legitimacy

Jennifer Porter: The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change

Producer
Native Nations Institute
Year

Jennifer Porter, former chairwoman and current vice-chairwoman of the Kootenai Tribe of Idaho, discusses how her nation moved to amend it constitution to change its basis of political representation, how the U.S. Secretary of Interior and the Bureau of Indian Affairs (BIA) tried to block the move, and how and why her nation decided to remove the U.S government from the constitutional reform equation in order to make its governance system more culturally appropriate -- and effective.

Native Nations
Resource Type
Citation

Porter, Jennifer. "The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

Herminia Frias:

"Okay, so we're right before lunch and we have two great speakers lined up to talk about the issue and the challenges of citizen engagement. And I'm sure many of you have many stories to talk about when it comes to citizen engagement. How do you host a meeting and actually have people come and show up or have people actually come and participate? So we have two wonderful speakers this morning and the first speaker is going to be Jennifer Porter and she's the Vice Chairwoman for the Kootenai Tribe of Idaho, and she'll be speaking first. And then she'll be followed by Terry Janis, who is the Project Manager...who was the project manager for the White Earth Constitution Reform Initiative. So if we'd...first we'll welcome Ms. Porter."

Jennifer Porter:

"So my name is Jennifer Porter. I don't know what's worse, going before lunch or going after lunch because everybody seems to be thinking when are we going to eat this afternoon, and after lunch you're all tired and want to go to sleep. So I'll try to make this brief, but touch on the aspects of it.

There were a few questions yesterday that were asked and it was a gentleman over here and he kept wanting to know, ‘Well, how do we do it?' He wanted to know about like...I felt like he was asking a question, ‘How has it been done in the past? Like who actually did this? Who reformed their constitution? And I just...you kept hearing people say, ‘Well, tomorrow we'll have that story, tomorrow.' Well, tomorrow's here and I'm one of those stories.

I'm a former chairwoman. I've been on the council for the past 17 years. Recently this past October, I stepped down to the [vice-chairman's position] just to have more family time and to enjoy my life. After eight years, I think it was about time. I have recently become a grandmother so I thought, you know, it's time to let the youth...it's weird to say that, but I just...I've hit that point where I can say the youth now are coming up and taking these positions.

So our story, like I said, the Kootenai Tribe of Idaho, we're in northern Idaho. It's about a half-hour south of the Canadian border. It started in the mid 1990s. Prior to that our constitution, it stated in there a five-member council with our hereditary chief at the time having a sitting position on the council. So every time they had a new council come in and seated, it was always that same chief. He never had to vie for that position. He was always had that position and it seemed to be creating problems all the time. You have this one position and in our community it's made up of three main families. So you see three's the odd number. Whoever's getting along at the time, they'll vote these two families in. ‘We don't like this family, so we're going to keep them off.' And it did that for so many years and you see how every...

At the time, my mother was the chairwoman and she sat on for maybe about 10 years at that time and she said there were times where she would come home and she didn't know if she had a job or not. There was petitions; she would go off to a meeting, she'd come home and there'd be a petition to have her taken off the council. So she would kindly clear her office, fight the council, come back on and they would have her on again. And we hear about that in Indian Country all the time, and it kind of got to where they weren't moving forward. They were always just doing this little 'jumble effect' with council, who's going to be chairperson this week, who's going to be chairperson next month, that kind of thing, and we hear a lot about that in Indian Country still today.

Well, she was tired of it and she was tired of petitions and just like one of the gentlemen was stating yesterday, she kind of...she went back and she goes, ‘Well, how did we...how did we work as a so-called government before constitution, before this was put upon us? How did our elders do it? How did our community work?' She talked to the elders at that time and being with the three main families, it worked. They didn't need voting, they didn't need a constitution, they didn't need a paper telling them how to work their community and how to move forward. So what she did is she got those three main families together. And it was hard. And I could imagine all the fights back then, but all the people that were on council at that time, all the elders that were within those families at that time, all the people that would like...write those petitions and take them around and getting them signed. She got them all together at that time and she said, ‘We need to stop. We're losing our young people. We're losing our old people. In order for us to move forward and to grow as a tribe, we need to stop this.' She can't do her job, nobody can do their jobs. So they came to that agreement.

They all sat down and they came up with something. She said, ‘We need some kind of system that all three families will be represented, that nobody will ever feel left out again. We can all get along at the table.' So what they decided was they were going to rewrite their constitution and all three families were always going to have a seat at the table. They rewrote it to where they took off the chief as the standing position. Each district would be allowed to vote in -- from their families -- two positions on the council.

So mid...it was about 1995 they proposed four amendments to BIA [Bureau of Indian Affairs]. Amendment One had to do with blood quantum and changing enrollment wording with our tribe. Amendment Two was a proposal of changing the district factors into the three main families. The third amendment was the quorum issue, changing the seating from the three [for] a tribal quorum to the four. And the last issue was the naming of the tribe because we didn't want to be known as the Kootenai Tribe of Indians anymore, we wanted to known as the Kootenai Tribe of Idaho. So BIA was okay with the first amendment, they passed that no problems. They were okay with the fourth amendment. We have the right to change our name. But they weren't okay with us changing our structure.

They said we couldn't change it from the five people to the six people. So I asked yesterday, ‘Why weren't they okay with it?' And the answer I got was because of the size of our tribe -- which we are a very small tribe -- at that time, we were a little over...maybe between 110 to 120 and BIA said they were opposed to it because they more or less went towards the U.S. vote, 'one person, one vote,' and they felt going to the three districts or the three different families not every person would be represented as a vote. But we argued with that because we said the way it worked in our past was as long as they were within one of those districts, which made up our whole tribe, they would get a vote.

So it didn't take my tribe long, and I always say they were a bold council back then, and they weren't going to let BIA tell [us] what to do, so they took it upon themselves, they got all the tribal membership, they got them all onboard saying, ‘This is going to work. This is how it's going to work but we need you guys to jump onboard with us. We need you guys to support us. So what we're going to do is we are going to vote that BIA doesn't have a say on how we govern ourselves anymore.' So all they needed was a 70 percent voting of the membership. They got more than that. I think they got about 90 percent of our membership to say, ‘This is right. This is how we're going to do it.' They sent that to BIA, BIA approved that. It's just funny how they had no question to that. They approved it. They couldn't tell the tribe anymore how to run our constitution or how to do our government.

So once that was approved, the tribe took it upon themselves to change the constitution. They didn't need those powers over them and we changed it. So running today, we are the three family districts. Everybody votes for two members and I believe it's been 18, 19 years since that [amendment] and it works today, still today. I was just asked this morning, how is it run? I've never seen any better form of government. I can say maybe I haven't experienced what it was before, but I've only experienced this and I've never been through a petition. It's always worked. I have...out of all of our tribal members -- you ask any of them -- they feel like they do have a word in the community. They can go to a family, whoever their district representative, their family representative is and ask for something to go to the council.

And the way our council works is we do come together, but if a family or community member is asking for something or wants to know what's going on, the first thing we ask them is, ‘Have you talked to your district representatives?' Because with us, it's their responsibility to take care of their family first before they come to the table. We don't deal with the ones who, if they're from Family A, jump over to Family C and want us to push and fight. We've gone away from that. If they do make friends with Family B or C, we said, ‘No, you still have to go through your Family A. We won't even address that issue until we hear from your family and how they deal with that.'

I know I was asked to speak a little about how the tribe decided to not allow BIA to determine where the tribe was going and I found it interesting yesterday that there are so many tribes that are still under that notion that they've still got to ask BIA for everything. They've got to have BIA approval. And I guess maybe it's the whole way of thinking, but today with self-governance and under self-determination, it's the tribe's right to not do that anymore. And we just were one of those tribes who moved forward and got it done and it's working great today.

Joan [Timeche] finally got me down here to speak about my tribe. She's been after me for a number of years since I shared that story, because at the time she said she'd never heard of that concept, she's never heard of a tribe dividing like that and making it work." 

Eldena Bear Don't Walk and Rae Nell Vaughn: So What's So Important About Tribal Courts? (Q&A)

Producer
Native Nations Institute
Year

In this short session, panelists Eldena Bear Don't Walk and Rae Nell Vaughn delve into further detail about the importance of tribal justice systems receiving adequate funding in order to administer justice effectively. Robert Yazzie, former Chief Justice of the Navajo Nation Supreme Court, also offer his thoughts about the importance of Native nations consulting natural law and their own common law when creating new laws.

Resource Type
Citation

Bear Don't Walk, Eldena. "So What's So Important about Tribal Courts? (Q&A)" Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Q&A session.

Vaughn, Rae Nell. "So What's So Important about Tribal Courts? (Q&A)" Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Q&A session.

Robert Yazzie:

"May it please the court."

Eldena Bear Don't Walk:

"Justice Yazzie, you may proceed."

Robert Yazzie:

"I miss that -- when attorneys and practitioners approach coming to court and make their case. I really appreciate your presentation and you hit some of the high points why tribal code should be considered very important. I just want to let you know that my experience, the same way that these judges articulated what they had to go through was no different with mine. And I hear a relationship between the Navajo Nation courts and the Navajo Nation Council. We used to always say that Navajo codes is a stepchild, it's always a last priority when it comes to budget. So even then, we fought and fought and we had the same experience. The council delegates would come to me and say, ‘Can you do something with this case?' And I would say, ‘If I do something for you, you and I could be in trouble. And when I put my hand up to say, ‘I will do the best to administer the law under Navajo law,' it means I have to adhere to the ethical considerations and I can't ask the council for favoritism, neither can the council ask for favoritism of me. That's a responsibility that you and I have. And I don't want you to get in trouble and I don't want to be in trouble, that's bad stuff.' So those who have experienced, have gone through...and even meeting with all the judges on a national level, we heard about the attitude. ‘The judges don't know anything and the judges are dumb and stupid. Their laws are unfair.' I think that kind of criticism, well, we took it as a positive note to say that we're going to do better. If the outside don't like it, if the Supreme Court of the United States, say they want to do us in, well, so be it.

I had a chance to see...visit...meet Sandra Day O'Connor when she was an associate justice for the Supreme Court. And from Gallup to Window Rock, she told me, ‘Tell me everything there is to know about peacemaking,' and I did that. And upon our arrival, other prosecutors and some of the Navajo Nation attorneys, we gave what we [could], the best that we have, the best possible information. The last thing she said was, ‘Well, it's fine that you talk about tribal sovereignty, but isn't it about time that you seek help from the state?' That just kind of hit me that what she said was, no matter what we say about tribal court and tribal sovereignty, it really doesn't matter to the outside world. It's like, you think as a judge, they really don't give a damn and sometimes you just to get help, have that human emotional feeling speak to you. But now I'm at the point I say, ‘That's okay, as long as we can say to each other as Indian people, 'We can do it.'' We have a mind, we have ability to plan, we have ability to live. The life element is always a key concern of the elders and I'm sure your elders do the same thing. They always say, ‘Does this legal decision have life in it?' [Navajo language] and you'd like to say to them, ‘Yes, there is life in this decision.' And it's because they like to see resilience, they like to see good results, a real bad situation, no matter how bad it is, I think the judges always have to have a good play in it.

So all I'm saying is that, as I tell my students sometimes...I like to teach law; I like to teach young people, Indians. It doesn't matter who, Indian young people, get them groomed, get them orientated, introduce them and say, ‘This is white man's law, this is our law and there's credibility in this law, there's also credibility in this law.' Some people may say, ‘Well, as for legal issues, this white law has all the answers and your law doesn't.' Don't ever assume that that is the truth. Always think [that] there's always something because Indian people have survived through the worst scenarios, the worst chaos and we're still here. And if we take that attitude and say, ‘Well, there's nothing in terms of tribal law,' if we think that way, then so be it. But if we think, ‘There's no law,' there's going to be a law and that law is going to be ours. It's going to have a reflection upon how we think, our values, how we cherish life and that should be the foundation to our legal system. And I think that's what we're talking about, the tribal court and when we say tribal courts.

And the other thing that I tell my, emphasize with my students is that, ‘What if you wake up today and you found out you have no reservation, no tribal court, no tribal council, no land, then what?' And the reason why I ask the question is that, as Steve [Cornell] pointed out and was saying, you have the expertise as Indian people. And yes, the white people have theirs, but if you don't use yours, there's consequences meaning that if we don't see...if our relationship with the federal government is severed, then we would say, ‘What happened?' Some population in the mainstream who'd like to shut down tribal court, tribal council, shut down the reservation and they want all Indian people to be under one law, state law. So as much as you want to save us, as much as you want this understood you say, ‘Is that what we want?' If not, we've got to do our darnedest to hold on to what we have and we have it, we still have it. They say we don't speak the language. We still do. The wind still blows, the sun still comes up, the fire is still there, the water still runs, they have voices, they know our language and they are good mentors to us. That's what you call natural law as a basis for all Indian law. Thank you."

Ronald Trosper:

"Thank you. We have a question over here now."

Adam Geisler:

"Yes. I'm wondering if you could share a little insight on some of the financial challenges that your courts may face and specifically how those dollars relate to the overall structure of the court and personnel, because I think that's one thing we're finding in Southern California is that when you're giving to smaller tribes we have to form consortiums like inter-tribal court down there. And I'm just wondering if you could talk a little bit about how you sustain yourselves as a court without having your cops out there writing tickets all the time for frivolous things."

Eldena Bear Don't Walk:

"A cop would never write a ticket for something frivolous. So in the different court systems that I work in, the trial courts almost always get their money directly from the tribal general council. So there are ways to make your courts a little bit more sustainable in your fees. In every other court in America, every time you file a motion they charge you $20, maybe they charge you $75 and people say, ‘Oh, we don't want to charge our people.' Everybody's got to participate in the community and sometimes that's like saying, ‘We have to feed all of our people for free. We don't have to give them jobs.' Everybody has to be a part of it and you have to be creative with it, but a lot of tribes are using...they get their money out of the general fund, some of them get it directly from the BIA [Bureau of Indian Affairs], other places get it from grants. And again, the problem you see with grant development is that, yeah, you can develop a great youth court on grant money, but how are you going to make that sustainable in the long term? And a lot of organizations now, for example, the Administration for Native Americans, when they do their program development, you have to explain how you're going to sustain that after the money is gone. So I don't think though...

Montana had an inter-tribal appellate court up into the late ‘80s where there were five or six Indian attorneys or attorneys who practiced Indian law who traveled from tribe to tribe doing their appellate work for them and it was financially very reasonable and accessible for tribes to use instead of trying to fund their own court systems. Washington has a very similar program for all of the little tiny Salish tribes over on the coast. Don't think that you have to have your own system to make it work. If you can work in a consortium, lots of tribes are working in consortiums. Consortiums can build power, they can build opportunity, they at least can give you the access to a tribal court system because that's what you want and then you can expand.

The money for tribal courts is tricky. It really depends on how your tribe is situated: if you want to do contract, if you want to do grant money, if your tribe is willing to just take it out of their general fund. The money for my court specifically comes out of the general fund and fortunately or unfortunately any money that we make -- and that means filing fees, transcription fees -- that isn't paid out goes back into the general fund so we don't keep it. We had a law conference this summer. Any money that we made went back into the general fund; it didn't come back into our account. So we run on a very small budget, the appellate court does. I know that our tribal courts run on limited budgets as well. I think that it is irresponsible to think that you're going to get all of the money you ever need for everything that you want.

And again, people need to learn to be creative. Everything is underfunded. The American government is underfunded, the United Nations is underfunded, your tribal court system is underfunded, your city court is underfunded so you're going to have to figure out how to make it work the best way you possibly can. Unfortunately too, we have not...we have developing jail systems; we just got a new jail. Other places have jails that I know are absolutely condemnable or have been condemned, but they're still using them for detention. Those are things that administrations have to make priorities. Your courtroom itself is not necessarily a reflection of everything, but your system is and it's important to make that outward appearance to people. So your jails, your courtrooms, all of those things reflect what the tribe values in its programs."

Rae Nell Vaughn:

"I can expand a little as well concerning Choctaw structure of financial support from the government. Similar to my co-presenter we, as I stated earlier, at that point when I was operating the court it was a $3.5 million budget, 82 percent of that was tribal revenue. The rest was a combination of grants and other sources, but again it was sustainability. For example, Teen Court launched based on a grant and the tribe saw the success of the court, of the teen court forum and so they chose to go ahead and continue on with that. In regards to collections of filing fees and fines and things of that sort, we were not able to retain that. That ultimately went back into the general fund. The general fund in turn supported our security and our TSA-type support of going into the court. We were able to, under grant funding, to be able to build a new justice complex over seven years ago, I believe, and so we have the good fortune of having a state-of-the-art detention center. We've talked with other tribes about possibly utilizing our detention center to house their inmates who are currently being housed in county lock-up and having them transported down to Choctaw. So again, creatively, being creative into how you can operate your system.

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

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

John Petoskey: The Central Role of Justice Systems in Native Nation Building

Producer
Native Nations Institute
Year

John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the key role that justice systems play in Native nation building, and provides an overview of how GTB's distinct history led it to develop a new constitution and system of governance from the ground up in the 1980s, highlighted by an independent, fully developed justice system.

Resource Type
Citation

Petoskey, John. "The Central Role of Justice Systems in Native Nation Building." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Presentation.

Manley Begay:

"I'd like just to welcome you. For those of you that don't know me, my name is Manley Begay. I serve as a social scientist and a senior lecturer in the American Indian Studies program and also teach a course in nation building, and so I have several of my students here from that course as well. And for those of you that are visiting, welcome to the American Indian Studies program, and Harvill 332, and to this lecture by John Petoskey; tribal attorney for many, many years with the Grand Traverse Band of Ottawa and Chippewa Indians. But before we do some formal introduction I wanted to just recognize his wife also has joined us, who's also a former council member as well. So welcome to Tucson and to the American Indian Studies program. Ian Record from the Native Nations Institute has been given the task of introducing John. John and I have known each other for many years and it's been awhile since we've seen each other. And Ian serves as a manager, one of the managers for the program at NNI and you probably see his name all over the internet. He's put together quite an interesting curriculum around issues that relate to Native nations and they do some really interesting work at the Native Nations Institute. He's also a graduate of the American Indian Studies program and he told me to say he's the first White guy to get a doctorate in AIS. He has the dubious distinction of being the first. It's good to welcome you back to AIS. So I'll give the floor to you."

Ian Record:

"Thank you, Manley. It's good to be back here. This used to be my second home, Harvill, and I don't get over here all that often. As Manley mentioned, my name is Ian Record. I got my doctorate... both my master's and my doctorate in Indian Studies, finished my doctorate in 2004. And I've been working with the Native Nations Institute since 2001 when it was first established, first as a graduate student and then I was hired full time. And one of the programs I've been involved with helping develop and get off the ground is the NNI Indigenous Leadership Fellows Program. We established it in 2008 and to date, including this week, we now have five Indigenous Leadership Fellows that have come to Tucson to share their wealth of knowledge and experience with not only NNI, but the entire U of A community. And as you see in the back, we're video recording this talk because the idea of this program is also to share that knowledge, wisdom, and experience with the outside world, with the general public at large and obviously specifically tribal communities and we are very honored to welcome John Petoskey this week to serve as our latest Indigenous Leadership Fellow. We've had John on our radar for quite a long time. Manley mentioned that he goes way back with John. John is one of the first people that Manley and Stephen Cornell and Joseph Kalt ran into when they started doing this on-the-ground research about nation building and about why some tribes are really moving forward while they continue to struggle in terms of achieving their goals. We're lucky to have John with us here this week. He's doing a talk here today obviously, but he's also doing another talk tomorrow over at the U of A Law School and I have some flyers here in case anyone's interested in learning about that, you may have seen it on email. It's tomorrow afternoon over at the Rountree Building and he's going to be talking about the Bay Mills case, which a lot of you have probably seen if you read Indians.com or go to Indian Country Today's website. There's been a lot of chatter, a lot of articles about this case, which is going to be heard by the Supreme Court I think in early December."

John Petoskey:

"December 2nd."

Ian Record:

"Yeah, December 2nd. It could have major implications for tribal sovereign immunity and for tribal jurisdiction and a whole host of other issues that John will address tomorrow. He's here today to talk about nation building. John, as you probably saw in the email that went out in his bio, has been serving as general counsel for the Grand Traverse Band for upwards of 30 years, and has sort of been at the helm working with the leadership of his nation through a lot of major developments, through the reaffirmation... the federal re-recognition if you will of Grand Traverse as a federally recognized tribe, the development of their constitution, the ongoing work they've been doing to develop their legal infrastructure, which is not necessarily the sexiest part of nation building and governance, but it's... some could argue it's the most important part. And so John is here to share his knowledge with you and share the Grand Traverse story about what they've done and what they continue to do to make sure that they have the rules and institutions in place in order to move their nation and community forward. So without further ado, John Petoskey."

John Petoskey:

"Thank you. First of all I'd like to do a few caveats and limitations. I only know a very small part of a very large area of law, federal Indian law, and I only know a very small part of that area geographically, which is Grand Traverse Band and Michigan, the Michigan tribes. And so a lot of my discussion by reason of my limited knowledge is going to be focused on Grand Traverse Band and the small area that I'm familiar with. I am admitted to the New Mexico Bar and I did practice in Alaska for a while and I'm familiar with some of those problems, but that was more than 30 years ago. So I don't have any relevant recent experience in those two states that I practiced in in the past and so for all practical purposes the beginning and end of my life is in Michigan. Having said that, I wanted to quickly describe that life in terms of its history.

Grand Traverse Band is a product like every other tribe of its own unique history. Grand Traverse Band is the signatory of two different treaties, the 1836 and the 1855 treaty along with several other tribes in Michigan, five other tribes in Michigan, and in Michigan we always go like this when you're saying where you're from and Michigan is shaped like a hand. Detroit's down here and so Grand Traverse Band is up here, it's the little finger. It's an area that the exterior boundaries of the original reservation was 87,000 acres. It was established in an 1855 treaty. It was the precursor of the Dawes Act in that at that time the tribes were subject to removal. In fact all of the southern tribes in Michigan were removed along with the tribes in Indiana, Ohio, Pennsylvania and the southeast of Oklahoma. So you have a lot of Ottawas, Potawatomis and out in Oklahoma that have reservations that were removed from southern Michigan. The northern Michigan Ottawas and the northern Michigan Chippewas were fearful that they were going to be removed from Michigan and they negotiated for permanent homelands in 1855, which was a modification of the 1836 treaty. The 1836 treaty ceded a whole area of Michigan to the United States and it created reservations that were temporally limited and the 1855 treaty created these permanent reservations in which Grand Traverse Band, Little River Band, Little Traverse Band were to have communities and to become permanent homes. When the dominant society imposes its... this is not an original thought, this is a thought by Monroe Price who wrote a lot of the article now 35 years ago that was relevant when I was in Alaska.

The Dawes Act in 1887 was converting the common method of governance or making a living of a small time farmer and trying to impose that onto Indian tribes to turn all Indian tribes into small time farmers so it was a wholesale conversation and it failed, the Dawes Act, by everybody's admission of failed. The only reason I bring that up is that 30 years before that Grand Traverse Band went through that. In 1855 we were created a reservation in which it was to be allotted to 80 acres and 40 acres for our ancestors and it was the pilot program if you will for the Dawes Allotment Act. The program failed on a large scale. The tribe was dispossessed from its reservation and by 1880 we were essentially destitute. In 1872 the Secretary of the Interior of person in Columbus Delano opined that a provision in the 1855 treaty, which provided that the Ottawa Chippewa tribe would go out of existence after the allotments had been issued, issued a letter of determination that all of the tribes in Michigan were no longer under federal jurisdiction, there was no trust responsibility and essentially the tribes were not offered any services at 1871 as federal government... as units of government. The federal government was still there in terms of offering medical services and educational services. For example, my parents and my wife's mother and other people did go to Indian boarding schools, but that was all based upon the Snider Act of half blood or above and you would receive services and so they all went to boarding schools.

I give this history because it's a historical basis of how the tribe developed. We were not federally recognized in 1871, and for this time period until 188o we were dispossessed. In the 1930s we tried to reestablish our federal recognition through the Indian Reorganization Act. It was denied not on the basis that we weren't Indian tribes that had a historical treaty relationship with the United States, but it was denied on the basis of insufficient funds. In the 1950s with the Indian Claims Commission Act that was established for unconscionable dealings through treaty negotiations, Indian tribes could be plaintiffs or recognized tribal groups could be plaintiffs. And so a group of the Indian Bar for the Indian Claims Commission came to Michigan and established an organization called the Northern Michigan Ottawa Association. And what the Northern Michigan Ottawa Association was was the old reservations that were established under the 1855 treaty, the Little River Band, the Grand Traverse Band and the Little Traverse Bay Band. Those three Ottawa tribes were then a plaintiffs group that intervened and filed a case that later turned into a judgment in 1971, an ICC judgment in which there was found that the 1836 treaty did not fully compensate the tribes for the taking of the land and a judgment was entered and that's a separate story. But my point is is that there was this group of three tribes together called the Northern Michigan Ottawa Association.

In 1973, the U.S. Attorney filed a case on behalf of the Bay Mills Indian Community, which was established by the Indian Reorganization Act in the 1930s as a federally recognized tribe. That was the only tribe in the 1836 treaty area. The Bays Mills Indian Group lived on a bay in the Upper Peninsula called the White Fish Bay and they had a local history of fishing and there was the oral tradition that the 1836 treaty had recognized off reservation fishing rights. The U.S. Attorney in 1973 agreed with the tradition that the tribe urged on him that they had 1836 treaty fishing rights under Article 13 and also the U.S. Attorney had as a model the U.S. vs. Washington case, which had been in litigation for a number of years that was essentially the same proposition. In fact, when I graduated from law school and worked on U.S. vs. Michigan in the 1970s, you could literally go through and see some of the pleadings in the United States vs. Michigan case, the arguments, and you would find those same arguments in the U.S. vs. Washington pleading file. That was before cut and paste and everybody had to do it on a Selectric and so everybody was typing arguments from Selectrics from the U.S. vs. Washington case that was litigated in the early ‘70s. So the United States filed this case on behalf of Bay Mills alleging that off reservation treaty rights still continued to exist in the Great Lakes and that Bay Mills...the Bay Mills Indian Community was the recipient of those rights. In 1975, the Sault St. Marie Tribe of Chippewa Indians was administratively recognized by an act of the area director of first the State of Michigan and then the regional director of the BIA. Now there wasn't any statutory authority at that time for the BIA to do what it did, but it did recognize Sioux St. Marie as a existing Indian tribe over the objections of the Bay Mills Indian Community because the Bay Mills Indian Community argued that the Sioux St. Marie Tribe was a sub-band of the Bay Mills Indian Community. That's a separate story.

In any event, there was another tribe recognized in 1975 and they intervened in the U.S. vs. Michigan case on off-reservation treaty fishing. You have to keep in mind at that time what was driving this was that you could really pull out a lot of money out of the lake. The lakes were very, very productive. The fish were at their maximum value. If you had a gang of gill nets they're called, you could literally pull your way to riches by sticking them in the water and pulling out the fish and selling them in competition that did not exist because the state had taken the position that all commercial fishing on the Great Lakes was outlawed and it was all sports fishery. And so the population of the Great Lakes commercial fish exploded and private tribal entrepreneurs were capitalizing on that by going out and fishing in the lakes and arguing that they could do that without regulation by the state. The state was arguing that ‘No, they had to be regulated by the state,' and much similar to the United States vs. Washington case. Northern Michigan Ottawa fishermen then said, ‘Well, there's the bonanza. We've got to intervene.' And so they intervened in the case and were dismissed because they were not federally recognized. At that time a fisherman from Grand Traverse Bay called Arthur Duhamel, argued that our tribe should no longer participate in NMOA [Northern Michigan Ottawa Association] and seek federal recognition on its own, which we did. And at that time, I don't know how much history you have done in this class, but the Indian Policy Review Commission had completed a study of non-federally recognized tribes and had issued a report that the federal government had the authority to recognize tribes and that they should do the CFR process, ‘a federal regulations process,' to recognize tribes that had treaty relationships. And so the federal regulations for federal recognition were promulgated. Grand Traverse Band was the first tribe to go over the hurdle and meet all of the requirements to be federally recognized. We had a reservation, we still had residual land that was no longer trust land, but it was from that reservation. We had clearly identified annuity payments from the treaty in 1910, we had a tribal roll in the 1880s and 1871 that came from the earlier treaties, and so we had a very detailed history that we were under federal jurisdiction at one time and taken out of federal jurisdiction in 1872, and that the federal trust relationship recognizing us as a tribe should be re-established. So we were re-established as a federal tribe in 1980 and intervened in U.S. vs. Michigan, which is a separate story that continues today because that case has continued since 1973 and still continues today. It's a series...it's morphed into inland hunting and fishing, it's morphed into 300-page consent decrees where the tribes regulate off reservation fishing and regulate inland hunting and fishing and the tribes...when I say tribes, there were LTB [Little Traverse Bay bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] were later recognized by federal statute in 1997, and so there are five tribes that now basically argue over the division of the resources that are available for off-reservation treaty fishing and also for the division of the resources for inland hunting and fishing and gathering rights. That's a separate issue and it's ongoing.

But getting to the point of this conversation or this lecture is Native nation building and justice systems. So you had a...we had a blank slate somewhat if I may in 1980 because we were federally recognized and we had to create a government and creating the government at that time was following the IRA model of creating a constitution and defining that constitution in terms of what our tribe thought should be in the constitution for governance. Also, in that constitution we got into a dispute with the federal government over the scope of our membership criteria. We argued with the feds that our members, under the federal recognition of 1980, included all Ottawas south of the bridge. The federal government's position, which was Ronald Reagan at the time and James Watt was, ‘That's way too many Indians because that's going to be a big financial drain to have all those Indians,' and so we were in eight years of litigation over the scope of our membership. That was ultimately settled in a compromise solution in which we agreed to limit the scope of our membership to the annuity payments from Grand Traverse Band and all of the members that lived within our area that regardless of whether they were LRB or LTB, they could still be a member of GTB even though their ancestry was traced from LTB. So you have the anomalous situation; it's not anomalous, but you have the situation now where the majority of the tribal councilors on the Grand Traverse Band tribal council historically descend from Little Traverse Bay Band and not from Grand Traverse Bay Band because they were living in the area and joined the tribe at the time. Myself for example, my father's from LTB, my mother is from Grand Traverse Band, but there are other members on the, not on the council, but there are other members on the tribal council whose both parents are from LTB, but they were living in our Grand Traverse Band area and they were part of the compromise that allowed them to be a member of Grand Traverse Band.

I say that because a lot of our governance systems were not really implemented, because the federal government asserted that they were not going to fund our government through the BIA [Bureau of Indian Affairs] unless we acquiesced to their assertions of what our membership should be in our tribal constitution. And so it took us a long time to get to a constitution that would initiate tribal council elections, that would [resolve] disputes because once you have elections and you have people running for office, you're going to have disputes, and we've had our share of disputes -- quite a bit. And in building a constitution, we established the proposition that the judiciary is a separate branch of government and it's tough being a judge in Indian Country. It's tough being a judge any place, but it's particularly tough if you're an Indian judge and you're related to most of the community or you grew up in that area. And so what a lot of tribes do, which I'm sort of jumping around in my presentation, but a lot of tribes do provide an option in their constitutions...I'm not certain how far in the west this is, but I know in Michigan it's very common...where they do provide an option for lawyers to be their tribal judge...judges. And if you look at the Southwest Appellate Court for example, you have Frank Pommershein, you have Rob Williams, you have people that are non-Indians, they're very knowledgeable about Indian law, but they're tribal judges and they're on the tribal appellate court. Now if you...and when you...the problem from my perspective that that creates is it almost handicaps the legitimacy function of the judiciary, because if you're on the street, reservation-level Indian, and you're being judged for a crime on the reservation by a non-Indian lawyer judge, you're less likely to accept the legitimacy of that decision. And there's not a whole lot of discussion in the academic community about that consequence of non-Indian lawyers acting as tribal judges and it's a discussion that I think should take place, because in the best of all possible worlds it's an Indian tribal member that should be the judge and not a non-Indian lawyer. Just to take a thought experiment for example, how many tribes would allow a non-Indian lawyer to be on their tribal council? Nobody. I mean nobody would allow that. And so when you're talking about building legitimate systems, part of the legitimate system is having legitimacy from the ground up, which means being a member of the tribe, being familiar with the community, and not being a non-Indian lawyer who is sympathetic, who has detailed knowledge of the tribe, but when they come in they have a strike against them in terms of the legitimacy of their opinions and decisions. And I've seen that happen again and again at Grand Traverse Band, at Little Traverse Bay Band, at Little River and at other places. There's a professional cadre of tribal judges that are Indian law lawyers that are non-Indians that serve on appellate courts and I thank them for their service, but I'm just saying in terms of legitimacy, it doesn't work very well when their tribal member citizen is being judged by a non-member lawyer. Having said that, I don't think that you can get away from that situation -- at least Michigan cannot get away from that situation -- without building up the human capital corpus of tribal communities to act in those positions as tribal judges.

So what is the...the other point I wanted to bring out in building a justice system is that, and in the context of Grand Traverse Band, a lot of people use the phrase that you don't want the judiciary system to be influenced by politics, and to me, I don't think politics is a necessarily evil word. I think politics is part and parcel of a tribal Indian community because the tribal council represents constituents in a community that are politically driven. They represent a community that is in large measure seeking redress for damages that they've suffered either individually or historically and they want a remedy for pain that they have and the only place that they see the remedy for that pain is to go to their elected council member and say, ‘I want this,' and sometimes their wants can be filled and sometimes they cannot and they do do that same situation when they disagree with a tribal opinion. They'll go to their council member and they'll say, ‘Get rid of that judge. He made a bad decision or she made a bad decision because they found me...they convicted me when I shouldn't have been convicted.' Building a strong system should be able to withstand criticisms like that.

At Grand Traverse Band, we have not gotten rid of a judge when somebody has come in and said, ‘The judge made a terrible decision because the judge found me guilty.' The judge is still there, but the politics of the judge's reappointment certainly came into play because the council, and I've told the council this, ‘You can't reverse the court's decision. You can appeal it or you cannot appoint the individual at the next appointment process,' and they've certainly done that because there are judges that made bad decisions who I thought, and there was one judge in particular who was a non-Indian, he was very intelligent, he wrote very good opinions and he made a couple of decisions that the council didn't like when they wanted to get rid of him and my advice was, ‘You can't get rid of them. You can get rid of them for judicial misconduct, malfeasance in office, things like that. You don't have it here. You have to wait until his term runs out, don't reappoint him. That's what you can do. Or you can appeal the decision that he made.' Appealed the decision he made, the decision was upheld, they had to wait him out, his time came up, he wasn't reappointed. And that's a legitimate exercise of politics, that's politics. That's politics on the council side and in my view that's legitimate. That's a legitimate exercise of politics because they're acting as legitimate representatives of the community objecting to a decision made by a judge and part of that judge's decision, the illegitimacy that is added that isn't very...that isn't said in an academic forum, but certainly is said in a tribal community forum and if you're from a tribal community I know you've heard this, ‘What is that non-Indian doing making this decision about our Indian community?' If you're from an Indian community, you've heard that and when you get into a non-Indian environment, it just seems to disappear, people don't mention that, but I think it should be mentioned because it is part of the legitimacy of the judiciary and non-Indian judge lawyers should recognize that and be sensitive to that and some of them are.

The other thing on nation building is -- excuse me for skipping around on this area -- but the other thing on nation building is the development of tribal codes. It is so difficult developing tribal codes. Grand Traverse Band has now, since 1980, 33 years of experience. Our tribal code is probably 1,000 pages long. It covers very complex areas of the law, covers complex relations that regulate internal tribal politics, internal family politics, it transfers large amounts of money to individuals, and it transfers housing to individuals, it transfers medical care to individuals, it transfers educational benefits to individuals. It's really a transferring organization and part of politics of building a nation is you're always going to argue over the scope of the transfer, the amount, the eligibility, etc.. But the thing that has to be established is it should not be indeterminate. It should be a determinate transfer and rather than saying that something is politically driven, the way I like to characterize it is if something is indeterminate, that you can't tell what's going to happen in the future given your situation, that is what is wrong, that's the evil because you can argue about the politics of the situation, but it has to be a determinate process where people can come in and understand what was the basis of the decision in the past, and what will be the basis of the decision in the future. At Grand Traverse Band, we have something similar to an Administrative Procedures Act [APA] for the development of our tribal code, of writing our codes, posting them and getting comments from our community and then only enacted after there are comments and those comments are reacted to. If you're familiar with...and that's where we got the process, from the Administrative Procedures Act. It was a scaled-down process of the APA. There's no appeal like there is in APA, but it's a scaled-down process to get community participation.

In other cases where's it's a hotly contested issue, for example, revenue allocation ordinances, which are permitted under the Indian Gaming Regulatory Act, in order to do per capita distributions to tribal members you have to establish a revenue allocation ordinance [RAO]. Grand Traverse Band did that prior to the publication of the CFR [Code of Federal Regulations] rules governing revenue allocation ordinances and we created a committee of community members with members of the tribal council on the committee and we kept track of the proceedings and we created...this was before computers...not before computers, but as the use of computers on an every day basis. But we have a legislative history of the RAO for example. We have...there were probably 20 meetings of the RAO and there were comments and selections made by tribal members at each of those meetings, participants of why certain decisions were made. And so it's a chronological legislative history of the development of the final RAO. And so there's a basis to go back and figure out why the tribe made certain decisions at that time.

We did the same thing with a number of other statutes that were hotly contested, creating committees to establish the legitimacy from the ground up by participation with community members. The one issue that was very contentious was membership. We rewrote the membership ordinance and if you follow Indian Country at all you know that membership disputes generally take place when there's per capita and there's not anybody clamoring to get into a poor Indian tribe if they're poor. They're not doing that. That's just not realistic. It's driven by the same thing that drove the initial federal recognition, pulling money out of the lake, pulling money out of the casino. It's gaming in the lake, it's gaming at the casino, it's pulling money out of it and it's clamoring to get in. So that was a contentious issue and we had the same level of legislative history detail in developing our membership ordinance. And the politics will go any which way, but the important point is to make something that is indeterminate determinate, not something where membership is predicated upon some person soliciting a tribal council member and then some council member showing up at a meeting called without notice and an opportunity and then moving to admit somebody with something that wasn't on the agenda to begin with. That is the sort of thing that is a clear violation of procedural due process for the other property interests of the other tribal members.

Grand Traverse Band has its code published at the NARF [Native American Rights Fund] website. It's free and available to other tribes. We also make our documents on our personnel policy free and available to other tribes. We make our documents on our minimum internal controls. In fact, when LTBB [Little Traverse Bay Bands of Odawa Indians] and LRB -- who are our competitors -- first opened up, they got all of their documents on how to operate a casino from us without charge to operate their facilities. We are now implementing a new procedure with the tribal council where our meetings are going to be real time video graphed by...so the community can participate at remote sites and they can also have the information at their fingertips. One other thing that we did that was very, very helpful, incident to a case that we were involved in, Grand Traverse Band vs. the United States, on the scope of restored lands for casino gaming, because it was such a high-value case, we took all of the old minutes that the tribe had from its inception and put them into a database. At that time it was, Iron Mountain was the name of the company and the database was called 'Concordance,' which we still use, but that is extraordinarily helpful for a community and for the tribal councilors because now they ask the question, ‘Well, what does Concordance say,' when something comes up because they can get that...we can get that information immediately. All of the councilors have iPads. All of the meetings are conducted on iPads where they have access to the statutes, to the agendas, to the documents. Everything is iPad-ready, searchable, and now it's going to be recordable. The common denominator in all of that is transparency and transparency across the board.

The tribal court has published all of its opinions, has published all of its court rules. We have relatively good judges. We have some non-Indian judges, two non-Indian judges, who are not tribal members who are sensitive to some of the concerns that I stated earlier. We have a recently appointed appellate judge that is a stellar star if you're familiar with Indian law and that's Matthew Fletcher. He's our chief appellate judge as of about eight days ago. He was a former attorney that worked in the general counsel's office for four years and Matthew was phenomenally adept as most of you may or may not know in terms of his productivity and his knowledge of the minutia of Indian law in terms of litigation. But he doesn't have that same level of facility with the minutia of Indian law in terms of legislation and that's really what I would like to see sort of developed, and NARF has sort of developed that by placing all the codes online where people can go and pick and choose from different...steal from other people is what I'm saying. Don't sit down and try to write a code on the children's code or try to write a gaming regulation code or public departments code, because it's too difficult to do something from the ground up when you can just take it from somebody else and adapt it to your circumstances. The caveat on that is if you don't understand what you're doing from the ground, it's not going to work for you, but if you do understand what you're doing from the ground up then you can choose and select these codes that are applicable to your unique situation and that's what building a nation, in my view, that's what building a Native nation is, is building these justice systems that are determinate. In other words, people will know that good, bad or indifferent, they're going to abide by the judgment. They may object to the judgment or they may applaud the judgment, but they'll live with the judgment. I'll give you an example.

We recently had a very contentious dispute between contiguous property owners on the intestate death of a tribal member, and his son was arguing that he controlled the property and the house. The sister to the brother argued that while the brother was alive that he had deeded it to the niece of...then the niece happened to be the daughter of this other person. So they were just at each other's throats over this on who had the right to that particular house and it went to court. There were good arguments on both sides. The judge ruled that the intent of the uncle was to deed it to his niece, that the intestate succession did not apply and the pre-emption under probate law of a son's right did not apply and the party stopped. After the decision came out, the guy that was making such the big stink about living there and he was going to win, etc., etc., he moved out. He said, ‘Well, that's it. It's over.' So he moved out and the parties moved on.

I can think of other instances where that has occurred. We had a tribal councilor that did self dealing and so we initiated removal proceedings in tribal court against him and he contested that this was not self dealing and so there was a tribal court proceeding on whether or not it was self dealing, contested questions of fact, it was highly litigated, and the court found that it was self dealing and that he should be removed from office for self dealing and the person said, ‘That's fine,' and moved on. At election disputes, very contentious election disputes, in which people lost offices, won offices, but nobody's going out in the street and saying, ‘We're going to protest, we're going to take over the office by force.' Everybody's abiding by the decision and they're arguing though that the decision is wrong, but they're not arguing that the power to make the decision is illegitimate. Nobody's arguing that. They are arguing that the decision is wrong, not that the power to make it is wrong. And that's very hard to do because in Michigan, not to point out Michigan too much, but there was another tribe in Michigan, this is well known in Michigan circles at least, in which a tribe and the judiciary got into a fight and the judiciary had the tribal council literally arrested. They arrested the whole lot of the tribal council, put them in jail and the tribal attorney had to file a federal habeas corpus petition to get his clients out of incarceration. To have those situations, it's what you want to avoid obviously.

But I think that's about the end of my talk. It's just steal from other people, is the end result and don't...it's not an easy answer. They're not easy answers."

Ian Record:

"Thank you, John. We have some time for questions for John. I think about 10 or 12 minutes. He covered a lot of ground, so I'm sure there are some questions out there. Any first volunteers? Yes."

Audience member:

"Does Public Law 280 fit?"

John Petoskey:

"No, it doesn't. We're a non-280 state. I should have said that. I'm sorry."

Audience member:

"So you said when you created the constitution of your tribe it was at those first stages where it was created that the judicial branch is separate."

John Petoskey:

"Right."

Audience member:

"So with a tribe that already has a constitution basically off of the IRA structure, but what would you...I think what's very difficult is when a tribe wants to say, ‘Alright, let's rewrite our constitution to the point we can get our judicial branch separate,' that is very hard because it seems like, in order to do that, you need the political backing to start the process. So with that being said, what's your advice on that or as far as does it just depend on who's the person in office that's going to say, ‘Alright, attorney, you have my support to start rewriting everything to say the court's going to be separate.'"

John Petoskey:

"Well, if it's an IRA constitution and you want a separate judicial branch, then you have to go through a secretarial election to change the constitution and there are CFR procedures for doing that, which I'm sure you're familiar with. On the political question of whether you have the support of the community, that's a question that I can't answer because that's a question that relates directly to that particular community. I can tell you at...the one thing I did not mention is at Grand Traverse Band when we did the constitution, we didn't create a three-branch government, we created a two-branch government with the tribal council acting in a combined executive-legislative capacity and the judiciary as a separate branch. So it's really a two-branch government, it's a little different."

Audience member:

"How important is it for the Grand Traverse Band to incorporate tribal core values into development of its laws and how does the tribe accomplish that if that's indeed a goal?"

John Petoskey:

"In the development of its statutory laws or its case law?"

Audience member:

"Statutory laws."

John Petoskey:

"Well, the process of writing a statute is a process of making a choice and so to the extent...to be perfectly honest, I can't think of a...a lot of the statutes that I worked on are very complex, detailed statutes dealing with complex subject matter. I mean housing, gaming, membership. Membership, for example, maybe that incorporated some of the values on what is the scope of your family community feelings and in the child code we do have termination of parental rights. There was a big argument over whether or not the tribe should have termination of parental rights within its own code and that was based on cultural arguments that the tribe was making between the council members back and forth that that provision should be in there or shouldn't be in there and so that's an ongoing dialogue in the particular instance. It's not...I can't give you a categorical answer, because each instance of where you're making a choice to include or exclude brings up that issue of the values of the legislature and the value of the legislature reflect the values of the community."

Audience member:

"As a general counsel for the tribe, how did you find your role in integrating that discussion for council?"

John Petoskey:

"Give them option A, option B, option C and whoever has the majority votes wins. That's what my role is. A council member with one particular point of view will request a statute to be written for his point of view. Other council members will say, ‘Well, you can't do that so don't write the statute that way,' and I go back to the council and say, ‘I really need direction on a majority vote of a motion, since the council under our constitution operates by motion, ordinance or resolution, that I should be writing this statute from this particular point of view,' and if I don't get the motion, then I don't write the statute. If I get the motion, then I write the statute. That doesn't mean that the statute's enacted, that just means that the bill is written and then there's an argument of whether or not to enact the bill. The recent case that comes to mind is one council member has requested that I write a bill on the election code and other council members have orally stated, ‘Our constitution provides that election processes are controlled by an election board so we should not be writing a code.' That's a situation that I'm going to take back to council and say, ‘I really do need a motion on this because one council member has requested a bill and other council members have said no dice.' And so it's either four against or three for. Whatever it is, I need...I don't have the authority to do it independent of that...of one person asking me to do it."

Ian Record:

"John, one quick follow up on that. You mentioned statutory law in clarifying your question. You and I were talking this morning and you mentioned that you guys have worked very hard to instill core values into your case law in particular and that Matthew Fletcher actually put together a [restatement of Grand Traverse Band common law]. And I think it's available online."

John Petoskey:

"It is."

Ian Record:

"Basically it tracks the articulation of Grand Traverse Band common law through the cases that it..."

John Petoskey:

"It's called a restatement. It's a restatement of Grand Traverse Band common law and it was written by Matthew Fletcher and his brother Zeke, which takes the 150 case law opinions and then writes a restatement of Grand Traverse Band, which I don't know if any other tribe has done that, has written a comprehensive restatement. And you can argue about the particulars, whether or not in his decision on what the case held is correct or incorrect, which I have done on certain cases, but my point is that in the scope to make things transparent, we have put all of our cases on WestLaw, we have put our cases on VersusLaw, we have put them in hard copy in the local law libraries, we have our court rules published on the same basis and the court is considering putting its proceedings on camera also, but that's a rule-making function of the total court to do that."

Akenabah Begay:

"How difficult is it to get rid of your tribal judges?"

John Petoskey:

"Well, we did have a one removal petition for a judge that was authorized by the tribal council and it went to trial. And under incorporation by reference of Michigan case law, you can request a psychological evaluation of a judge that you think is nuts and it was a legitimate request and so that's what I did. And once that came up then the other...the judge, the particular judge, wanted to settle the case because she thought it was an affront to her capacity as a judge even to have that question posed to her. But it was not under Michigan law. You can go through a psychological evaluation of a judge relating to misconduct in office to determine whether or not she is psychologic...or this particular judge was psychologically fit for office and it was a legitimate request."

Akenabah Begay:

"So the tribal council can't fire a judge?"

John Petoskey:

"Oh, no."

Akenabah Begay:

"Okay."

John Petoskey:

"No. They wouldn't...no, they cannot."

Akenabah Begay:

"Okay."

John Petoskey:

"Maybe I didn't get that point across."

Akenabah Begay:

"I took Dr. Begay's class and he said for a stable judicial system it would be best to have judges not be easily removed."

John Petoskey:

"It's...right, and I can say that I have had requests from individual members of the tribal council to fire a judge and my response is, ‘Well, you can't fire a judge because of this opinion that you disagree with. You can appeal it or you can exercise the power of appointment when their term is up or you can do a removal petition,' and those are all permissible exercises of the council's authority when they're dissatisfied with a judge."

Audience member:

"What would be your take on tribes developing their own general counsel as opposed to contracting out to law firms?"

John Petoskey:

"Oh, I think they should. I think it's cheaper to have a general counsel in house and it's a better way of representing the tribe and the more you work the general counsel the cheaper it gets."

Manley Begay:

"Are plans being laid to improve the judicial system? I know a lot of tribes are moving toward establishing business courts or children's court or youth court or constitutional courts and so forth as a way to sort of speed up the process of various types of issues."

John Petoskey:

"Well, the judiciary at Grand Traverse Band has experimented with that. We do have an arbitration provision in our waiver of sovereign immunity under contracts and we have had arbitration for contract disputes on major construction projects and the arbitration award then is enforced by the tribal court, but the tribal court doesn't deal with a construction defect litigation because we write our contracts for arbitration and in arbitration you have arbitrators who are familiar with construction issues and we have gone through arbitration. So that's one way we have attempted to...when I say we, I'm speaking very broadly, the GTB judiciary has attempted to establish peacemaking courts and attempted to...and has that and has used that for resolving family disputes and has attempted to establish a drug court for recalcitrant offenders or first-time offenders who may not turn into recalcitrant offenders."

Audience member:

"As far as the criteria for a tribe appointing a judge for your tribe, is it...do they have to have a law degree and must they speak the language or..."

John Petoskey:

"No. I don't speak the Indian language and I would venture to say 95 percent of our tribal members do not speak the Indian language. My parents did and I was...when I was given this history I was explaining probably why we suffer from this language deficit because our communities were destroyed. Having said that, I think that the language in Michigan is certainly being revitalized by community efforts to maintain it, but in terms of appointment to the tribal judiciary, it's very limited. You have to be 18, a tribal member or an attorney, and that's my point is you go from one extreme to the other and I think that there should be a more detailed process on the appointment of tribal judges to create greater legitimacy. In the hierarchy or the paradigm of what is the best, it would be a tribal member who is a practicing attorney with substantial experience. That would be the best type of tribal judge to have and particularly one that is not going to end up in personal problems in his or her own life, because when you're in an Indian community and if you're from that community, you have so many problems coming at you from your employment and from your family members and your extended family members that it's difficult to be...lead a life that doesn't intersect with all these other problems."

Audience member:

"So the tribal council appoints the judges?"

John Petoskey:

"Yes."

Audience member:

"What are your thoughts about elected judges? I don't know very many tribes that do that but...because I can see the politics..."

John Petoskey:

"There are places in Michigan that do do elected judges. My thought is...I don't know. I would...I don't know. I mean, there are arguments for it and arguments against it. In the states there are elected judges, there are also judges that are pass...that have to pass a panel. The federal system does not elect judges, they have the political appointment process and there was a movement in Grand Traverse Band where a person who had been in front of the tribal court on a number of occasions for various reasons, did start a campaign for elected tribal judges and part of his campaign related to his incarceration as the result of being in front of the tribal judge and he said, ‘I don't mind being in jail, but I want to be in jail by somebody that I helped appoint.'"

Ian Record:

"One final question over here."

Audience member:

"I was just curious, I notice you had involvement with the gaming compacts up in Michigan."

John Petoskey:

"Yes."

Audience member:

"Is there a reciprocity clause up there between...where certain cases will be held whether it's going to be the state or..."

John Petoskey:

"No, there's no reciprocity, not like...Wisconsin and California have those, but we don't. This is the gaming compact of 1993. The compact was 12 pages long and it was in existence until 19...until today, 20 years and we're currently in compact negotiations. I think it's going to be much longer this time around."

Audience member:

"Is there any possibility there might be something like that in terms of where..."

John Petoskey:

"Well, we do have...I did neglect to mention this. In Michigan we did...it was mainly at the behest of Mike Petoskey who is my cousin, who is an admitted lawyer and a long time tribal judge and works... and was our tribal judge at Grand Traverse Band for 18 years and so he was at the helm there for quite a long time. He's now a tribal judge for other judges in Michigan, but I only bring him up because he became a good friend with Justice Cavanaugh who was on the Michigan Supreme Court and who was head of the Rules Committee. And Mike and Justice Cavanaugh fashioned Michigan Court Rule 2615, which provides reciprocity between Michigan state court orders and tribal court orders if the tribal court adopts a rule that is similar to the Michigan court rule and they're covering equal protection and due process and other standards for full faith and credit, so it's no longer an issue of trying to enforce a tribal court order on a full faith and credit basis and then going through to get the judgment domesticated if you will in another forum's jurisdiction. It's an automatic process right now because we have that parallel rule of reciprocity. The state has 2615 and the state court and the tribal court enforce each other's orders as a matter of routine now."

Audience member:

"Thank you."

Ian Record:

"Well, thank you very much again, John."

John Petoskey:

"Thank you."

NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

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

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

Ian Record:

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

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

Donald "Del" Laverdure: Nation Rebuilding through Constitutional Reform at Crow

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Donald “Del” Laverdure, a citizen of the Apsáalooke Nation (Crow Tribe) and former Chief Justice of the Crow Tribe Court of Appeals, discusses his nation's monumental effort to discard a constitution and system of governance that were not working and replace them with a constitution and system of governance that supported effective, informed decision making and that made sense culturally to the Crow people. He also discusses how his nation continues to work to strengthen its justice system.

Resource Type
Citation

Laverdure, Donald. "Nation Rebuilding through Constitutional Reform at Crow." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 12, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Donald "Del" Laverdure. Del is Deputy Assistant for Assistant Secretary Larry Echohawk of the Bureau of Indian Affairs. He is a citizen of the Apsáalooke Nation, also known as the Crow Tribe of Montana, where he served as Chief Justice of the Crow Tribe Court of Appeals from 2002 to 2006. Welcome Del, it's good to have you here."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"The bio I provided for you is just the tip of the iceberg. So I was wondering if you could just take a moment and share with us a little bit more about yourself."

Donald "Del" Laverdure:

"Okay. I was born and raised...I was born in Crow Agency at the old hospital, which is the site of the current tribal administration building, was raised by a full-blooded Crow mother and had a Chippewa father who was absorbed into the culture and became Crow himself. And both spoke fluently as did many of my relatives. And so there was dual languages always, growing up and even to this day. I went to a school just immediately off the reservation, a school called Lockwood, and we were some of the first Crows to integrate into the school. And it was quite a learning experience, to say the least, of having Crow culture and language at home, and then going to majority society. It gave many learning lessons over life that have served me well. Eventually, I ended up leaving and coming to the University of Arizona for civil engineering, and then went on to law school. After this time, some important things occurred, most importantly of which, I was given a couple of Indian names, Crow names. I'm part of the Ties-a-Bundle Clan on my mother's side, and we always introduce our self [Apsáalooke language], which is "˜I'm Crow, my name is First Stone,' which was given to me by my clan uncle Chanis (?) Whiteman. And then I was also given a second name more recently called 'Walks High' by Jerome Hugs (?), which is also another...married into our clan. Those have certainly served me well because culturally they've put me in the right context to live up to those names for the family and to try to provide for the next set of Crow generations that come after me. While all this was occurring, I did start to pursue after private practice for a couple of years as a tax attorney. I went into academia and was a [William H.] Hastie Fellow, which was fairly prestigious, to increase minorities in the teaching profession. Then I received, at the time I also taught federal Indian law, ran the Great Lakes Indian Law Center at the University of Wisconsin-Madison, and simultaneously was appointed as the chief justice of the Crow Court of Appeals. Subsequent to that, I went to Michigan State University, was an assistant professor of law, and then co-founded and directed the Indigenous Law Center. At that time, I then took a sabbatical and returned to the Crow homeland to become a general counsel for the executive branch of the Crow Tribe. That was roughly in 2006 and I served for...I resigned as a chief judge after four years, and then became general counsel, and served for three years prior to this most recent appointment with the [President Barck] Obama Administration, as the deputy assistant secretary for Indian Affairs."

Ian Record:

"Well, you've done quite a lot in your young life."

Donald "Del" Laverdure:

"Yeah, that's what people tell me, but the Indian names have accelerated that process. So I've been fortunate and Crow teachings have prepared myself for when the window of opportunity came and when I was called for service not only for the Crow Tribe, but for Indian Country in general."

Ian Record:

"Well we're here today to talk about the Crow Tribe and Indian Country as a whole, and delve into a number of topics. And the first question I want to ask you is a question I ask a lot of individuals, tribal leaders, practitioners of nation building, if you will. And that is to get your response to a quote that a Native leader once shared with us at the Native Nations Institute, which is, "˜The best defense of sovereignty is to exercise it effectively.' And I'm curious to learn from you: how do you view that statement?"

Donald "Del" Laverdure:

"I would say I absolutely agree. I think that one of the enduring lessons of federal Indian law and policy is that by not exercising that residual sovereignty that has been maintained prior to the U.S. Constitution, certainly post-constitution, as extra-constitutional sovereigns, the exercise of that is absolutely essential to protecting it. For example, because criminal jurisdiction is a maze between several governments -- tribal, state, and federal -- by exercising certain authorities in the criminal context at the tribal level, oftentimes there will be deference provided by the local governments and prosecutions sometimes, depending on the crime, will be abstained by the federal government. And that's just one example, but I'm a firm believer that if you exercise it and you exercise it with respect and continuity, then the norms of accepted tribal sovereignty will become day-to-day type of occurrence for other governments as well."

Ian Record:

"One of the most fundamental exercises of sovereignty is constitution making. And back in 2001, the  Apsáalooke  Nation, the Crow Tribe, reformed its constitution. And I'd like to talk a little bit about that. You obviously -- being a citizen of the nation -- you have a firsthand perspective on what it was like before, what it was like during, and what it's been like since the new constitution was ratified and took effect. And before we delve into the specifics of what your nation has done in this particular area, I'm curious to get from you what your definition of what a constitution is."

Donald "Del" Laverdure:

"I view a constitution as a social contract among the citizenry, that the Crow citizens, in this case -- or any citizens for that matter come together -- form a government and set the rules for that. It doesn't necessarily need to be in a constitutional form. It can be simply written laws, codes, etc., as some nations do without a constitution. I think the constitution becomes really the guiding framework for the rules of behavior that are either to be punished or accepted and how we're going to act according to those rules as a set of citizens within that community."

Ian Record:

"In 2001, as I mentioned, the Crow Tribe ratified a new constitution and system of government. I'm curious to learn from you, what compelled your nation to take this major step and what were some of the fundamental changes made and why?"

Donald "Del" Laverdure:

"The move for a new constitution, I think it started a generation before. The proposals were there. A number of older Crow citizens who I've interacted with in my roles within the community have told me that a number of people have wanted to do this. They informed various committees, studied the issues, and I think people, in fact, at the time were concerned about how decisions were made, stability, being able to move forward as a community towards prosperity with economic development. And part of the problem of the prior constitution, which was a pure democracy, was if 100 people showed and had quorum -- and the agenda was set by the four executive officials at the time -- any and all decisions could be made according to that. And in fact, oftentimes there was vigorous public debate among other things: fighting, shaming, etc., when you go on the council floor for an agenda item, and people would have to do the role call and walk down the line and say you're either for or against someone or something. And so it made decision making very difficult. It couldn't be individuals -- it was done by groups -- and it was a significant amount of politics that was involved in almost any decision. So this new constitution, the seeds had been sown, the dissatisfaction with how decisions were made and those who had the authority, I think came to a head after a very long administration prior to that. And then there was a fresh face that came in who was largely apolitical at the time, and he had campaigned on change, much like we see in national politics today. And with that change, there was a movement to move towards that, and I think the community largely embraced the idea, and ultimately the process itself was somewhat flawed, but at the end of the day and in a short time period, a vote was made by some thousand-plus Crows and sixty percent or so said yes. And since that time, it's been a major change in the way the government's conducted."

Ian Record:

"So what are some of the ways that government, governance I should say, within Crow is different now than it was during the what some have called the ''48 constitution.' What were some of the fundamental changes that were made during this reform process?"

Donald "Del" Laverdure:

"I think, and just to step back for a minute on the history of the '48 constitution and the thought process that went into it and then to kind of highlight concrete changes, the Crow Nation has been very proud that they were a non-IRA [Indian Reorganization Act] tribe. And it's been in the history and continues to this day, even for many Crow politicians that they take great pride in the fact that they federal boilerplate constitutions and continued on their own. That was back in the mid-30s and then there was still a need for some set of rules. So groups came together had discussed a...got some help, from what I understand, from a lot of folks' parents and grandparents. Legal aid lawyers assisted them, and so you had some bylaws and a charter, essentially, on how the rules were going to go forward and it was done in this fashion for the '48 Constitution, where it was a pure democracy with the agenda and four elected officials. But the community as a whole had final say, even though those would carry the torch between early meetings or even special meetings. So the process it self, to make any decision was always a quarterly momentous decision and folks would campaign or run on those decisions. And so when you move forward on a development agreement, for example, in the '80s or '90s, coal development specifically, not even a quarter later, there'd be a group that would want to change that or withdraw it for a variety of reasons, good and bad. Today, after the post-2001 constitution -- despite the trials and tribulations of kind of understanding new roles -- a new legislative branch was created with eighteen elected members, three from each of the six districts. And what that did was profoundly change the number of elected officials per capita, per person. And so, I think what you see now is with the four reservation-wide, [at-large] elected executive branch officials, the eighteen district [representatives] in the legislative branch, you have more people with access to the voice that probably weren't heard before. And that part has been largely a success because of access to it. The other thing that occurred in that process is in the exchange or compromises of who had what say, some of the powers from the previous executive branch, the chairperson, were then put as a final say with the legislative branch, for example approvals on anything dealing with natural resources or trust resources. So anytime we worked on an economic or energy development deal, before it would just go through as an agenda item and if 100 people said yes, that's what occurred. Under the new constitution, you have to get a majority of the legislative body. And that begins in the subcommittee process, which they start prior to these quarterly meetings required by the constitution. And so you end up working with that body, through the process, address their concerns, and then there's a very vigorous floor debate on whether in fact final approval is provided or not. And so it's fairly open, transparent. The decisions carry more finality to them and -- at least in my experience there, not only as a court of appeals judge but as general counsel -- the decisions stick. There may be amendments that come afterwards, but they're largely less significant than the overall deal itself. Another thing that occurred was, another important thing is term limits. Prior to that, they were two-year terms limits, and it's probably well documented in the series that it leaves very little time for a ramp-up of experience, and then you turn around and run for re-election. So any of the changes that you get used to, the people that are there can easily be wiped out and the institutional memory is gone. Factions grow and they largely end up winning elections based on certain ideas. So the fact that those were extended to four years then gives people a real platform to learn, make decisions, govern, and then run on your record subsequent to that. So too with the legislative branch, the four-year terms are very helpful, and the fact that they're staggered, one-third of the legislative branch would be up every fourth year and then two-thirds every fourth year, so you retain that institutional memory of policies, procedures, what deals were done, why they were done, and that adds to the, I think, the strength of the decision making and the fact that they don't change very quickly. Final thing is, under Article X of the new constitution, the Crow court system was recognized, albeit with some caveats on some issues that have occurred since then. But the fact that it was constitutionally recognized was extremely helpful as a kind of third-party decision maker on important issues of day-to-day things, from small criminal issues to civil issues, and also in the commercial context as well."

Ian Record:

"I'm curious, you've already...you've touched on this a little bit, but I'm curious if you can paint a picture for folks of what exactly decision making looked like prior to the 2001 constitution taking effect. It was a general council system as you mentioned. Can you kind of paint for folks what the typical meeting, how it transpired, what went down?

Donald "Del" Laverdure:

"There would be a lot of informal meetings among families, clans, others. Usually there was kind of a regular system of politicians, if you will, and they would talk with the elected leaders or however they got their jobs in the government, and then they would work together to set an agenda. And setting the agenda is half the battle. And the fact that you would either get something on the agenda for a vote, or delay, or not have something on the agenda, carried particular force. And so even that part was very political. The notices or announcements would go out that a tribal council meeting would be held on whatever the agenda items were. People would go in and you'd sit in a round hall with bleachers, everyone would sit around. Then the chair would preside over those meetings with a variety of people that worked with them. Then discussion would be had, people would have debate, and people would either walk in knowing they had a certain vote or not, and they call it "˜walking through the line.' They would be made public on what issue they stood for or not. And there were all sorts of issues associated with that: shame, embarrassment, public fights. People I think...people who liked confrontation and who liked to be in the middle of the big debates enjoyed it, but I think for the average citizen who may not know exactly what was going on, it was a very arduous and difficult process. So not as many participated, as they say, as they do today."

Ian Record:

"And then, from what you're saying, from what you've shared already about the new system, there seems to be, as you mentioned, much more finality with the decision making, that the decisions that are made can then be built upon by other decisions that advance the nation forward, where it sounds as before there was a lot of difficulty generating much less sustaining momentum.

Donald "Del" Laverdure:

"Yeah, I would say that's accurate. The fact that there was these quarterly council meetings, decisions would be reversed very quickly. Major corporations who had invested in, say for example, drilling commitments on oil, gas, coal bed methane, or coal, then would say, they would hear a story from two or three of those companies, and then they would say, "˜Crow Nation is not somebody you can deal with because there's no stability, and we're willing to invest millions and be a partner here, but we don't want to continue forward based on that experience. So through the new constitution, the fact that the rules are out there, they're in public just like the '48 constitution, but in a way they know the process, it's different. You've got to go through various levels of approval from cutting a deal with the executive branch and their attorneys, to the subcommittee, and then the legislative process. And ultimately, then Bureau [of Indian Affairs] approval if there's trust assets involved. But it has been a marked change.

Ian Record:

"I'm curious: you've achieved reform, your nation has achieved reform, what sort of challenges did your nation encounter during the reform process, and how did it overcome those challenges?"

Donald "Del" Laverdure:

"Well, there's been a number of cases that have been litigated over the constitution itself, from voting rights of off-reservation Crows, to the process, the votes, the fact that there was only a thousand despite having some 10,000 enrolled citizens. And almost universally, all those cases have not stood the test in the federal court system. Some of them have been remanded into the internal tribal court system because it is an internal tribal sovereignty issue. Those were kind of some of the news flashes of what had occurred. The other thing was after the constitution went in, there was now going to be a vote on who was going to be the new chairman of this newly elected body and there was supposed to be a grandfathering in of the existing, but then there was an indictment that came down. The chairman resigned, the vice chairman stood in, so there was a new election and that was just six months after the constitution had been passed. And so you had this dynamic of political parties saying they were either for or against this change, and it was a very close vote. In fact, I think it was 100 votes out of 4,300 people and ultimately, Chairman Carl Venne won over the then-vice chairman Goes Ahead. That was significant because the existing vice chair, sitting chair had campaigned on continuing with the change, and he narrowly lost. The challenger, Carl Venne was [saying], "˜Go back to the old constitution.' And the irony of it all is at that point when he came in, because I am one of his clan nephews, he asked me to do an assessment. And so I worked with him very closely, and what I stressed to him as an educator at the time, before I was appointed to the bench, was that this was largely a very good thing to go forward with and that he still maintains certain authorities, but they had to go through approval processes and transparency was also a very good thing. And over time, his views softened and he learned to work within a system and ultimately accepted it. And I think that was significant in our contemporary history because somebody who campaigned against the very change that was there learned to accept the change of reform. And then we then started to develop and work very closely with the legislative branch after my judicial experience. And ultimately, it's still in a process of change. But the other area that we had many problems with was our court system. We had popularly elected judges at the time with an appointed court of appeals. With the new constitution passing, the administration at the time then removed all the judges and put in several appointed judges with legal experience, because these were non-legal, tribal Crow judges who were fluent in the language, often times former police officers, and there was a battle between what is the appropriate role of the court with this new constitution. I sat on the...I was appointed shortly after, and I sat on the judicial ethics board of the chairman, and we developed a set of rules on how we would test whether somebody was legitimately removed or not. At the end of the day, we did reinstate the formerly elected judges, who then later were subject to recall. We had a series of hearings, and then why in one case to resign, and another case we removed, and yet in another case there was a court case that I think went to settlement more recently. And so the fact that the tribal court it self was subject of the political branches and we needed to determine exactly where the judicial system sat. And at that time, I'm actually pleased to say I was part of trying to bring a stable process to how we select judges and move forward as a nation."

Ian Record:

"How has the judicial system at Crow changed or been strengthened by the new constitution?"

Donald "Del" Laverdure:

"To be honest, this is a difficult subject. I think the other branches and the delineation and the scope of the roles and duties, responsibilities is much more clearly spelled out in the constitution and what's expected. The judicial one, I think, is very thin because it's only four or five sentences in Article X. All it says is there will be a Crow [court system], however it did say that they would be subject to the Crow Law and Order Code, which is part of the tribal statutes that's subject to changes by the two elected branches. So I think there's an inherent weakness in the structure of the court. However, having gone through all the processes I mentioned, I think there was a long learning curve of, that the tribal court is an indispensible part of our government, and that it has to exist, and it has to set rules fairly and act upon them in a consistent manner in order for us to be legitimate and accepted by the outside world, and also to be the third party when the two political branches disagree. And we did have court cases on this and ultimately, we did come to an agreement. However, the tribal court system remains underfunded and is not completely independent, but I think it is fairly strong considering the circumstances."

Ian Record:

"So what sort of, and you touched on some of the growing pains that you've... you've already touched on some of the growing pains that the Apsáalooke Nation, the Crow Tribe has experienced since 2001 when the new constitution was ratified. It's interesting: we've talked with a number of tribal leaders across Indian Country whose nations have gone through reform. And there's kind of this stark reality that reform is only the beginning of change that you have to continue on with the process of change. Particularly, in many cases, you have nations and communities where all they know is the old system, and it's hard to change that overnight."

Donald "Del" Laverdure:

"I couldn't agree more. A famous writer said, "˜Be careful not of the wishes that have gone by or the prayers that have been unanswered, but be careful of the prayers that are answered.' And I think [in] Crow's case, maybe it was answered, and now reform and change is very difficult. And to change people's understanding of how we govern ourselves and how we view ourselves takes not only a lot of education, but just experience and building up in trust, expectations, and then ultimately confidence, and that their government works and that it serves the people, all the people, all the Crow citizenry, not just a few. And having gone through that process, I think we've made a march toward progress, but by no means is that change even near completion, and it's going to require a lot more hard work for another generation, I would imagine."

Ian Record:

"Both you and I were participants today in an executive forum on constitutions and constitutional reform in Indian Country. One of the topics that was discussed in great detail today was this issue of legitimacy and specifically ensuring that a nation's constitution is culturally appropriate. Can you speak to that issue relative to your nation?"

Donald "Del" Laverdure:

"Yeah definitely. I think the fact that the new constitution expressly cites our treaties of Fort Laramie -- which is really the foundation of the Crow's relationship to the federal government and then everything else flows from that -- we have an 1851, 1868 cite and do recognize that there is federal law which is debatable on whether it should've been in the constitution or not. But nevertheless, saying that we're Apsáalooke people, have our name said and listed in Crow, and that we list all the districts according to how we understand them. For example, Lodge Grass is in Crow '[Crow language],' which is the word for "˜Valley of the Chiefs.' Many chiefs were there historically. And having those types of things in there is important to our identity, our culture, and the future aspirations of where we want to be as governing not only Crows, but anyone within the territory and boundaries of the Crow Nation. In addition, one of the things I think has been, may have been a missed opportunity, could be subject to further amendments in the future, is the centrality of language for the Crow people. Some two-thirds are fluent, whether that be oral or verbal, and I think a nod to who we are as a people could've included some references to how the language is so important to who we are as a people. And so many fluent speakers, and we're having a generational change now where we have a lot who understand but don't speak as fluently as those 35 and older, and that we somehow incorporate and expect that from our officials. And I'm proud as a Crow person to say that many of the day-to-day governing things that occur, from business permitting to discussions with committees to phone calls back and forth are conducted in the Crow language. And the vast majority, super majority of all officials speak it and they speak it to each other when we conduct meetings. And we'll utilize English at times, but that's more the lawyers than it is the Crow politicians. And I think just that the essence of who we are as Crows does revolve around the treaties, the land, the language, and our clan system. And all of those things are critical to understanding and having legitimacy for all the Crow people."

Ian Record:

"Yeah, I mean, incorporating things like the districts as Crow people see them, that sends an unmistakable message to the people that "˜this is our constitution,' does it not?"

Donald "Del" Laverdure:

"It does. And perhaps in the future, through the legislative process that we would return more control at the local level, which I think it was historically through clan systems in certain areas, and the fact that we have those six districts and now we have three from each of those districts represented in Crow agency, the capitol, interacting with the executive branch I think does send the message that it is uniquely Crow and it is under our own rules."

Ian Record:

"I want to turn to another topic now and that's tribal justice systems. As I mentioned in the open, you served for four years as the chief justice of the Crow Tribe Court of Appeals. And I'm curious -- we've touched on this issue a little bit already -- but I'd like to get more of a thought from you on this topic of what roles can the tribal justice systems play in the rebuilding of Native nations."

Donald "Del" Laverdure:

"Well, I think they are as important as the political branches, the executive and legislative in this case. I think the court is the institution that enforces law. And we're going to have this new constitution, this reform, this change, and all that flows from it, the new dynamics, personalities, recognition of culture in many ways at the court, in and of it self has to be viewed as a legitimate branch of government that should be fully funded, and applies the Crow law or organic law to all the situations that are there, and that they interpret the Crow constitution from a Crow perspective. And that is absolutely critical, not only most importantly for our own Crow citizens, that they in fact feel safe and secure in their homeland and all the rules are the same, applied equally to everybody in similar situations. And then also to the outside world -- that we do have a system that is a check on the other branches, that if there's a commercial deal that is legitimate and lawful, that that continue and be enforced. And I think that all of those things become absolutely critical just in the social functioning of our society. And having some 4,000-plus cases per year go through that court system is very significant, and so it's a player in everyone's day-to-day life."

Ian Record:

"So I'm curious, it sounds like from what you've been saying that Crow is moving towards having one day a fully independent, strong, robust court system, that you're kind of on your way. And I'm curious to learn from you, what in your view, in your experience, does a strong independent tribal system look like and what does it need? What does it need to have?"

Donald "Del" Laverdure:

"I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It's absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation's law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné law in their statutes, interpretation of those, and it's widely accepted by the community. I think we're making steps there. It's always two steps forward, one step back. And I think if we have all of those markers, then it'll be the institution that we need to be independent and stable. Certainly, having good serving people looking out for the public. And the other part, kind of those hallmarks of what we view as independent, stable judiciaries is I think in the tribal context, the least, I think it applies in a number, but at least at Crow, they have to be from the community, and they have to have compassion, because you're dealing with peoples' children and grandchildren, and you have to be a part of that community in order to have the reputation as a '[Apsáalooke language]' -- a good person -- and that you work with people and you're there to help them. You're not there just to sit as a third-party judge in another system where society is anonymous, whereas in our society, everyone is known and there are clan rules and clan systems in place. And if that judge can integrate all of those things in addition to those, then I think we'll be where we want to be as a Crow Nation judicial system."

Ian Record:

"You mentioned as the first key to an effective tribal judiciary, the insulation from political interference. What does political interference do? And I guess...let me back up here. What happens when politics do interfere in tribal court jurisprudence?"

Donald "Del" Laverdure:

"I think it delegitimizes the tribal court, number one. Number two, I think it creates a corrosive effect internally to the tribal court, the personnel itself, that when they make a decision, they're going to be overruled, and it could be for arbitrary reasons or favoritism, familial connection, kinship, etc., and that kills morale for folks working hard trying to make the standards the same for everybody. And so those two things more than anything, I think, are the effect of political interference."

Ian Record:

"And doesn't it send a pretty clear message to investors? And when I say investors, I'm not just talking about folks with dollars to invest in the nation. I'm talking about citizens of the nation who are considering a career working on the reservation, whether it be as a teacher, within tribal government and that sort of thing, all kinds of investment."

Donald "Del" Laverdure:

"Yeah. I think investment in the larger sense, not just third-party dollars for energy deals, but peoples' investment of human capital in themselves to a community. I think it does send a very poor message that this isn't a place where you want to put your life and your family and to contribute all that you have to make the governing system work well, efficiently, and be representative of uniquely Crow values. So I do agree that it would have a very harmful effect."

Ian Record:

"So I want to back up a little bit and talk about what Crow governance was like prior to colonization, prior to the establishment of the Crow reservation, the Crow agency. What did it look like prior to that time?"

Donald "Del" Laverdure:

"As far as my relatives and older folks in our clan system, what I've been told anyway, is that we did function as the original clan system, born on your mother's side and you're a child of your father's side. And just to get into specifics about roles, of how that looked because it does go into governance of how you live as a community and as a family and survive and prosper. On the mother's side, you would have the other folks on you mother's side have the right to...they usually brag you up, make you feel better, bring your ego up. And then you have the balancing act on your father's side, which is to tease you, to shame you, and to bring your humility back into check. And you have these checks and balances of the family. There would be, within the clan system, usually a clan elder who largely was respected among the family connections. They're typically the ones to speak and lead. In fact, in Crow culture, which has a fair degree of existence today, is the right to speak in public even with those systems, and there are rules and responsibilities that go with the clan system in there. And you're not to violate those. The enforcement mechanisms have probably disintegrated a bit -- you know, the American government bringing in different rules and breaking up the families –- but before it would be, the expectations were [that] you're to follow these rules and that everyone had a role. And these older individuals would then conduct ceremonies, they would decide family disputes, or pick people. They would always go by consensus decision-making, which was really important –- as opposed to top-down, vertical -– and always were viewed as people that were very good listeners. You can hear something, but you may not listen, and to listen is to learn and to share information about resolving these disputes. So it was really this family nucleus, kind of, at its core. And these families then would follow certain band chiefs, and we had band chiefs throughout our historic homeland. And the band chiefs were [Apsáalooke language], you know sub-chiefs, whatever, they were good men. And groups of families would follow them and they would largely –- if that person continued to conduct themselves in a good way, treat people with respect, listen, make good decisions, be thoughtful, etc., have patience, wisdom -– groups would follow them and they would live as a community in various parts and survive together. And if they didn't perform or if they weren't the type of leader they thought they were, then people would leave and go elsewhere. So that structure was always based on locations within the Crow Nation's territory, and so you would have pockets of this. And law and order was kept as such, the women ran the camp, the kids were to follow them, etc., etc. And so I think it was more of an understanding based on our traditional culture and clan system and then it would break into further roles for scouts and warriors, etc."

Ian Record:

"And so how, just speaking generally, how did colonialism impact that system?"

Donald "Del" Laverdure:

"I would say that certain parts of it have been corroded or negatively affected. Many people do still follow clans in some ways. But with the creation of the first agency out in Livingston, because the rations were given and following up on the treaties, many families were broken up, and they would take jobs or try to get the rations, so they would settle in new areas, and it broke up that family-clan unit that used to govern itself. And then it was changed to Crow Agency, the present-day capitol of the Crow Nation, Crow Agency. And so a number of people came there, and of course through the larger federal policy, were made into farmers, enticed them to do things and settle and have homesteads and break up the tribal land base. And all of those things had the corrosive effect of really disintegrating the clan leaders, the sub-chiefs, and it still existed to a large degree, even through this...and the language is fading a bit, but it's still fairly strong, the clan system is still respected, some of the societies have also disintegrated. There are some that are still active. And so, our culture, I think, has evolved in reaction to all this schism of internal conflicts of federal policy. One minute, let's try to help the Indian and we know better paternalism to, "˜Let's make them into '[Apsáalooke language],' which we say is "˜white.' So all of those issues have created what we've seen in the past, which is –- and continues today -- is high unemployment rates, mental health issues. We've got a checkerboard land jurisdiction, so everyone's fighting over authority to decide. And, ultimately, through a lot of this, there's a lot of passive lessee, lessor-lessee relationships, where other people have gotten wealthy off the great landholdings of the Crow. And so it's really up to us to try to get the healing back. It starts with the constitution and other things, and then reintroducing the culture, education, set roles and responsibilities back. But there has to be the healing, to get us back to where we were before."

Ian Record:

"I want to finish up with a brief discussion of an arena in which you're directly involved in your current position, and that's intergovernmental relations, federal-tribal relations. And this is a...it's interesting, over the past 30 years or so, particularly with the advent of the Indian Self-Determination Act, we've seen this exponential growth in this area, where Native nations across Indian Country are engaging to a greater degree than ever before in formal relationship building with other governments, with other jurisdictions, with federal agencies, with state agencies, with local municipalities, with private interests even. And I'm curious to get your view of that arena of tribal sovereignty, if you will, of tribal governance and kind of where you see it at currently and where you see it headed."

Donald "Del" Laverdure:

"First from the tribal perspective, then I can probably speak more from the limited federal, in a year. From the tribal perspective, I think it varies on the community and the leadership and their expectations. In some cases, intergovernmental agreements don't work, or they view them as a denigration of sovereignty, giving away sovereignty. I think for the most part, at least in my personal experience, has been that they've been beneficial, by and large. For example, in the tax area, we have to deal with federal Indian law where state and local governments have been given more and more say to tax value on the reservation that's been generated and move it off the reservation. By having intergovernmental agreements, you can have kind of a unified view of who has what piece of the pie, and you can divide it up however it's going to be subject to negotiation. But you have that one for a duration of time, and then you can use that to move forward on development or other things because oftentimes, uncertainty is the key to kill a financial deal. So that's one aspect. I think law enforcement's another at least in, again, speaking from the Crow tribal perspective -- and there are differing views of this -- but I think with scarce resources, underfunding, the number of police per capita is much lower than it is almost anywhere else, some rural areas with an exception, sometimes one third as many for an area that's very significant. In our case, it's two-and-a-half million acres. Not enough cops -– sometimes one or two at night -- and that's a frightening proposition. So law enforcement makes sense, but there are passionate views about that. In terms of kind of intergovernmental agreements in general and the diversity of them, I do see them growing substantially across the nation. And I think to deal with the federal Indian law and the rules that keep changing -– you know, we talk about rules in governance, but the U.S. Supreme Court, as anti-tribal as it is in the last 30 years, they're changing the rules constantly. And so tribes are almost forced into intergovernmental agreements to deal with all these changing rules so that they can have a set of rules, whether it's, you know, law enforcement or tax or any number of subjects. And so I think it's a healthy way to deal with it. Some people view it –- you know, you've got to have the fight, the bloody fight and go down swinging for pure tribal sovereignty -- but I think at the end of the day, citizens expect services, and they want accountability, and this helps bring that for many. One of the caveats more recently in the Midwest, for example, is those deals that were struck before –- water, sewer, trash service -– these intergovernmental agreements that were so good for tribal sovereignty and worked, many of those governments are now rethinking them because they're reacting to new case law that's coming out. And so it's turning into litigation, instead of two sovereigns coming together and working on a deal for the benefit of the larger community. So we're starting to see an added wrinkle in all that and people rethinking relationships and it's unfortunate because of the instability largely created by the federal court system. So I can't really blame people depending on the scenario that they have. Either they have a trustworthy other government partner or they don't, and that's the key to intergovernmental agreements is confidence that once you sit down, negotiate, make the tough compromise, that you're going to stick to your end of the deal and you're going to hold your word. And that is important, not only at the tribal-state level and tribal-other government level, but ultimately, where the origin of the relationship is the tribal-federal level. We have to do and say...we mean what we say and we do what we mean. And that's critical for relationships with Indian nations. Speaking now from a federal relationship for a minute, and I'd like to say in my current role as an Obama appointee is we have two roles. If the tribe wants us there, under the trust responsibility and this historic federal-tribal relationship, we should be there and we should bring the resources to bear. If tribes, as they are now are becoming more sophisticated, that they have figured out the rules of the game, if they don't change, and they become very good and adept them and very creative and entrepreneurial as they progress and move forward and they don't need us and they say you need to get out of the way, then I think that's our job, is to get out of the way and to cut the bureaucracy and second-guess even decision making from the federal perspective for Indian nations and let them become truly self-governing, sovereign entities. And so, you can see that it's a somewhat convoluted answer, but it depends on the perspective you're speaking from and it makes a significant difference, I think, in the entire tribal-federal relationship."

Ian Record:

"You mentioned this new wrinkle that where essentially, some other governments, some other jurisdictions are rethinking their relationships with Native nations, or abandoning those relationships altogether because of the emergence of new case law that I guess maybe tilts the game more in their favor. Don't these, making sure that these intergovernmental relationships, whether they take the form of an IGA [intergovernmental agreement] or some other form, don't they require essentially ongoing, constant maintenance to account for those sorts of developments, to account for political turnover, for instance?"

Donald "Del" Laverdure:

"I think they do, at least if folks are thinking long-term. You have, whether it's now today, gaming compacts for example. Ten, twenty [years], some of them no duration time period, that they expect these rule to be in place and for this part of the revenue to be shared, and they expect state and other governments to hold their end of the bargain. So too with gas tax agreements, tobacco agreements, should tribes be subject...want to enter into them and negotiate them, that period of years, regardless of decisions, of federal court decisions, should continue for the duration of the term and then they can sit down as partners and renegotiate, should there be a change in circumstances. So I still think they have a critical function. And Indian nations' role vis-í -vis all other American governments...at the end of the day, they should be the ones driving those relationships and what they expect of them, and that the relationship can then take on a view of being reciprocal, as opposed to one-sided."

Ian Record:

"Now you mentioned this perspective on the part of some tribal leaders, some tribal citizens perhaps, that when you engage other governments -- particularly governments other than the federal government -- in any sort of formal partnership, formal relationship, that you're somehow denigrating your sovereignty or somehow giving up your sovereignty. It's been our experience that we're seeing that perspective less and less. That replacing that perspective is a perspective that when we engage in these relationships, it's an act of sovereignty because we make the sovereign choice to engage with those other governments on terms that are acceptable to us in order to advance our goals. Are you seeing more of that dynamic at play in recent years?"

Donald "Del" Laverdure:

"I think I have seen that not only from prior academic life, but on the ground. That I think, just by virtue of exercising that authority, that they are asserting their sovereignty. That's the camp that I'm in, but there are other purists, the treaty folks who have their societies, and they view any other agreement with any other government as violating fundamental treaty law. And so they're going to have, there's going to always be at least that in the Plains area, where I know there are many treaty folks, and up in the Midwest. But I definitely -– there is that element -- but we argued exactly what you have just summarized. And at the end of the day, some of the agreements did go through and some of them didn't and it just, it depended on the subject matter. But I think across Indian Country as a whole, I think that view is becoming much more prevalent and being exercised."

Ian Record:

"You mentioned the Supreme Court as a very uncertain arena, and that's putting it mildly. A very uncertain arena to, I guess, resolve disputes between jurisdictions, resolve disputes between governments. Given the current composition of the court and essentially how long that composition will continue to exist, doesn't it make it incumbent upon tribes to think negotiation first, to think relationship building first before litigation because of litigation's uncertain outcome?"

Donald "Del" Laverdure:

"That's...it's a complicated...I'll give you a complicated answer. It depends. That's something everyone hates to hear, especially tribal citizens from their lawyers. I used to think that. And even as a general counsel, I use to believe that, but now having seen such a diversity of hundreds of government's interactions, litigation forces positions and you can...and very few cases ever make it up to the U.S. Supreme Court; it's a tiny fraction of a percentage. And so the real question to me is, is this happening at the Circuit Court of Appeals and the lower federal court levels? And that's a judge-by-judge selection on whether they're knowledgeable about tribal sovereignty or not. And if they are knowledgeable, then I think in some cases it's still, it would be appropriate to the community, but litigation is leverage against other governments. And if you win a lower court ruling, more often than not, that's going to be settled. And so going straight into it, if you have a partner who's favorable, who's knowledgeable about Indian nation sovereignty, and they're willing to truly compromise, and it's something they can accept on behalf of their community, that makes sense. If they're not, and in those other situations where they take account of those other factors, the intangibles, the biases, etc., then I would say it would behoove you to take less if you can proceed forward in a situation that makes sense. And I've seen that in a number of contexts, especially at the federal level. So my view is a little bit different than it was previously."

Ian Record:

"And we've seen a lot of tribes that we've worked with who hedge their bets and do both simultaneously. They're going the litigation route, but then they're also trying to work out a negotiated settlement to...because often litigation takes years to unfold. It's interesting, Billy Frank, well-known leader up in the Pacific Northwest, he tried to capture this, I guess this challenge, if you will, by saying, "˜We need to be peacemakers when we can and warriors when we must.' And I'm curious to get your thoughts on that perspective."

Donald "Del" Laverdure:

"That's a really good description, and I certainly would defer to his having lived through and experienced all the fights of the Boldt litigation and the aftermath, and now having seen him come up to D.C. quite a bit and advocate for their intertribal organization, co-management of fisheries, and usual accustomed places. I think that's correct. And I think peacemaking has its function not only from an intergovernmental standpoint, also internal disputes. Peacemaking makes a lot of sense, and I hope to see a return of that from the judicial context and something that I helped some communities with. And then the warrior part, which is you've got to stand toe-to-toe and give it your all and even if you lose, just waging the fight is going to create that confidence from the people who are at home, who don't have the voice or the resources or the background to wage that fight themselves, but they feel it. They know it, they've experienced it, and they like to see people who would take that position so they can feel good and confident that they did assert themselves, and somebody who understands them move forward on that basis."

Ian Record:

"I had one final wrap-up question and that is based upon your vast experience in a number of different areas that are critical to tribal sovereignty, critical to tribal governance, what do you see as the future to tribal sovereignty and tribal governance?"

Donald "Del" Laverdure:

"I think the future looks good to be honest. I am more than hopeful that the change that we are seeing in the diversity of those rethinking, questioning, wanting to instill their own values and culture into how they have to conduct their lives everyday I think is going to continue and is going to continue at a very rapid pace. And I say that because having been through the university structures that I have, I was in school for nine-and-a-half years formerly, then taught and then getting into politics, the trend that I see is that more and more Native youth who are becoming trained and educated, not just educated in the Western sense. It's fine to have a degree and accomplish something and to kind of have a Western view of what life is about in a four-month period and then you wrap those all up in a number of courses, but to have understood the teachings of where you come from. And when you combine that and that is the center of your universe is where you are from, where your teaching is centered, and that you are that Indian nation citizen first, Indian second, and a student third, in that order. I see unlimited possibilities for the rebirth of and reformulation of Indian Country as we know it. There are just more and more youth coming out like that, which I think is the key not only for this next generation, but for all the future generations of Indian country. I'm simply one dot in the sand of the ocean and I happen to have tried to make a contribution and a difference and I think many others are going to be like that coming forward."

Ian Record:

"Well Del, we really appreciate your time. We've run out of time unfortunately, I feel like we've just scratched the surface of your wisdom and your experience and we thank you for joining us."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"Well, that is it for today's program of Leading Native Nations. To learn more about Leading Native Nations please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2010. Arizona Board of Regents."

Joan Timeche: The Two Tests a Constitution Must Pass (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "The Diversity of Governing Systems and Constitutions in Indian Country," NNI's Joan Timeche explains the two tests (cultural legitimacy and effectiveness) that Native nation constitutions must pass if they are going to prove capable of achieving their nations' strategic priorities.

People
Native Nations
Resource Type
Citation

Timeche, Joan. "The Two Tests a Constitution Must Pass (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation highlight.

"As you look through your constitution, no matter how diverse it is, it has to pass two tests -- the legitimacy test and the effectiveness test. And that first one is what causes a lot of turmoil oftentimes in our communities. Do the people believe this way of governing is appropriate for them and do they see that system as theirs? Or do they see it as the BIA's [Bureau of Indian Affairs's] or the Department of Interior's because the IRA [Indian Reorganization Act] was forced upon us? Is that constitution yours? Do people say, 'Yes, this is the way we make decisions. This is what's important to us. This is how we make rules. These are our rules.'

And the second one is the effectiveness. Can it deliver on getting the job done to meet your needs and your goals? Those are what's going to be important or does it always...does it become a big bureaucracy, do you get hung up on things, is the system...or maybe there's no rules in there or maybe there are rules there but they're not enforced. So you have to make sure that your constitution can meet these two tests. And we're not saying that any one form of government is best, because you're going to have to make that determination of what's best for you and your people, but it should be the one that solves your governance challenges. It's the one that's going to promote your interests, it's going to be the one that's going to hold you together, and then it's the one that's going to match your current culture today. 'Cause we're never going to go back to what we were 50, 100, 200 years ago, but we still probably have threads of how we make decisions that are still culturally relevant. So what is that today? And you just have to figure out what's the best way for our nation." 

From the Rebuilding Native Nations Course Series: "The First Key to Effective Constitutions: Legitimacy"

Producer
Native Nations Institute
Year

Frank Ettawageshik, Joan Timeche and Frank Pommersheim discuss the importance of constitutional legitimacy to effective Native nation governance, and stress that the source of that legitimacy is the very people a constitution is designed to serve. 

Native Nations
Citation

Ettawageshik, Frank. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 6, 2010. Interview.

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

Timeche, Joan. "Constitutional Reform: A Wrap-Up Discussion (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

Frank Ettawageshik:

“Clearly, an inadequate governing document can be a huge hindrance towards the development of good, of proper governance. I mean it can be really a real problem and it needs, you do need to have a good constitution for your government. Now that constitution in some cases may not be written, but nevertheless you need to have a system of governance that’s in place that the society understands and that your tribal citizenry understands and is able to use and that they feel comfortable with. Otherwise you can’t impose a system that, for instance, is not, that may be a good idea somewhere but may not be a good idea in your community. You can’t do that. You have to have something that works.”

Joan Timeche:

“We have 12 autonomous villages [at Hopi] and within these villages they control all of the land, they make all of the decisions within their area of jurisdiction, and here comes in the federal government that imposes upon us a constitution. We were one of the IRA [Indian Reorganization Act] tribes that in 1936 we approved the constitution. But like as you heard many other speakers here, our people did not go and vote. They voted with their feet, which meant that they stayed home, because that election that the Bureau of Indian Affairs was conducting was not their form of how we make decisions. Ours was based on clan hierarchy. We were a traditional culture and so all of our leadership was elected and appointed in a different way, and it wasn’t a democracy as this IRA constitution was putting us into. So we had these 12 villages. So if you look at what was happening out on Hopi, if you look at the 12 villages, for many, many years after 1936, only eight of those villages decided that they were going to recognize the constitution, and four of them did not. And one of those villages had probably about one-eighth of the nation’s population, and today still does not recognize it, so they’re not represented in council. I’m not represented either, because I come from a traditional village, the village of Old Oraibi. So there are probably about, we have population today of 12,000. I would guess that probably a quarter of our population is not represented effectively on council because we say, ‘That’s a foreign government, that’s the pahana’s form of government.’”

Frank Pommersheim:

“Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it’s necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that’s often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it’s ultimately voted on, how many tribal people are participating?...So this thing about legitimacy is absolutely essential, because it will happen -- and I’m going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you’re on the side that lost or if you’re on the side that doesn’t like the result, because it’s legitimate, will you accept a decision that you disagree with? It’s easy to accept decisions that you agree with. That’s easy. We can all do that. But it’s very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That’s what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn’t have legitimacy, it’s false, because as soon as the tribe faces its first most difficult decision, if there’s not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it’s legitimate.”

Frank Pommersheim: Constitutions: Powers, Implementation, and Interpretation

Producer
Native Nations Institute
Year

University of South Dakota Professor of Law Frank Pommersheim discusses the fundamental difference between a plenary power constitution and a reserved or enumerated powers constitution, and recommends that Native nations think very carefully about constitutional implementation and interpretation when developing or reforming their constitutions.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Native Nations
Resource Type
Citation

Pommersheim, Frank. "Constitutions: Powers, Implementation, and Interpretation." Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 3, 2011. Presentation.

"Now what I wanted to do is to build on a few things that were said yesterday. In terms of thinking about constitutions broadly, I think two things were said yesterday I think are really critical for constitutions to address. The first one is the relationship of a tribe's constitution to its treaties. I think that's a very, very critical relationship for tribes that have treaties because I would argue for tribes, the two most important documents that exist for tribes are their treaties and their constitution. And since constitutions follow treaties, I think it's important that tribal constitutions make reference to their treaties and how treaties represent their sovereignty and represent their diplomatic stance vis í  vis the United States and the international community. And I think it's just necessary that tribal constitutions address their treaties in a very positive way, because if they don't there's sort of a disjunction between the tribe's organic governing document -- its constitution -- and its treaties. So I think that is very, very important for that to exist in tribal constitutions.

The second thing, and I think this was only mentioned a little bit yesterday, was the notion about in a tribal constitution, I think it's important that a tribal constitution say where the power is coming from that's reflected in a tribal constitution. Does it come from the people? Does it come from the clans? Does it come from the tiyospayes? What is the source of the power and values that exist in a [constitution]? Where does it actually come from? And this is very important not only in a broad sense, but it's very important in a practical sense. And I'm going to give one or two examples of how it's important in a practical sense. Because one of the issues that has actually come up for a few tribes is when the tribal constitution transfers powers to the tribal government, does that tribal government have all the power of the tribe? Or the converse: does the tribal government only have the power that's been transferred in the constitution by the people and the people retain some of that power? And one of the ways to think about that is a tribal constitution -- what I would call -- a plenary power constitution, in which the people knowingly or unknowingly have transferred all of its power to the government; or is it more of an enumerated powers constitution or a reserved powers constitution, in which the powers that have been transferred to the government come from the people and the people retain certain powers and the possibility of changing that distribution of powers? So how a tribe conceives in the large sense of its constitution as being either a plenary power constitution or a reserved powers constitution, I think is a very, very significant issue. And the way a tribe integrates its treaties into its governing document is also to me very, very significant.

Now yesterday when people were talking about constitutions or governance, they talked principally in the context of values and structure. And I want to add on two other kind of stages or variables. And I would add to values and structure the notion of implementation and interpretation. And Don [Wharton] mentioned implementation and I think that's absolutely critical, because the reality is that many provisions in tribal constitutions are not self-executing. That is that they require actions by the tribal council to enact powers that are recognized in the constitution itself. And how a tribal council actually implements certain powers that are granted to it in a constitution is very, very important, because sometimes tribes will get that just right, sometimes they will go arguably too far, and sometimes they won't go far enough. So when you're thinking about constitutional governance you not only have to think about the constitution, you have to think about the implementation component. That is, how does a tribal council implement provisions and guarantees in the tribal constitution? Because many provisions, just like in the United States Constitution, they're not self-executing. They require a law being enacted by Congress in the context of the United States Constitution. And I think the same is true in many cases for tribal constitutions. The council has to pass ordinances that actually put into place the powers that are granted to it in a constitution. And I think that's a very important kind of next step process that constitution is kind of an everyday ongoing thing and that implementation component is a very, very important part of it.

And then the last part and I don't think this was actually mentioned at all yesterday is what I would call the interpretation element because more and more tribal constitutions...what happens when -- in good faith or in bad faith -- tribal people disagree about what a constitution actually means? It's going to have to be interpreted by someone. And more and more, it's actually going to be interpreted -- in my experience -- by tribal courts. And so it's very, very important about how tribes think through, 'What is the body -- usually to be a tribal court but maybe not -- who actually will have the ultimate responsibility to interpret a tribal constitution?' Because a constitution, where it's written or even where it's not written, people are going to -- in good faith and sometimes in bad faith -- disagree about what the constitutional text actually means. And you're going to have to have a court that actually interprets the tribal constitution and I think that's a very important ongoing process. So it doesn't end when a constitution is actually adopted; one might argue it actually only begins when a constitution is adopted and you try to put those values, those structures actually in place in terms of implementation and then ultimately interpretation.

I thought I might give a few examples about the interpretation part in tribal court cases that I've actually been involved in. The first involves a particular tribe that started to disenroll its members. And one of the questions that came up was, did the tribal constitution actually allow the tribe to disenroll its members based on however it saw fit? A very important question in certain parts of Indian Country. And the question that came up was what does the tribal constitution actually say about the powers of the tribal council to disenroll people? Was it a plenary power constitution where the tribe had all the power and it could disenroll members as it saw fit? Or was it only an enumerated powers constitution that limited -- by the terms of the constitution itself -- the power of the tribe to disenroll its own members? And when that case was decided, that was a key issue in the case. What was the nature of the tribal constitution in the power of disenrollment? Because my experience is very few if any tribal constitutions actually specifically identify the power to disenroll members. And that unfortunately is a very important question about how tribes conceive of who has the power under what circumstances to potentially disenroll members and what would be legitimate grounds for disenrolling members.

In the particular case that I'm talking about -- I'll be happy to talk about the details to anyone after -- is that the court decided -- this was an appellate court -- decided that this particular tribe's constitution was an enumerated powers constitution. There were no expressed powers in this enumerated powers constitution that gave the tribal council the authority to disenroll members. And the court decided that the only kind of inherent grounds for disenrolling tribal members, when there was no expressed provisions for disenrolling members in the tribe's constitution, would be based on fraud or mistake. That is if the tribe could demonstrate that someone became enrolled as the result of a mistake, that is if he was basing on blood quantum and it was just an error in the computation and you could demonstrate that that person became a tribal member due to a mistake, the tribe would have the inherent power to disenroll that person after due process was granted to have the opportunity to have a hearing; or if someone had gained membership through fraud, that they had fraudulently deceived the tribe to become a tribal member. In this particular case we decided that indeed the tribe had the inherent authority to potentially disenroll that person after providing due process. So how you see the overarching structure of your tribal constitution as plenary power, enumerated powers with reserved powers to the people or to the community, I think it's a very, very important question.

Now let me give you an example on kind of the implementation part. Many, many tribal constitutions, in fact almost all IRA constitutions, recognize the power of referendum. Okay, does the tribe actually have to have an implementing ordinance that actually puts that in place? Some tribal constitutions say for example, if you get 300 signatures on a particular matter, that matter has to be provided for a referendum. Is that self-executing or does the tribe actually have to adopt an ordinance to actually put that in play administratively to say that, who do you actually submit that referendum petition to and does the tribal legislative branch or the executive branch, what part of the tribal government if any has the authority to review that referendum petition to see if indeed it has 300 signatures and/or that it has 300 signatures of tribal members and can they do anymore than that? And so many times you have to look at a tribal constitutional guarantee and see if it's actually been implemented.

I'm going to give you another example in this particular context. Again, a particular tribe did have a constitutional guarantee for referendum; the constitution identified the number of signatures that you had to have to get a referendum voted on. And so the tribe adopted an ordinance to administratively review these particular referendum petitions. And in that tribal ordinance they had for example the notion that they could review the number of signatures and somebody working for the tribe could determine whether they indeed were tribal members. But in this particular tribal ordinance it also said that the tribal council, acting through this particular body, had the right to review the merits of...and this was in the context of actually removing people from office. And so the tribe took the position [that] not only could they administratively review to see if it was the right number of signatures, that they had the authority to determine the merits of the claim for removing people from office. And when this came before, a particular tribal court said no, that that violated the constitution. That if there's a tribal constitutional provision for removal, then indeed the council has the right again to set up the requirements to check the number of signatures, etc., but the tribe wouldn't have the authority to review the merits of the allegations in the removal petition because that was for the people to decide when they actually voted in the context of removal. And to me that's just another example of interpretation, that in many situations you're going to have a tribal constitutional guarantee, you're going to have an implementing ordinance, and at some point that's going to be challenge. And the notion is what body -- and in many tribes it's going to be the tribal court -- has the authority to review what a tribe has done in the context of an implementing ordinance, for example, to determine if that ordinance is constitutional, not in the context of the United States Constitution, but in context of the tribal constitution itself? And I think those are very, very important things to keep in mind is this notion of interpretation.

And again, the notion of interpretation can be very, very beneficially enhanced for a court if the tribe itself not only has the text of the constitution, but all the surrounding history when the constitution was adopted. Because the reality is when you finally get the constitutional text, it's in a very short kind of abbreviated form and there might be reasonable disagreement about what a constitutional provision actually means. And if you have the tribe's constitutional history available to everyone and the courts as well to determine what were tribal people thinking when they were considering this particular provision? What were the discussions in the communities? What were people actually saying? And in many ways that background tribal constitutional history is very beneficial and important to the tribe independent of anything that's going to happen in tribal courts. Because that's part of your history, both legal, political, social and cultural. And I think you would want to have that history available to yourselves, broadly speaking, and certainly to the governing institutions within the tribe. And particularly for tribal courts, who at relevant points have to interpret the constitution, if they can have more than the constitutional text before them but the tribal constitutional history about particular provisions, it's going to be very, very helpful and very, very influential. And related to that is that many tribes -- this is particularly true in the bill of rights area, in the civil rights areas -- that they have adopted constitutional provisions that track very closely the text of the Indian Civil Rights Act or the Bill of Rights to the United States Constitution. But one of the questions that comes up when tribes do that is by doing that, does the tribe expect that the federal standard for the very same provision be the standard used by the tribe? And I'll give you an example.

Recently, the Rosebud Sioux Tribe amended its constitution. And one of the things it included in amending its constitution was a tribal constitutional guarantee for the right to counsel. It said that anybody being tried for a criminal offense in the Rosebud Sioux Tribal Court, they would be entitled to be represented by counsel, even if they couldn't afford it -- sort of matching the federal guarantee. Okay, that's the text. There's very little history around it. But one of the issues that came up was, okay: someone's represented by a court-appointed attorney in a criminal proceeding before the Rosebud Sioux Tribal Court. And they're convicted and they want to appeal. And the issue they want to appeal is that they had ineffective assistance at counsel. They said, "˜Yeah, you gave me court-appointed counsel. That person didn't do their job. Am I entitled to get my tribal court conviction reversed because I had ineffective assistance at counsel?' Now in a federal proceeding or in a state proceeding, the right to counsel means you are entitled effective assistance at counsel. And if you have ineffective assistance in counsel -- very high standard -- but if you can prove it, you can get your conviction reversed. So the issue that the Rosebud Sioux Supreme Court was faced was, when the tribe adopted a constitutional amendment providing for the right to counsel, did they intend that part of that right to counsel was the right to effective counsel? And conversely, if you were represented by an ineffective attorney in a tribal court criminal proceeding, should you be able to get your tribal court conviction reversed? A very important, practical question, and there was almost no tribal constitutional history about what the tribal people, what Rosebud people were thinking about when they adopted that provision, which as I said tracks very, very closely the understanding of the Sixth Amendment [of the] United States Constitution.

And again, that raises a very important question that when, and this is particularly true in the civil rights area. When tribes adopt tribal constitutional protections that largely parallel the language in the Bill of Rights to the United States Constitution or the language in the Indian Civil Rights Act, do they intend those standards -- which have now become tribal constitutional standards -- do they want the court to enforce or interpret them in accordance with the federal constitutional standard, which has been incorporated into the tribe's constitution? Or do they have a different tribal constitutional standard in mind? And unless there's important tribal constitutional history about how tribal people are thinking about these guarantees, which sound very much like guarantees in the Indian Civil Rights Act or in the United States Constitution, you need to make your voice heard about how you -- the people who are adopting these constitution provisions -- how you actually want them to be interpreted. And I think that's a very, very important kind of practical thing, is to...(okay, good. I have some more time. I was afraid it was a stop sign up there, that I would have to say I couldn't read but I did read five minutes but I can't read the word 'stop'). So it's important for tribes to be thinking through this implementation piece and the interpretation piece, because however much work goes into a tribal constitution, I think it's inevitable that these interpretive questions are going to come out. If you just look at the United States Constitution or any tribal constitution, these issues come to the forward; it's just natural. It's not a bad thing, it just happens; people in good faith have a disagreement about what a tribal constitutional provision actually means. And I think it's important for tribes to think through that particular piece.

And the last thing that I want to mention is the notion about any constitution only works because people actually believe in it. The United States Constitution, very, very imperfect, very, very imperfect, but it has generally worked because people believe in it, that they conceive its imperfections, but believe that it can be improved through better interpretation, it can be improved through the amendment process. And I think this is a very important issue for tribes, because I think tribal constitutions will only work if tribal people believe in them because if tribal people don't believe in their constitution, they're not going to work. And I think that's sometimes not articulated. Just because you have a constitution doesn't mean it works. People have to believe in it and concede that sometimes it might be wrong, it might be misinterpreted, but you believe in the long haul that it represents what you are about as a people and you believe that it works; because if people don't believe in it, they're not going to follow it.

And one of the things about the United States Constitution is there's this incredible myth that we have always kind of followed it. Well, that's not true. You could go back to two important early cases involving Indian tribes decided by the Supreme Court in 1831 and 1832, which involved the Cherokee Nation and the State of Georgia. When those two cases were argued before the United States Supreme Court in 1830 and 1831, the State of Georgia didn't even show up. They not only didn't show up, they indicated they weren't going to follow the decision. And if that had actually happened, the United States Constitution would have dissipated. It wouldn't have worked, because constitutions only work when people are willing to give them their ongoing consent. And I think that's an important notion, because when you look at any constitution, the question about whether it works is not defined by its text, it's defined by the people's commitment to it. And I think for tribal constitutions I think that's a very, very important, ongoing issue.

And I've seen this in a number of situations in tribal courts that I've participated in when we have made tribal constitutional decisions that have been, in some sense, against the tribe. That's an incredible point for a tribe, for the tribal council to say, 'Well, the tribal court of appeals just said what we did is wrong. What's the tribal council going to do?' It's like a fork in the road. They can say, "˜Forget that, we're not going to follow it,' or they can say, "˜We disagree with it, but we will follow it.' And if tribes take the one fork to say, "˜We're not going to follow that, we're going to get a new court,' well, then the tribe doesn't have constitutional government. They just have kind of a chaos, make it up as you go along. But if you have a tribe that has lost a case in its own court and says, "˜We disagree with this but we're going to follow the decision,' then you have constitutional government. And I think that's an important thing you don't want to lose sight of. You only have constitutional governance when tribal people and tribal institutions agree that they're going to play by the rules because that's how the system actually works. The United States Constitution has worked, for the most part, because people say, "˜We're going to play by these rules.' And I think that's an important kind of cultural and political element for tribes is to measure, in an ongoing way, their commitment to constitutional governance and playing by the rules that the tribe itself has established. And I think that's a very, very important thing to keep in mind.

And I think this is an exciting time, just as we've seen in these two days, the issues that tribes are dealing with and moving forward in the context of constitutional governance. It's a tremendously exciting and challenging time for tribes, and I think a key thing is always this educational component where people feel that it is their tribal constitution, it's something that helps the tribe go forward in its political, social and cultural mission and they have a commitment to it. And I think that's a key thing and that's where it's up to tribal people to make the constitution that you want, to agree to play by its political, social, legal and cultural rules. And I think this is a very exciting time for tribes and I'm honored to be here to provide some observations in that direction. Thank you." 

Best Practices Case Study (Cultural Alignment of Institutions): Teslin Tlingit Council

Year

Situated in southern Yukon, the Teslin Tlingit people have a clan system of government. That clan system of government operated for years prior to the imposition of the Indian Act. Through the Indian Act, traditional governance was separated from formal decision-making power and authority. Then in the early 1990s, following 20 years of negotiation, federal and territorial settlement legislation provided the basis for the creation and ratification of the Teslin Tlingit Council Final and Self-Government Agreements. Through these agreements, the Teslin Tlingit people once again were able to recognize the power and authority of their clan-based government...

Native Nations
Resource Type
Citation

National Centre for First Nations Governance. "Best Practices Case Study (Cultural Alignment of Institutions): Teslin Tlingit Council." A Report for the National Centre for First Nations Governance. The National Centre for First Nations Governance. Canada. June 2009. Case Study. (https://fngovernance.org/wp-content/uploads/2020/07/CAI_Tlingit.pdf, access March 7, 2023)