large Petroleum Marketers Association lobbying and some other groups like that as well as the states, and you didn't mention Iowa?"

Lance Morgan:

"Oh, that's a funny question. We actually went to the...we were negotiating the tax agreement with Nebraska and the head of the motor fuels department was in our office and I said, ‘Do you want to go to a KKK meeting?' And she said, ‘What are you talking about?' I said, ‘Well, the Iowa petroleum marketers and Nebraska ones are getting together to talk about us.' And she goes, ‘Oh, I talked to them. I cleared all this up.' I said, ‘Well, let's go to lunch up there.' So we went and she's sitting...she had just said, ‘We need this information from you, I've got a report.' I said, ‘I'm not giving you that, that's going to put a gun to our head. They're going to use it against us.' And as soon as we walked in there, they started bad-mouthing Indians and they said, ‘We need to get this information. Nebraska's going to give it to us and then we can go after them.' And he said, ‘Because we could go down to the reservation and get it, but they'll probably throw you in the Indian jail. You know what that is? That's when they tie you to one of their slot machines.' And I busted out laughing. These people had no idea who I am and they're talking about they've got these lawyers and they're going to sue you if you try to say anything to them. It's basically they're just lying through their teeth to their constituents, see, and the head of the motor fuels department is sitting there. She goes, ‘I can't believe they're doing this.' I said, ‘See, this is what we're dealing with.' And so at that point she started talking in terms of ‘we.' ‘What are ‘we' going to do to deal with this kind of stuff?' And I said, ‘She's like Patty Hearst.' We were going to make her an honorary member of our tribe after that and they lost all credibility.

We took the time to educate Nebraska and then we showed them the dirty side of what we face. And the term we always use is 'jealousism,' that's our little term. It's not racism, it's jealousism 'cause they don't like it for us. We've lost our place a little bit. But we also did some other things in advance of before we started. We felt that the current taxation system was based upon the color of your skin and I think sometimes we're so used to making that distinction that we don't even think how crazy it is. You go on to the reservation, the Native American pays one price, the non-Indian pays the other. Now how in the hell is that right? Where else in America do you make a racial distinction based upon taxation? It's all about jurisdiction and it's all about...it's all about the entity. And I said, ‘We're not going to stand for this anymore' and so our PR campaign was going to be based on race. We were not going to do this anymore. If you come to our jurisdiction, you pay our tax and it sold with everybody. We had a reporter who wrote a couple weeks after we implemented our tax, on the front page of the Sioux City paper, she said, ‘A cashier...when you buy gas in Winnebago, the cashier has to determine the color of your...he knows what to charge you by the color of your skin. In Winnebago, race matters on what to charge and the Winnebago Tribe has implemented the race-neutral tax.' So we invented these terms, race-based taxation, race neutral. Republicans, they loved it. The Democrats, we give them a lot of money. So they basically backed off.

And the fact that we also were offering to negotiate...when we implemented our tax we wrote a three-page letter. The first half talked about how their legal system wasn't worth the paper it was written on and it was just very much rhetoric. And the last part talked about our strong, strong legal arguments that we put in place. The pre-emption argument, the fuel blending, the manufacturing, all these kind of things are very, very strong legal arguments on our side. We thought we had a very high chance of winning in court under this situation and at the end we said, ‘We will negotiate.' And we thought that if we said, ‘We will negotiate', that three, four, five months at least, we'd get to do this. And after a while everything died down and the state actually met with us in a very contentious relationship, contentious meeting, and when we laid out all of our legal arguments and all of the rationale behind it, they really got on board with us and then we did negotiate. The primary thing that turned the tide was we showed...on our reservation we have half the land and one third of the roads and you've got...the county got $1.6 million for excise tax money for gasoline to fix the roads and none of those roads are in our neighborhood and we got zero. So when we show our blending process and all our investment in these trucks and fuel additive things and gas stations and the people on the jobs and show how much money you're getting and how we're getting nothing, I said, ‘I can't wait to get to court with that. I said we're on a war footing.' And they said, ‘Okay.' But all this was planned. Our eventual goal internally was to get our tax agreement and that's all we wanted, that recognized our jurisdiction and we ended up getting it. But we did it with a combination of kind of PR, of political thing, of operational, of legal buffing, and it worked for us. But there was a lot of attacks along the way. But you've got to plan this out in advance.

We wrote a very interesting memo for the Sisseton-Wahpeton Tribe that balanced the business, who now have their own gasoline-blending and taxation system on their reservation. And it was not a legal memo, it was a combination legal and business memo that balanced these interests, talked about their PR strategy, talked about their legal strategy, talked about how to do this operationally, an all encompassing kind of thought process that you don't normally get in these environments. You only get those piece...tribes never quite pull those pieces together and we were lucky that we had all those pieces in our organization. And we now think strategically about how, and automatically about how to develop our sovereignty to strengthen our institutions. It's very strange, but it's kind of a natural evolution of what went on."

Audience member:

"Can you talk a little bit more about leadership in the business side of your programs and where or what is that continuity? Obviously you're a good example of continuity, but the other issue is what about other leaders within your tribe? And how is that coming with respect to, I guess, leadership development and how that works in terms of the business side of things in the different entities that you're working with?"

Lance Morgan:

"We talk about systematic approaches. We have the exact same thing on what we're doing. We have a general tribal preference of employees, but we target internally our best and our brightest. We've had every valedictorian the last several years working for us at some point, summer jobs or coming back from college. We have our own internship program. We've actually expanded to other tribes. We've had lawyers actually from a couple of other tribes come and work. They've stayed at my house and they work with us for a little while to get some insight into what we're doing. We've kind of...our internship program to me is my ability to directly nurture kind of the up and coming people. We've gotten so big now that some of our companies and departments are now going to start their internship program this year and we're just starting that so that they can have them too. We just hired one of our tribal members who just graduated, or is about to graduate from college with a computer degree to do research for us in our planning and non-profit company. And so we've kind of systemized it and now have expanded it.

On leadership on the business side, I think it's very important, and we talked about this a little before -- not here -- and I think tribes pass these corporations, they form these entities and then they just run off and they expect them to be successful. And I think the real effort needs to be when you form the entity. You have to set up principles of governance between the corporation board and the tribal government and you need to go through all the possible abilities of interaction from how do you handle your finances? How do you handle personnel? You don't want the tribe's personnel policies. You don't want to use the tribe's accounting system, you'll never get a check written; somebody won't sign it, they'll take the day off. You have to decide how you're going to send money back to the government, what you can retain. You need to do all of this stuff up front and we have a list of 10 or 12 things depending on the tribe and then once you have those, you need a leader with the courage to stick to that and hold them to it, because a lot of tribes have corporations that don't... and their CEOs are puppets and they just do what the tribal council says and they're afraid to make decisions.

I've had meetings with tribal councils where I've whipped out the long-term plan from 1994. I said, ‘Let me refresh your memory,' and I've read from it. And one of the sentences said, ‘If we did that, that would contradict the very reason for our existence.' Everyone else said, ‘Oh, yeah.' But if you don't do that up front, then you have no chance of saving it later because the tribal government is a very flexible dynamic entity. They'll adapt their mindset to whatever is politically expedient at the time, whatever they feel they have to deal with, they'll rationalize their approach to it. And so you have to stick...you have to do your homework and be willing to have the courage to stick to it and not in a disrespectful way. You don't have to do that. I have a lot of respect for our council leaders, but really sometimes you have to remind them...and since we have this kind of institutional knowledge base and memory of these things, people say, ‘Oh, yeah. Oh, yeah. Okay, okay. We can't do that,' and they deal with it some other way. And so it really isn't just leadership, it's planning and leadership and sticking to it over a period of time."

Honoring Nations: Stephen Cornell: Achieving Good Governance: Lessons from the Harvard Project & Honoring Nations

Producer
Harvard Project on American Indian Economic Development
Year

Co-director of the Harvard Project on American Indian Economic Development Stephen Cornell offers a review of how the Honoring Nations program evolved out of the nation-building movement and successes among Native nations.

Native Nations
Resource Type
Citation

Cornell, Stephen. "Achieving Good Governance: Lessons from the Harvard Project & Honoring Nations." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 8, 2002. Presentation.

Andrew Lee:

"Now I'd like to turn the microphone over to Professor Steve Cornell, the co-founder of the Harvard Project and the current Director of the Udall Center for Studies in Public Policy at the University of Arizona. And the talk that he's going to talk about is 'Achieving Good Governance: Lessons from the Harvard Project and the Honoring Nations Awards Program."

Stephen Cornell:

"Thank you very much, Andrew. It's really a great pleasure to be here and to join Chief [Oren] Lyons and the other members of the board of the Honoring Nations Program, to join all of you who have come to attend this symposium, and in particular to be here with representatives of these award-winning programs. I have to tell you that when Joe Kalt and I started the Harvard Project 15 years ago, we had no idea of where it was going to lead. And I find myself astonished and humbled and thrilled by what has developed over the years, thanks to the efforts of an enormous number of people from what, in our own minds, I think, were very modest beginnings.

We're here this morning to talk about good governance in Indian Country and to hear from Indian nations who are making government work. Before we get very deeply into that we thought it would be useful to review how we got here. Where did this program come from? In fact, why even have a program called 'Honoring Contributions in the Governance of American Indian Nations'? My job this morning is to say something about why good governance is something that should be honored and achieved in Indian Country and in doing so, to tell you something about the origins of this program. So I want you to...I want to take you back 15 years to Harvard University in the mid-1980s. A couple of nerd academics, Joe Kalt and me, are sitting around puzzling over something.

If you looked around Indian Country in the 1980s, one of the things that would have struck you rather powerfully is this. For whatever reason, some Indigenous nations in this country were doing much better than others economically. For example, on the one hand, you had Cochiti Pueblo with an unemployment rate between 10 and 20 percent in late 1980s. On the other hand, you have the Pine Ridge Sioux Reservation in South Dakota with Oglala Sioux Tribe at unemployment rates probably over 90 percent unemployment. On the one hand you have the Crow Tribe of Montana rolling in natural resources -- from coal to grazing to water to timber -- but locked in poverty, unable to turn all that wealth of material into viable tribal enterprises and to improve the welfare for their people. And on the other hand, you have the White Mountain Apache Tribe in Arizona that was running the most productive saw mill -- Indian or non-Indian -- in the western United States, a profitable commercial hunting operation, a profitable skiing operation and assorted other tribal enterprises. On the one hand, you have the Northern Cheyenne Tribe with an economy generating almost no dollars at all other than those that came in through federal transfer payments, just about the ultimate in economic dependency. And on the other hand you have the Mississippi Band of Choctaw Indians, who were starting to import non-Indian labor because they were creating so many jobs there weren't enough Choctaws to fill them. So you have black and white workers driving onto Choctaw lands every day to take jobs in Choctaw-owned and -operated enterprises.

We could give you other examples, which offer stark differences between on the one hand, nations often characterized by deep poverty, frustration, hopelessness, on the other hand, nations that were seizing control of their future, were building sustainable economies, were reshaping their futures to meet their own designs. And bear in mind, this is before the impact of gaming. We weren't yet seeing what that was going to do in Indian Country. These were enterprises that had nothing to do with that. These were nations, which in a very difficult time were in essence saying, 'We're going to reshape the future to meet our designs,' and they were doing it. What was it we wondered that determined which path any given nation took? Why does one nation move forward, another seems to run in place or slip backward? How would we account for these differences? And the Harvard Project on American Indian Economic Development was born out of those questions.

We approached Norm Collins at the Ford Foundation and told him we wanted to try to find out the answers to these questions, not just because we were inquisitive nerd academics -- sure, we found these questions kind of interesting -- but because we were convinced that the answers to these kinds of questions might be useful to all of Indian Country and maybe beyond Indian Country. Maybe Indian Country was doing things that the rest of the world ought to be paying attention to, because the real question lying behind all of this has to do with the keys to successful nations, nations that control their own affairs, improve the welfare of their people and take care of the things that they most value in their lives. Well, Norm Collins agreed and the major work of the Harvard Project got under way.

What did we do over the next few years? Accumulating colleagues, Manley Begay who joined us first and is still here and now direct the Native Nations Institute at the University of Arizona, and eventually a host of others. We went around talking to Indian nations trying to understand what were they doing, what was working, why was it working, what could we learn from it, what could other nations learn from what was happening in Indian Country? Now of course we weren't the first ones to ask this question. The basic question was why? Why are some doing better than others? There were other answers out there. A lot of people thought they knew why. Nations with lots of natural resources would be doing better than those without. Nations with good education would be doing better than those without. Geographic location would matter, capital would matter, etc. As we talked to people and we began to look at this data, it turned out that while some of these things were important -- sure, you'd rather have good resources than not and good education than not -- and in fact, they didn't do a very good job of explaining the pattern of development that we saw out there.

We saw tribes with great natural resources and high education that were doing poorly. We saw tribes such as Mississippi Choctaw with no significant natural resources to speak of and below average education for Indian Country that were doing wonderfully well. We saw tribes with strong leaders who were in trouble and tribes where the leadership turned over every year like Cochiti Pueblo who were doing very well indeed. So it was clear that these things helped. It was also clear that they weren't the keys to economic development. They didn't in and of themselves lead to sustainable, self-determined economic development in Indian Country. So what did those keys turn out to be? I'm going to point to five of them that emerged from our research. In some ways this has become what my colleague Joe Kalt describes as the Harvard Project mantra.

The keys to economic development in Indian country, based on 15 years now of work with Indian nations. First, sovereignty matters. Indian nations have to be in the driver's seat if we're going to see sustainable community and economic development in Indian Country. Why do they have to be in the driver's seat? It puts the economic development and community development agenda in Indian hands. It links decisions and their consequences -- those who are making the decisions reap the benefits of those decisions and pay the price when they make bad decisions. We cannot find a case in all these years of sustained economic development in Indian Country where someone other than the Indigenous nation is calling the shots, determining how resources are used, determining strategic direction, shaping the internal affairs of the nation, controlling its relationships with other governments. If you think about that, it's got a pretty potent policy message. In a century of federal efforts to end reservation poverty, it turns out that self-determination is the only federal policy to have a sustained impact in Indian Country, a sustained impact on poverty. The evidence from our research is tribal sovereignty is the only anti-poverty program that works. That's a very positive thing to say from the view of Indian Country but it's based on research. We can show you the data.

Second though, it turns out sovereignty isn't the only thing that matters. Being in the driver's seat isn't enough to create sustainable, self-determined, economic development. You've got to be able to get where you want to go. What does this include? It includes basic issues and concepts of good government. It means stability in government. Not stability in the people who are governing, stability in the rules by which they govern. It means getting politics out of business management. It means having courts or other dispute resolution mechanisms that are depoliticized where how you're treated doesn't depend on who you are, who your relatives are, who you voted for and so forth. It means having a bureaucracy that can get things done. What happens when you do these things? You create an environment in which individuals, tribal members, and others want to invest time, energy, ideas, money, their talent. What this does is it pulls in talent; it reduces the brain drain. It encourages young people to stay and others to come home. It focuses your human resources not on fighting over the pie, the economic pie, but in making it bigger and on designing it to meet the real needs of the people.

So the first two keys were sovereignty and good governing institutions. The third key we came up with, culture matters. It turns out that the most successful governing institutions that we see across Indian Country have found ways to work with Indigenous conceptions of how authority ought to be organized and exercised. They don't just pull institutions off the shelf that someone else invented or that the federal government came up and said, 'Here's what you need to govern yourselves.' They looked to their own traditions and retooled those traditions to meet the current contemporary demands and in doing so made those institutions win the support of their people. It's no accident that two of the most successful tribes in the group that we've worked with and studied have radically different governing institutions. Cochiti Pueblo where the spiritual leaders are the ultimate authority in the tribe and Confederated Salish and Kootenai Tribes of the Flathead Reservation whose governing institutions look like they came out of my high school civics textbook. They're both wonderfully successful because they found institutions that are their institutions that resonate with their people.

Fourth, it turns out a strategic orientation matters. We all know how tough it is to govern in Indian Country, the pressures on tribal leadership, the crises that come up, the obstacles thrown in your path by the federal government and others. But that strategy that is just band-aids and firefighting and opportunism turns out to be far less effective than a long-term strategy that asks what kind of society are we trying to build, what is it we're trying to protect, what are we trying to change, what do we want to preserve and then makes contemporary immediate decisions in the context of those ideas.

And finally, yes, turns out, leadership matters. But it's not just a question of picking the right men or women to fill particular positions in government. It's really about finding those individuals or groups who are willing to take responsibility for the future of the nation, who are willing to break with established ways of doing things, have a vision for the future, understand what kind of change is necessary to realize that vision. And what we found is that that kind of leadership can be found in all kinds of places, not just among elected officials. You might find it in one village. You might find it happening in your schools. You might find it happening in an enterprise, in a program, on the council. Leadership it turns out has more to do with what you do than with what position you're in.

So what did we conclude? Other assets are helpful but when Indian nations are in the driver's seat, when they effective and culturally appropriate governing institutions, when they make decisions for the long run, when they have leadership that is less interested in distributing goodies than in rebuilding the nation, then other assets, the things we started out wondering what part they played, then those assets begin to pay off. In other words -- and Andrew already said this -- successful Indian nations assert their sovereign powers, build effective governing institutions that match their cultures, identify strategic objectives, and support the leadership that is willing and able to get them there.

Those are the lessons of the Harvard Project and the objectives of the Honoring Nation program really reflect those findings. Its purpose is to identify, recognize and celebrate examples of good governance in Indian Country. That's why the program's not called 'Honoring Contributions in Social Programs' or 'Honoring Contributions in Economic Development' or 'Honoring Contributions in Education' or something like that, although we find ourselves repeatedly honoring exactly those things. It's called 'Honoring Contributions in the Governance of American Indian Nations' because it is in part in their capacity to act as nations, to assert their sovereign powers, to exercise that sovereignty effectively, to build an environment that can persuade talented, energetic, resourceful tribal members and non-members to bet on the tribal future, to bet on it here and not there. In other words, it's in their capacity to govern well that Indian nations like other nations around the world can best shape their own futures according to their own designs.

I think today you're going to hear from and about many of the Honoring Nations awardees and you'll see in their stories most of these themes because the award-winning programs are themselves examples of tribal sovereignty in action, of Indian nations that are tackling difficult problems in their own ways, are building institutions and tribal programs that can deal with those problems effective, are drawing on their own cultures as they do so, weaving their own values and views into their solutions and initiatives, thinking for the long run, rebuilding nations that work, nations that will last, and of course these award-winning programs are themselves examples of leadership. These are Indigenous initiatives that in a difficult time and as Chief Lyons said, 'We're in a difficult time,' offer enormous promise not only to their own nations but to all of us.

The big lesson of the Honoring Nations program is that tribal government works. We see a wave of innovation rolling across Indian Country. It's an innovation that draws on the past, responds to the challenges of the present, is building a much better and stronger future for Indian nations. It has worked and lessons to teach us all, and again we honor those programs for what you're doing and for what you offer to us."

From the Rebuilding Native Nations Course Series: "Why are Some Native Nations More Successful than Others?"

Producer
Native Nations Institute
Year

Native leaders offer their perspectives on why some Native nations have proven more successful than others in achieving their economic and community development goals.

Native Nations
Resource Type
Citation

Barrett, John "Rocky". Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 28, 2009. Interview.

Ninham-Hoeft, Patricia. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2009. Interview.

Nuvamsa, Ben. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2010. Interview.  

Pierre, Sophie. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Phoenix, Arizona. October 21, 2008. Interview. 

Sampsel, Roy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. August 31, 2010. Tucson, Arizona. Interview.

Ben Nuvamsa:

"We have this long history and teachings and so on. And if we hang onto those beliefs, core values, and so on, that really is the foundation from which we can build. So in successful nations, tribal nations, we're able to do that; to define who they are, understanding who they are, but also have a plan. A plan that's looking down, some people say seven generations. We don't just plan for ourselves, for tomorrow or next five years but long-term. We have to have a global vision of where we want to be. And if we can define that, then we can reduce that down to something that's gonna be achievable. And I think that economic development, economic success, goes back to having a good strategic direction where you want to be. The same way with us as communities and so on and to be able to build our healthy communities so that...it's the same kind of thing. What do we want to achieve? Who are we? And at Hopi, for example, it's just going back to the values of who we are as Hopi and Tewa people and defining our communities that way...and then setting our governance accordingly."

Patricia Ninham-Hoeft:

"I think it starts with short-term and long-term vision. That those tribes that are successful have a vision for what they think they're community should look like a hundred, two hundred years from today. And they've taken the time to make steps backwards to map out how to achieve that vision and then they start working on it together. And that they explain that vision to the entire community so that everyone is on the same page and they can help. And I think part of getting to that place of success means that we, as individuals in our community, have to change our mindset that we have to stop being the victim. We have to stop blaming our history for why we're not successful and we have to start living and defining our future as it is today. So values and ideas that worked for us in the past, they probably still work for us today, but it's the way we express them, the form that we use to live our daily lives has changed and we have to get with that. And when we do that when we start defining and taking charge of our own future then we'll start realizing our vision."

John "Rocky" Barrett:

"Common attributes, I think, of successful nation building are stable governments, expanded representation, lawful behavior, and something that lends itself to consistent performance. All those go back to constitutional forms but they also... those are really accomplished by diminishing nepotism which is, you know, since everyone is related in an Indian tribe, that is an issue. Financial accountability is a huge one; separation of powers seems to be a common attribute; and most importantly to make all that fall within a cultural relevance that means something to the culture of the tribe and the people."

Sophie Pierre:

"There's lots of reasons why...I think that for our case, the fact that we have made it a priority, that we listen to our people, that we, and that we ensure that we're engaging our people, our Ktunaxa people, with every aspect as we move forward I think that that's really what has really helped us to be successful."

Roy Sampsel:

"Where you have a strong sense of history, a strong cultural sense, it allows for that to be the foundational building blocks on which nations can then advance as they begin to take on either the political, social or economic needs of their tribes are. [...] A piece of it, I think, is individual history that the tribes have gone through and whether or not they have been able to sustain leadership continuity over time. I don't want to over emphasize that because it doesn't mean that young, new leaders don't emerge and make tremendous leaders. But if there is a cycle in which this isn't able to be built upon, and if everything has to start new, then what you end up is the lack of the foundational building blocks that allow for success to take place over time."