lawmaking

Miriam Jorgensen: Considering People-Made Law in Your Constitution (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Key Things a Constitution Should Address: 'How Do We Make Law?'," Miriam Jorgensen lays out some of the different ways that Native nations can provide mechanisms for citizens of those nations to make laws or change laws governing those nations.

Resource Type
Citation

Jorgensen, Miriam. "Considering People-Made Law in Your Constitution (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"So what if a representative council isn't the only place you want that law made? Here critically I'm going to point out that there might be lots of decisions that you decide are perfectly appropriate to depute to a legislative council, to a representative council of some sort. But there may be certain kinds of decisions that you don't want to give over to them, that as a community, as a people you think there are certain kinds of decisions that you want to have broader agreement on and that's where a general council decision or a decision of the entire body of the nation, of all the voting age citizens or whatever, might be something that you want to make a provision for in your constitution.

I will say this one caveat, which is the first point above there. If general councils are the only way you're making law, that every time you want to make a new decision and you take it to the entire voting public, most research evidence proves...suggests...I shouldn't say proves because all that research do is sort of say, "˜Here's the general trend that we see out there.' Most research suggests that if you take most decisions to a general council, all decisions to the general council, that's a recipe for instability. There's just in a sense too much authority given over to kind of who showed up in the high school gym on any given night. But very successful Indigenous constitutions or other kinds of non-Indigenous constitutions too do have certain kinds of decisions that they say, "˜Yeah, this needs to go to a wider public.'

Now for a lot of native nations, one of the decisions that almost always goes to a broader public are decisions about land. So when you look across Native nation constitutions, Indigenous constitutions, and you see, okay, here's the powers of the tribal council or whatever the representative legislative body is, the congress, again, a council or a legislature, whatever it's going to be termed, there's still almost always when there are decisions to be made about purchasing land, selling land, changing the use of land, those go to a broader body, to a general council of some sort. So that's one way.

Another newer kind of provision we see in some of the very modern tribal constitutions might be called referendum or initiative and these are not quite the same as a general council meeting, but it comes from sort of the, I guess, the progressive and reform movement where basically even in non-Indigenous nations people said, "˜Well, individuals should have a voice. Individuals should be able to challenge their governments not just at election time but should be able to challenge and say, 'Hey, my representatives on the council didn't carry forth a piece of legislation that I would have liked to have seen'.' And initiative and referendum provide an opportunity for people to get enough signatures and then push a piece of legislation forward themselves as a population. So some constitutions provide for that kind of effort as well. And I've provided some examples in the handout first of limited general council power.

So here from the Coquille Indian Nation, where they've given the opportunity to the general council to make certain kinds of decisions, they're going to elect the tribal council, they can amend the constitution and they can make advisory recommendations. There isn't a listing here about land but again that shows you providing a general council with some limited legislative authority."

Here's an example from Skokomish [Tribal Nation], where they have an initiative provision and I love this initiative provision because it basically says, "˜Yeah, yeah, we know that people may still want to come forward and make law and not just have the council do all of that for us,' but look at this, they say, "˜An initiative can't just be a way to destabilize government. You can't just use an initiative to go out there and say, 'Oh, hey, that council, they didn't do what I wanted. There, I'm just going to bring an initiative forward and make law without them'.' Skokomish says, "˜I recognize that I want people to be or we was a nation recognize we want people to be able to make law and to put it out there, but they need to have 60 percent of the number of people who cast ballots in the last election sign a petition for this initiative and then it has to pass by two-thirds of all persons who voted in that election.' So it's a pretty high bar, right? It says, "˜This is going to...you can pass people-made law, but it has to meet a pretty high standard before it...otherwise it's going to be too de-stabilizing to government.'

Just a little aside, a lot of political scientists...I do economics and political science is my sort of academic degrees...a lot of political scientists look at California and say, "˜California doesn't do this well enough.' What do we know about California? Constantly they're having these referenda and initiatives and a lot of people said that California has too low of a bar, it allows too much of that disruption of the day to day flow of political business to go on by setting the bar too low. So it's too easy in a sense for the populace to kind of disrupt the government business by forcing these things forward.

So as a tribal nation with an even smaller population, I think it's really important to consider, yeah, it might be nice to have people-made law and to have provisions for that in your constitution, but really take seriously this notion of which kinds of things are you going to depute to a representative council, which kinds of things are you going to depute to a regularly convened general council and which opportunities do you really want to give to initiative and referendum. So that's a set of allocational decisions you need to be making in your constitution."

Joseph Flies-Away: Knowing, Living and Defending the Rule of Law

Producer
Native Nations Institute
Year

Joseph Flies-Away (Hualapai), Associate Justice of the Hualapai Nation Court of Appeals, discusses the importance of Native nations building and living a sound, culturally sensible rule of law -- through constitutions, codes, common law and in other ways -- that everyone in those nations knows, understands, practices, respects and defends.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "Knowing, Living and Defending the Rule of Law." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

"Good morning. Say these words with me, right after I say them: Framer. Framework. Founder. Follower. Funnel. Facilitator. Friend. Family."

[Audience]

"Now remember those words. Now I'm going to say something to you and I'm going to ask you to do something. I'm going to say ‘the people' and then in your own mind or in your own verbal expression yell out at the top of your lungs, or as silent as you want, your 'people.' So when I say ‘people,' you say your thing and then I'm going to say, ‘Gather, ground, and grow,' and I'm going to do something with my hands and I want you to watch that. So you all know what to do? You're the accelerated class? The people. Joan [Timeche]. You can't interrupt. I don't know if this is on or not. He put it on me, that man, so I don't know. I can't deal with the technical stuff. I've got to go on. Remember the instruction. I say, ‘the people,' you say yours out as loud as you want in your own language and then, ‘Gather, ground and grow,' and I do something with my hand. The people. [Audience] Oh, gosh, you people are...come on. [Hualapai language]. The people. [Audience] Gather, ground and grow. And I'm going to continue with that kind of thinking as we do this.

Okay, I'm going to talk to you from this paradigm and it's this, and I always speak to everything from this. And I developed this starting when I was a planner for the tribe and a council member for the tribe and then when I became a judge. This used to be a flat planning tool, but it became spherical when I became a judge after this minor said to me, ‘Joey,' because they always call me 'Joey' instead of 'judge.' I let the kids do that, but not the adults. ‘What do you think about when you decide to send me to jail?' or something like that and I really thought about it because I wanted to tell that juvenile what I thought about when I decided things because I had...that was the first time someone really asked me the question. So this has come...let me get it up here...and I now speak with it all the time because it's very relevant to what we do as community nation builders, how we all gather, ground and grow. And some of it's very academic so I can speak to a bunch of professors in this way and then I can speak to any population. I can speak to Chinese. I can speak to Russian. I was in Australia in November. I spoke to a bunch of judicial people there from the same point of view. I'm going to share this with you. Now that's this sphere.

As people gather, ground and grow -- throughout all human beings -- there's always conflict. There's always going to be, as you see on the bottom, conflict, but at the same time there's always going to be cooperation. And between conflict and cooperation we're going to go through life; all our life, we're going to have goods, we're going to have bads. We're also going to have issues of personal, or citizen against the group, tribe or community and we have to balance between myself and my people, myself and my family, myself and the tribe, myself and the nation. But we're somewhere along those lines in balance. We're going to also have to think about what one person thinks is right or wrong, as opposed to what the group thinks is right or wrong. Me, my family. Me, the tribal council. Me, my co-workers.

Now this last one, this sphere is made up of these axes and so there's that one, that one, that one, but the bulk of it is made up of this last one, which is on one end common law, constitutions and codes, that which is written and on the other end custom, common practice and culture, that what we do. And all cultures are in there somewhere. White people, you're like way over here on the writing for a long time, Anglos, English, they wrote. We didn't write all the things. We had picture glyphs and we had symbols and things, but we're more down here. We didn't have to write everything. We talked about it, we were oral, we told stories.

So as we get into the more modern context, they're asking us to be more in this somewhere up here rather than down here. But there's nowhere in the sphere that's wrong or bad. It's where the group of people have decided to be because you're going to take your custom and culture as far forward with you as the best you can. But like at Hualapai, chiefs used to have more than one wife. Can I do that now? Unfortunately, no, I guess not. So you don't bring everything forward with you. You bring the best of your people, the best of your culture, the best of what you know as human beings from out this generational growing as people. But somewhere along the line you're going to be between here and balance here all over.

The person in the middle or the institution in the middle is what I call the warrior of law. Every human being should be a warrior of the law. They shouldn't be just a judge or shouldn't be just a leader, shouldn't just be someone who was put in that position. Everyone of us, our children, all should be a warrior of law, meaning that we're going to try to balance all of these things throughout our lifetime. With myself as a human being, because this works as individuals, but myself with the groups that I'm a part of because there's always going to be the me, but always a group. There's always going to be all of these other things.

So, as far as dispute resolution, the four words that I look at that by constitution or by custom and peacemaking, they're basically doing some of these things. They're confronting whatever issue might be at hand or whatever problem or whatever hurt or whatever pain that's there. They start communicating about it, meaning they're going to discuss or they're going to go through procedure. What procedure are you going to use to get through it? So I call that communication.

They're going to need to make compromises, because no one can have everything they want, although we want to have everything we want, we just cannot. When we go to court, somebody's going to lose in there. I made a lot of decisions. I was telling some of these people this morning, half my tribe hates me because I put them all in jail at least once and I've took children away from people, I divorce people and I gave alimony to one side or I gave the tool chest to someone and they got pissed about it, whatever it's going to be. As a judge, you're hated or disliked by half the people. You can't win. It's sad for me, but I try to do my job. But people have to make compromises, but you confront, you communicate, you compromise in order to reach concord, which is peace.

So every warrior of the law, everyone of us should be wanting to get to peace inside of us as an individual, but with the groups and people, families and all of the others that we are a part of. That should be our goal in life as humans. Now institutionally, you have governments writing things down in constitutions saying how this communication might work procedurally: trial level, appeals, how it's to be filed. I have a case right now where the justices, the three of us on the panel, are bickering over whether to give a person a pre-trial conference on an issue, these little things that we have to deal with, but it's all a part of how we're going to communicate about it on the appellate level. But we have a code, we have new rules that we made not too long ago in the court of appeals. It's supported by our constitution and we try to do the best we can. But there are a lot of issues that I'd rather would not have all this procedure, all this stuff in the court system.

When I was judging, and I judged in many places, and I've been around many places to help with, as professor said, wellness courts. I even came to do TA [technical assistance] for this tribe actually. Pascua Yaqui used to have one of the only family wellness courts at one point and it was a good one. I don't know where it is now, it's not there, but they had a good family wellness court. I think they have adult, but that kind of process is something that you look at a little bit differently and we're making rules...they make rules about it and everything, but I've been all over the place and I've learned a lot everywhere I got from the people that I deal with. They're all over the board. Some like to be more like haikus or White people when they want to be the system; they want to look just like the state court. Others don't want that.

When I sit as a judge, I wear a ribbon shirt that my mom made and I don't like to wear that black dress. I might as well put on that white wig if I wear that black dress, but I'm not going to do that. I don't want my hair white yet. It's getting there, but I'm not going to go there yet. So I wear a ribbon shirt because it's something that is of us, not of Anglo. But there are a lot of tribes who want to be like that. Well, okay, who am I to say, ‘Well, that's not good.' But all of you as nations or people...leaders of your people, warriors of law, all of your people have to come to some conclusion about how that's going to look, up here. History, clarity, vision are the past, the present and the possible, the vision. You have to have a sense of what that's going to be.

What is your court system, your dispute resolution system going to be? And there's quite a bit out there as you just heard. There's other places that have started peacemaking. There's other places who are just developing court systems. A lot of people have...I read grants for the federal government, we award money to people who are just developing court systems and they want to do more like wellness court, they want to deal with the issues of that because wellness court is about addictions of all the people and yesterday I said, ‘Well, we can't build all these nations with half our population being sick, we just can't do it. Then we rely on all the outsiders and it's not our nation, it's theirs. We have to get our people well.' So wellness courts are important. We have to keep working on them and a lot of tribes, they ask for money to do that and that's one of the things I help them do. So we have dispute resolution, we have writings, we have customs here, we have the individual issues where people file against each other or the community or the tribe files against the person or however it goes.

Now, this part here, I'm going to talk about some of the...see the people, policy, place, and pecuniary possibilities. That's another way of saying the people gather, ground and grow. Policy meaning how do these people as a political unit, polity, get together, organizational structure. Remember the people were like this, we're related by clan, by family, by band, whatever. But when we get to government, it's like this, hierarchical. How is the structure of our government going to be? So the people gather in whatever form or fashion, ground, and then the place and land issues like we have to have a building for our court system, we have to have a place to meet, we have to have a courtroom, we have to have all these things. And when I was a judge, I got electrocuted in my court and some of my council members here don't even know this, but I was electrocuted in our court because it was a condemned building, but that's where I had to hold courts for two years. But we have to have a place to do it.

The pecuniary possibilities is we have to have the money and the funds. We have to be able to have the resources, the tools to do good court, to make good decisions. If you have an appellate court system and you're only paying your judges $100 a day when they're making five times that an hour as lawyers somewhere, you won't get all the people you need. I've been in different places where they pay from $100 a day to $500 a day and I've done all the different places, but it's a matter of pecuniary possibility meaning financial. So going back to this, it's another way...do you have the people to do your court systems, do you have the human resources, your own people? It's best to have your own people as judges I would think.

But now through the TLOA, Tribal Law and Order Act, how many of you are actually looking at doing TLOA changes with your 3C or sentencing? Nobody in here? Because it's going to ask you -- and then the VAWA [Violence Against Women Act], the VAWA group -- it's going to cause you to have to have certain requirements made of your judges, of your public defenders, of your prosecutors, but we don't have a lot of us, don't have the human capital. There's only been three people at Hualapai that have gone to law school and two of them, they're younger than me, have already gone on and I don't know what the first one's doing, but the other one, he works in California and he's going to be a sports agent and I'm the one that works for tribal people, but some of us don't...some tribes don't have anybody who's gone to law school. But I'm not saying you have to go to law school to be a judge, although these acts tend to make you think you have to do that. But you have to have the human resources and we don't always have that.

A lot of people have wise people, older people. Well, not all old people are wise, but there are some...these peacemaking courts, which they put to use, those are the ones they're putting in there because they have some sense of wisdom and people respect them. Unfortunately...my mom says, ‘I didn't say anything and I'm an elder.' But I look at her, to me she's my mom and the elders are way older than her. So some people, we don't see the elders in the same light. But most tribes have good, strong, wise people who can be peacemakers, but are those...

Like what kind of cases are you going to bring to those systems? We have the law. We have a criminal code, tells you everything you can't do that's a crime, all the offenses, battery, assault, sexual defenses, everything. We have civil codes that tell you what you can't do. But we also have custom things that we shouldn't be doing, but these ones go to the court system that we have that is under the constitution and the code, but what about when people are just mad at each other? That is where I wish we would have more of the peacemakers where we could bring people in...we have a gym; we could fill the whole room with whatever. Bring these two people in and say, ‘What happened?' and if we have to give them boxing gloves. Well, let's make it a safe little place and let them have at it because we fight with pipes and all kinds of things, bats, when they get thrown in jail, why can't we let them do it in front of us? Just have them...we could do peacemaking at home if we just had the ability to figure it out.

And we can do it in our own way because at Hualapai, in our ethnographies and what I've read and then what I asked about from my great grandma was, they used to say...people would come in and if they needed to bring in another chief from another band...because Hualapai really, 13-14 bands of Pai people, [Hualapai language] is people of the tall pine. It's my great-grandfather's people. There's other bands. They're all different people. A long time ago they would bring in a head man or a chief from something else and sit down, hear what's going on and let that person decide, things like that. But they would all talk [Hualapai language] or how they'd say that. They'd all talk about it and some decision would be made and that would be it. [Hualapai language], it would be over with. That's it. We can still do that at home, but do we have the ability, do we have the people, the human resources to do that and do you?

Those are the things you need to think about and we have a lot of resources, but sometimes we don't know, we don't...and again it goes back to our own ability to see it in those people we don't like. And I know, you guys are all going to say, ‘Oh, I'm not like that.' All of you probably don't like someone at home and you...it just tears at you when you see them excel maybe or whatever. You know how you see them going down the road and you go...I know. We all do that. You're going to all these cars waving and waving, there's one, don't wave at all. All of us, you know. We have to come and accept that that's the confrontation, the acknowledgment of that. We have to know that that's what we do. I know I did it or I do it. I'm afraid of people at home. They're mean to me and I was telling our councilmen, I have no thick skin. I'm a baby. One little word, look, I'm just in tears practically. But we do that to each other. We have to somehow get past that.

But a lot of that comes from the historical trauma or the way that we were raised. Our parents and the grandparents were in boarding schools and they weren't given all the love and all the parenting, and so we're kind of just mixed up through a lot of hurt and pain that we're not over. We carry it. And I always make the mistake of saying like Bob Marley, but I'm not talking about Bob Marley. What Marley am I talking about? No. Jacob Marley. Christmas Carol. You know how he's coming, ‘Eh, harr.' We carry our pain and our misery and our hatred and anger for whatever our great grandpa said about so and so. We do that. We need to let that go. We don't have to forget everything. We've got to let those chains go because we're holding onto such pain and just horrible feelings about things that has just been handed down.

My grandma used to tell me about how the...she heard and all of Hualapais know about this -- we're celebrating this in the next month or this month -- when they made us march all the way to a place called La Paz, which interestingly means ‘the peace' in Spanish, but they took all the Hualapais over there and a lot of people died on the way and they took off and escaped and came back home. People died on the way back. But I come from and these guys come from the people who survived that. But when the old people told you that story, they would remember and they would cry and they would just...and we haven't let all that go and we all have our stories, we all have that memory that we carry. And we may not acknowledge it or even know or can see it, but we do, we just hold on because our grandmas were special to us, our grandpas and we listened to them and they unfortunately sometimes gave us this feeling.

My grandma said, ‘Don't trust white people.' I didn't trust a white person until I went to college and five years ago I went to a reunion and I told them this. I never said it to them before. I said, ‘My grandma said not to trust any of you people, but you're all right.' And they laughed like that. But I had to tell them that because I was like, ‘Oh, god.' Three white people I had to live with in a three-room thing and, ‘what do I do with this?' because I hadn't lived with white people. The white people in here probably think that's backward, but it's just...I'm telling you as it is. So we have this in our people and I'm going to go these ones.

ELDR, E is for earth, L is for lightening, D is for dream and R is for rain. Dream's the most important, that just means law and I'm going to get to that, but E is the physical. We have a lot of issues: alcoholism, diabetes, hypertension, all of our physical problems that we have. L: lightening. Our thoughts. We hold off on our... We have terrible thinking. We remember, we hold onto these thinkings. The R: the rain. The emotions. We have a lot of the emotions still. But D, the most important one is the dream, which is law, whether it be what we've done as custom or what we've written down and all of that is good, but we have to have our law.

Law is what connects us and binds us together, whether it's in the stories and tales and cultures and customs and common practices that we know, that the Pueblos know more, Hopi knows more, Diné know more of these things because it's in ceremony. But we also have the ability to write things down for ourselves, for people to know in our own place, but also for outsiders to know who we are, where we come from, where we want to go as human beings so that is this side, but everywhere here is good.

There's so much more with this. I didn't even look at this. I had all these little notes, but I didn't even tell you these things because I guess that was all right, I went through stuff, but there's too much to say all the time and too little time with this. And there's too little time for all of you in a way because you're going to be 10 years from now, boom, what happened? So we've got to wake up, [Hualapai language], and do what you've got to do and go home as survivors and know that you descend from strong and powerful people and that you can do this stuff with whatever knowledge you learn from each other and other people and just do the best you can, like I said yesterday, because we have to get past that. We are going to be the people who show the entire earth how to be good human beings. Hopi prophecy, other prophecies -- that's going to be the Indigenous people. Which one of us are going to do the best job of that? So I challenge all of you to go and think about that.

Lastly, warrior of law, all of us as human beings, as leaders, leadership, law, land and les affaire we'll leave that for now. But all of us should say, ‘I stand in reason, I walk with will, I stumble over morality, but I will catch myself and go on with my journey with law. So the best of luck to all of you. [Hualapai language], thank you."

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

Producer
Native Nations Institute
Year

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

People
Resource Type
Citation

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

Ian Record:

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

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Raymond Austin:

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

"Oh, yes."

Ian Record:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

"Or a Bivens."

John Petoskey:

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

Ian Record:

"Any other questions for John?"

Raymond Austin:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Thank you." 

Angela Wesley: Huu-ay-aht First Nations' Forging of a New Governance System

Producer
Native Nations Institute
Year

Angela Wesley, Chair of Huu-ay-aht Constitution Committee, discusses the painstaking effort the Huu-ay-aht First Nations undertook to develop a new constitution and system of governance, and how they continue to work to turn the promise of self-governance embodied in their new constitution into governance practice.

People
Native Nations
Resource Type
Citation

Wesley, Angela. "Huu-ay-aht First Nations' Forging of a New Governance System." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 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 Angela Wesley. Angela is a proud member of the Huu-ay-aht First Nation and has worked since 1980 with First Nations communities throughout British Columbia. Since 1992, she has been providing advisory and facilitation services in the areas of strategic planning, community development, communications and community engagement as well as governance capacity building. In recent years, her focus has been on providing assistance to her own nation as well as the other four First Nations that are signatory to the Maa-nulth Treaty. As Chair of the Huu-ay-aht Constitution Committee and member of the Huu-ay-aht Treaty Governance and Lands Resources Committees, she was instrumental in the development and community ratification of the treaty, the Huu-ay-aht First Nations Constitution and a suite of foundational laws that set the stage for her nation’s return to self governance as of April 1st, 2011. Angela, welcome and good to have you with us today.

Angela Wesley:

Thank you. It’s great to be here.

Ian Record:

So I went through your rather voluminous bio and shared some of the highlights, but why don’t you start off by telling us a little bit more about yourself. What did I leave out?

Angela Wesley:

I think you pretty much covered it. Some of the things that I’ve done more recently, or that I’m involved in more recently, involve being involved on some boards. And one of the things that I’m really liking doing right now is venturing into the academic world a little bit and I’m chair of the Nicola Valley Institute of Technology as well, which is a public post-secondary institute in British Columbia that was founded by First Nations in the interior of BC [British Columbia]. So I’m really starting to see my abilities to cross over and start sharing information on governance through that field as well, so really an exciting new eye opener for me and a new venture for me.

Ian Record:

So we’re here to talk about governance reform, constitutional reform and specifically the work that your nation has been involved in in arriving to the point it’s at today. And I’m curious -- let’s start at the beginning -- what prompted your nation to consider going down the reform road to begin with?

Angela Wesley:

Well, I think it’s a bit different in Canada than it is in the [United] States, where we didn’t have constitutions as I understand tribal governments in the States do. Really we were embarking on nation rebuilding. The constitution was one piece of what we were doing in rebuilding our nation. Our nation was involved in treaty negotiations and has been involved in the BC Treaty Commission process since about the early 1990s. So in thinking about where we wanted to go and really thinking about the vision for our nation, that’s what sort of prompted us to look overall at our nation and what needed to change. As we got deeper into our treaty negotiation process, we realized that we really needed to reform our government and start to rebuild our nation into something that meets the vision of our community. We started off I think back in the 1990s -- and not to say we didn’t always have a vision -- but we started to try to articulate that and bring that to our people and to say, ‘Where is it that we want to go as a nation? Clearly we have some healing that we need to do. We need to change the way we do business.’ So we really spent a lot of time talking to our people about what we wanted for the future, and our vision statement is not dissimilar to almost any First Nations’ vision statement, where we want a healthy community, we want to be able to govern ourselves, we want to make our own decisions, we want to set our own priorities, we want to revive and strengthen our language and our culture and we want opportunities for our people for the future. And that really set the tone for an entire nation rebuilding process I think.

Ian Record:

So it became obvious very early on that, 'If we’re going to fully engage in the treaty process and take advantage of that opportunity, we need to jettison the Indian Act system altogether and develop one that reflects who we are and where we want to head.'

Angela Wesley:

Absolutely. One of the biggest pieces that we were looking at or one of the bigger pieces we were looking at in treaty is the ability to have self government. We struggled originally in our treaty negotiations. We were being told by Canada that they wanted to keep self government outside of the treaty and that was a show stopper for us. Unless self government was included in the treaty and protected by the Constitution of Canada, we weren’t going to have a treaty. So on the basis that that was something that was so important to us we realized that we needed to start building our constitution and talking about what we wanted from our government in the future.

Ian Record:

We’re talking a lot at this seminar that the Native Nations Institute is holding on constitutions and the importance of process, that often for many Native nations, whether in U.S. or Canada or elsewhere, that there’s a broad recognition among people in the community that our current system is not working for us, it’s not going to get us where we need to head, but then a lot of folks have difficulty getting from that point to the point of a new system. Can you talk about the process that your nation devised to develop this new constitution, to engage in this nation rebuilding effort?

Angela Wesley:

Sure. I just want to start by talking about maybe there wasn’t such a broad recognition by our citizens of the situation that we were in and I think that sort of formed the basis of how we approached communication with our citizens as well. We started off, we have a general, what we called a 'band meeting' at the time, and I give a lot of credit to our leadership at the time and our former chief counselor Robert Dennis, Sr. was very instrumental in putting a process in place that the people would feel comfortable with. So it was opened up to the floor and it was the citizens that appointed the committee that was going to look at the constitution and we were told to go and find out what people wanted. So we were given a lot of flexibility and latitude in terms of how we approached things. So we really sat down, we talked as a committee about what it was that we wanted to achieve. We talked about our vision, the need to really get people to understand that that was the basis of moving forward was that we all had this collective vision and it was a vision of the people, it wasn’t a vision of a specific government or a specific council and I think that’s how we started. We did a lot of research, we looked at constitutions of other nations, we talked about other peoples’ experiences, and really what we started with was a questionnaire process. Once we had talked we went and did a little bit of interviewing and speaking with our people about the vision and is that in fact what we wanted. I don’t think anybody could argue with that’s what we wanted, we want to change our world, we want a better place for future generations. And everybody agreed with that.

So having said that, then we started to probe a little bit further, what people wanted from their government. So we started with a very intensive questionnaire process, and I always give credit to a young woman in our tribe, Trudy Warner. She was in her 20s at the time and very enthusiastic. She was working with us and she was assigned to the committee to be our administrative support. She ended up taking a questionnaire around, and I don’t think it was so important what was in the questionnaire as the fact that we went out and talked to people about it. So we devised some questions, some of them were good, some of them not so good, but it opened up the doors for people to start to tell us what it was that they wanted. We asked about terms of council, we asked about what kind of ethical behavior we expected of council, we asked about what kind of terms we thought would be appropriate, we asked about how disputes might be resolved, we asked about how to incorporate our traditional hereditary system into our government, which was huge for us. That was one of the things we really wanted to do. So we engaged in a process of communicating with our numbers over a long period of time. We probably did this over five to seven years on and off; it wasn’t consistent. We were a committee and we were limited by finances and what we could do; it was very expensive. We have probably 80 to 85 percent of our people living away from home, so it involved going out and going to the people or bringing them in, which was very, very expensive as well. But we really, we talked a lot to our people, we talked we brought that back and we talked as a committee about what that meant and what did our people really want. I think that some of what we found was that what I started with is that people didn’t really understand the system that we were under. We’re so used to blaming our band councils for things that go wrong without understanding that the Indian Act is behind all of that and that our councils really are structured under an Indian Act system that so clearly does not work for us, that oppressed us for so many years. And that’s what our people grew up with. So a lot of people didn’t know about our traditional systems, they didn’t know how we used to govern ourselves. All they knew was this oppressive system that we’d lived under that had hurt them in huge ways.

So sort of interesting, maybe to back up a little bit to the questionnaire process, our young citizen went out door to door, bless her heart, by herself and knocked on people’s doors and said, ‘I have this questionnaire and it’s my job to come and talk to our citizens about what it is you’d like to see in government.’ And she heard a lot of venting. So we tried to give her a lot of support and told her to not to react, don’t get defensive, don’t feel like you have to defend the council for things that happened 30 years ago, but listen, allow people to say what’s on their mind and bring that back to us, because that’s all relevant to what we need to change in the future.' Along with that commitment from the committee, she also had a commitment from our chief councilor at the time, who said that, ‘If somebody needs to talk to me, come back and tell me. Don’t take it on for me, but I will go.’ And he made that commitment and he did go and follow up with people, which was huge. So once people had a chance to get some of that stuff out that they had been holding on to a lot of times for 30, 40 years -- people had gone been taken out of our community, they’d gone to residential school, they’d seen what had happened to their parents and grandparents in the community and they’d gone from there and never come home. So these are people who have memories from the past that aren’t good memories in a lot of cases. So we were able to get through a lot of that. When people had the chance to just say that and get it off their chest with nobody trying to defend how they feel, then they kind of went, ‘Oh, okay.’ And they would say to Trudy, ‘Well, what are you here for?’ She’d say, ‘Well, I have this questionnaire.’ And they’d say, ‘Oh, come in. Who are you and what family are you from?’ And there was this warmth all of a sudden that, ‘Come and have a cup of coffee and do what we do traditionally,’ is share information. So she was able to, I think, with her personality, with her youth, with her enthusiasm and with the commitments and backing that she had from the committee and from our leadership was able to break through in a lot of cases and make people feel Huu-ay-aht again. We actually had people say, ‘I didn’t think I was Huu-ay-aht anymore, I didn’t think anybody cared about me. But I was important enough, somebody came to my house and talked to me about these things.’ It was a huge breakthrough for us.

Ian Record:

It’s interesting you bring up this thing about recognition. My experience in the many nations I’ve worked with on constitutional reform -- primarily in the United States -- has been that people in the community fixate on the symptoms of dysfunction, which typically means they focus on the council, ‘Everything that’s wrong with us is because of the council,’ when they don’t it’s very difficult for them to draw that connection back to the roots of the dysfunction, which in many cases are an imposed system of governance. How important was it for you guys to shift that focus in your community to show people that, ‘Look, at the root of what ails us, what’s holding us back,’ if you will, ‘from rebuilding our community into something that we think is important and is culturally relevant is this system that is not of our own design.’

Angela Wesley:

It was the foundation of our communications, both in our constitutional communications as well as in our treaty negotiations. We just felt that it was so important for us to realize that there was no way out of that system unless we created something ourselves, and that’s what we were trying to do through treaty negotiations, to be able to get governance tools, access to lands and resources, additional financial boosts that could help us to move forward and to create that economy for our people. So in order to do that, we had to show that there was nothing in the current system that we could see that was going to allow us to dig ourselves out and to be able to change our world. We needed something else to add to it and having governance, having good governance in place through our constitution together with having some extra tools, access to lands and resources, recognition of our rights, the ability to build the economy was what was going to change our situation. And like I said, so many of our people just had no idea what the problems were and when we started to talk about that I think it really opened eyes and gained a lot of support. And the support wasn’t 100 percent. A lot of people were taking a leap of faith. We were creating trust through doing this kind of communications with our people and saying, ‘Can you give us a chance? This is what we think is going to help us to change our world. Let’s do all of this together.’ So that was it was really the root of what we were communicating to our people is that how else are we going to change, how else are we going to change our social situation because it’s not good the way it is right now.

Ian Record:

I wanted to back up to something you said earlier about the importance for Huu-ay-aht of having this new governance system that you were creating be an expression of the people’s will and not necessarily an expression of political will, meaning you wanted to ensure that it was the product of the people as a whole versus the product of a particular council or particular elected official or someone else. And we’ve seen where other nations have succeeded with constitutional development or reform, that recognition going into the process, that we’re going to sabotage our own effort if this either becomes politicized or becomes viewed as a politicized process at the very beginning. Can you speak a little bit more about why that is so critical to sort of make sure that the process itself is an apolitical process in how you guys ensured that you insulated it from sort of the political impulses along the way?

Angela Wesley:

Yeah, it probably was a key to our success in terms of the communication or in terms of the approval and ratification of the constitution. I can’t give enough credit I think to our leadership to be able to have stood back not only from the process of building a constitution, but also recognizing that we were trying to incorporate in some fashion our hereditary system back into our government or at least the ability to do that as time went on into the future. And again our chief councilor at the time is a very traditional individual as well. He’s a historian for our tribe and I think that really helped to show people that we were really trying to do what was best for the nation. So there wasn’t political interference, but there was huge political support for developing that system and I think that the leadership showed that they weren’t afraid, that they weren’t afraid of the changes that were coming up because this was what was the best for the nation. So the separation is good, but the leadership was such a critical element of it as well to be able to stand up and really support what we were doing.

Ian Record:

It’s interesting you keep using the word 'support,' because where we see tribes succeed is where the elected leadership plays a supportive role, not a directive role. Where we see tribes struggle is where the reform process is quickly viewed by people in the community as just another initiative by the current leadership that’s in charge. Do you see that as crucial where do you see that as maybe sending a message to the people in terms of, ‘This is something that’s so critical that it’s got to be bigger than us as a group of leaders, it’s got to be about the nation as a whole?’ Did people kind of stand back and say, ‘Wait a minute. This is a real opportunity for us to re-engage, to have our voices heard,' as you mentioned? You mentioned the one person saying, ‘Wow, my government’s never asked me for my opinion on anything before,’ to say it’s not just a command and control decision anymore, this is going to happen from the ground up.

Angela Wesley:

We really it is critical. We really emphasized that with our people as well to say when and who have you ever seen that’s had the opportunity to say how it is that we want to be governed as a nation. To take advantage, we encouraged people to take advantage of that possibility; we encouraged people to use their voices in a positive way. The system that we were in, I think, really led people to be complaining about things all the time. There was no way out, there was no way to resolve disputes, they just went on and on and on. And to have us going out into our community and talking to people about solutions and to have them feeding into, ‘Okay, if that didn’t work, what can work and how can it work better for us, how can we take how we used to govern because it sustained us for thousands of years, how can we take those principles and those values and move them into our government of today so that we can do things better?’ And I think people understood that and it didn’t even really become a visible issue of, ‘Oh, it’s not the politicians that are involved in this?’ People just started to engage because they liked the conversation. So I don’t think it was so much a factor that people hung anything on the process and said, ‘Well, the politics aren’t involved.’ I think they just started liking having the conversation and started feeling more and more comfortable with it. Probably one of the earliest things that people really responded to was the chapter in our constitution that talks about individual rights, to actually see in black and white that people would be treated equally, that they would have equal opportunities within the nation as citizens of the nation; that really sparked something. So starting there, having that conversation as a basis for our communication on the constitution was really, I think, winning as well.

I think people really felt that it was something that was going to reflect what it is they wanted. Because when you go out we often talk about how you explain such complex matters to people who are just trying to get by in their lives and we really chose to try to make our communications really relevant as opposed to saying, ‘This is what provision 16 is going to say in legal language.’ We tried to keep our constitution as plain language as possible and to make it relevant to people because that’s their question, ‘What does this mean to me and my family? How is this going to change the world? How is this going to protect the assets of our nation for future generations, for those who aren’t born yet?’ Those are the kind of things that were on people’s minds. So having the conversation around those kind of things as opposed to around what the provision is going to say, we tried to capture what people were saying and put it into the language.

Ian Record:

It’s interesting you bring that up because often the refrain that we hear in many Native communities -- particularly those that are struggling with reform -- is a sense among many in the community that they simply don’t understand why they should even care about the constitution. They have no sense of how it impacts their daily life, the current constitution and how a new constitution could improve their daily life, and so forth. And it sounds like that was at the forefront of your mind as you went into this process, is to educate people about and making sure that the deliberations were accessible so they could understand, ‘This is how this new system will improve your situation individually, your family’s situation, and the nation’s situation as a whole.’

Angela Wesley:

I think so, and I think that people saw that this was a way of helping to make our governments, future governments and present governments, more accountable to the people. The way the Indian Act is set up right now, your funding flows from the federal government to the council. So the accountability of councils in a legal sense is right back to the Ministry of Indian Affairs, and there’s really not a whole lot of concern on the part of the department as to whether you are accountable back to your citizens. It’s becoming more and more prominent now, but and it’s also becoming more and more of a practice among First Nations to be accountable to their people. So despite the fact that it’s not really a requirement -- although Canada has paid a lot of attention to that in recent years -- nations are becoming more accountable to their citizens and citizens are demanding that accountability. And I think the constitution strengthens that and allows us to do it  to have councils be accountable in a way that is acceptable to the people. What are you going to report to us, when you are going to report to us, to see that these things have to happen? They have to happen according to our own laws, not according to the Indian Act or Ministry of Indian Affairs. It’s because this is what our people want.

Ian Record:

It sounds like things have gone well with your nation in terms of governance reform, really governance rebirth, if you will. But I’m sure at some point you encountered some challenges.

Angela Wesley:

Oh, absolutely.

Ian Record:

And given that it took you seven years, I’m sure there were lots of challenges, a lot of bumps in the road along the way. Can you talk about some of the biggest challenges that you faced in the reform process and how you worked to overcome those?

Angela Wesley:

Well, I think the whole...in terms of our community, I think what I’ve just been talking about in terms of the understanding or lack of understanding of the reality of our situation was probably the biggest hurdle that we had to overcome in the development process. We did end up with a high approval rate of our constitution and of our treaty, and I think it was just our people agreeing that we needed to take this leap of faith, that this was our chance to try to do something for ourselves and to do it our way. So I think that that was a big leap of faith.

Ian Record:

That sounds to me like that was an initial challenge of getting the people to recognize the reality of their situation, of just how pervasive the Indian Act how it affected them in so many ways that they may not have been aware of. But how about when you got really into the process full-bore, you got beyond that initial education, were there some other obstacles you encountered, external factors, internal factors that threatened to derail the process?

Angela Wesley:

You know, politics will always sort of pop up and matters become more urgent as time goes on, but I think that by and large, given the process that we went through, I think we were able to overcome any kind of hurdles. I think that the committee that was put in place and the leadership that we had in place was able to work together to understand that we were there to support each other and that made a lot of difference, I think, to how we approached when we were getting towards the end when it’s sort of crunch time and you’re going to start looking at going into a vote. There was some apprehension on the part of our leadership and our council maybe that, ‘Where is this going to go?’ They were sort of feeling like any arrows that were going to come were going to come towards them and we said to them, ‘Well, we’re the ones as a committee that should be taking some responsibility, and feel comfort in the fact that we’re happy to stand up in front of our people and explain why the constitution is the way it is,’ and it is entirely because of what it was that people wanted in our government in the future together with trying to build a system of good governance. So I think we overcame those.

The challenges I guess that we’re looking at now, we’re two years into being self-government or self-governing and it’s hard. We didn’t expect it was going to be easy. This I think now is when we’re starting to face the challenges, when we realize what it means to be fair, to treat people equally. When those things that our people told us that they wanted, it now takes much longer to make a decision because you have to go through, you have to be transparent, you have to treat people equally. There aren’t exceptions. If there’s an exception for one [person], you’ve got to think of how that’s going to happen and play out for the rest of the citizens as well. So what all sounds really good and is really good takes a different process and takes a different way to be able to move forward. So I think we’re having those kind of challenges right now.

I’m seeing I’m not working directly in my nation right now, but I’m still always very connected. I’m working with our economic development side now actually, so sort of shifted over into that. But you see our leadership struggling. They want to do things right. They want to follow our laws. And I think if there’s things that can be learned, it’s to really think about what this is going to mean as you’re drafting your laws, because I think in some places we found that we’re almost overly accountable and what we don’t want to do is to constrain ourselves with our own laws. But the beauty of being self-governing is that we can change those things if and when we need to. And recognizing that I think is a big part of our learning curve.

So being self-governing doesn’t mean that everything is working perfectly for us right now -- far from it -- and when will we ever be doing things perfectly? No government ever runs perfectly. But we certainly feel better, I don’t think that there’s a person in our nation that thinks that we made the wrong decision in taking on self-government and doing it for ourselves. It’s hard, it’s going to be difficult for us as we continue to move on but we’re getting better at it every day.

Ian Record:

So it sounds to me given that you’re just about two years now into your new governance reality, if you will, that your nation is still working to grow into its new constitutional skin, its new governance skin, it’s going through those growing pains of actually transforming that document on paper into practice.

Angela Wesley:

Oh, definitely.

Ian Record:

And this is something we hear from a lot of other folks, we’ve worked with a number of tribes who are now three, six, ten years into their new constitution and system of governance and they describe this same sort of dynamic taking place, where it’s one thing to have a new constitution and it’s quite another to actually live that in practice. And I would imagine for you as with other some of these other nations, you’re really the larger task really is to transform the political culture that has been in place in your community for so long, the Indian Act culture. In the U.S., for many tribes it’s the Indian Reorganization Act political culture, where suddenly you can no longer go to the council for absolutely everything that ails you, every problem you have. Now there’s processes in place that you have to follow. Can you maybe shed a little more insight into how that’s unfolding in your community, and I would imagine it entails an ongoing education challenge does it not?

Angela Wesley:

It is. It’s definitely a learning curve. Under the Indian Act, as we’re hearing in the courses through NNI and the kind of sessions that we’re in today, you need to put up the mirror sometimes and see how it is that you’re operating. Councils are expected to do everything. That’s the history of most First Nations in Canada and I assume in the U.S., and transforming at the leadership level into being visionaries and creating the environment to succeed is a really difficult thing to do, because citizens still expect you to go and take care of everything, all of the things that are going on in the community. So it’s difficult for citizens because they can’t do that anymore, and it’s difficult for leadership to try to let that go and to put the administrative systems in place that allow the questions to be answered and that allow give citizens a place to go to get their questions answered instead of to the political side. So it is, it’s a transition; it’s a huge transformation. It’s a new way of doing business and operating our government. So it’s I give a lot of credit to our leadership in trying to get through that and trying to remind themselves every day that they need to show citizens where they need to go to get their questions answered as opposed to coming to them, because that’s the critical part is that you can’t leave our citizens hanging, they’ve got to have somewhere that they can go and that’s the council’s role.

Ian Record:

And I would imagine this clarification, redefinition and then ongoing clarification of the new roles within your new system is absolutely critical, because as you’ve laid out, your governance, your new governance system is expected to achieve far more ambitious things than the previous system was under the Indian Act. You’re tasking your governance system and the leaders who lead that system with creating this brighter future of your own design. And so I think this point that you brought up is absolutely crucial, where you’ve got to make sure that you create the space for your leadership to be visionary and to actually figure out, how do we implement the vision that we’ve created for ourselves for our own future?

Angela Wesley:

Yes, definitely. And being able to feel comfort in the organization that we set up is the other big part of it as well. You can put your constitution in place, but unless you’ve got an effective administration as well to be able to take care of that we had to do a lot of reorganizing at our administrative level as well. We had a typical First Nation operation or band council operation or band administration, where we had our band manager who had everybody in the organization reporting to them. So that person as well needed to be able to focus on making sure that the council’s wishes and directions are undertaken and that’s what their role is as well. So there’s a shift in roles all throughout the organization. People have to learn new things. People who are really good at managing resources now also have to learn how to manage people. So it’s a shift at all levels within the government and that’s going to take time, and I think we need to go easy on ourselves a little bit in these early years and just realize that we need to relearn a lot of things and we need to learn how to do business effectively and efficiently for the benefit of our citizens.

Ian Record:

So a couple things out of that. One is that I think what you’re referring to is what we’ve heard from other folks from Native nations who’ve been involved in reform efforts is you’ve got to in many instances dial back expectations, that just because you have a new constitution doesn’t mean everyone’s problems are going to be solved overnight. There is going to be a learning curve, we’re going to make some false steps, we’re going to do two steps forward, one step back kind of thing, but the idea is that we’re in charge now and if we find that something in the new constitution isn’t working, as you mentioned, that we have the power to change it.

Angela Wesley:

And it’s not  in our case it’s not only the constitution, it’s the treaty as well, which both came in place at the same time. Probably one of the biggest lessons learned is to have not only that reorganizational plan in place to get your government ready, but also to start getting the economic side and getting that plan in place as well and start to make sure that there’s even small steps towards making changes that people will see some of the early things that we’re able to change that made a difference to our people. As we changed things like our education policies, we weren’t able to fund trades before and now we have the flexibility to be able to do that. So we’ve made little changes like that that make a difference to the people and to plan to do things like that to start to address some things that you can point to to say to your people, ‘Yes, things are working differently now. We are making small steps and hopefully as we continue to grow and build our economy, we’ll have lots of successes that we can look at and that’s going to happen over time.’

Ian Record:

The other thing I wanted to bring up from your previous response is you mentioned that the band manager, their reality has changed because of this new governance system, and I think that that’s often lost on folks is that this new constitution, this new system of government, it will definitely change the role of leadership or clarify perhaps the role of leaders and it will transform it will necessarily transform the expectations citizens need to have of their government, but really what you’re saying is that it’s going to change reality for everyone that is either part of the nation, works for the nation, or interacts with the nation. And can you talk a little bit about how I guess compare and contrast the new governance reality at Huu-ay-aht with the old governance reality? Say I came and visited the community under the Indian Act system and I had to work with the band government on something and now I’m getting ready to come back, I call you on the phone and say, ‘What should I expect, how are things going to be different for me if I have to come and work with the nation on this particular issue?’

Angela Wesley:

I think there’s a lot of fundamental differences, and we’re getting used to working within a new system as well. Having a treaty, having the constitution to go along with it and having a whole new set of laws, things have to be done differently. It’s not as easy now as going up and calling all the council members together and sit down and, ‘We have this new initiative we want you to look at.’ There’s a lot of things that need to go into it before it gets to that council level so the way of doing business. Do you need a permit to be able to go out and do certain things on the land? Do you need to be talking with our manager of natural resources to get all of those kind of things in place? Nothing goes before our council now without a full briefing note and some options that are provided to them so that they’re making decisions based on full information. One of the things that’s in our Government Act is a requirement for the way decisions are made and it’s actually written into our legislation of what needs to be considered at the council level in making a decision particular, well about anything, but particularly in relation to things that require money. Have you got all of the information that you need in order to make the decision? Have you looked at what the impact is on other programs? Where is the funding going to come from? Are there other options here? Is there a need to consult the community on this? What kind of impacts there’s a whole list of those things that are in the laws. So it’s our law that requires those things get done and that means a much more thorough process is required. So things are different, things take longer and hopefully we can refine that as things go along, but it’s probably better to walk on the side of caution a little bit first, at the same time being able to move forward economically and be able to make those changes in our nation.

Ian Record:

So I mentioned in the introduction that you have been intricately involved in your nation’s development of a whole new suite of foundational laws. You get the new treaty in place; you get the new constitution in place. Where did you guys focus your lawmaking energy at the beginning? What to you was, ‘We’ve got to address these issues right now. There’s nothing on the books that helps us deal with X, Y and Z.'

Angela Wesley:

What we did in approaching our lawmaking was to look at the real critical areas. We had gone through a process that I described of creating trust in from our citizens that we were going to do things right. So the first laws that we put in place were, we called them 'laws that govern our government,' because people were a little afraid. What are these new laws going to be and are we going to be expected to have all these new laws in place that we need to know. We thought it was really important that we put in place laws that show our people that our government needs to be accountable. So we have things like a Government Act, a Code of Conduct and Conflict of Interest, Election Act, Citizenship Act, all of those kind of really foundational pieces. We didn’t start touching the bigger areas that we now have lawmaking authorities under like adoption, child welfare, education, culture and language. We’ve got lawmaking in a lot of areas, but we decided first that we need to continue to build the trust of our government and allow our government some time to settle in to governing well. So we really put laws, a lot of laws in place that talk about how our government operates and how they’re to be accountable back to the people.

Ian Record:

So basically what it sounds like you’re saying is you worked to enhance the lawmaking engine to then make laws in the areas where you had newfound or newly affirmed powers.

Angela Wesley:

Yes. Yes. Yes and to make sure that there were ways in place that citizens could have an input, that they would be able to always have a say in government, making sure that our Government Act specified for example what the rules were around having people’s assemblies where people would have their voice, what the rules would be around providing financial accountability back to the people. So these were our laws that we promised people when they said, ‘How can we be sure council isn’t going to run off with all the money that we get under treaty?’ Because the constitution says they can’t and because there’s a law that says what they need to do and how they need to report back to the people. So we’re making sure that those checks and balances were really firmly in place before we start venturing off into other areas. Other areas that were really important to us in lawmaking was protection of our lands. So we have a few laws that deal with lands and resources. Areas that still allow our people to exercise our rights, harvesting rights and that kind of thing, so we made sure laws and permitting process and that were in place so that on effective date people wouldn’t say, ‘Well, how am I going to go and hunt now? Where does all of this happen?’ So we worked really hard to make sure there was no disruption in those kind of activities as well.

Ian Record:

So I have a final wrap-up question for you and that deals with lessons. You guys were involved in a process that lasted several years, you’ve managed to come through the light at the end of the tunnel and you have a new governance system in place. What do you feel that other First Nations in Canada, other Native nations in the United States can learn from the Huu-ay-aht experience?

Angela Wesley:

Well, that’s kind of difficult to say. You never really want to say what we’ve done that other people should do. We’ve done what we think is best for us. We’re happy to share our story and to see if what we’re doing can be of any assistance to others. We are grateful to those who came before us as well, there’s now 10 First Nations in British Columbia that are no longer subject to the Indian Act. We learned from them. We learned from the Nisga’a, we learned from Tsawwassen, we learned from other nations that are self-governing under self-government agreements as opposed to treaties. So I don’t know how to answer that except for to say it’s really important to bring the people along because if they don’t understand the change that’s coming up, nothing really changes for them. It’s just a shift in power from one to another and they won’t see the difference unless they’re involved in that. So I think that’s probably the biggest thing that I feel proud of that we did in our nation is we really did our best to bring the people along.

Ian Record:

Make sure they’re on board the nation rebuilding train before it leaves the station.

Angela Wesley:

Absolutely. Absolutely, yeah. So it was a healthy experience for us. We’ll talk to a lot of our citizens who aren’t happy with the way things are going, I’m positive of it, but that will never go away either. But I think what we’ve learned through the process and what our citizens have learned is to use our voices and to try to be positive in terms of saying how things can be better. If it’s not working, let’s not just complain about it, because we can fix this if we want to. So I think that’s something that we’ve learned and that we’ll continue to learn as we become more comfortable in governing ourselves once again.

Ian Record:

Well, Angela, I really appreciate you sharing your thoughts, experiences and wisdom with us and good luck to you and your nation on your new governance journey.

Angela Wesley:

Thank you.

Ian Record:

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

Ned Norris, Jr.: Strengthening Governance at Tohono O'odham

Producer
Native Nations Institute
Year

Tohono O'odham Nation Chairman Ned Norris, Jr. discusses how his nation has systematically worked to strengthen its system of governance, from creating an independent, effective judiciary to developing an innovative, culturally appropriate approach to caring for the nation's elders.

Native Nations
Resource Type
Citation

Norris, Jr., Ned. "Strengthening Governance at Tohono O'odham." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. February 16, 2012. 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 Ned Norris, Jr. Since 2007, Ned has served as chairman of his nation, the Tohono O’odham Nation, winning re-election to a second four-year term in 2011. He has worked for his nation for the past 35 years, serving in a variety of capacities, from Vice Chairman of his nation to Director of Tribal Governmental Operations to Chief Judge of the Tohono O’odham Judicial Branch. Chairman, welcome, good to have you with us today.”

Ned Norris:

“Thank you very much. It’s good to be here.”

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 more about yourself?”

Ned Norris:

“Well, I’ve… born and raised here in Tucson, born at San Xavier when it was a hospital in 1955, and pretty much grew up here and spent all of my life here in Tucson, and got married to my wife Janice in 1973. And actually Friday, February 17th will be 39 years that she’s put up with me.”

Ian Record:

“Congratulations.”

Ned Norris:

“So I really appreciate that. We have children, we have grandchildren, and it’s great seeing them, and seeing how our kids have developed over the years and seeing how our grandchildren are coming along.”

Ian Record:

“Well, we’re here today to tap into your knowledge, your wisdom and experience regarding a wide range of critical Native nation building and governance topics and I’d like to start with tribal justice systems. You’ve taken on many different roles in your nation’s justice system including court advocate, child welfare specialist, and judge. And so I’m curious, generally speaking from your experience and your perspective, what role do tribal justice systems play in the exercise of tribal sovereignty?”

Ned Norris:

“As I was thinking about this, I was thinking about where we were as early as the late 1970s. For some people that’s not early, for some people that’s a long time, but when we think about where our tribal system, judicial system has developed since ’79 and forward, we have really come a long way in realizing that the court system itself plays a significant role in ensuring or demonstrating our ability to be a sovereign tribal entity. Obviously the tribal legislature’s going to make the laws and the executive side of the tribal government is going to implement those laws, but the court system really has a key, significant role in determining, in how those laws are going to be interpreted and how those laws are going to be applied. And for me that’s really a significant role in the tribal judicial system ensuring that whatever we’re doing internally with regards to applying the law as it is written by the legislature and implemented by the executive branch that it is ensuring that sovereignty is intact, that it’s ensuring that we have the capabilities of making the decisions that we need to make in order to govern our nation.”

Ian Record:

“A law professor here at the University of Arizona who you know very well, Robert Williams, who serves as a pro tem judge for your nation’s judicial branch describes this systematic effort your nation has engaged in over the past three decades or so to build an effective, efficient, tribal justice system from the ground up. Why has the nation engaged in that effort and why is that important?”

Ned Norris:

“I think that it has a lot to do with the fact that we’ve got tribal legislators over the years that have really began to take a holistic look at the tribal government as a whole and realizing that for the most part as late as the 1970s, early 1970s, our tribal judicial system was really what I would refer to as a BIA [Bureau of Indian Affairs]-type system. Tribal codes were developed, but they were really taken off of boilerplates of BIA codes and so on and so forth. So I think that our leadership, our tribal council began to realize that these laws don’t always have the kind of impact that we would like them to have. And so in order for us to be able to govern ourselves and to determine our own destiny as it relates to [the] tribal court system, we’ve got to begin the process of changing the system and bringing it more up to speed, so to speak.”

Ian Record:

“And part of that I guess, regaining control of the justice function of the nation, things like making sure that you are charge of law and order, that you’re in charge of dispute resolution, that when you have a young person who has a substance abuse problem that they’re being taken care of, that issue is being taken care of internally versus them being shipped off the reservation, making the system more culturally appropriate, where the people in the community feel like this makes sense to us. Can you talk about that dynamic in the work that the nation has been doing in that regard to, I guess, make the justice system their own?”

Ned Norris:

“Well historically, I think it’s unfortunate that back then, and even to some extent even today, tribes do not have the level of resources available to address the more intricate needs of a substance abuser, an alcoholic, whatever the case may be, and so even today there are needs. There is a need to identify resources, whether it’s on or off the reservation to address that, but I think most importantly is the idea that we would be able to create the kinds of services that we’re using off reservation and bringing those services on the reservation where we’re playing a more direct role in that person’s treatment, in their rehabilitation and really looking at it like…from the perspective that this is family, this is part of our family. This individual isn’t just a member or a citizen of our nation, they are a citizen of our nation that we should take more of a responsibility to try and help within the confines of our own tribal nation, our people. And so I think when we think about it from that perspective, we begin to realize that maybe the services that we have are not as adequate or not as resourceful as we would like them to be. So we’ve got to be able to identify that and be able to identify where those voids are and bring those services into that program or create the program that…where those voids exist.”

Ian Record:

“It really boils down to the nation itself best knowing its own needs, its own challenges versus somebody from the outside that is simply just bringing in something from the outside that may not…”

Ned Norris:

“Not only that, Ian, I think that in addition to understanding that we have…we as the nation membership have a good understanding of what those needs are and what those resources are or aren’t, but also really realizing that if we’re going to bring or utilize outside resources to do this, those resources aren’t always going to be there. We’re going to be there, we’re going to continue to be there, our members are going to continue to be there and what makes more sense to us is to be able to take control and bring those services, develop those services where they lack and provide the services more directly by the nation’s leadership itself.”

Ian Record:

“One of the things that Professor Williams points to in this effort that the nation’s been engaged in around the justice system for the past 30 years is how the nation has invested in its own people, how it’s worked to build the capacity, internal capacity of its own people to provide justice to the community. Can you talk a little bit more about that? You’re a byproduct of that effort.”

Ned Norris:

“Well, I think that when we talk about investing in our own people, over the years in a more significant sense we’re…we’ve been able to establish our gaming operation. That operation has played a significant role in our ability to bring the kinds of services that aren’t there, that haven’t been there, or those kinds of services that we would for many years just dream about having and even to the extent that we’re developing our tribal members. I think, just to give you an example, pre-gaming we probably had less than 500, 600 employees that worked with the tribe and now we’ve got well over, I think it’s about 1,400 tribal employees and we’ve got a varied amount of programs that have been developed that are really beginning to address a lot of the needs that we’ve been having over the years. And not even that, the ability to develop our own tribal citizens in providing them an opportunity to train academically, whether it’s a vocational program, whether it’s a two-year or four-year college, whether it’s earning a bachelor’s degrees, master’s degree, doctorate degree, whatever the case may be. We’ve been able to provide that kind of an opportunity for our members to be able to acquire the kinds of skills that they lack academically and bring those skills back to the nation and apply those skills.”

Ian Record:

“Yeah, and I think what you’ve addressed is there’s a major obstacle for many tribes in that they’ll invest in their people, they’ll send them off to get a good education, but then it’s really critical that there’s a welcoming environment for those college graduates to say, ‘We’re sending you off to get a skill to come back and apply that skill here on behalf of the nation.’”

Ned Norris:

“Exactly, and part of our challenge as tribal leaders is making sure that we create the ability for those members to be able to come back. Too many times I’ve shared with different audiences over the years that we’re graduating more O’odham with bachelor's, master's and doctorate degrees than in the history of the whole tribe, however, where we may lack in the ability to create the kinds of jobs that those individuals trained for. And so we need to prepare ourselves to be able to receive those tribal members back and provide them the kinds of job opportunities that they’ve spent four, six year, eight years in college acquiring, but also not only be able to do that, but to be able to pay a comparable salary for the kinds of positions that they’ve trained for.”

Ian Record:

“I’d like you, if you wouldn’t mind, to paint a picture. Before we went on air you were describing a little bit about what the nation’s justice system looked like when you came on board and started working within that system. Can you compare and contrast what the justice system and what the justice function looked like back in the early 1970s or mid 1970s, to what it looks like now?”

Ned Norris:

“Wow. It’s a night-and-day comparison really, because just physically we didn’t have the kinds of facilities necessary to really do… provide the kinds of justice services that our people should be afforded and we…when we talk about facilities, we talk about staffing, we talk about laws in themselves or codes, back in the late ‘70s, the early ‘80s, there was a time there that our law and order code was a boilerplate from the BIA code and I think that it took some years and some education and some effort to begin the process of understanding that this boilerplate code is obsolete in our mind and we need to begin the process of developing our own tribal codes. And so we began that process in writing our own tribal code, our law and order code, our criminal code, our civil codes and other codes and that took a process, but once we’ve done that and the tribal council adopted those codes, we started to apply them in the tribal judicial system. And so I think that when we compare where we were in the late 1970s to where we are now, the only… the concern that I have is, being a former judge -- I spent 14 years as one of our tribal judges and from ’79 to ’93 --and I’ve seen the court system develop over those years and seen how obsolete the laws were back in the late 1970s to where we were able to develop those laws. But also realize that back then in the early 1990s, I began to think about realizing the time that the court system is no longer processing and dealing with human beings, but they’re dealing with numbers. You become a number at some point, a case number or whatever because early on we came into this with the perspective that we’ve got this tribal member that is maybe committing crime, but there are a lot of factors that are contributing to why that tribal member has committed that particular crime and that we, the court system, although it has the law before it and the law may provide a jail sentence and/or a fine, the idea wasn’t always to throw this person in jail because of the crime they did, but to try and dig a little deeper into what’s really going on within that individual’s situation. Is it the home situation? Is it…was the person an abused person over a time of their life, was that person a victim of incest that just was never dealt with? And so we came to this with the perspective that the court system enforces the laws, applies the law and issues sentences, but some of that sentence has to take into consideration how can we help, how can we help this individual, how can we help the family address those issues that are impacting or having an influence in them committing the crimes that they’re committing?”

Ian Record:

“You mentioned that for several years you were a judge and so you’ve seen firsthand how the court system works and you’ve been a part of that court system. There’s an issue…there’s a major infrastructure challenge for a lot of justice systems across Indian Country. Can you talk a bit about what Native nation governments can do to ensure that their justice systems have the support they need to administer justice effectively?”

Ned Norris:

“One is, there was a period of time where the tribal legislature was what I refer to as the supreme authority on the O’odham Nation, at that time the Papago Tribe of Arizona. And as that supreme authority, there was really not a separation of powers between a three-branch system. And so, over the course of those years, early on the tribal supreme authority, the legislative authority really infringed on or encroached on what should have been an independent judicial system. And so I think, in answer to your question, tribal governments, tribal leadership should realize that it is imperative to the success of a tribal governmental entity that an independent system of judicial…a system to dispense justice is not having the kinds of influence by the other two branches of government that would impede its ability to deliver that justice. And I think that once we begin to understand that and realize that and realize that that not only does that involve the legislature not meddling into the judicial process, but it also has to involve an understanding that because in many tribal governmental entities the tribal legislator controls the purse, controls the funding, that they not use that as a basis to not fund the needs of the tribal judiciary. And I think that because the council has the authority to disperse funding resources that the courts still have to go to the council and ask and present their budget and ask for funding for infrastructure, for whatever the case may be. That there still has to be a relationship there, but I think that the tribal legislature needs to understand too that they shouldn’t use their role as a tribal legislator to deny the kinds of resources that the court system needs.”

Ian Record:

“You mentioned this issue of political interference and this is something that comes up in virtually every interview I do with folks on this topic of tribal justice systems and they all…almost all of them mention this issue of funding and how that can be rather than direct interference in a particular court case, but this kind of more subtle, insidious process of denying funding or reducing funding or holding funding hostage to…in exchange for certain considerations -- that that sends real messages and others have talked about how this issue of political interference can be a very slippery slope. That if a chair or a legislator, once they do it once for one person, word’s going to get around that, ‘You just need to go to this council person and they’ll get involved with the court case on your behalf.’ And in many respects doesn’t that distract the executive…the chief executive of the nation, the legislators from focusing on what they really should be focusing on?”

Ned Norris:

“Yeah, if we’re taking so much of our time and energy dealing with a relative’s court case and not allowing the court to apply justice to that situation, then obviously it’s taking us away from our real role, which is to provide the kinds of leadership and direction that we need to provide to run our government. So yeah, political influence, I think early on was an issue. Now, I think it’s rare. I think that we’ve educated our leadership to the extent that they understand the concept of separation of powers, that they understand that they shouldn’t use their position to try and influence a decision that the court is going to make. We’re not 100 percent, but we’re far less than what we were in the late 1970s and I think that that whole process just took a series of education and in fact, in some cases, some case law that’s already been established where the legislative branch was trying to encroach on the powers of the executive branch, we’ve had those cases in our tribal court system and those decisions are the law at this point.”

Ian Record:

“This wasn’t originally in my list of questions, but since you brought it up, I’d like to talk about the role of justice systems and the judicial branch, particularly your nation, in essentially being a fair umpire when there are conflicts between the executive function -- whether it’s a separate branch or not -- but the executive function of the nation and the legislative function. How important is it to have somebody, whether it’s your courts or an elders body or somebody, some entity that can, when there is conflict between those two functions to say, ‘Okay, let’s take a look at this and let’s be the fair arbiter here.’?”

Ned Norris:

“I think that it’s critical. I think it’s critical to be able to understand at some point in that particular dispute process that we’ve got to sit back and we’ve got to realize that as the two branches that are in dispute, is this an issue that we really want the courts to have a major role in deciding or do we want to come to terms or come to some level of understanding, try and resolve the matter before it ends up in court? I think that we should look at those kinds of issues from that perspective because once you get the court involved, the court is going to make its decisions based on the law, and the law is not necessarily always going to be the way to resolve or the way that you may… either side may want this particular issue resolved, and I think for the most part too, the court itself should realize if there’s an opportunity to resolve the dispute outside of the court, laying down the gavel and saying, ‘I hereby order…,’ that giving the parties an opportunity to resolve this dispute, whether it’s an encroachment by either branch, executive to legislative or vice versa, that we always have the opportunity to try and come to terms on resolution even if it means calling, I don’t know, I don’t want…I guess we could call him an arbitrator or mediator or a council of elders, to come in and provide some level of traditional means of resolving the dispute. I think that that’s important, but it’s important for the parties to make that decision. I’m not always open to the idea that court systems will order you to call in a council of elders or a medicine person to come help resolve this issue. I really think that that’s got to be the tribe themselves to make that decision. Over the years, the court has issued those kinds of orders and I think that they’ve worked, but for the most part I think that it’s the parties themselves need to make that determination and that decision.”

Ian Record:

“I would like to jump forward basically because of what we’ve been discussing and talk about the fact that virtually every tribe that I've worked with there’s always going to be some level of friction between the nation’s executive function and the legislative function. It’s just the nature of politics; it’s the nature of governance. And you being in that role of chairman now for multiple terms, I’m sure you know exactly what I’m talking about that despite your best efforts, there are times when you come to an impasse or there’s a conflict that emerges. Can you talk about how do you build constructive working relationships -- as a chair -- with the legislative branch, the legislative function of government to try to make that relationship as productive and as seamless as possible?”

Ned Norris:

“Well, I have to say that I’m proud of what my first four years of leadership has done to do exactly what you’re asking because I felt and I sensed and I heard from many council members that there was really a breakdown in the relationship between the branches. And we knew then, Vice Chairman Isidro Lopez and I, and now even Vice Chairwoman Wavalene Romero and I realize, that it’s got to be a continuous effort to build that relationship, still maintain and understand there are certain constitutional authorities and powers that each individual branch has, that we need to understand what those constitutional powers are and that we don’t encroach our authority and violate what those powers are, because once you start doing that then you begin the resistance between the two and it doesn’t make for a good working relationship. We knew coming into office four years ago, and even continuing in my second term, that we’re going to need to continue to develop that relationship and I’m comfortable that where we’re at some, almost six years, five years later that we’ve been able to have a level of understanding that decisions are going to need to be made, that decisions that even though I have authority to veto decisions of our legislature, it’s been...in four years I think I’ve exercised that power twice and -- actually three times and -- both of those times those issues have been resolved. One issue is still pending in court, but I think that in itself speaks for the fact that we have a very understanding working relationship between the executive branch and the legislature and it’s really a continuous level of communication, it’s a continuous level to understand where they’re coming from on that particular issue, where you think you’re coming from and how do you work together to resolve your differences and how and at what point do you want to compromise in order to be able to accomplish what it is you want to accomplish. I think for the most part all of us want what’s best for the people of our nation. How do we get there from here to there, we may have some differences. And it’s discussing, resolving those differences to hopefully come to a positive outcome for providing the leadership that our people need.”

Ian Record:

“I’d like to switch gears now and talk about tribal bureaucracies. In addition to serving as your nation’s Director of Tribal Governmental Operations -- as I mentioned at the beginning -- you also have served as its Assistant Director of Tribal Social Services and as a former Commissioner for its Tribal Employment Rights Office, its TERO office. What do you feel from your diverse array of experiences, what do you feel tribal bureaucracies need to be effective?”

Ned Norris:

“Well one, I think clearly the individual that has a level of authority in that bureaucracy needs to understand themselves what…where do their powers derive from and to what extent do I have any power at all? And I think the individual then taking that in the whole from let’s say the tribal legislature or… I’m constantly having to make the kinds of decisions, leadership decisions that I need to make, but I’m constantly asking myself in my own mind, ‘Do I have the authority to do this?’ And I think that that’s the kind of understanding in our own minds that we need to continue to ask ourselves, ‘Do we have the authority to do this? What does the constitution say on this particular issue? What have the courts said on this particular issue? What has tradition said on this particular issue?’ And being able to understand that in all those perspectives I think is really where we need to…it’s going to help in the bureaucracy that’s created, because to me 'bureaucracy' isn’t a positive word in my opinion.”

Ian Record:

“Tribal administration.”

Ned Norris:

“Tribal administration, there you go. The Bureau [of Indian Affairs]’s a bureaucracy, but in tribal administration, I think that if we’re going to be able to…the end result is how do we get to be able to provide the kinds of needs that our people deserve and are entitled to? And are we going to create the kinds of roadblocks…and if there are roadblocks, then how do we break down those barriers, how do we break down those roadblocks, how do we begin to sit at the table with each other? I’ll tell you, there was a point in time where -- and I think it’s with any government -- but there’s mistrust, there’s a certain level of mistrust between the tribal branches or the governmental branches and it’s needing to understand that regardless of what I do there’s still going to be some level of trust. I’ve got 22 tribal council members. I still have to accept the fact that I know there’s at least one, maybe more, of those 22 council members that don’t want to see me where I’m at today and accept that. I accept that, but that doesn’t mean that I not continue to do what I think I need to do in working with my supporters and my non-supporters. They’re still a council member, I still have to work with them, I still need a majority of council to get the kinds of approvals or decisions to do things that I need. We need each other. The council needs the executive branch and the executive branch needs the council.”

Ian Record:

“You mentioned at the beginning of your response about the importance of every individual that works within the nation and for the nation understanding what their role is and what their authority is. Isn’t that absolutely critical when you talk about say, for instance, the nation’s elected leadership versus say your department heads, your program managers and things like that? That there’s a common understanding of, ‘Okay, when it comes to the day-to-day management,’ for instance, ‘of this program, that’s not my job as an elected official. That’s the job of the department head and the staff below them.' Because that’s a major issue that we’ve encountered across Indian Country, where there’s this constant overlapping of role boundaries if you will.”

Ned Norris:

“Micromanaging.”

Ian Record:

“Yes, that’s another way of putting it.”

Ned Norris:

“Yeah, micromanagement. I think for the idea or the idea of overstepping one’s authority where it appears, or at least you’re experiencing micromanagement, I think that for some time there was even a certain level of micromanaging that was going on and attempted to be going on from tribal council members or council committees on executive branch programs and we even see a certain level of that even today, this many years later. But I think how we handled those situations really has an impact, because I think for some time, we’ve got to realize that I’m not going to disallow my department directors, my department heads or anybody in those departments to not take a meeting with the tribal council committee if the council committee wants them to be there. That wasn’t always the situation in previous administrations, but for me, the council needs to be as informed on those issues in their role as a tribal council member. I think that when we think about micromanaging, again I think that it’s really a level of communication as to how you’re going to deliver. I’m not going to sit there and say, ‘Council member, you’re micromanaging my programs and that’s…I have an issue with that.’ I think that how we explain to them that we’re going to provide you the kinds of information that you need, but as the Chief Executive Officer under the constitution I have a certain level of responsibility to make sure that these programs are doing what they’re intended to do and I will assume that [responsibility]…I will exercise that responsibility, but we’re going to keep you informed, we’re going to keep…and if it’s personnel issues, that’s a different story. That’s clearly…we’ve got to protect the employee and the employer, but I think that for the most part we…how you communicate -- I’m trying to explain this. I’m not sure I’m doing a good job of it -- but how you explain without offending is critical to the outcome. And I don’t want our council to think that I’m prohibiting our departments to communicate issues with the council, because once we start doing that then you start to create barriers there and I don’t want those barriers, but at the same time the council needs to understand that if it’s an administrative issue that is clearly within my authority as the Chief Executive Officer for my nation. I have directors, I have people that are…that I hold accountable to make sure that those issues are addressed.”

Ian Record:

“You mentioned a term that I think is really interesting, I’d like to get you to talk a bit more about it. You said, ‘It’s critical to explain without offending.’ And we’ve heard other tribal leaders and people that work within tribal government talk about the fact that the impulse to micromanage, the impulse to, for instance, interfere, for an elected official to interfere on behalf of a constituent, for instance -- it’s always going to be there. The question’s how do you explain to that person that wants to interfere, that wants to micromanage, that this is not the way we do things because we have processes in place, we have policies in place that prohibit me from doing that? That’s not to say, as you said, that we can’t have a communication, that you can’t understand what’s going on and why, or why a certain decision’s been made the way it’s been made, but we have processes in place. How critical is that to have that…I guess to have that basis upon which you can explain without offending? That there’s these processes in place that are critical to the nation functioning well?”

Ned Norris:

“Sure. I think that it’s extremely critical to be able to have a level of understanding, but a certain level of trust. I think follow-up is key. I think if you’re going to have a council member or a council committee that is raising issues that are clearly an administrative function of one of my departments, then I’m not going to leave them out of that issue because they have a reason, they have an importance, they have a constituent out there that brought the issue before them. They need to know, they need to understand and so I’m going to make…I’m going to give them the assurance that as the chief administrator, I’m going to make sure that my people are going to follow up on that issue, but I’m also going to make sure you know what we’ve done. Not necessarily what disciplinary actions might have been imposed, but how are we going to address that issue? And make sure that I get back to them and tell them, ‘Here’s where we’re at with this issue, here’s what we’ve done. I want the program director to come and explain to you where we’re at on this as well.’”

Ian Record:

“You mentioned this issue of personnel issues, which are inevitable. They always arise -- whether it’s a hiring and firing dispute, whatever it might be -- and you mentioned it’s a whole different ballgame, that that really is critical that that’s insulated from any sort of political influence whatsoever. And we’ve heard others talk about how important that is to achieving fairness within the tribal administration, achieving fairness within how the nation operates, how it delivers programs and services. Can you talk a little bit about how your nation has addressed this issue of personnel disputes?”

Ned Norris:

“Well, I have to say that I…we have a lot yet to develop. We have a system to grieve, there’s a policy, personnel policies are in place, there’s the policies outline as to how individuals grieve an employee-employer situation. And I’m not…I haven’t always been 100 percent satisfied with the system itself. And so we’re currently going through a rewrite or a restructuring of what that system should be and really all in the interest of facilitating the process in making sure the process is more friendly to both sides, the grievant and the grievee and so on and so forth, because I think that our process involves a panel of individuals that may not necessarily have the level of training or understanding of what their duty and responsibility is as a panel member hearing that grievance. And so we have a panel and an individual or individuals on that panel that may think their authority is much bigger than what is really outlined or that they may need to make decisions that aren’t necessarily related to the grievance itself and those kinds of decisions have come out and our current policy provides that as chair of the nation, the chair has the final decision over a grievance that hasn’t been resolved at any one of the lower levels. And it’s by that experience that I realize we’ve got to change the process; the process needs to be more equitable I think to not only the process, but to the grievant, the person grieving it themselves. So I think that you want to make sure, you’ve got to make sure…you’ve got to ensure to your employees that we have a system to grieve that is fair, that they have confidence in, that they have the comfort that they’re going to…they know that when they get to the process, that that process is going to move along as fast as possible, but that their issue is going to be resolved. And I think too many times we don’t get to that point, but I think it’s the process itself that needs to be looked at, but we need to develop a process that is fair.”

Ian Record:

“I’d like to talk now about a symbol of pride for your nation, and that’s the Archie Hendricks Sr. Skilled Nursing Facility and Tohono O’odham Hospice. What prompted the nation to develop this amazing, what’s turned out to be this amazing success story and what has it meant for the Tohono O’odham people and in particular, its elders?”

Ned Norris:

“Archie Hendricks Nursing Care facility was a dream for many years. I was in tribal social services when, not long after the tribe contracted [Public Law 93-] 638, those social services from the Bureau. And it was really unfortunate that too many times when our elders needed nursing care that those elders were, as a figure of speech, shipped to some nursing facility in Casa Grande, in Phoenix, in other areas of the state and literally taken away from their home, taken away from their family. And too many times, the only time that those elders came back was in a box, when they’d deceased at that facility. And too many times having our elders placed in off-reservation facilities limited or to some…and in some cases prohibited family members to participate in their care in that off-reservation facility. And it just made sense that we begin the process of creating a facility on the nation where our elders can stay home at a location that we think is kind of central to where members, family members can commute, have more easily the ability to commute to that facility and visit. Too many times…a lot of our folks don’t have vehicles. A lot of our folks pay somebody else who has a vehicle to take them to the post office, take them to Basha’s or take them to somewhere, in a lot of cases drive them to Phoenix to visit their elder in the nursing home. And even though that still is the situation today with many of our members, the drive is a lot shorter than it is just to go to the Archie Hendricks facility. But also not only to be able to bring our elders home and have that service here on the nation, but also to…it’s an opportunity to instill tradition and instill who we are as O’odham into the care of our elders and in doing that, also having the opportunity to train tribal members in that particular service. We have a number of tribal members that have gone on to earn academic programs that are now applying those skills in the nursing home. So it had a win-win situation all the way around, not only bringing our elders, but a job opportunity; an opportunity to create a program that wasn’t there.”

Ian Record:

“Obviously that success story has addressed a particular need and as you’ve shared, a very dire need. But I guess on a larger overall level, doesn’t it send a very powerful message to your nation’s citizens that if we have a challenge, if we have a need, we can do this ourselves?”

Ned Norris:

“Oh, I think that’s true. I think that that’s maybe one of the bigger messages that we’re demonstrating because even today we think about…in fact, I had some, a family member come into my office that were concerned about their child or their nephew that was in an off-reservation youth home placement and that individual turned 18 years of age and was released from the facility. Well, the concern was there was really no services that was provided to him while in that facility and so in their own words they says, ‘Why can’t we build the kinds of facilities that we did for our elders for our youth? Why can’t we bring our youth home into a facility that can provide the kinds of services that they need?’ And why can’t we? We should. We should move in that direction. There was a time when the nation operated a couple of youth homes, a girl’s home and a boy’s home. I’m not sure right now what the history is as to why that doesn’t happen anymore, but I think the bureaucracy is what I remember, was the bureaucracy got hold of the situation. It was probably a licensing issue that the Bureau required that we weren’t able to comply with and so on and so forth, but I’m not suggesting we want to run off, run facilities without being accredited in some way or certified or licensed in some way, but I think that we need to understand that if we’re going to move in that direction…and I totally agree that we need to begin developing those kinds of services on the nation, but we also have to realize do we have the capability to do that? Do we have…? We can build a house, we can build the home, we can build the facility, but do we have the resources to run the kinds of programs that it’s going to require, do we have the trained personnel, do we have the…all the requirements that you need in order to run a sound helpful service to these youth -- can we do that? I think we need to do an assessment ourselves and if we feel we’re ready to make that move, then by all means let’s start putting the…making those facilities available.”

Ian Record:

“It’s interesting you mentioned that your citizens are now thinking, ‘Why can’t we?’ and that’s a very important shift in mindset, is it not? To where…from where in many Native communities 20-30 years ago, it was always, ‘Let the Bureau take care of it. We don’t need to deal with it.’ To now, ‘Why can’t we do it ourselves?’ That speaks to this larger shift that we’re talking about, the message that it sends to the people, does it not?”

Ned Norris:

“Well, it’s…I think about former leadership and I think about leaders that have had an impact in my life and I always share this story about…you remember the TV commercial, ‘Be like Mike,’ Jordan’s Shoes, ‘Be like Mike, play the game like Mike’ and all this and that? And I have my own ‘Be like Mike’ people out there myself. I think about the late Josiah Moore, an educator, a leader, a tribal chairman, former tribal chairman of our nation. I think about a Mescalero Apache leader by the name of Wendell Chino and think about other leaders that have gone on, but have demonstrated their leadership over the years. And I think to myself that those are the kinds of leaders that have vision, those are the kinds of leaders that have fought for sovereignty, that have fought for rights of tribal governments and those are the kinds of values as a leader that I think we need to bring to our leadership. Is, how do we protect the sovereignty of our sovereign nations? And it’s really unfortunate because somebody asked me, ‘Well, what is tribal sovereignty?’ And I says, ‘Well, I don’t agree with this, but too many times, tribal sovereignty is what the United States Supreme Court decides it’s going to be in a case or the federal government,’ and we can’t accept that. We shouldn’t accept that. We don’t want to accept that. We may not be a true sovereign, but we have certain sovereign authorities that we need to protect and we need to continuously exercise and whatever rights we have as a people, we need to exercise those rights, we need to understand what those rights are, we need to protect those rights just as well as protecting our tribal sovereignty.”

Ian Record:

“Isn’t part of that process… and you’ve mentioned this term a lot, assessing, assessing, assessing, assessing. Isn’t part of that process assessing where your nation could be exercising sovereignty or where it needs to exercise sovereignty, but currently isn’t and saying, ‘Let’s push the envelope here?’”

Ned Norris:

“Sure. I think that is. I think that…I like to do assessments, I like to do that mainly because you think you might understand what the situation is and you think you might have the right answer as to how you’re going to attack that situation or address that situation, but too many times we go into a situation not realizing what the impacts of your addressing that issue is going to be and so for me, I like to, ‘Okay, I agree with you, let’s address that issue, but let’s make sure we understand what it is we’re dealing with and whether or not we have the ability to address that issue,’ because to me to do something with half of an understanding really creates, to some extent, false hope because people are going to see that you’re moving in that direction. And if you’re not able to fulfill that movement, you’re going to stop and people may have liked to have seen what you were moving on, but don’t understand, ‘Why did you stop? We had hope in that. We thought you were going to address that issue.’ ‘Well, you know what, we didn’t do our homework and we couldn’t move it any further. That’s why.’ I think that we need to be, if we’re going to make a decision as a tribal leader, we need to fully understand the ramifications of what that decision is and to the best of our ability make informed decisions about the decisions we need to make and then move forward.”

Ian Record:

“I’d like to wrap up with…I’d like to wrap up on a final topic of constitutional reform. And as you well know, there’s been a groundswell of constitutional reform activity taking place across Indian Country over the past 30 years, in particular in the wake of the Indian Self-Determination and Education Assistance Act of 1975. And back in the mid-1980s, your nation, the Tohono O’odham Nation, completely overhauled its constitution and system of government. And I’m curious to learn from you, what did the nation change and why and what did it create and why?”

Ned Norris:

“Well, I had the experience of being involved in my tribal government under the old 1937 constitution and then the new 1986 constitution, and although I wasn’t as involved in the development of the 1986 constitution, I understand some of the history and that it took, and as I understand it, that whole process took some 10 years to accomplish, to be able to…there were several drafts of our 1986 constitution. The constitution committee had understandings and misunderstandings and decisions that they couldn’t come to terms on amongst themselves. So it was just a long, drawn-out process, but I think a 10-year process that was well worth it. And I say that mainly because I saw the government under the old constitution and I see it now under the ’86 and realize that even under the ’86 I don’t think that we fulfilled the possibilities under the current 1986 constitution. Going back to what I said earlier about that supreme authority under the old constitution, in many ways the council was the legislature, the executive and the judicial. And for me, you had that supreme authority under the constitution in 22 members of their tribal council. And so there were…because of that I think there were times as tribal judges or as…well, yeah, as tribal judges where we may have sat back and thought to ourselves, ‘Oh, I’ve got council person’s son or daughter in front of me in this courtroom, I better be careful on what I decide here.’ That consciousness or sub-consciousness about the fact that you’ve got a council member’s relative in front of you that you’re either going to throw in jail or you’re not going to throw in jail: ‘If I throw them in jail, then the council member’s going to come after me.’ I think there were those kinds of influences that the old 1937 constitution brought about and in different ways. That was just an example, but in different ways. And so when we…when the development of the 1986 constitution really brought on the whole concept of a government that is separated by three branches and three branches that are equal in power and authority and three branches that are clearly defined as to what that power and authority is in the constitution itself. I support that and I continue to support that. We’re going through a process now because over the last…since ’86 there have been some things that different districts and different and even I think need to be changed in the constitution. Literally, just take a look at our 1986, our current constitution and you’ve got more pages that cover the powers and authorities of the legislature than you do four or five pages under the executive branch. And so even on paper, is that truly a system that affords the level of powers and authorities that should be granted to each branch respectively. And so I think that constitution reform is good. I think that though there are still things in the constitution today that we don’t understand, that may not have been fully implemented or implemented at all, but I think that…and even educating our members on the constitution, I think, hasn’t been as adequate as it should have been. Because you look at the constitution, the constitution, the powers and authorities of the constitution is derived by the people. The people themselves need to understand the enormous power and authority they have under the constitution and they, under that power and authority, need to hold us leaders accountable for ensuring that we’re protecting not only the provisions of the constitution but protecting them as well.”

Ian Record:

“It’s interesting you bring this up. We’ve heard so many other leaders of other nations whose nations have engaged in reform, either successfully or unsuccessfully, and particularly among those who’ve engaged in reform successfully, in that they’ve implemented certain changes, they’ve had the citizen referendum and it’s passed and all that sort of thing, they’ve all discussed this sort of critical moment where you overhaul your constitution, it becomes law and everyone kind of sits back and goes, ‘Whew, that’s done.’ But it’s really not done because you’ve eluded to this challenge of not just changing what’s on paper, but changing the political culture, changing citizen’s expectations of their government, educating the people about, ‘This constitution has a very direct impact on your daily life and here’s how.’ Is that something that… a dynamic that you’ve seen in your nation in terms of the challenge that it continues to face?”

Ned Norris:

“I think that everything that you’ve just mentioned as a leader whether you’re chair, vice chair, council, whatever the case may be, we need to understand that. We need to understand that simply amending, changing, instituting a brand-new constitution on paper doesn’t solve the problem, doesn’t resolve whatever issues. Yes, it may be a better constitution in your opinion or a group of people’s opinion, but how we apply that, how we interpret that, how we educate the authorities to the people that the constitution is going to impact is a whole new process. And it’s a responsibility that we should take on as leaders to make sure that our people are… have at least an understanding of the constitution, but and I think to some extent have a working knowledge of what that constitution has to offer.”

Ian Record:

“You’ve mentioned vision and the importance of leaders having vision and you mentioned Wendell Chino and Josiah Moore. What’s your vision? What’s your personal vision for the future of your nation? And how are you working to make that vision a reality?”

Ned Norris:

“Vision, you’ve got to have visions in all aspects of leadership. What is the vision for the health area? What is your vision for the continuation of your economic development? What is your vision for the services that are delivered or that lack or that you dream about? What is your vision? And I think that one, the vision really has to take into consideration, where do you want to see your people, where are your people at now, where do you want to see your people five years from now, where do you want to see them 10 years from now? And we want to continue to educate, we want to continue to develop, we want to continue to be able to address the kinds of issues that are impacting, whether it’s a positive or negative impact on our people. We want to be able to identify a continuous identification of needs that our people have and how do we begin the process of addressing those issues, those needs, those whatever the case may be. I think that vision involves all of that and it’s not simply saying, ‘Well, my vision is that we’re going to rid the Tohono O’odham Nation of unemployment.’ That is a vision, but how do you get there? What do you…you have to…in order to have vision, you’ve got to be able to understand that there are things that are going on now that are going to impact your ability to apply that vision; and unless you understand what those issues are here, your vision isn’t going to mean anything. And so the vision might be big and it might have a bigger perspective, you want to address the health needs of…our vision is to eliminate diabetes amongst the O’odham. Great! I think all of us that have those kinds of problems on our nation want that as a vision, but how do you get there? What do you have to do now in order to address those issues? I want our kids to be positive, productive citizens of not only themselves and their families and their extended family and their communities and their nation, but I also want…I realize that there are things that are impacting our kids now that are going to have an impact on whether or not they’re going to be a productive individual. Too many times we take, we accept things, we accept things as the norm. Too many times, we accept alcoholism as the norm. Too many times, we accept drug trafficking or human cargo trafficking as the norm. That is not who we are. That is not the norm, and we need to impress on our people that those things are having negative impacts on us as a people as a whole and those things are going to have those negative impacts and are impacting our future, are impacting our ability to be the people who we are. And so the vision is being able to realize and understand those issues and make the kinds of changes in order to have a productive nation.”

Ian Record:

“Well, Chairman Norris, I really appreciate your thoughts and wisdom and sharing that with us. Unfortunately we’re out of time. There’s a lot more I’d like to talk about and I think we’ve just scratched the surface here, but I really appreciate you spending the time with us today.”

Ned Norris:

“I really appreciate the opportunity. Thank you.”

Ian Record:

“Well, 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 www.nni.arizona.edu. Thank you for joining us. Copyright 2012 Arizona Board of Regents.”

John McCoy: The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth

Producer
Native Nations Institute
Year

Former Manager of Quil Ceda Village John McCoy discusses how the Tulalip Tribes have systematically strengthened their governance capacity and rule of law in order to foster economic diversification and growth. He also stresses the importance of Native nations building relationships with other governments and non-governmental partners in order to achieve their strategic goals.

People
Native Nations
Resource Type
Citation

McCoy, John. "The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 18, 2009. Interview.

Ian Record:

“Well I’m here with John McCoy who is the general manager of Quil Ceda Village, which is an economic development entity of the Tulalip Tribes in Washington, and he also serves as representative for District 38 in the State of Washington legislature. I’d like to thank you for being with us today.”

John McCoy:

“I’m very happy to be here.”

Ian Record:

“I’d like to start by asking you a question that I ask of virtually everyone I sit down and chat with and that is, how would you define Native nation building and what does it specifically involve for your nation?”

John McCoy:

“Native nation building is providing whatever particular tribe it is the tools in order for them to govern themselves and provide tools like economic development for self-sufficiency.”

Ian Record:

“How about for Tulalip, what does that involve for you, that process that you just described?”

John McCoy:

“Well, at Tulalip we began a number of years ago. In the ‘80s our chairman at the time, Stan Jones, was very instrumental in getting the Indian Gaming Regulatory Act passed in 1988. And so with that act then, tribes started to move to build these casinos so that they can get resources to do economic development. So at Tulalip, we opened our first casino in ‘92, but we had a bingo operation that opened in ‘82, then a casino that opened in ‘92 and we began the process of diversification. And so consequently, through that diversification, we created Quil Ceda Village, which is a federal city that we created with the help of the federal government. And so that established our economic base and the need to start diversifying, because gaming could go away at the stroke of a pen on any day, any time, so we needed to diversify. So we’ve been on a quest, if you will, of diversifying our economic base. Right now, the base is primarily retail and gaming, but we need to do other things, technical, biomed, biotech, anything along those lines. And so I am working to attract those type businesses to Tulalip. So this is a long-term process, that is our vision and our goal and every now and then we’ll meet to adjust the goal. We don’t change the goal, we adjust it, and then figure out what we need to do for the next five years to get to that goal.”

Ian Record:

“So you mentioned that Quil Ceda Village, which has become the economic engine along with gaming for the Tulalip Tribes and specifically moved it down this path of economic diversification, which as you mentioned is critical to sustainability because you don’t want to be in the situation where you have that one economy or that one industry that you’re relying solely on. How did Tulalip Tribes come to the point where it said, ‘Federally chartered city, this is the way to go,’ because as far as I know, you’re the only tribe that has a federally chartered city?”

John McCoy:

“Yes, we do. In fact, there are only two federal cities in the United States: Quil Ceda Village and Washington, D.C. We’re the only two. Back in ‘94, summer of ‘94, we had a general council meeting and out of that general council meeting they told the business manager, who was me, that I was not to do any development on the interior of the reservation, I could only do development in the northeast corner of the reservation along I-5. So with that in mind, I started looking around at the properties up there in the northeast corner of the reservation. Well, at the time, a very large chunk of it was taken up by Boeing. Boeing had their test facility out there where they tested engines, where they did the shooting the chicken into the windshield, testing the covers off missile silos; they did all kinds of interesting things out there. Well, that lease was to lapse in 2001, but they had the option, their option, to extend it out to 2011. So looking at everything that had been done, and I talked with the council and they basically told me, ‘Politely ask Boeing to leave, that we need that property for our economic development.’ So I began the discussion with Boeing and they agreed that they would leave in 2001. We actually...they started their cleanup and dismantling their facilities out there and they discovered that they actually could leave by 1999. So they actually left, but they still paid us for the two years left remaining on the lease, which was nice of them. And then we proceeded about the development of Quil Ceda Village. Well, a reservation attorney and I had been having numerous conversations about, ‘How should we structure this? What would be the most advantageous to the tribe?’ And our reservation attorney, a lot of folks know Mike Taylor, he’s quite an innovative guy. And so he came and he said, ‘Well, this has never been done before and I’ve done a lot of these business deals and structures and everything.’ He said, ‘Let’s try a federal city.’ And I had to think about that, right, because no other tribe had done it. The Navajo had done one, but it was purely within their own bounds and for their own reasons; ours was to attract off-reservation businesses on to the reservation. So our structure was totally different than the Navajo model. So we created this federal city. We had to get approval of the IRS [Internal Revenue Service], Department of Justice, and Department of Interior, and that’s a very long story, but anyway, we got it done. And so we created the city and we did that for a couple reasons: to position ourselves to be able to employ our own taxes -- and a lot of folks just don’t understand tribal governments. You say 'tribal government' and their eyes roll back in their heads. They just don’t get it. They don’t...whereas almost every tribal government in the United States is structured like a state government, everybody understands state government, but for some reason when you say tribal government, they just lose it. So we created the Consolidated Borough of Quil Ceda Village and called it a municipality. Then everybody was okay with that, they understood that. And so we created a charter, we created ordinances, and we put them all online. So anybody can go to the Quil Ceda Village website and see all our ordinances and our charter and our leasing procedures. Our leasing procedures were very important because then potential tenants could go online and see what the process was, have their attorneys look at it, and then we could work on a deal. So we had something that they could see and that it was a process and they understood the process. So there was no mystery there. The only hang up that we get is that we have a very aggressive -- progressive, not aggressive -- progressive court system and so any disputes we have in the contracts they’ll be done in tribal court. Well, a lot of them balk at that. We’ve had some tenants that we really wanted, wouldn’t come in just because of that fact, but I also reminded them that their court system was hostile to me. So it’s not a good environment. I said, ‘Our court system is very progressive.’ And in fact, in ‘94 I went to West Law and asked them if they would post tribal ordinances and opinions and court decisions and all that; [they] didn’t want to talk to me. Three years ago, they come to the door, ‘Would you join us?’ And I said, 'Naturally, we’ll join you.’ And so now our opinions, ordinances and decisions are posted on West Law so that everybody can see our track record. And a number of other tribes are doing that also, which is very good for Indian Country because now everyone can see how the courts are functioning and they can have a degree of basically a predictable outcome and that way tribes will then get full faith and credit. So that’s the big deal, full faith and credit.”

Ian Record:

“So you made reference to the charters, the codes, the ordinances, the procedures that you guys had to put in place to make this very innovative approach to economic development work. Can you speak to perhaps some of the other legal infrastructures, the other political infrastructures and perhaps the capacities that you guys had to put in place to really pull this thing off?”

John McCoy:

“It was very deliberative because we had to plan everything and put it in sequence. We had to come up with a ‘governmental structure’ for the Quil Ceda Village. And so what we did is that Quil Ceda Village is a political subdivision of the Tulalip Tribes, but it has three council members. Those three council members govern what goes on in Quil Ceda Village. And so once we established that, then we got our charter done and then we started employing our ordinances. Now we employed ordinances as we need them because me as a state legislator understand that too many ordinances become an encumbrance. And so I’m trying to address some of those issues in the state government. But in Quil Ceda Village, because I have some control over it, we only issue ordinances as we run into problems or if we anticipate a problem, we see something coming down and then we’ll create an ordinance and then we’ll post it. And it’s done...that process is just like any other municipality. They have to have two open meetings and then...before the passage of the ordinance. They are public meetings. All our meetings are posted online. So we put all those in place and we’re functioning like a government. We do everything else that any other municipality does. We take care of roads, traffic lights, street lights, water lines, sewer lines and we also have a state-of-the-art sewer plant.”

Ian Record:

“You mentioned your tribal court system and how progressive it is. We’ve had occasion to bring one of your judges, Theresa Pouley, down to some of our seminars with tribal leaders and she takes them through a very powerful overview of the incredible work that they’re doing there in the court system. Can you talk about that court system and specifically what prompted Tulalip to essentially reclaim the function of justice, providing justice to the tribes? Because previous to the establishment of the current court system that was something that the State of Washington largely had control of.”

John McCoy:

“Right. For a tribal government to operate effectively, they need all the tools in the tool bag in order to be effective in the protection of their sovereignty, the treaty protections and those issues. So in ‘94, Mike Taylor again, he said, ‘John, we need to get the state to retrocede.' So I took that up and I went to Olympia and created legislation. It took me a couple years to get it passed, but they finally passed it. I kept reminding them while I was lobbying them saying, ‘There’s seven other tribes that already retroceded so you’re just adding us.’ But there were some tense moments of some very conservative-viewed people that didn’t like that idea that law enforcement, tribal law enforcement could arrest somebody. So that happened on both sides of the aisles, it just wasn’t any one party. So that took a little bit of work on my part, but we got it done. So then that allowed us to open up and create our own law enforcement department. Well, when you’re going to be doing things in law enforcement, you need a court system. So we started building the court system along with the law enforcement. We built them together. And so our court system has gotten quite progressively, like I’ve said. They do the standard court proceedings, but we also do the one step further in bringing in our culture. We have an elders' panel that reviews and works with first time offenders. So these are non-violent crimes; violent crimes have got to do the normal process, but the non-violent crimes, the elder panel will do an intervention and they will work with them and hopefully help them to see the error of their ways and that they start making the appropriate decisions. So that’s actually been quite effective and so we’re quite proud of it. And so because of the notoriety we got from our court system being honored by the Honoring [Nations] Program, we’ve had tribes from around the nation come in to see our courts and we’ve also had Afghan come to our court to view it. And one of their...the professor that...the UW professor that brought them up, through his wife, who is a state legislator, had informed me that after the visit to our court system the Afghan judge said, ‘Well, your western law’s okay, but we like that tribal court better.’ So that was quite a feather in the hat.”

Ian Record:

“And your court system over the past several years has really begun to produce some pretty dramatic results in terms of its ability to combat crime through the alternative methods, through the restorative justice approach than the predecessor did it, and it’s the kind of standard western punitive approach to justice.”

John McCoy:

“Right.”

Ian Record:

“Isn’t that right?”

John McCoy:

“Yes. So that’s why I, down in the state legislature I talk about those things down there. Why, these first-time offenders, why do we got to throw them in jail? Why don’t we have an intervention program? So the state had been doing drug courts, which were good. Unfortunately, this last session there were some budget cuts and a few of the drug courts got cut. But we need to do more of that. Tribes know how to do it. They’ve been doing them for millenniums and that’s how they...that’s what their court system was, intervention and trying to show them the error of their ways and start making more appropriate decisions. So there’s...I say that our non-Indian friends, I tell them, I said, ‘Don’t you get a little envious that you don’t have any culture? You have none. Whereas we have some culture, we have some history that for millennium and we did things like that.’ So to me it’s the right approach. That’s how it should be done. Just take the first-time offender. Most of the time it’s a young person, young people they think they’re indestructible. The world is their playpen and basically they do the right things and then for maybe 30 seconds out of their life they did something wrong. If it’s non-violent, we should intervene and help them work through that, not throw them in jail because if you incarcerate them, where are they going? They’re going in with a bunch of other bad people that really do bad things and they give their stories to this person and they pick up some more bad things to do. So let’s keep them out, let’s intervene first. If it doesn’t work, then you do the other methods.”

Ian Record:

“So just how critical are tribal justice systems overall, which include the court, law enforcement, etc., just how critical a role do they play in rebuilding Native nations?”

John McCoy:

“That is all part of the structure. That is how you...how you use and deploy, implement your sovereignty. Those are tools. This is how it leads to self-sufficiency. You have control of your destiny. You are making tribal governments make the rules. They just need a court system to help them follow the rules that they wrote, which is only appropriate because that’s what everybody else does, so why not us? So law enforcement and court systems, health systems, family services, those are all integral parts of a tribal government in order to be self-sustaining and self-governing.”

Ian Record:

“A follow-up question to that about justice systems: what role do they play in terms of supporting a Native nation’s efforts to create a strong economy, a strong sustainable economy?”

John McCoy:

“Law enforcement gives your customer base a sense of safety, that there’s somebody here to protect me when I’m there. At Quil Ceda Village during the normal week, we get over 30,000 visitors a day. During the weekend, it’s over 50,000 a day. So the mere presence of the law enforcement vehicle cruising the parking lots and the streets and everything gives everybody a sense of safety, that they’re protected and that they can come here and enjoy whatever the amenities are and not have to worry about being harmed.”

Ian Record:

“The research of the Native Nations Institute and the Harvard Project has found that in fact, justice systems are a critical pivotal factor in whether a Native nation can create a strong economy, one that can stand the test of time and I’m curious to know, the Tulalip Tribes are one of those regarded as having a very strong, a very independent, empowered court system. And so from that experience, I was wondering if you could speak to what you feel are the requirements of a strong, independent court system. What does it look like, what does it require? Granted it may, because of cultural reasons, it may look a little bit different from place to place, it may employ different methods, but in terms of organizationally, functionally, institutionally, what does a strong independent court system require?”

John McCoy:

“Again, you hear me say tools a lot. This is a tool. Naturally you need your judges, experienced trained judges. You need your court clerks and that they know how to run the court so that the judges can do what they do and don’t have to worry about the administration; so you need a good strong administrative section. You also need public defenders because not everybody can afford an attorney; so you need public defenders. And then, we like to think all judges judge and sentence the same way. Well, they’re human beings and on occasion they make a mistake and so consequently you need an appeal system. So you have to have an appeal system in place so that something could be appealed. Now after that appeal, if you still don’t like it, well, then that’s when you move to the federal courts. So there is redress, you have protections of public defenders, you have your prosecutor and then they all are independent. They make their decisions, then you have the judge making their decision or the jury, yes, we have juries and we have an appeal system. So that’s what really makes it strong. You have all the elements, everybody knows what their job is and they just implement.”

Ian Record:

“And doesn’t that then require tribal leadership, particularly legislators who are setting a budget, to treat and fund those justice systems as a full arm of the government and not necessarily as a program? We often hear tribal judges for instance lament the fact that ‘Where I work, they treat us as just another program,’ versus something larger and something more encompassing.”

John McCoy:

“Right. They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip the court system comes in, here’s the budget. So normally, without hesitation they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it, they just give them the money and then they...the court administration then takes care of the budget. So you have to give them that autonomy. Same with law enforcement, you’ve got to do the same with law enforcement. ‘Here’s your money, now you go do your job.’”

Ian Record:

“And I would assume that holds true for not just the justice systems, but the other critical functions of tribal government...”

John McCoy:

“Yes.”

Ian Record:

“...where leadership has to, at some point, say, ‘I’m going to delegate this authority to you to carry out the long-term goals of the nation.’”

John McCoy:

“Right. So that’s where the leadership, the elected leadership, their role is set policy, their role is not day-to-day administration. They set policy, then let their organizations function. Trust them, they’ll do the right thing.”

Ian Record:

“I want to turn back to economic development for a bit. And the NNI and Harvard Project research over the past few decades has clearly shown that rules are more important than resources when it comes to building strong economies. So for instance, you can be a nation with tremendous resources, perhaps natural resources, human resources, financial resources, but if you have a lousy set of institutions or rules, you’re going to be hampered in your ability to move your nation forward. Whereas, on the flip side, you may be a nation that has limited resources, but if you put in place a really good environment of rules you can really leverage those limited resources and begin to grow your nation and move it forward. Is that something you see and perhaps one of the reasons why Tulalip has paid such great attention to this issue of rules?”

John McCoy:

“That is correct. When I first came home in ‘94, I had gone off in the Air Force for 20 years and then I worked for a large computer firm for another 12 and then I came home. The rules and regulations and policies that were in place at the time were for a government of maybe 75 people or less. But when I came home in ‘94, we were up to just a little over 200 and so...and then policies, procedures and ordinances hadn’t been updated and so they were unwieldy, they were difficult to use for a larger organization. So we set about changing those. The first one we had to do, which was the most glaring, was a new human resources ordinance. That had to be done, it was accomplished, had input from lots of folks, and so it’s a good ordinance. The only issue that I might have with it, its management is guilty until proven innocent. Everything is on the employee. So anyway, it causes the managers to be really on their toes making sure that they’re doing things right. So in that process there’s also an employee grievance system, you need that. So you need some sort of dispute resolution in there so we have a very good dispute resolution process. So the rules are published and they’re out there for everybody to follow. When someone new comes onboard, they’re given a copy. ‘Here’s your copy of the human resources ordinance,’ and we make them sign a receipt for it so they acknowledge that they got it. Now we can’t make them read it, but it’s there for them. So then there was other ordinance, the ordinance of setting up the courts, the ordinance setting up the law enforcement, those had to be accomplished and then those things that they needed to make them function. So setting up strong policies is a necessity because you need predictability. Back running...when tribes were very small, employees of two, three, 10, 20, 30 people, well, you can run it like a mom-and-pop grocery store. Well, now, tribal governments are big business. They can’t be run like a mom-and-pop grocery store. You need processes in place to remove as much of the political atmosphere as possible so that they can function with reliability and respectability.”

Ian Record:

“So from what you’re saying, those are essentially vital to the efforts of the Tulalip Tribes and other Native nations across Indian Country to move from the days when they largely relied on a dependent economy, if you will, where they’re heavily reliant on outsiders for instance for federal appropriations and transfers to get by to essentially a situation where Native nations themselves are in the driver’s seat of economic development. So it’s those codes, it’s those institutions that you talked about. Are there any other vital pieces to that puzzle of moving from that dependent economy to a productive self-sufficient economy that you can share with us?”

John McCoy:

“Sure and it’s quite simple, it’s education. One of the things that I helped Dr. Alan Parker set up, and there are a number of [them] like at the University of Arizona, that you have these classes where you put in tribal government like the Master's of Political or Public Administration. At Evergreen State there’s, I think it’s two weeks of total immersion into tribal government as part of public administration. So that way when a tribal member gets an MPA, not only do they get exposed to the non-Indian type processes, but they get exposed to good practices in Indian Country so that they understand what their role is. So education is extremely important. At Tulalip, any tribal member that wants to go onto continuing education, whether it’s into the trades, community college, four-year university, graduate school, we pay for it.”

Ian Record:

“I want to start off with a general question, which is how does collaboration or building those relationships that I just mentioned empower Native nations to advance their strategic priorities?”

John McCoy:

“Okay, as you remember your history, we’ve been here for millennia. So we’ve always been here and we’re not going anywhere. Well, they’re not going anywhere either. So we have to learn to work and play together and you do that through collaboration, by working with the surrounding communities in solving the common problems. And we do, we have common problems. So for it to be a successful endeavor, then we need these collaborations not, like I said, we’ve got our own law enforcement, we have our own courts, but we still because we interact with non-Indians, we still need their law enforcement and their court system because when we catch a bad guy on the reservation who’s non-Indian, well, we’ve got to turn them over to the state court. So we have an MOU in place between our law enforcement and the Snohomish County Sheriffs that says, if we apprehend a non-Indian, we turn them over and they have the full faith and credit of the law officer that did the apprehension that his testimony in court will be valid. So in that process if we have to put an Indian in jail, well, we don’t have our own jail so we need an agreement with the county to incarcerate our person their jail and pay for it. So court system, same thing, working with cities on water agreements, sewer agreements. So we have a lot of common issues that we need to address and being able to work so that we build a trustful relationship because if everybody around us hates us, then it’s going to be difficult for your economic engine to work. So you have to work hard. It’s okay to say, ‘I’m Indian and this is my land,’ but we need your help and support. So you have to educate them about yourself so they know who they’re working with and then you can build these collaborative relationships.”

Ian Record:

“We see the sentiment out there in Indian Country and I think we’re seeing it less and less, but that tribal sovereignty means you need to insulate yourself and you need to kind of be those islands within surrounding hostility and therefore if you enter into some of these MOUs for instance with the state jurisdiction or local municipality you’re somehow relinquishing your sovereignty by doing that or by compromising your ideal solution if you will. But aren’t in fact those sorts of initiatives that Tulalip Tribes and many other tribes are taking more and more, aren’t those in fact an expression of sovereignty because you as a tribal government, as a nation are making that sovereign choice to say, ‘Hey, we’re going to engage this group. We’re going to engage this group, we’re going to develop this relationship in order to advance our strategic priorities’?”

John McCoy:

“That’s correct. At Tulalip, we view these collaboration efforts as strengthening our sovereignty. We’re not creating... Yes, in essence we’ve created an island, but it’s a seamless border because we’ve cross-deputized our officers; they can go on and off the reservation. In fact, yesterday the Washington State Supreme Court, even without an agreement, a tribal law enforcement [officer] can continue a fresh pursuit off reservation and that was a decision yesterday by the Washington State Supreme Court. So yes, in essence, if you want to look at a political boundaries and things, yes, it’s an island, but it’s how you employ it by collaborations, agreements, then those are just lines that can be crossed easily back and forth. And in Tulalip’s opinion, it strengthens our sovereignty because we’re getting recognition of our borders, of our jurisdiction.”

Ian Record:

“And it’s ultimately about solving problems. And I know from my research on Tulalip that you’re undertaking these sorts of efforts not just with other jurisdictions, but with other parties in order to solve problems, other private interests and a great example of that is the anaerobic digester plant. I hope I pronounced that correctly. This project that you developed working with some traditional adversaries, the local dairy farmers, who you, previous to this project, had battled for years on the issue of water and water quality. Can you talk a little bit about that project and how it came about and how it’s serving the interests of the nation?”

John McCoy:

“Okay, well, the dairymen actually came to us through our Natural Resources Department and they came to us and to me and we began the discussion. And we put it together because it was the right thing to do. We didn’t want any more animal waste going into rivers and streams. Well, how do you do that? Well, your farm’s got to be big enough to where you put it out on the fields and plow it under and enrich the earth, but they had more dairy product than they had land. So what do we do with this? Well, so we decided to work with the dairymen on this project. So as what I had to do, we had to find some land near the dairymen. Well, out there near the dairymen is the Monroe State Penitentiary. Well, they had what they called an honor farm, which was the dairy farm that provided milk for the prison. Well, that turned out to be not as cost effective and so the Monroe honor farm was decommissioned. So what are we going to do with the land? Well, we went to the state and said, ‘The tribe...’ -- now this was before I was elected -- and asked, ‘Can we have the land because you’re getting ready to declare it excess and in the rules, state and federal, tribes are at the top of the list to get excess property and we would like to use it to build an anaerobic digester on it.’ So we take the cow manure out of the system and we create methane gas, which we’ll filter, which will drive a turbine engine to generate electricity.’ So we started that process. Then I got elected and helped pass the bill to make it happen. So as long as that property is used for alternative energy, we can have the land, but if we do something else with it then it reverts back to the state. And it just so happens, I was approached by students from Seattle University that want to go out and do some algae experiments, which is alternative energy. They don’t want to do the traditional turning algae into a bio diesel; they want to look at other processes for algae. That’s a great idea so I said, ‘Yeah, we’ll do that.’ So we’re setting that process up in place right now. But the anaerobic digester is up and running. I had to change map metering law that allows for a generation facility that’s not on the dairy farm, but the dairy farms still get credit for the electricity that’s generated and so we got that law changed. Naturally, it was for the entire state not just for Tulalip, it’s the entire state. So a number of jurisdictions have enjoyed that map metering process and they’re quite happy with it. So the dairymen reduced their electrical cost because they’re generating electricity, then we’re also creating from the solids that are left, we take out, mix it with a little dirt, bag it up and sell it as fertilizer. So it all gets used.”

Ian Record:

“And the revenue from that is, from my understanding, being plowed back into some of your natural resource restoration programs.”

John McCoy:

“Yes.”

Ian Record:

“Because the ultimate goal, from what I understand, is that you want to improve the water quality of the local watersheds in order to bring the salmon back or at least have them come back at a much greater rate.”

John McCoy:

“Right. We’re doing a number of infrastructure projects for salmon enhancement like the membrane sewer plant that we installed. We just had a study done that gave us a draft of it from the University of Washington and Western Washington University that the output does remove pharmaceuticals including disruptors, birth control pills. And so with these reports done, now we should be able, be permitted to discharge straight into streams and rivers because the output exceeds federal drinking water standards. It’s actually too warm for salmon and it’s actually too clean for salmon, so we’re going to put it into a wetland to cool down and get a little nutrients and then let it flow into streams and rivers. And because of that plant that we put in, we convinced the city of Seattle to change their Bright Water Project over to a membrane technology. And other jurisdictions around us have come and visited and looked at it and said, ‘This is great, we’re going to go this direction.’”

Ian Record:

“So you’re becoming a model not just for other tribes, but other governments everywhere.”

John McCoy:

“Yes.”

Ian Record:

“That’s fantastic. I wanted to finish up with a short discussion on your experiences, trials and travails, as a state legislator. Being a Native American and a state legislator you’re in a very small group, but a growing group.”

John McCoy:

“Yes.”

Ian Record:

“And I was curious to know, get your advice perhaps, on what Native nations and leaders can do to advance their priorities through the state legislative arena. You have experience on both ends of the spectrum, both as a tribal leader and as a state legislator. What advice can you give them in terms of perhaps advancing more effectively their priorities in that arena?”

John McCoy:

“Well, my advice to them all is to create a governmental affairs office to where these folks just work on policy, that they work with legislatures, with county governments, with other city governments because you need to touch them all because they pass laws that infringe on the tribal sovereignty. So you need to be there to educate them so that they modify their law to where it does no harm to the tribal sovereignty. They’re not doing, my personal opinion, 99 percent of them are these laws that infringe on tribal sovereignty is done out of ignorance, not maliciousness. It’s out of ignorance. Once you inform them, educate them on the issue, then they adjust their language to where they do no harm. So they need to be at the city level, the county level, the state level and we’ve always done the federal level. So we need to get down into the state level. This last year, New Mexico passed, codified their agreement between the governor and the tribes on how they’re to interface with one another, they codified it. And I was still in session and I got the email saying they codified it. I said, ‘Why didn’t I think of that because we’ve got the same thing.’ So this year I am going to try to move legislation to codify Washington State’s Centennial Accord, which is our version of the framework on how the governor and the tribes interface with one another. So I want to codify that. The only thing different that I’m going to do in my bill is that I’m going to add a legislative interface. New Mexico didn’t and I’ve talked to their New Mexico legislators and they say, ‘Yeah, on second thought maybe we should have added that,’ so they may add that at a later date. But I’m going to start off with the legislative interface and I want to set up a committee that meets during the interim, not during session, during interim on the tribal issues and what pieces of legislation they may see. Now this committee that I want to set up is only made up of chairs of committees because they control what legislation goes through. So if you get them indoctrinated, educated on what the tribal issues are and what legislation they’re going to move, then they’ll have the background on it, why it’s needed and so it should help move these things through. When I first went to the legislature and I went through freshmen orientation, it was five days long and at the end of it I raised my hand and I said, ‘Where’s your Indian Law 101? You’ve got 29 tribes in the State of Washington and you did not have one word about Indian Law 101.’ So, I convinced the chief clerk, ‘You need Indian Law 101 in your freshman orientation,’ and now it’s part of the freshmen orientation. It’s not on the Senate side. I’m still working on them, but I’ve got to get that one done over there, too.”

Ian Record:

“This sounds really fascinating what you’re talking about with this education of the decision makers, the outside decision-makers that make decisions that influence tribes in a variety of ways. Would you recommend as well though that Native nations begin to think more aggressively when it comes to cultivating members of their own nations to actually pursue the sorts of positions that you currently hold in the state legislature? Isn’t there a direct role that they can play as well?”

John McCoy:

“Oh, yes. Whenever I’m at NCAI [National Congress of American Indians], NIGA [National Indian Gaming Association], NIEA [National Indian Education Association], I’m talking to everybody. ‘You need to run for office. You need to get more people in the state legislature, on county commissions, need them there.’ So in Washington State in Whatcom County, there’s a Native American on that. There’s three of us in the state legislature. There’s one running for city council in Pierce County. So they’re starting to run, it’s coming up. When I got elected in 2002, there were only 23 of us nationwide. Today, there’s almost 80 of us. And I happen to be chair of the National Caucus of Native American State Legislators. So I am proud to see it grow. About 25 to 30 are very active in the caucus. This is a non-partisan caucus, so we have both parties are in there and we just talk about tribal issues and how do we work with our counterparts on getting legislation passed. And I think we’re becoming very effective at doing that. So we continue to grow. The organization also includes Native Hawaiians because they have the same issues that we do, but they don’t have their sovereignty yet. That’s being worked on. But anyway, so we’re interfacing, we’re helping each other with legislation and I personally believe it’s a valuable tool now and we need more.”

Ian Record:

“Well, John, I really appreciate your time. This has been quite an education and thank you for sharing your experience and your wisdom and your perspectives with us.”

John McCoy:

“Yes, thank you. I really enjoyed it and everything connected with your organization, NNI and Honoring [Nations] Program. Great programs, I love them and I can’t speak high enough of them. You guys are doing a great job, too.”

Ian Record:

“Well, thank you.”

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

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

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

NNI Indigenous Leadership Fellow: Jamie Fullmer (Part 2)

Producer
Native Nations Institute
Year

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

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

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

"I believe so, yes."

Ian Record:

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

Jamie Fullmer:

"Yeah, that's correct."

Ian Record:

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

Jamie Fullmer:

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

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

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

Jamie Fullmer:

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

Ian Record:

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

NNI Indigenous Leadership Fellow: Michael Kanentakeron Mitchell (Part 1)

Producer
Native Nations Institute
Year

Grand Chief Michael Mitchell of the Mohawk Council of Akwesasne provides an overview of the nation-building work his nation has engaged in over the past four decades, from its decision to move away from the Indian Act to its systematic development of capable governing institutions designed to exercise true self-determination and self-governance.

Resource Type
Citation

Mitchell, Michael K. "NNI Indigenous Leadership Fellow: Michael kanentakeron Mitchell (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 1, 2008. Interview.

Ian Record:

"Well, we're here with Chief Michael Mitchell, the former Grand Chief of the Akwesasne...Mohawk Council of Akwesasne and Mike is our first ever Indigenous Leadership Fellow of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. Mike, if we could just have you start off by introducing yourself. I'm sure you can do a much better job than I just did."

Michael K. Mitchell:

"My English name is Mike Mitchell. My Mohawk name is Kanentakeron. I belong to the Wolf Clan. I'm a faith keeper in the Longhouse on the traditional side. I was born in Akwesasne, which is located on the New York State-Ontario-Quebec border. Half, half the reservation is in the [United] States, the other half is in Canada, and two-thirds of what's in Canada is in Quebec and the other part is in Ontario. So we have...if it's anything like this, it's five jurisdictions on the outside and in the territory on the Canadian side is the Mohawk Council of Akwesasne, on the American side is another elected government called the St. Regis Tribal Council and historically we have our traditional Mohawk Nation Council. So there's three internal Mohawk governments. And the population, probably right now, it's closer to 17-18,000 and 10,000 are registered as resident Mohawks on the Canadian side of Akwesasne."

Ian Record:

"So that makes for a pretty complex governing situation, doesn't it?"

Michael K. Mitchell:

"Yes, it was, it still is, but it's...we've been able to resolve a lot of the issues, complex issues by taking over a lot of the authorities, programs and services and run it, operate it ourselves."

Ian Record:

"You've been involved with your nation's self governance for more than two decades now. I was wondering if you could provide just a general overview of nation-building efforts at Akwesasne since you became involved."

Michael K. Mitchell:

"The first time I got on Council for what was known back then as the St. Regis Band Council was in 1970, and I had just returned back from Alcatraz and just to start a few things back home, we started taking over islands on the St. Lawrence River. That kind of got people talking, "˜Maybe you should run on council.' So I served one term in 1970, but it was difficult because I was going to school at the time, ironically, film school at the National Film Board. We had our own Native Indian film crew that was doing documentary work. So it was really in 1984, well, I ran and got elected as a district chief in 1982, served two years and figured out that there's just too many outside government interference. Council was in a drastic deficit, probably half their budget of $5 million they were in a deficit and everything was controlled from the outside, which led to a lot of personality clashes within council. We're governed by the Indian Act in Canada, so we have to adhere to a lot of their regulations, codes, etc. All authorities were dictated from Ottawa through the Department of Indian Affairs. So that was sort of like an introduction. I didn't like it, I didn't want to run again, but the fact that I survived it and they were saying, "˜You should run for the top spot,' which was the Head Chief of the St. Regis Band Council.

Back then, the people didn't really elect the chiefs. You all got elected from your districts of which there are three. There's Snye, St. Regis, which is in Quebec side, and Ontario side is Cornwell Island, and each elect four chiefs they have a total... they had a total of 12. And among the 12, they would elect amongst themselves one head chief. So I had figured out, well, obviously you have to run not as yourself but you have to run with a party enough that you would control council and then make sure you have enough votes if you want to run for the head chief, which is what we did in 1984 and the person that I replaced had been head chief for about 16 years, so this wasn't easy. He had pretty well control of the community, the Council and ran it the way he wanted, the way he saw it. A lot had to do with the way the government ran things, too. So there was a very narrow causeway in terms of accessing information back to community. But regardless, we had the election in 1984 and I won by a vote of seven to five. So it wasn't expected; people were surprised. I was young back then, but I thought...ready for a change. I went about in the community and introduced myself as the new head chief and a little bit of surprise in the attitude in the community. They said, "˜You're only head chief of the council members that elected you. We didn't elect you.' And that stayed with me.

Then I ran smack into Indian Act regulations, how you run and service a community. You always had to ask for permission from the Department of Indian Affairs. So I took about less than three, four months before I recognized that we have people to bow to on every issue, on health, education, housing, economic development, and a lot of people are on welfare. People didn't have a high regard for council and it was stagnant. So I figured the only way out of this is you better cut a fine line as to where you're going to make your stand and proceed to make some changes. Right after I got on council, the person I replaced filed an appeal, went to court, and because it was a Canadian federal legislation, the Indian Act, there's many loopholes. It's pretty old. It was put in place in 1867 with very little changes. So if one wanted to mess around with it, there's a lot of legal things you can do with it. And there wasn't a whole lot of honor in the council system the way it was set up because it was controlled so much by the Canadian government. And about 10 years had gone by since the Indian agent had left because he used to run everything. So all this was fairly new. When I said it stuck in my mind when people were saying, "˜We didn't elect you,' and considering that I had to go through a Canadian court just to retain the chieftainship because being that it was so controlled I had pretty well said in my mind, "˜We've got to get out of this Canadian-controlled election process.'

I also found out I'm not supposed to release minutes of the meetings, so the community weren't really appraised that there was so much deficit in the council. Strangely enough, the Department of Indian Affairs, they came and chaired the meeting when I became...counted the votes to be elected chief, was the same person that came back a couple weeks later and he said, "˜We were about to lock up all your offices and put your community under third-party management because of your growing deficit.' So that wasn't a real good introduction. It seemed like every other week my office was occupied by my opposition. Where I lived was on Cornwell Island, Ontario and to get to St. Regis I had to go through the American side and once I'm in the village, if I want to go to Snye, I've got to go back through the American side to get back into the Canadian side of Snye. So we cross the border about 20 times a day just to service our people. Well, all those factors came into play rather fast and they had been operating this way, I would say about 50 years that they had been controlled. They had a system, delegated authority they called it, and everything that we were to do we had to ask for permission, "˜Can council do this, can council do that?'

Being that I was more used to blocking bridges and taking over islands, I took all that energy and started studying what had to be done in the community. We started doing house-to-house survey asking the community members would they like to see an election code that would be developed by the community, for the community and let's opt out of that Indian Act so that they would be the ones that would control it. And we started working out the mechanics after getting the feedback. So in that one term of two years, and that was the other thing I was upset about because I found out that two years is a very short time for elected leadership and a lot of things can happen in that two years and council members, if they want to get anything done they'll take the first year to learn the ropes. By the time the second year comes around, you're already getting pressured to provide money for such and such a person, for housing or more money for education and it's really money that set the limit, budget. Anyway, if you're going to make changes, it had to be done.

So I went to Ottawa and asked for a meeting with the Minister of Indian Affairs and I told him, I says, "˜Listen, this system that you have in place isn't working and we're going to have to make some drastic changes if the community is ever going to come out of a deficit and learn to govern themselves and look after themselves.' And the Minister's name was David Cromby. He got very interested. He said, "˜Well, you know, you have a lot of audacity to come in here and say we want to make some changes.' He said, "˜There's a system in place,' but he says, "˜I do worry about the deficit because it's not just your community, there's many other communities in the same situation.' He says, "˜What do you want to do?' And I says, "˜To improve the attitude and the atmosphere of our community, we want more of our people to take over the administration of programs and services. We want to change the election law so that we can govern ourselves and put the election process through under our own authority.' I said, "˜There's a whole history here in Akwesasne of every time somebody loses an election, you're in court, either Indian Affairs is in court as well as the council.' So he listened tentatively and he says, "˜Well, what about the deficit?' I says, "˜I'll do a deficit retirement plan, but I'll do a separate management plan and we'll wipe out that deficit within five years, but you have to agree to let us run our community.' So he went, left the meeting for awhile, he came back, talked to some people and he said, "˜They say that I can't do that, that we have a system in place,' he says, "˜But I say, we should let you try it.' He said, "˜The only other alternative is I've got to send more people, pay more money, put more money into the community and for what? There's always going to be a deficit, there's going to bad attitude.' He says, "˜I want to try this experiment.' So that was a start.

If you want to get education dollars, the ultimate authority was somebody in Indian Affairs, if you want to build a house and you need housing dollars, somebody's going to come down and take, do papers for you, applications, etc., social services, welfare, the same thing. So I asked for all these people to be sent back to Ottawa, sent home and we hired our own people. I went around and got a list of nominees...they were already working somewhere, either Ottawa, Washington, Syracuse, Albany, Toronto and we needed an administrator, manager, program directors and whoever had the qualifications, we called them, talked with them and told them what we had in mind and I said, "˜I'd like to see more people return home. You'll have a job. Bring your senior experience, your management skills and help your community because we're going to turn this around.' For some reason it caught on and people started coming back and we put together a management team to take care of the administration and I had one policy. I didn't think we had any business running the administration side -- we're politicians. So I had discussion with council saying, "˜Let's do our politics and we hire these people, let them do their administration.' So separating administration and politics was one of the first objectives and it worked. We set out a goal to analyze the political situation and carved out a period of time that we would achieve this.

And the other thing, you had to stabilize the community. The internal politics had to be taken care of so we did, it was done Mohawk style. Obviously the man that I had replaced...we had to find a way to stop the occupation. If I went to work on the American side, chances are they would cut me off over there and punch me out a few times. But there was a great hope riding on this thing about taking over. The community dealt with him. They had to settle it the Mohawk way, going out and have a little fistfight and the winner came out and they said, "˜Okay, Mike's going to have the opportunity to run this community.' And so I had that opportunity, but the greatest strength...the way I was brought up, because this is my introduction to elected system; I was brought up on the traditional side. And maybe I should take a few minutes just to acquaint everyone that on the traditional side, the women put up the leaders. And it was said that the women knew who the leaders were from the time that they crawl on the ground to when they walk to when they hunt to when they marry and have a family -- the women already knew who's going to be a good leader, who will be a good provider, who has integrity, who has good characteristics. So among the various clans of which in the Mohawks we have three major ones: Wolf, Turtle and Bear. I'm a Wolf clan, remember. My mother's a clan mother in that system. My brother's a wampum keeper in that system. So that's the family I come from. My grandfather's a faith keeper. So this whole idea of being involved in a modern, elected tribal system was new and you didn't have much authority, so if you're going to establish yourself under certain principles, I borrowed a lot of that from our traditional custom.

I found out very early that the community was ready to make changes. You raise up the optimism, people wanted to feel good about themselves and it seemed that it wasn't...it hadn't happened for awhile. I'm trying to be very polite when I talk about the Indian Act, but it is so...to me it is so evil, so dictatorial and delegated that they didn't serve our interests because we were used to perhaps more of an honor system. Do things and people looked at you for it so I borrowed that. And I says, "˜We're going to have to fight for our jurisdiction. We're going to have to fight to have our authority and if we can't convince the government that we should be controlling more services, more programs and more jurisdiction, then we have to fight them.'

Well it was only weeks away, there was some men at my office as I got to work; this is months down the line. They were fishermen and they had their boat confiscated and their nets and the motor by provincial conservation authorities. So I listened to them and I apologized to them that I had to have appointments made for me, but they were standing on the outside so I just invited them in. And this is on my way to work. Anyhow, I identified with how they fed their family. They're high steel workers and they take time off for a month and they would fish for their families and then they would fillet it and put them in the freezer and part of the traditions; people always did that. So when you have an outside government intrude on your tradition, what are you going to do? So I told them, I says, "˜Well, tomorrow I'm going to get some people together, we're going to go out on the river and if we find this conservation officer, I will talk to him.' And that sort of raised the interest of people saying, "˜You know what he's going to do? He's going to go out there on the river and see what might transpire.' So when I got out there, there was boats there already. They were ready to guide me and find this conservation officer and it didn't take more than about a half hour they spotted him leaving Cornwall [Island].

So we met in the middle of the river, right on the international boundary and we cut him off and we stopped his boat and I asked him very politely where the seizure took place. And as we're floating on the St. Lawrence River in our boats and we're talking, I said, "˜You know, around here, one minute you're in the States, the next minute you're in Canada, you're in Ontario, you're in New York State, you're back in Quebec.' I said, "˜The way the international boundary zigzags, I doubt very much if this matter was going to go to court that your charges, the seizure would hold up. So I'm going to ask you real nice if ya'll might want to just think about returning this boat to them.' And he was kind of mean. He says, "˜There's no way.' So I tried another way. I says, "˜Well, we don't need an Ontario fishing license to fish in our own waters. We have an aboriginal right, we have a treaty right, and it always says we don't need to have that when we're fishing in our territory.' He didn't buy that either. He says, "˜There's been changes.' So this went on for awhile, then my blood pressure started to come up a little bit and I told him, I says, "˜Well, in that case, sir, since you took their boats I'm going to take your boat.' And his jaw just dropped down. He says, "˜You're going to what?' I says, "˜We're going to seize your boat and I'm just going to keep it until I get their boats back.' Well, you should have saw the cheering from these guys. They said, "˜Well, let us help you.' So we dragged his boat, with him in it, back to the village. And once I got down there, we tied up at the dock and I went to the police station and I phoned Toronto, the Ministry of Natural Resources, and told them what had happened. So the rest of that day phone calls were going back and forth and as we were, higher departments, higher authorities kept calling back saying, "˜What's going on down there?' And it got to the point where the last phone call was one of their regional heads who said, "˜This could turn into an international crisis.' I says, "˜Yes, it could.'

And there had just been elections in Ontario, a new government had gotten in, and it usually doesn't work for us, but in this case it sort of did because the Premiere got on, the new Premiere of Ontario, Bob Rae. He got on and he says, "˜Listen, I know you people don't need provincial licenses to fish'. And he says, "˜But I'm more concerned about that officer that you have. Is he a hostage? Is he...what condition is he in?' I says, "˜Oh, he's sitting right here.' "˜Is he a hostage?' I says, "˜No, sir, he's not and he's welcome to go home, but he ain't got no boat so he can't go anywhere.' So he laughed. He says, "˜I see where this is going.' He says, "˜Well, let's get down to the brass tacks.' He says, "˜What do you need?' I says, "˜I need them boats back that your government confiscated from my people.' So we talked for awhile. He says, "˜You're right. I'll go look for them.' He called an hour back and he said, "˜Those boats are in Toronto.' I said, "˜Sir, that's four hours away. I want them boats back by 9:00 in the morning.' So there was a little bit of discussion at their end but the long story... short end of the long story he says, "˜Well, we'll have it back'. I said, "˜And I want that man that confiscated... this officer here to bring them back tomorrow morning.' He says, "˜I'll send somebody with him.' So they dispatched an official from the Premiere's office. Sure enough, next morning -- and I had no reason to hold this guy so they took him, allowed him to go home with his boat. But I realized early that the only language that a non-Native government understands is something drastic like that, where you have to really stand up to them and that was only the beginning.

The next morning they brought the boats back, the fishermen analyzed it, their nets, their boat, motor, oars, everything was all in there so they were happy, but that got me thinking, 'There's all these non-Native police on our waters. So how come our police aren't patrolling on the water?' 'Well, they're under the authority of the Ontario Provincial Police and so there's...work is confined to the mainland, patrolling the speed zone and accidents, etc.' 'Well, who patrols the water?' 'Royal Canadian Mounted Police and the Provincial Police.' 'Well, what about that conservation officer?' 'Well, he's under our jurisdiction, under our...as well.' So it only took a few weeks for me to ask our police and they said, "˜Well, that's the way it's always been.' I says, "˜You know, we should have our own conservation officer out there patrolling, looking after our environment, the fish, the river life, the safety on the waters.' They said, "˜Well, that's never occurred to us that we should be doing that.' So diplomatically again I asked Ontario if they would consider training some of our people to be conservation officers and they said, "˜No way.' So then I turned around and I thought, "˜Well, maybe if I ask Quebec.' They said, "˜No.' Then I asked Indian Affairs and they said, "˜No. Criminal Court of Canada applies and it's the federal police.' They had no mindset that we would be out there exercising our jurisdiction and authority.

Well, it didn't stop there because being that our reservation is half in the States and half in Canada I had one other option. I phoned Albany, New York at the State Trooper Police Academy and they had a conservation program there. I says, "˜Would that be open to Mohawks from Akwesasne?' And he said, "˜I don't see why not.' So I asked for the course that I needed and sure enough they had a very thorough course. I says, "˜Can we send some guys down there?' He said, "˜Yep.' Well, six months later the two candidates we sent down there returned home. They're wearing a Stetson hat, nine-millimeter pistols; they're in uniform. They wore the uniform of where they trained. So it's very much unlike what they wear in Canada because they're used to those taxi cab hats. There was a district Ontario Provincial Police supervisor and he really took offense to their style of dress. He wanted to arrest them right there so we had a few words.

Now the time that they were away in the six months, we put together a conservation law. Again, in that six months, Indian Affairs just wouldn't hear about it. They said, "˜You're asking your community to control your water, to control enforcement.' I said, "˜That's right.' They said, "˜It's under the Indian Act. You don't have the authority to do that.' I says, "˜Then we're going to seize it.' Seven times we send, modified, and pretty soon we stripped all authority away from them. They still wouldn't pass it. So I took it all back, reformatted it and I went to the nation council and I said, "˜We're trying to claim back some jurisdiction here and under inherent right we used to control and take care of our wildlife, water life and all the animal life. We don't do that anymore. We're going to start doing it again.' So I gave a presentation, and this is an elected leader now meeting with the traditional leaders and they had always been at odds, never got along, and I explained to them, I says, "˜Well, you send me over there to create better relations of our own people in the community. Here's what I'm going to need.' Anyway, they took it to the Grand Council and they liked the idea of reclaiming jurisdiction back and they passed it as a community law for Akwesasne. Nothing to do with Canada or the United States, but it's a nation law on conservation and environment. So when the two conservation guys got home they had a law and at the same time we developed our Mohawk court.

Now we had judges under the Indian Act, very limited authority, but they were already in place. So we again started adding more, giving them more authority to hear cases higher, 'cause all they were doing is dog catcher's law, little municipal type things, so everybody was ready for it and they says, "˜Do it.' Well, it all fell into place. Community had watched the way the direction this activity was going to go. When they got home, we had bought them a boat and they started patrolling our waters, start advising our residents safety measures and there was hunting and fishing licenses by the Mohawk Nation. They went out, started telling the non-Natives who were fishing in our territory that "˜You need to have a Mohawk Nation fishing license if you're going to fish in our waters.' Well, that started an avalanche of protests, members of parliament in Ottawa start calling the Department of Indian Affairs, "˜They can't do this.' And our two young conservation officers wouldn't take no for an answer, "˜cause if you didn't have one, you were arrested and brought to our court and that's what they were doing. They were just bringing people in and our court got very active.

When they came in they said that, "˜This is a kangaroo court. It has no authority. It has no recognition.' And one of the things I had done in dressing up our courtroom, making the changes, is that we had a Mohawk community flag and we had a Iroquois Nation flag in the backdrop. Carpenters had done some work setting up -- you know how the judges kind of sit in a high place -- and they did some woodwork and got a principal's desk. I used to like to take my kids to flea market and I found some church pews, about half a dozen of them. So by the time they walk in there they saw an official courtroom and our lawyers that were acting for our land claims and adjudicating outside, brought them home and said, "˜This is your court now. This is where you enforce our law.' So there was a prosecutor and there was also a lawyer to represent them. So all this they saw when they walked in the courtroom and it dawned on them, "˜There's laws here.' There's a courtroom, the charges were read and they paid the fine. And on their way out, if they didn't have a fishing license from the Nation, they bought one. Two years passed. We knew at some point we would have to fight this in the Canadian court and as much as they were kicking and screaming, nobody ever challenged us because they knew that everything was done in proper order.

Well, anyway, the conservation officers made quite a name for themselves in the community. They were champions because things are now changing and I looked at our police force and realized they also had to change, first their attitude. They were referred to by the outside police forces as "˜window dressing cops.' "˜You look like a policeman but you don't act like one. You only enforce their laws.' So we started making more laws by taking provincial highway traffic laws and then we adopted them and we modified them to fit our community. So these things were going on and the provincial police dressed a certain way, so do the Mounties, and so our police force were dressed the same way as the Ontario Provincial Police. So I asked them, "˜Why don't we change that?' So we did a few more consultation meetings in the community with elders and with families and they gave us a lot of good ideas.

As it turned out, the community wanted them to be their police force but they saw them as, excuse the expression, "˜scouts for the cavalry,' spies for the outside police. They just were not theirs. So we were talking about what would it take to be a Mohawk police force? They had a lot of discussion, they made up a list. The style of dress, the police cars, the laws they would enforce, let them know that they're working for community. And when they changed that Ontario Provincial Police headgear, they ordered all their equipment from the United States and so they got themselves nice Stetson hats, shoulder flashes that says Akwesasne, emblems, badges that were their own, cars were set up a certain way. So it was distinctively for the territory. This was all going up very fast, changes were going and while all this was going on, community activity, we were changing that election code through our surveys, we were getting more ideas coming back. Anyway, at the end of the activity, we had encounters with the provincial police because they were saying, "˜We tell you what to do not...don't listen to that chief, he's got no authority.' I said, "˜It's not my authority, it's the community's authority. This is where they want to go.' So we had a few clashes along the way. The OPP [Ontario Provincial Police] arrested the conservation officers and confiscated their guns, so we went to court and we showed them everything that they had been trained for. The judge looked at it and he said, "˜They're well-qualified to enforce their laws because they trained for it. Give them back their guns.' So sometimes you have to fight through the system, through the courts or direct confrontation to keep advancing, so we were doing all this pretty active. And the Ontario Provincial Police appealed to a higher court. We won that one, too. So they says, "˜Well, here's your guns.'

Anyhow, the police started their program and they had their uniform changes and they started showing the community that they were community police, serving the nation, and the whole attitude started to change and that flag that I was telling you about started hanging out in the schools and in public places and in our institutions. And then I went to the Canadian Customs Building and I says, "˜Put this flag right next to your Canadian and American flag.' They weren't going to do it the first time around, so we went and put it up there. Then we went to the Seaway Building and said, "˜Put up this flag to fly alongside the Canadian flag.' They weren't going to do it, so we bought our own and put it next to theirs and dared them to try to take it down. It was Mohawk diplomacy more or less. So those changes were going on, but the community could see, they could see these changes were going on and it was for the better -- confidence building. So people had a different attitude and it didn't take long before they reflected in that law for elections because this went very fast.

Two years was up. I figured that's all I had to do was change the course because they had asked me, "˜We only want you to run one term.' And the strange part about it was, although I was from the traditional side, they don't vote in elections. So in order for me to become chief I had to be voted by the elective Christian side. For some reason they did because I was well known in the community to begin with and knowing that I would be very active in things and so they wanted to see what was going to happen. It was an interest thing for them, but they started liking when they see all these changes coming about.

The attitude changed in the community and they put that election code through with a lot of input. It became an Akwesasne election code. If you wanted to oppose or take action, you didn't like the way the turnout, you had a chance to appeal, but you appeal to our Mohawk court, not to a Canadian court or Canadian government or an institution out there, it was all settled inside. All this time the Minister of Indian Affairs was watching the way things were going and of all the skirmishes and things that would happen, he was happy because we were running our community by ourselves, we took responsibility for our finances, the administration, our programs and had a transparent operation. We started reporting to community by way of annual, semi-annual, quarterly reports, releasing minutes, giving an activity report of where monies were being spent, how they had...how they were coming in. And while this was going on I knew we needed more dollars. So I applied other skills, in this case it was lobbying skills, looking for the dollars and so we set up a portfolio system. I says, "˜this council has to change. The head chief should not be the one who is going to run everything. The head chief is the facilitator; he's a servant of the community. So the rest of you chiefs have to take far greater responsibility, because I'm going to go and start looking for opportunities out there, I'm going to do the fights out there, you look after the community.' So we decided to develop a portfolio system. This chief took care of the justice, education, health; everybody had responsibilities, and the community started to understand that they no longer had to wait to talk to the head chief. They talked to any of those chiefs, whatever problem you had you could see them and he will know and act on and convene meetings and try to solve any problems. So it took on a greater interest and a greater authority. Now prior to that, chiefs that served on council they called them councilors; we changed that. I says, "˜You're not councilors, you're chiefs. You're elected by the community. You're chief for your district.' So other than just the word, we gave them a higher level of importance and with that a job description of what they will do when they're on council and that was incorporated into the election code, Code of Conduct for Chiefs -- that was in there. If he done something wrong, you could take a chief out of office, if he violated the code of ethics -- that was borrowed from the traditional side.

We changed the name. We didn't like the name St. Regis Band. As a matter of fact I hated that because there was a band program, band council, band administrator, everything was "˜band.' I know the Canadian government had this as a mindset for us, to think of ourselves as a lesser people, because we don't mention anything about 'nation' anymore. The only ones that were always saying "˜nation' were on the traditional side and they had... they were in the minority, the government didn't pay any attention to them. So this whole idea of changing, we got rid of the word 'reserve.' You've got 'reservation' on the American side, but you've got 'reserve' on the Canadian side, and I didn't like either term so we said, "˜We're a territory. This is a Mohawk Nation Territory. We're not St. Regis, we're Akwesasne.' So again, we had a pooling of ideas, got feedback and started passing council resolution saying, "˜We're no longer going to refer ourselves as the St. Regis Band. So we became the Mohawk Council of Akwesasne. We became the Mohawk Territory of Akwesasne. There's no more band office; it's administration. And all those administration offices became Administration 1, Administration 2 and that language fit well in the community. And around the council table, some of these chiefs had been in office maybe two or three terms, four terms, some of them maybe even 10 terms, two-year terms. That new election code that we were now discussing says we needed three years because if you're making promises on your second year, you're up for election, chances are you're never going to control the deficit, you're never going to deal with it because you're forever spending more money. Took it to the community, they said, "˜That makes a lot of sense,' and so we revised it.

As far as those chiefs that were on council, sometimes they would say "˜band council' inadvertently. I said, "˜We've got to cut this out because we have to show an example to the community how we're going to refer ourselves and if we're going to change our attitude we have to change the way we refer to each other. You're a chief and we don't want to mention this band word anymore.' So I says, "˜Here's what we're going to do. I put a coffee cup in our meetings and anybody that says band for any purpose will have to donate a quarter into our coffee fund.' Again, it was non-threatening. It became a game and they all looked at each other, laughed and says, "˜Okay.' So, yeah, every other meeting somebody would get caught and put a quarter in there; pretty soon, we had a big jug and it caught on with the stuff. This is a whole different idea, it don't cost a lot of money, but to have you think of yourselves differently, to have you think of your community differently, your people differently we had to incorporate some things like that. So now you had the flag, you have a new council name, your community is under a different mentality. To get back to the election code now. We had finished it, we had a model and the community voted on it. Well, the government came back and said, "˜Geez, you need 51 percent of your total membership.' Mind you, families are out working in different places; we're never going to reach that. So I went back to the Minister and I says, "˜Well, I'll tell you what, would you be satisfied with a letter from the nation council because they don't vote, they don't get involved in these things and you're counting their numbers. So if they give you a letter saying we represent 800 people, that's traditional and we like what the Mohawk Council is doing, we like the idea that they bring their election law back to their community, would that be enough?' And he said, "˜Yeah. I could see that.' And that's how we got around it, just a little bit of innovative thinking. Next election it was under the control of the Mohawk community.

I thought my job was finished back then because I had started these things. They said, "˜No, now you have to run because it's no longer the Head Chief, it's no longer the St. Regis Band Council, it's now the Grand Chief...' And the idea, the first time, the first week I went around when the community people were telling me, "˜We didn't elect you,' I pulled that Grand Chief position, I says, "˜The Grand Chief is now going to be elected by the community at-large, not by these 12 district chiefs or councilors.' That was the one significant thing and that's how the community know that we're going in the right direction. We empowered them. Anybody could run from the community for Grand Chief, but you had to be elected by the community. Well, my opposition, 'That man's crazy. He's from the traditional side, "˜They're not going to vote.'' So we had another one of those famous runoffs and I ran and I won again and council was strengthened even more.

We kept on the path for governance, for representation, for change. A lot of the changes that were going on were really back to our traditions, not necessarily changing so much on the outside. The Department of Indian Affairs stopped being my enemies because now they're taking lessons on accountability, transparency and they would come back and I noticed that every time we had a representative from Indian Affairs, he would try to sneak out our reports to the community, put them in their briefcase. Finally I just asked them, "˜Why don't you just ask us, we'll give you a whole batch,' because now they're taking it to other reservations, showing them, "˜See what they're doing over there, they're giving reports to their community membership.' And so they stopped fighting with me and we became partners in governance. I would give them ideas and say, "˜This is what we want to do.' And most of that time, mind you there were a few other bad apples over there, but for most of that time they knew that we were trying to survive in a community that's divided up into jurisdictions, into puzzles and it was hard to bring it back together. So that was a little adventure into Mohawk politics. It's still on a course, sometimes it slows down, sometimes it's on a crash course somewhere. I shut down ships because we're right on the St. Lawrence river, when I didn't like something that was going on or shut down the bridge, international bridge traffic, and pretty soon I didn't have to do those things. And I'm getting a little older now and people say, "˜You mellowed, you're not a militant anymore.' But all these things, when you have respect, you can sit at a table and negotiate solutions. The challenge doesn't stop. We did a lot of other things that brought us up, but the idea was for most of the leaders, have respect for the culture and tradition of your people, have respect for the language. When we were small, we all spoke the language and as we had children and they grew up, the mentality was if you're going to succeed get an education. That language is not going to help you out there, nobody speaks Mohawk in the States or in Canada. So that was the mindset. In the "˜80s we turned that around and said, "˜Our culture and language is important.'

And for all the hard time that I had coming from the traditional side, something had happened in my second term in 1984 when I became Grand Chief. The Pope came to Canada and he wanted to experience a Native ceremony. I don't know what he was thinking, but he had asked the bishops in Canada, the Catholic Church of Canada to say, "˜This is what I want to experience.' And years before that he had already known that the churches would bring out so many Indians and they would dress them up, put the western war bonnet on a Mi'kmaq or a Mohawk out east, put them on horses, dress them up the way you would see a Native American on cowboy and Indian and the Pope was, he says, "˜I know all that. And I know if I'm going to go to eastern Canada I don't want to see you dress up your Natives that way. I want to see what they're really like. I want to see the spiritual side and I want you to organize it.' So the priests from our territory wrote back, says, "˜Well, they just elected a traditional...' well, they referred to me as a pagan, but more diplomatic is, "˜There's a traditional Mohawk here, he's now the Grand Chief and he goes to the Longhouse, he goes to ceremonies, he's a faith keeper in that Longhouse.' So it didn't take long before they wrote back. They says, "˜Would you put on a ceremony for the Pope?' And I had a lot of difficulty from the very strong Christian side of the community. It was always a test. So I went back to the Longhouse and I told them, I says, "˜Listen, this has been an offer, an invitation has been given to me to do this and do you think it's a good idea?' They talked about it and the conclusion of their discussion was this, "˜Maybe it would lead to better relations between ourselves, us traditionals and Christians. So we're going to send you, but we're going to send a clan mother, an elder and singers to help you.' So that's how...this was 1984, kind of still fairly new back then and given a hard time by the Christian side and often be referred to as a pagan, the attitude was, "˜You look down on your traditional brother.' The Pope came to Canada, we put him through that ceremony, and he was so affected by it because I work with Ojibwe and Cree nations to put this on, but a healing ceremony consisted of smudging, they use sage and sweetgrass. I brought my sacred tobacco and put everything together, put him through the ceremony. One of our elders did the blessing with the eagle. But all along there they explained to him what we were doing and when the words and the songs were put to him as he was going through, I could see a tear coming down and he was totally committed to this experience.

Anyway, when it was over and he read his prepared speech, that man can say greetings in about 20 different languages so that took a bit of time and then he gave his address. It was broadcast all over the world. There was probably an audience of about 80,000 in this...if you can think about what a Woodstock concert would have been like, it was pretty well the same set-up; speakers all over, screens so that they would project all over the field. And then he digressed from his prepared text and from here he told them, he says, "˜The Church assumed when we came to the Americas that the Native Americans were godless and soulless people.' He said, "˜That's wrong. They have a very beautiful culture and traditions and thanks to us we've taken that away from them.' He says, "˜What I've experienced today, I will remember it and I want to thank the elders and the people who put this ceremony together and my message to all of you is I want to apologize on behalf of the church for what we've done, the damage that we have done.' So his message to his followers was, "˜Don't be ashamed of who you are. Don't be ashamed of your tradition, your culture, your traditional beliefs. Incorporate them into your church activities.' That was a big turnaround. It certainly led to my being more accepted in the total community and within a short while after this was all over we had all been home, my community, in the church they started burning sweetgrass and offering traditional chants, singing and dancing, even dress. And so they saw themselves as [Mohawk language] Mohawks and they were proud of it whereas before they had been taught to be ashamed of it. That was a stark difference. So situations happened in my early term that helped the path that I was pursuing. It was well appreciated. I was invited to speak to other churches. I went and spoke in their churches, something that was very new for me and it helped with a lot of the changes that were coming about."

Ian Record:

"You talked about the laws and the codes and the court system that you set up, and early on you found yourself right in the middle of it because one of your family members was one of the first violators of I believe it was your conservation code or one of those, right? I wonder if you'd tell us that story."

Michael K. Mitchell:

"Man, I went all the way around not to go near that story. Yeah. The conservation officers, as new as they were, but the uniform was very distinctive, their presence was distinctive and the support of the community, they were champions because now they're out there exercising authority on behalf of the community. So everywhere they went the elders singled them out, shook their hand. So one day I'm meeting in the village with elders, we're talking about building a new nursing home and they walk in. This is just probably a few weeks after they had come from their training in Albany. And they said, "˜Chief, we need to speak with you,' and they got cut off. The elders just got all around them and they give them coffee and tea and cookies and all, made a...so they had to make a little speech and they were just adored by the elders.

So when they got a chance one of them cut away and he says, "˜We're here on official business. We need to talk to you, Grand Chief.' I says, "˜Really? What's it about?' He said, "˜There's been a murder on the island and your...somebody in your family might be involved in it.' Well, it hits you right here, huh? I says, "˜Well, excuse me.' I took them outside for a briefing. At their suggestion went outside and with stern faces they looked at me and looked at their report and they said, "˜There's been a murder up the hill where you live.' And I'm studying their face to see if this is some kind of a trick or humor. I couldn't find anything. Then I started getting scared. I says, "˜Well, what happened? Does it involve my family?' He said, "˜Yes, it does.' They looked at each other and then they said, "˜A pig was killed up the hill, farmer called in and it had piglets and they were all killed, too. And those piglets were traced down the hill to your farm. So the murderer, the culprit of this murder, is your dog, your Alaskan Malamute.' Well, then it started...I didn't feel as bad, because now I knew that this is their way of impressing how important their work is and their investigation. So I challenged them. I said, "˜Well, how do you know it's my dog? There's about three or four other houses that have Alaskan Malamutes.' They were just waiting for that. They pulled pictures out. "˜Behind your barn there's a whole, there's piglet parts in there. There's your dog, blood stains on his face and on his chest, and there's a trail down the hill, and so we know, we have proof, everything's documented. Grand Chief, you're under arrest.'

Now they scared me. I didn't know how to react so I went with them and they charged me. I'm the first one to get charged on a conservation law that our people put together and in the authority they carry, they singled the Grand Chief. So this created a lot of discussion in the community because I didn't have to go to court for two weeks and to prepare whether I'm going to argue it or offer a plea. So anyway, the charge was given to me. People either laughed about it or there certainly was a lot of discussion. To the elders they said, "˜Well, it's the Grand Chief's the one that's trying to find the money for this program. He sent them to school, he found a place for them to be trained.' Pigs die, even the farmer up the hill when he found out it was my dog he was trying to drop the charge. It was going both ways. My opposition says, "˜Well, is he going to pull strings and get out of this?' Two weeks came up, I went to court. I paid the fine. And people wondered, 'What was the result, what happened?' And I said, "˜I paid it.' And I guess it tells me that we all have to follow the law, and I just want to say the conservation officers did a thorough job investigating the murder on Cornwall Island.

And that was the result of the story. But weeks later, then I started getting some feedback. Apparently a lot of people in our community were watching to see how this was going to turn out and are we going to have respect for our own nation law. And if the Grand Chief is the highest authority, is he going to pull some kind of strings to get out of this or have the case dismissed or find a technical way to deal with it? And I didn't realize that there was such an interest in how this was going to turn out. But the law, the nation law applies to everybody and it all turned out well. It was a little embarrassing for me. I had to swallow a few times, too, but the bottom line is if you make a nation law, you better abide by it. It's not just for the non-Natives; it's also for us, too. And that was a little story about how the law applies and how you treat and respect the enforcement of law and justice in your community."

Ian Record:

"It's an interesting story. I think leadership is in many ways leading by example and that citizens of a nation are going to take their cues about what's going to be tolerated and what's not going to be tolerated in terms of behavior by how their own leaders behave."

Michael K. Mitchell:

"It was an example to the degree that there was interest generated and people knew that I could have it dismissed like that and it was just a thing that they were saying, "˜Well, how is this going to...?' And it led to everybody having respect for our program, respect for the nation law, respect for the police authorities, because it wasn't just the conservation. It applied to police in general and so it became a healthier thing. It was a good example to everyone and it taught us a lesson, because there were times when you had to stand up to the authorities on the outside, you might even have to disagree with them about how law is applied. That's how I looked at it. If you have to stack that up against your own laws or your own beliefs, if you violated a custom, tradition, that you want to defend it, sometimes you go to jail on principle. And it was those principles that became very important in our community. But at the same time, in your traditions there's also law, there's also justice and you better respect it. It doesn't mean that we can just do anything. That border that we lived on was inviting for a lot of criminal organizations and in my time, two or three elections later, it became a thing for smuggling of contraband going back across.

Let me try to see if I can demonstrate something here. There's three islands here: Barnhart Island, Cornwall Island and St. Regis Island. Here's the St. Lawrence River. Whoever set the boundary line back in the 1700s and 1812 must have been drinking somewhere because here's how it goes. Barnhart Island, New York State, it goes around this way and then there's Cornwall Island, Ontario and then it goes around, St. Regis Island, Quebec. You would think they would just go one way. Of course the water goes straight down. That's why I said one minute you're in Canada, the next minute you're in the state, you're in New York, you're in Quebec, you're in Ontario because that's how the international boundary line was zigzagging. And so the FBI [Federal Bureau of Investigations] and the state troopers and the Canadian Mounted Police and the Provincial Police all said, "˜We'll never get a conviction on the water, so we'll just stay on the mainland and we'll catch whoever we catch on the mainland.' So this whole area became this, what they call this gray zone, and it didn't take long for criminal organizations to hear about Akwesasne, how it's easier to transport stuff back across. And it became very hard because they were enticing a lot of our people to say, "˜Run this across the river for me, boxes.' Well, it didn't take long for those cigarettes to turn into drugs, guns and when 9/11 happened, on CNN and NBC, ABC, CBS, we were watching and they had a map of Akwesasne and the first few weeks they were looking at saying, "˜Those terrorists must have had... come through Akwesasne.' We're getting to be famous for the wrong reason, but that's the scenario and that's what they thought happened. It took a couple of weeks to kind of find out that they didn't come through Akwesasne, that they were already in the country, but who do you blame first when something like this happens? Who do you point fingers to when criminal activities are going on? Both sides, they were blaming the people who live there and the customs security cracked down. They were checking every car, but they were checking the cars of the grandmother and the mother trying to get her kids to school going back and forth so they were very hard times for us.

There was another thing that I was instructed to do was challenge Canada on our border crossing rights. They loaded up my truck with food and furniture, household goods, stacked them way high and I came across the international bridge. Everybody walked with me alongside the truck, about 1,000 of our community residents, got through Canadian Customs and I declared everything that I had with me and then I says, "˜I want to exercise my aboriginal right, I'm not paying the duties and the taxes,' which amounted up to maybe $370 some dollars. They wanted to arrest me right then and there and they...Customs verbally arrested me, but I kept going. Second line was the RCMP [Royal Canadian Mounted Police] and they pulled me out, put me in their car and the women of our community went over there and pulled me back out, put me back in the truck and said, "˜Keep driving.' So somehow or another we got on this 401 that went to [Mohawk language], which is another Mohawk community further west and we gave the goods to them as a historic right of trade. And it went to court, it went all the way to the Supreme Court, because I was told in these meetings by high level government authorities, "˜Chief, if you believe your people have a treaty right, an aboriginal right to cross the border with your own proper goods, you have to win in a Canadian court. If you win in Canadian court, we will be prepared to negotiate how to implement, how to exercise that right.' So this was a test case that I was invited to participate. When I came home and I reported that, they said, "˜Let's do it.' And so this was the whole precedent setting thing that occurred.

Years later we finally hear the case and I win everything. So Canada was totally unprepared for how it was going to be done and the people that made those promises that I had to win in a Canadian court were no longer there, it was a new government there. They said, "˜We didn't make those promises, so we're going to appeal.' So it went to a higher level, they lost again. So a different Minister now getting really concerned because now their federal prosecutors are telling them, "˜You know, the Mohawks could bankrupt the financial institutions of this country, they could threaten the sovereignty of this country. Look at the decision what was awarded to them.' And we weren't asking for a lot, just to bring across our own community goods, our food, products, furniture, anything for the nation and to trade with another nation. That was the other thing that we had invoked. Anyhow, what happened was they said, "˜We're going to go to the Supreme Court.' I says, "˜You didn't say that. You said we would negotiate how to implement this right.' Anyway, they went to the Supreme Court and the Supreme Court heard the case and they altered the argument, restructured it and gave a decision, a 'no' decision.

So after all that time, this is about 10 years for this battle of recognition of inherent right, aboriginal right, treaty right. I wasn't satisfied the way we had been treated. The lawyers in Canada started holding sessions on how this was played with and there's a code...there's a code of honor among lawyers and legal institutions that there's some things you don't do, and this is what happened because they were so paranoid. I got home and I thought, "˜Well, I've been to the highest court of this country, it wasn't exactly...turned out the way I wanted to see it turn out, gave it my best shot and I was just going to proceed to do other things. And then somebody came to see me and they said, "˜You should try to take Canada to the International Court because what they done to you should have never happened and if that's the last resort, that's the last course, then you should submit it to the Human Rights Commission. There's no guarantee they're going to hear it though.' So that's the next thing that we did is we submitted to them and we asked for more documentation, they looked at it and here's a team of lawyers from Canada saying, "˜Don't hear it. It's been settled.' They examined everything and they said, "˜We're going to hear it.' It was heard last February and we expect a decision sometime in the next few months. It'll be the first of its kind, but when Canada holds itself up as a defender of justice, of human rights, this happened in their backyard and so I didn't want to do this, but you forced the issue; you're promised something and then they take it away. So that was one of the last things that I was...challenges that I faced because by now those two years turned into 25 years on council. I would take a break, but always the next term they say, "˜We want to bring you back.' So that was one of the last fights I had with Canada."

Ian Record:

"What I've been hearing a lot in your discussion thus far is essentially you moved, Akwesasne moved from a position under the Indian Act where your system of government really had no transparency and no accountability to a system where you're striving very hard towards and you're institutionally building towards a system predicated on transparency and accountability, not only within the government but also accountability of the citizens to the nation. I was wondering if you'd talk a little bit about that."

Michael K. Mitchell:

"In the early "˜80s, middle "˜80s, when the government controlled the purse, we were barely getting by with the monies we had to service the community. When we took over and we had a better grasp of what's needed, we were able to lobby for more dollars and by reporting the results of the expenditures and the programs that we had implemented we also had our own actual figures of what's needed. I'll give you an example in health. We took everything over -- the administration of it, started putting some policies of our own, hired our own people in-house -- it became a big regime. And so much so that Canada started referring to it as a living example of what would happen if First Nations took over like taking it from a self-governing position. I never lost sight of the fact that the only thing that we were doing is removing those government people away and putting our own people, designing our health schemes, putting accountability factors, implementing programs and services in the community the way they want to see it and then built in involvement from the community to give direction where the health programs will go and as a result we qualified for more dollars. The institutions that were built is the same for education, it's the same thing for other programs, and pretty soon when we started from $5 million, when I left in 2006 they had a budget of $76 million to administer and service the community. In between that, people had a chance to return home, have a skill and bring it home and find employment. But that wasn't the end all. There were other factors now that were available so it was more promising than from the time of the Indian agent or when the council was controlled by the Department of Indian Affairs. So the movement...what's indicative was the attitude change in the community. When you think better of yourself, you're more aware of your nation culture and traditions, you take pride in your community. Those are all factors that were crucial. They didn't cost a whole lot of money, because at the time when we were in a deficit I laid these things down and had a path to pursue. We didn't have a whole lot of money to spend, we couldn't make a whole lot of promises, "˜I'm going to do this,' but we did some confidence building, pride development and slowly the attitude started to fall in.

The elders provided the greatest support. They knew that this was their community and wanted to see a strong, healthy community. Now mind you, that didn't mean that we didn't get hit with a lot of modern problems. I mentioned smuggling a while ago. A lot of things that were going in and out would also stay. So drugs became prevalent, social issues became very prominent and hard to deal with, but we set ourselves with a way to deal with it because our programs were there and we could add anything that came, but we're able to deal with modern-day problems. Now that generation from the "˜80s and into now, the product, language has become very important, the curriculum in education systems have become very important, more involvement and teaching of Native culture and history and traditions, more language programs. We have some schools that are total immersion, Mohawk and all the subjects. Nobody would have thought back then that we could have done and built institutions like that. Our relations with the tribe, that had been our enemies in the past, now they sit together in council. They now recognize the Mohawk Nation "˜cause very early in my term, probably within the second year, we passed a resolution recognizing the Mohawk Nation council as our historic national government. We're a community government; they're a nation government. So now we're trying to find our way, how do we get everybody working together. The mindset was, and the trick from the outside is, get people fighting amongst themselves, make one side seem lower in stature than the other. You're the good guy, they're the bad guy, they're the pagans, you're this and that. Well, now everybody's saying, "˜Wait a minute. We're all traditional now and we're all proud to be Mohawks and that's going to affect the next generation. So we can withstand all the modern problems and difficulties that will come, we'll try to find a way to resolve them because those problems are great, they're coming at you from all directions. But now you've built your institutions, you've built your programs to service your people, you've also developed a character that will withstand all the negative, and also from the outside governments that try to influence them so you don't have that. You have it in your heart and your spirit to fight for those things. Your children will grow up fighting for the same thing. So it's been a worthwhile experience. I look back now and I say, "˜That was a good term. You learned something.'"

Ian Record:

"The last question I have is this issue of governing institutions, which you've talked about in detail. The extensive research of both the Native Nations Institute and also the Harvard Project on American Indian Economic Development have showed that across Indian Country in the United States, across Canada, Native nations are aggressively pushing for sovereignty, for self-governance, but has chronicled case after case where when nations do not back up that assertion of sovereignty with the building of capable governing institutions, they really can find themselves in the sorts of battles that they can't afford to lose. And I was wondering if you could just comment in maybe more general terms about the importance of reinforcing that push for sovereignty with those capable governing institutions."

Michael K. Mitchell:

"There's a very historic wampum belt that we all grew up with in all our Iroquois communities that we're taught, and this belt has two lines, two purple lines. And one line they say is a ship and on the other line is a canoe and the blue line represents a body of water. And they said on that ship is the non-Natives, the European newcomers, settlers and in 1664 they sat down in Albany and they talked about this, making an agreement. And from that experience between the Dutch and the Iroquois, later the English and the Iroquois, they had this discussion and on a piece of paper when they said, "˜My king will be your father and we're going to have a relationship here and we're going to do business in this manner,' is that they left that day and the Iroquois said, "˜We're going to come back the next day with our response.'

The next day they came back, they said, "˜We have made this belt. First our answer to you is we can't have a relationship because you're telling us the king will be the father and we're going to be the children. A father will always tell his son what to do. Our answer is we'll be brothers, equal.' And so they come to these two rows. They says, "˜On this one row will be your ship that you came from across the salt waters and from what you're telling us, you couldn't practice your religion over there. You didn't have a fair system of government over there. You get penalized for doing these little things and so you want to be free over here. On this ship we're going to allow you to have your own government. You're going to have your traditions, your culture, your language, your governance. It'll all be on this ship. In our canoe, we're going to maintain our traditions, our culture, our language, our governance, our jurisdiction. And we're going to go down the river of life together. Whenever you need help, we'll come over and help you, but we'll never interfere in internal relations of your people.'

So that was a solemn pledge they made to each other and they did help each other down the course, because when the settler governments first got to the Americas, everything was new for them. They weren't knowledgeable of the medicines that the Native people knew. They knew nothing of corn and beans and squash, pumpkin, maple syrup and the list goes on that we take for granted every day now as edible foods. That was all new, even tomatoes, beans. So in helping them with the foods that were grown in this world, Turtle Island, when I said they helped each other along the way, this is how they would help each other. We also were not privy to a lot of the diseases that Europeans brought over so they would help us in the other way. That was the relationship. My point is sovereignty began with us from day one when a clear line of understanding in the relationship the way it was supposed to go. And it's in our heart, it's in our spirit as we look after our people. Unfortunately, that was a traditional practice. So when they brainwash you into a modern elected system, you didn't believe any of that stuff anymore. One of our jobs was to go back to our traditional ways and bring that out and say, "˜Listen, we're Mohawks, we're Iroquois and that is our belief, that is our principles.' So now both...everyone adheres and abides by these principles whenever we talk to outside authorities and governments. That's the basis.

Now I'll tell you one thing in Canada, you can't say sovereignty. They just freak out when we talk about our sovereignty. Not that we don't ever stop. We just listen with interest because they're so concerned about Quebec separating from Canada and they call it separatists. And the Quebec people start talking about their sovereignty of their nation, which is Quebec. And so they've had a couple of showdowns, referendums. One time they come by one percent that they were going to leave. We never really concerned ourselves with it because three quarters of Quebec is Cree and the other part is Iroquois and so we would have just had a referendum of our own and say, "˜We're going to separate from Quebec,' and come back to our own nation. At least that's what we told them and they always freaked out when we told them more or less embarrassing them.

The idea of nationhood is now growing, finding it's way back to the nations in Canada, and I know as I travel around in the States they're always talking about sovereignty. As a matter of fact, I kind of get disillusioned at times because I see so many of our leaders go to a national chiefs' convention, stand up there, talk about sovereignty then go home and do their due diligence with programs and services that are administered from the outside, the social conditions are bad, they haven't moved their community, so it has become rhetoric more or less. So you see when people are really strong it's not particularly the leaders, it's the community that has to grow. They have to have the confidence and they have to have the ability to say, "˜We are who we are. We are a nation. We want to do this. We're strong in our traditions, in our culture, in our language.' And when you're strong there, you become strong in other areas because now you're not afraid to get an education, you're not afraid to get an occupation or train for something because you know who you are. That's the result of the residential schools, that's the result of the churches, it's the result of people that have changed our minds. So we want to go home. So my interpretation of sovereignty is strictly being...knowing who you are, what nation you belong to, the roots that you have, that's your tradition and culture, and you'll be a strong nation. The problem is that many of us have been educated to the degree then admitting to something else that we believe that we no longer have those roots of our nations. And back home that root took place and embedded. So I feel kind of confident in the next generation that we'll continue to have the fighters going in the same direction. I didn't quite answer you the same way as you'd expect somebody to talk about sovereignty in that way, but that's how we look at it." 

Miriam Jorgensen: Constitutions: Creating Space for Court-Made Law and Judicial Review (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Key Things a Constitution Should Address: 'How Do We Make Law?'," NNI's Miriam Jorgensen explains how a growing number of Native nations are creating space for court-made law and judicial review of legislative and executive actions in their redesigned constitutions.

Native Nations
Resource Type
Citation

Jorgensen, Miriam. "Constitutions: Creating Space for Court-Made Law and Judicial Review (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation highlight.

"Now here's an example of case law that we're more used to, and I think one of the things that's fascinating about this is...how many of your nations actually publish tribal court decisions? If you're Navajo put your hand in the air because your court does. And that comes from the Navajo Supreme Court and Appeals Court, all of their decisions are published and you can find them online and they're searchable and an increasing number of tribes are doing this. It's definitely expensive, so you need a little bit more sort of wherewithal to do it, but it really makes clear to the community what the law sort of being clarified by your courts is. And so here's another source of law, judge-made clarified law, the sort of case law that's out there too. So it's not just statutory law that you might be thinking of, but constitutions provide the space for other lawmaking bodies and courts become one of them. One really important kind of court-made law is the law of judicial review. So far I've been careful to say courts may clarify law by applying it. That's what those previous examples were about. But some constitutions, again, the constitutions that you guys are probably working to write, increasingly tribal constitutions are including this thing called judicial review, which isn't just can I apply this law? It's, did the council get the law wrong? Is this law actually unconstitutional? Can I actually take it off the books? So there's that negation of law that if your constitution allows that sort of judicial review, your courts can do as well. So that's something to consider about law making as well."