nation building

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

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Native Nations Institute
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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.

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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."

Brian Cladoosby: The Swinomish Indian Tribal Community's Approach to Governance and Intergovernmental Relations

Producer
Native Nations Institute
Year

In this wide-ranging interview with NNI's Ian Record, Chairman Brian Cladoosby of the Swinomish Indian Tribal Community discusses Swinomish's unique governance system, its approach to building relationships with other governments to achieve its strategic priorities, and what he feels are the qualities that leaders need to demonstrate in order to lead effectively.

Resource Type
Citation

Cladoosby, Brian. "The Swinomish Indian Tribal Community's Approach to Governance and Intergovernmental Relations." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. March 24, 2010. Interview.

Ian Record:

Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we’re very honored to have with us Brian Cladoosby, who’s chairman of the Swinomish Indian Tribal Community. Brian has served as an elected leader of his nation for the past 25 years, the past 13 years as chair and he’s also on the executive board of the National Congress of American Indians. Brian, welcome.

Brian Cladoosby:

Thank you.

Ian Record:

I’d like to start by asking the first question I ask virtually everyone I sit down with and that is, how would you define Native nation building and what does it entail specifically for your nation?

Brian Cladoosby:

Native nation building is nothing new. It has been here since time immemorial and people think that with the advent of the Indian Reorganization Act that Indians finally got their act together, but we have been nation building since time immemorial. It is just a process that goes through different iterations. And so right now, we have the opportunity to be in the advent of...I guess under the policies that have been implemented in the last 20 or 30 years, but as far as nation building, tribes have always been building nations.

Ian Record:

Dr. Stephen Cornell of the Native Nations Institute and Harvard Project refers to governing systems as fundamentally tools for creating the future that Native nations want. How so?

Brian Cladoosby:

Well, governing systems are things that have always been a part of your community, and every once in a while there’s new innovations that occur that help get your tribe not to its ultimate goal, but maybe to the next step of where it wants to go as far as governance I guess in the 21st century.

Ian Record:

I’d like to ask you a question now about Native nation governments and this issue of legitimacy, which is a common subject of debate, particularly among tribes in the 21st century as they look to take full advantage of Indian self-determination policies and self-governance. The NNI and Harvard Project research finds that for Native nation governments to be viewed as legitimate by the people that they serve that they must be both culturally appropriate and also effective. How do you view this finding, based on your experience?

Brian Cladoosby:

Well, it’s kind of sad that in the 21st century we still have to define ourselves as legitimate as opposed to illegitimate, and we all know what the term 'illegitimate' means. So it is something that we as tribes continually have to strive to show that we are governments that provide essential governmental services to our people through a varied host of programs that we have within our reservation boundaries and off reservation.

Ian Record:

How about internally in terms of the people that the nation represents, the citizens of the nation? We often hear for instance that Indian Reorganization Act governments for many tribes are viewed by their people for a variety of reasons as not legitimate because they don’t necessarily sync up with their own culture and what they feel [are] the appropriate ways to organize and exercise authority.

Brian Cladoosby:

I guess you have your internal and external individuals who do not view our governments as legitimate. From an internal perspective and from the Swinomish perspective, we don’t see that. Our citizens recognize that we operate under a constitution that was created by our elders that was basically a cookie cutter from the BIA [Bureau of Indian Affairs] in the 1930s, but it has worked at Swinomish over the years. And so from the internal perspective of our Swinomish members, they view our government as legitimate and they view that the constitution and bylaws that we follow as a legitimate piece of paper that we follow.

Ian Record:

And is the legitimacy that they hold for the government, is it in the fact that you do follow the constitution?

Brian Cladoosby:

Yes, yes.

Ian Record:

Isn’t that a critical piece of it?

Brian Cladoosby:

That is a critical piece, because if you are not governing by what your constitution says, then you are basically breaking the law and that is not good.

Ian Record:

Right. So how do, you touched just briefly a few minutes ago on this issue of outside perceptions of governmental legitimacy by Native nations of governmental effectiveness. Not making any judgment on your tribe -- from what I know of your tribe you do govern very effectively -- but when tribes govern ineffectively, how can that, how can outside perceptions of that governmental ineffectiveness undermine the defense of sovereignty?

Brian Cladoosby:

Well, I guess it’s like a situation where in any organization or any group of people where someone breaks the law or gets in trouble, you are basically guilty by association where if Tribe A is doing it, Tribe B must be doing it took because they’re all the same. And so when Tribe A gets in trouble and it hits the headlines, Joe Citizen who does not know very much about Indian tribes just decides, ‘Well, all the tribes must be like that.’ And so when that happens, and you see the local letters to the editor or the reports on TV, you have to respond to that to let them know that, ‘Look, we don’t condone what they have done and we’ll be praying for them, but that’s not Swinomish.’

Ian Record:

This issue, you kind of touched on this issue of education, of a need to educate the general public. It’s not, it almost seems like for most tribes it’s not enough just to govern effectively, but you also have to spread the word about how you are governing effectively because you do have these stereotypes to overcome, like the stereotype that all Indians are the same or they all do things the same way. Is that something you guys tend to in your nation, this need to educate the general public?

Brian Cladoosby:

Yes, because we, I have heard growing up that tribal members are nothing but welfare recipients from cradle to grave, and that was a perception that was out there that all we do is just live off government money, we get free housing, everything given to us. And so when you have that perception out there, you have to work really hard to educate the citizens, especially in your own area. They don’t know that some tribes in my state are the largest employers in their county. They don’t realize that the Swinomish is one of the largest employees in Skagit County. We employ more non-Indians, sadly, than Indians in our casino and they come from the cities within our county. And so from that standpoint in providing healthcare and good wages, we have to let them know that we are a big part of the community and that we are contributing to the economy. I like to use the analogy of military bases. Military bases bring in millions and millions and millions of dollars to the local economy. And in the last decade when they started going through the base closures, people were up in arms. Well, people don’t realize that if a tribe went away that would really cut out a big part of their economy, but still people perceive us as not being productive people to society. And so it is really tough to be out there to let them know that we do a lot of good things in our communities.

Ian Record:

You touched briefly already on the fact that your nation is an IRA, what’s called commonly an IRA tribe. And you adopted in 1936 your nation an Indian Reorganization Act system of government. I believe it was reformed in the 1960s. What is the contemporary legacy of the IRA for your tribe in terms of its governance? Where does the Swinomish Indian Tribal Community stand when it comes to IRA governance?

Brian Cladoosby:

Well, just like all tribes that adopted the IRA constitutions that were boilerplate BIA constitutions, if you look over the history, you’ll see that a lot of them in Washington State were pretty much identical. So we are still struggling today to try to crawl underneath that basically thumbprint or whatever that the government had put on us through IRA. There are still some things in the constitution that we today need to do to alleviate ourselves from some of the things that we have to do to report back to the BIA. And so we’re still trying to create the constitution that really fits Swinomish and Swinomish’s needs.

Ian Record:

So it’s very hard, you would say, it’s probably difficult to summarize, cast a summary judgment on whether IRA is good or bad, that there are some parts of the IRA that work for you and other parts that need improvement?

Brian Cladoosby:

Yes, definitely. Definitely there are a lot of parts that work for us that have worked for us effectively since 1936, but there are other parts where we definitely need to make changes to make our governing more effective for Swinomish.

Ian Record:

One of the things we hear from leaders of other Native nations who are IRA tribes is the fact that aside from this issue of cultural match, did the people at the time have an active role in the formation of that IRA government? Did that IRA government, whatever system they adopted, did it mesh with what they felt was appropriate? There’s also this question of can it meet the 21st-century challenges and the increasingly complex governance challenges that tribes face? Is that something that you’re wrestling with, realizing is this system adequate to the 21st-century challenges we face?

Brian Cladoosby:

Well, one thing that I have to give the original framers of our constitution because there are certain parts in that that made Swinomish a stable government, having five-year terms underneath that IRA constitution really created stability at Swinomish. And so from that standpoint it really created a good structure where we don’t have large turnovers on our council. So from that perspective, it’s been good. On the other side of it, we still have to get a lot of our approvals from the BIA for leasing and things like that, so those things are antiquated that need to be changed to get us into the 21st century.

Ian Record:

I want to switch gears a bit now and talk about intergovernmental relations, which you have vast experience with. Your nation is engaged in a number of fronts in the intergovernmental arena. As you know, since the 1980s, there’s been incredible growth in this area of intergovernmental relations between native nations and various other governments, not just the federal government. What in your opinion is driving this growth?

Brian Cladoosby:

Well, we've come to realize that we are not an island, even though we live on an island, that the things that happen off the reservation or on the reservation by tribal and non-tribal [entities] impact our government. And so a classic case that you see across Indian Country is checkerboard reservations and we were one of those checkerboard reservations. And when the Dawes Act was passed, and when it was finally I guess repealed or whatever in the 1930s, we fell right in line with the rest of the United States as far as losing 50 percent of our land into fee. And so we had to create a system. We had to quit fighting with the county and create a system where we could get together on land use planning and we created a model for Indian Country I believe to work under.

Ian Record:

So a number of leaders, that we’ve talked about, view intergovernmental agreements as critical nation-building tools. Do you share their sentiment?

Brian Cladoosby:

We’ve been creating intergovernmental agreements since 1855 at Swinomish when my grandfather’s grandfather Kel-kahl-tsoot signed the treaty with the U.S. government ceding vast acres of land to the U.S. government in exchange for some reserved rights and some promises that were put down on paper. So we have been, we are a government and we have to be viewed as a government and we have to look at other governments and when we need to make agreements with them that benefit us and them, we have to do it. I don’t see it as something that gets in our way of our sovereignty. If it diminishes our sovereignty, that would be a problem, but many of our agreements I think are of where we’re not coerced into signing something we don’t want to sign. So I don’t see a problem with tribes exercising their right to sign agreements with other governments. It’s just something that we have to do and that we’ve always done.

Ian Record:

As long as it’s on your terms?

Brian Cladoosby:

Yes, as long as we’re not being negatively impacted.

Ian Record:

Jaime Pinkham, who you know, former treasurer of the Nez Perce Tribe and formerly with the Columbia River Intertribal Fish Commission, is quoted as saying that entering into these kinds of relationships and agreements does not represent a compromise or loss of sovereignty as you mentioned, but in fact the exact opposite -- it’s an exercise or flexing of that sovereignty. Can you expand a bit on how these agreements, these relationships advance a nation’s sovereignty and maybe talk a little bit more about the specific ways it’s done so at Swinomish?

Brian Cladoosby:

Well, the land use-planning agreement that we signed with Skagit County is a classic example of how two governments have both indicated or flexed their muscle when it comes to having jurisdiction within the boundaries of an Indian reservation. And so we had fought for years with the county saying that, ‘Look, this is our land. These people might own this land, it might be in fee, but we still retain control over that.’ And of course they’re saying, ‘No, you don’t. These people pay taxes to us. We’re going to retain control.’ And so what we did was we came up with an innovative approach where we sat down with the county and zoning the reservation was very important to us, controlling the utilities was very important to us. So we recognized that to get them on board with the program we wanted to put into place, we created a system where we encourage the county that they would zone the Swinomish Reservation identical to what we had it zoned and they bought into that concept. And so what we have now is a situation where there is no differences of opinion on what the land is going to be zoned. We also came up with an approach where, if you as a non-Indian owned fee land wanted to get a permit from the Swinomish Tribe, you could. We took our ordinances and we mirrored them so all permit fees, ordinances, everything were identical to the counties, and so you could as a non-Indian fee land owner could come to the tribe to get a permit. We would send that to the county and they would check to make sure that it abided by the zoning rules that we put into place or vice versa. If you went to the county and got a permit, they would send it to us for our review to make sure it wasn’t going against what we had the land zoned for and if there was any conflict, we created a five-person board; two appointed by the tribe, two appointed by the county and an independent person that we both agreed to. And since this has been put into place, we’ve never had to use that board so it has worked.

Ian Record:

Do you think you would have ever arrived at that position had you taken a different track, say litigation, to try to resolve this dispute?

Brian Cladoosby:

Maybe at the end of the day, there’s always an end to litigation somewhere either by a judge ruling or the parties coming to an agreement before the litigation was over, but if forced to go down that road we will. We’ve had to do that in the past with our water agreement and that’s another good example of seven government agencies getting together to create a document that was supposed to last 50 years, and water is for fighting and whiskey’s for drinking, the old saying goes. And so we created a, in the ‘90s, an MOU with seven governments, three tribes, with the county, with the city of Anacortes, with the Department of Ecology and actually, the Skagit PUD, which is another government. They operate the water system in Skagit County. So we created a 50-year agreement and this was also a very historic nationwide agreement that was, people probably don’t know too much about it, but we set aside our senior water rights for 50 years. And you’ll never hear a tribe say they set their senior water rights aside for 50 years to have peace in the valley, to make sure that there was water left in the river. Out of that deal came an in-stream flow agreement that was put into place and it was the first in-stream flow set in Washington State in three decades and it was on the Skagit River. And so we were very happy that we created this document. After the 2001 in-stream flow rule was put into place, within two years the county basically did not like some aspects of that and so they sued [the Department of] Ecology for that in-stream flow rule. And so in 2006, that was supposed to be a 50-year agreement, it didn’t even last 10. And so in 2006, the seven parties, the county took [the Department of] Ecology to court. There were seven parties involved, including three tribes. The county and [the Department of] Ecology came to an agreement on the in-stream flow rule that they wanted amended. And so the county and [the Department of] Ecology in Thurston County in Washington State went to a judge that was not hearing the case, didn’t tell the judge there were five other parties, told them they came to an agreement. So the judge that was not hearing the case dismissed the case. And so now, unfortunately, we are now suing [the Department of] Ecology because they amended an in-stream flow rule for the first time in their history on the Skagit. And so what started out as a wonderful process is now going to go down that road of probably years of litigation over water. And as you know, water litigation can go on for two or three generations or longer.

Ian Record:

So, yeah, it sounds like just because you enter in an agreement doesn’t mean it’s going to turn out good. As Jaime has mentioned, it does take I think some due diligence to constantly maintain that relationship and make sure when, for instance, with the other entities they have turnover in leadership and turnover in terms of institutional memory and what people understand to be the spirit of the agreement if you will. That’s a constant struggle you face, isn’t it?

Brian Cladoosby:

Yes, it is. Another thing that we did at Swinomish was we’re the first tribe in the state to have an MOU with our county sheriff where we were cross-deputized and that’s been, that’s going on 20 years now where our officers have been cross-deputized and it just takes good leadership on the sheriff’s level to recognize that our officers are just as effective and trained not only at the state academy, but the BIA academy also. And so that has worked out wonderfully and the sheriff has recognized that, ‘Hey, I’ve got 17 more officers out there patrolling Skagit County,’ and the response time to the Swinomish Reservation could be anywhere from 10 to 40 minutes depending on where a county sheriff is and now the response time is just minutes. Having a good working relationship there and having an agreement with the sheriff is pretty good and that’s worked.

Ian Record:

This specific agreement you mentioned where, and we’ve seen a lot of tribes do this, Gila River being one of them, where you take this action of either taking over a service or coming to an agreement with another jurisdiction to jointly provide a service like law enforcement and you have these very dramatic improvements in things like response time. And that improves the overall quality of life for your people, does it not?

Brian Cladoosby:

Well, when they did a study, a county-wide study here a couple years ago of the crime rate in Skagit County and the safest place to live, the story started out in our paper by saying, ‘The safest place to live in Skagit County is on the Swinomish Indian Reservation.’ That’s pretty cool where you associate a lot of stereotypical attitudes towards Natives for high crime rate or high alcoholism, high drug use and there must be a lot of crime, but that was not the case when the study came out. So we were pretty happy to read that.

Ian Record:

So what, based on your experience, are some of the typical benefits that nations gain by forging these sorts of long-term sustainable relationships, either with other non-Native governments or with other tribes?

Brian Cladoosby:

Well, every generation wants to create something of a foundation for the next generation to build upon and it’s important that we try not to leave too much of a mess for the next generation to deal with. So relationship building is key. Everything in life is based on a relationship, everything. I don’t care what it is, with your wife, with your children, with your siblings, with your mom and dad, grandpa, uncle, aunt, coworkers, friends. Everything in life is a relationship and it takes trust and commitment to build those relationships and that’s what we have been doing with our neighbors at the local level, the county level, the state level and the federal level. And as you said earlier, these politicians change and so that educating usually starts over when the next elected official comes in or the next sheriff comes in or the next governor. But when you have long-term agreements that someone can walk into and you can set it on their desk and say, ‘Look, this is what we’re about. This has worked in the past and there’s no reason why it can’t work in the future.’

Ian Record:

So what advice would you give to other Native nations, your fellow Native leaders, for how to build these effective and sustainable relationships?

Brian Cladoosby:

Well, if I was an advisor and a consultant and making these big bucks advising these tribes and these other councils, I would just say that, sit down, and it’s more important to sit down with your enemies than your friends. A good case in point, we had what we called our Indian fighter in Skagit county, a county commissioner that was there for 12 years, and it was under his administration that the water, 50-year water agreement was turned upside down. And so it got to the point where I was tired of negotiating with the other two county commissioners who were friends because it would take two of the three to get anything passed. And so finally at the end I says, ‘I’m not going to negotiate with anyone except you,’ the person that was, who we perceived as the Indian fighter. I says, ‘You need to be at the table. You need to be sitting there. I’m tired of the others negotiating then bringing back agreements and you voting against it. I want you to be at the table.’ So when you have a perceived enemy out there who is just fighting tribes, that’s the nut that you have to crack and that’s the person that needs to be at the table with you. So my advice is to create relationships. Work harder on those that don’t agree with you because it’s not hard to convince your friends, it’s really hard to convince those that you perceive as your enemies.

Ian Record:

And isn’t it, doesn’t the building and sustaining of these kinds of relationships entail an education effort that goes just beyond those key decision-makers in the other governments, whether a county commissioner or a state elected official? Doesn’t it involve kind of this ongoing educational effort of the citizenry of both your tribe and also the larger public that’s going to be affected by the agreement at hand?

Brian Cladoosby:

Right because there’s a lot of perception out there,  For example, right now the tribe is engaged in a lot of issues surrounding protecting critical areas on the Skagit River. The Skagit River has all species of wild salmon still spawning in its tributaries. So I take that very, very important to be able to protect that natural resource for future generations, the salmon in the water. And so with that comes bumping of heads with different industries: the building industry, the dam operators, forestry, agriculture. And so when you have all these groups impacting the resource, sometimes even though you’re getting along with the electeds, you have these other groups that might not be elected officials that you also have to deal with. And so even though you’re getting along with the elected officials, there’s still these other groups that are not elected that you have to deal with. And there’s a perception out there that we don’t get along with the farmers or we don’t get along with the developers because we’re too radical on protecting the water and the salmon. And so yes, that is, even though you have a relationship with these [elected officials], you still have to deal with the general public who are out there impacting our resources.

Ian Record:

Because ultimately it’s that general public that’s going to apply pressure, good or bad, on those elected officials that represent them, right?

Brian Cladoosby:

Exactly, and when you have like for example the egg industry who has a very, very strong lobby and you’re trying to get them to protect the critical areas on their land, they’re like, ‘I’m not giving up any land. I’m not putting any buffers between my farmland and where the salmon spawn. That’s not the American way. I own this land, I can do whatever I want with it.’ And right now they’re using three chemicals on their fields that cause cancer, they’re known cancer-causing agents and their employees have to wear these alien suits to apply these chemicals. So a situation like that, an example like that where we’re saying, ‘Look, try to keep as much of that out of the water as possible.’ And their answer is, ‘Don’t have to.’ The county commissioners and the state has said that, ‘I can spray on all my land all the way up to these critical areas.’ So that’s an example there where you have to fight to protect what you, what has been given to you.

Ian Record:

I want to switch gears now and talk a little bit about leadership. You earlier today recited a story, a personal experience that you had involving your own father and your own sister. And it really speaks to me to the challenges, the very tough inherent challenges of being a tribal leader. Can you I guess relate that story and talk about how important it was that you responded to your father’s plea in the way you did and how,  I guess what message that sends to not only your family, but your entire nation about how decisions are going to be made.

Brian Cladoosby:

In life you’re going to make decisions every day, whether you’re a leader or whether you’re just average Joe Citizen and those decisions are going to impact you and there’s only going to be two outcomes from a decision you’re going to make: they’re going to bring you pain or they’re going to bring you pleasure. And so as a leader you have to, you have to rely on God and you have to have high standard of morals to be a good leader. And when you have to make decisions, you can’t base your decisions on what’s best for me or what’s best for my family or how am I going to profit or gain off this decision. And so when my dad calls me and he wants me to call the housing director to tell him to give my sister a job, that was really hard for me to say no to him, but I had to because the relationship with my director would have been totally different. Because if my sister messed up on the job and he wanted to fire her but couldn’t because he was looking over my shoulder because I told him to hire her, our relationship would have been totally different. I’ve got to give my directors the ability to make the choice and it’s just the way our Creator is, he gives us the ability to make a choice without putting any undue pressure on us and I felt I owed it to my director to give him that same opportunity. And so I don’t think a lot of my people know about that, that I had to do that. I never told very many people about that, having to make that decision. I didn’t advertise it, but I think it’s just important that as a leader you have to make the decision based on what’s right, not what’s best for you or your family.

Ian Record:

And whether you like it or not, you’re setting an example, aren’t you? You mentioned your housing director and this is a good segue into my next question and I’m going to pull a direct quote of yours here from a presentation you recently made where you said, ‘I have two Ph.D.s and they both work in my planning department.’ What do you mean by that statement and why do you choose to include it in your remarks?

Brian Cladoosby:

It is just a way to lighten up the crowd that I’m speaking to and just to say, ‘I’ve got two Ph.D.s,’ people think, 'Wow!' And then I say, ‘Yeah, they’re working in my planning department.’ My point there is to the fact that we’ve assembled some of the best and brightest minds in Indian Country and to be able to say that you have two Ph.D.s working on toxins in our shellfish and working on climate change and working on air quality is just an outstanding statement. I’ve got some of the best fish biologists in my organization, I’ve got attorneys, I’ve got accountants, I’ve got police, I’ve got medical doctors, I’ve got dentists. For a small tribe, I’m very proud of the infrastructure that we’ve been able to create. We’re not a big tribe and we’re not a big gaming tribe compared to some of those, but we put our money back into our resources, into people to help our community grow. And so to have quality employees like that makes my job a lot easier.

Ian Record:

I bet, and doesn’t it, isn’t that a necessity in this day and age, in the Indian Self-determination era, or as someone now called it, the 'Nation Rebuilding' era, when so many Native nations are setting very lofty goals for what they want for their present, what they want for their future? Doesn’t it necessitate building essentially these unrivaled infrastructures and bringing in talented people, cultivating talented people to make sure they can get the job done?

Brian Cladoosby:

It not only sends a strong message out there to the non-Indian community, it sends a strong message to Indian Country. And so the long-term goal is to be able to take and say, ‘I’ve got two Ph.D.s and they’re tribal members,’ that’s the ultimate goal. But yeah, it’s important to show those outside of Swinomish what we’ve been able to create and that it only makes us stronger heading into the future.

Ian Record:

You mentioned the fact that Swinomish has five-year terms. I was wondering if you’d give us a brief snapshot for those that don’t know much about Swinomish government about how exactly Swinomish government is set up. How are leaders elected? How did you rise to the position of chair? Just kind of the general snapshot of that because it does differ in fundamental ways from a lot of other IRA tribes.

Brian Cladoosby:

It’s amazing that in 1936 when we passed our constitution we probably had less than 200 members back then, that the council [saw] fit to have 11 members serving on the council, and you’ll see a lot of other tribes that have five, seven or nine and some of the very, very large ones that have 12 or 14. But I think it was important that they create 11 members to represent a lot of the people at Swinomish and to have five-year terms is unheard of in Indian Country. I’m yet to find another tribe across the nation that has five-year terms. And we have 150 years of council experience at the table and you cannot understate how important that is to have that continuity. And so I’m very proud that our elders did put that in place. We are elected. We have elections every year and we have two people up every year except the fifth year we have three people up. So it’s two, two, two, two, three, and so there’s not a large turnover ever on the council so it creates stability. And so we have elections once a year and after the elections we...the month following the general council meeting and the elections, the 11-member body elects the executive members of the council, so the chairman, vice chairman, secretary and treasurer. And so when I first got on council 25 years ago, I told my friend that, ‘One day I’m going to be chairman,’ and he laughed at me. When it did happen, we had a good laugh about that and so it’s just a lot of patience. I waited 12 years. That’s a long time on tribal council to rise to the top. On the 11th year I was the vice chair, then the 12th year the chair, but it’s the council that elects the members.

Ian Record:

I want to move, you’ve already addressed this 'nation is an island' issue, which was one of my follow-up questions, but I was wondering if you, you’ve been leading your nation since essentially the mid-1980s in an elected capacity. So that mid-1980s mark, that’s not long after the passage of the Indian Self Determination and Education Assistance Act. So you’ve been at the helm of your tribe for the better part of the Indian Self-Determination era and I was wondering if you could talk briefly about what that act has meant for Native nations. What did it do? How have some Native nations including Swinomish really taken the ball and run with it so to speak?

Brian Cladoosby:

Well, the key to any effective government, no matter what it is, is to have good strong leadership, and as I said we have a good strong leadership base at Swinomish. And so when this piece of legislation was passed, we were still struggling financially. We were debt managers basically at the tribal level and your typical BIA ready to come in and take over the tribe because our finances were all out of shape and we just cut back staff, cutting back hours, cutting back benefits. And so it, even though once that act was passed, there was no magic wand that came with it that made us this successful overnight. Just like anything else, it took time to be able to see some of the fruits of that, but slowly I think tribes across the nation are being able to -- through strong leadership, effective leadership -- being able to see the fruits of that legislation.

Ian Record:

What do you see as the future for Swinomish and for tribes across Indian Country, perhaps the big challenges on the horizon, maybe the resourcefulness that tribes can apply to overcome those challenges?

Brian Cladoosby:

Well, we’ve gone through the last 100 years of various different policies that have been basically implemented to try to 'benefit' our people, from the assimilation policy, which was very, very detrimental to our people where it basically took our children out of their homes and the government tried to create basically non-Indians or White men out of them and that was very detrimental. And so along with that came poverty. We were always a strong, sustained people at Swinomish where we never had to worry about anything. All of our natural resources were at our front door, there was no classes. Everybody’s wellbeing was taken care of and that assimilation policy brought unfortunately drugs, alcohol, poverty, unemployment. And so then with the advent of welfare, which created a...people, encouraged them to have a lot of babies. The more babies you had the bigger your welfare check. And I grew up in a welfare home waiting for the first of the month. And at Swinomish, it was jokingly referred to as Mother’s Day. Going forward you have to break those cycles. You have to break the cycle of alcoholism, you have to break the cycle of education, you have to break the cycle of being dependent on the government and getting back to being self-sustaining. And so they say it takes two generations to break the cycle, and the government was just about there in breaking our culture, two generations to break a cycle. So what we have to do going forward is to create an atmosphere where we want our kids to know how important education is. My grandfather went to boarding school. That was a very, very bad memory for him, just the abuses there were just terrible. So he did not encourage my mom to go to the White man’s school because of what he remembered. And so my mom’s generation didn’t put a high emphasis on education to the next generation, my generation. And so what we need to do is break that cycle and we’re seeing that in Indian Country now where we are recognizing that education is important. Alcoholism: I’m very proud that my granddaughter, for the first time in our family in 100 years, will be raised in a home without drugs or alcohol. That is awesome! And so we have to break the cycle of addiction. And so we have to create an atmosphere where our people want to work again and we have to have a homeland that they’ll have a place to live. So going forward, it’s just making sure that we have jobs, making sure we have housing, encourage education, and try to get our dependency away from drugs and alcohol, eliminate it as much as possible.

Ian Record:

Well, great, Brian. Really appreciate your time and your perspectives on all these critical governance issues and thank you.

Brian Cladoosby:

Thank you

Sophie Pierre: Enacting Self-Determination and Self-Governance at Ktunaxa

Producer
Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Sophie Pierre, longtime chief of the Ktunaxa Nation, discusses Ktunaxa's ongoing effort to reclaim and redesign their system of governance through British Columbia's treaty process, specifically Ktunaxa's citizen-led process to develop a new constitution that reflects and advance Ktunaxa cultural values and its priorities for the future.

People
Native Nations
Resource Type
Citation

Pierre, Sophie. "Enacting Self-Determination and Self-Governance at Ktunaxa." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Phoenix, Arizona. October 21, 2008. Interview.

Ian Record:

“Welcome to Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I’m your host, Ian Record. Today, I am honored to welcome to the program Sophie Pierre, who for the past 26 years has served as chief of the St. Mary’s Indian Band in British Columbia. She also serves as the chairperson of the Ktunaxa Nation Council, an organization formed in 1970 to promote the political and social development of its five member bands, which includes St. Mary’s. She is the past co-chair of the First Nation Summit and a recipient of the Order of British Columbia. Last but certainly not least, Chief Pierre also serves as co-chair of the International Advisory Council for the Native Nations Institute. Welcome, Sophie and thank you for joining us today.”

Sophie Pierre:

“Thank you very much, Ian. It’s a pleasure to be here.”

Ian Record:

“Sophie, I’d like to start with a question that I ask all of the guests on this program and that is how do you define sovereignty and what does it really mean for Native nations?”

Sophie Pierre:

“I think that what it really means was explained by chief who’s since left, his name was Joe Mathias, he was chief of Squamish and he always said that sovereign, that exercising sovereignty was that the people who are going to live with the results of a decision are the people who make the decision and to me that’s what sovereignty has always meant is that we are responsible for our own lives, we make our decisions and we’re the people that suffer the consequences of those decisions.”

Ian Record:

“Okay. As a follow-up to that, how do you define a healthy Native community? What does that look like at Ktunaxa?”

Sophie Pierre:

“Well, we’re, I think that the healthy Native community is something that I can actually see coming into fruition and that’s a community where the decisions that are going to affect that community are being made right at the community level and that they’re being involved or everyone in the community is being involved in those decisions. The treaty process that we’ve been going through has allowed us, I think, that opportunity to engage our citizens in many aspects of life, not just the social programs that used to be the norm. Now we’re talking about making land-use decisions and far reaching planning for development and those are all at the community level, at the citizen level that those decisions are being made and that’s really where I see a healthy community is where the citizenry are engaged and they’re making, they’re charting their own course for the future.”

Ian Record:

“So essentially, regaining ownership in their own future and in the government that’s going to make that future happen.”

Sophie Pierre:

“Exactly. Yeah, exactly. It’s that regaining of ownership and it’s that recognition that the decisions that you make, that they’re, it’s the people who are going to live with the consequences that make those decisions.”

Ian Record:

“You are the chief, as I mentioned, of the St. Mary’s Indian Band and also Chair of the Ktunaxa Nation Council. Can you tell us a bit about the St. Mary’s Band, the Ktunaxa Nation, and their relationship to one another?”

Sophie Pierre:

“Well, the Ktunaxa Nation is the Canadian relative of our nation, which is like many Indian nations in North America, was divided when the 49th Parallel was put in and the two countries were created of Canada and the United States, because we have Ktunaxa speaking people in Montana, Idaho and in British Columbia. So we are the Canadian group of Ktunaxa and the St. Mary’s Indian Band is similar to the other four bands within our nation. Those were created by the federal government when they were creating the Indian reservations just after the country of Canada became the Dominion of Canada. And so the St. Mary’s Indian Band is one of five Indian bands within our nation council and we have, our Indian reserve lands are held in trust by the government for our use and benefit as are all Indian reserve lands in Canada.”

Ian Record:

“The Ktunaxa Nation and I hope I’m pronouncing that correctly, ”

Sophie Pierre:

“Yes, you are.”

Ian Record:

“, or pretty closely anyway, works to advance the strategic priorities of its member bands through what it calls the 'Four Pillars.'“

Sophie Pierre:

“That’s right.”

Ian Record:

“What are these pillars and how does the Ktunaxa Nation support or advance those pillars?”

Sophie Pierre:

“The Four Pillars are lands, first and foremost, are our lands and our resources, that determines who we are as Ktunaxa and we know where our lands are because it’s in those, that territory where we have place names and when I’m describing our lands, that’s, I can give the place names, sort of the boundaries of it. And it’s our people, always, it’s the people of Ktunaxa ancestry, Ktunaxa speaking people and it’s our governance and then it’s our, the sort of overall what holds us together in terms of our, I’m wanting to talk about our social programs, but I don’t want to call it social programs. It’s the umbrella that provides services to the people. So it would be like our administrative side. So those are the four main pillars. And we determined that through about two years of discussion, of conversation with our people as we started to create our vision statement and that’s where that came from because we talk about strong, healthy people speaking our language and living in our traditional territory and sharing our resources and in a self-governing manner. That is our mission statement and it encompasses the four pillars.”

Ian Record:

“The Ktunaxa Nation, on behalf of its five member bands, has for several years now been engaged in comprehensive constitutional reform and governmental reform as well, which is very different in not only process but also terminology from constitutional reform by Native nations in the United States. What does the constitutional reform process entail for First Nations in Canada and what does it really look like?”

Sophie Pierre:

“It’s different in different parts of Canada. What we’re involved in in British Columbia through the treaty-making process has made it more, has made it, I think a little bit easier for us to actually get into the constitutional reform and to, maybe not so much constitutional reform as building a constitution, rebuilding our constitutions and that’s the discussion that I talked about earlier where I related that to sovereignty where there’s an engagement of your whole citizenry in order to develop that. So now we see, as we form our, build our constitution that that is being brought back to our citizens on a regular basis so they have real input into that. And what it’s going to be at the end of the day is, well, like what constitutions are, they’re the basis, they form the basis of our government and we are looking at recreating, rebuilding the governing structures that we had as Ktunaxa before contact. We, as an Indian band, of course, have been affected by the Department of Indian Affairs and their legislation called the Indian Act. We have, and I have served as such, the Indian Act-elected Leadership. And so you had mentioned that I’ve served 26 years as a chief, that’s something that I’m very grateful for having had that opportunity, but it was through the Indian Act process where we have elections. My grandfather was the last non-elected chief in our community and he stepped away from his position and passed it on in the traditional manner in 1953, but the Indian agent came in and said that the people had to do a vote according to the Indian Act, that that wasn’t, the way that we used to do it wasn’t considered democratic or whatever. So they changed it and now we’ve been having these Indian Act elections. So the, it’s sort of a melding of the way we did things traditionally to the way that we see us being able to move forward and it’s taking the 'Four Pillars' that have been developed by our people in our mission statement and determining a way that we can bring life to that mission statement so it’s not just on a piece of paper hanging on a wall -- it’s something that we live every day.”

Ian Record:

“So what compelled the Ktunaxa Nation to undertake not just constitutional reform, but as you say, but essentially rebuilding the constitution from the ground up? So, what compelled the nation to chart that course and what have been the major outcomes thus far?”

Sophie Pierre:

“Well, the, I keep mentioning the treaty process that we’re in and that really was sort of the trigger. I think that we may have been involved in this kind of discussion anyway, but probably at a lot slower pace and probably with not as much engagement of our total citizens as we have been able to through the treaty process. I think the most exciting outcome that this, that we’ve seen is the understanding and the, I don’t want to use the word 'buy-in,' but I can’t think of what else to call it, but people really believe that whether or not we sign a treaty with the other levels of government, the federal and the provincial governments, that what we have, that what we’ve recreated for ourselves, what we’ve regenerated in terms of our own governing structure, that that is really meaningful to our people and you can speak to people just on the street and they know when we talk about constitution rebuilding, we talk about recreating our government, we talk about just governance in general, people know what we’re talking about and I find that, ”

Ian Record:

“So that part of it’s taken on a life of its own, essentially.”

Sophie Pierre:

“Absolutely, yeah. And so, I mean, that’s a really positive outcome for us. And I wonder whether or not we would have been able to have that kind of an outcome if we weren’t involved, engaged in this particular negotiation with the government, but I do make that point that we may or may not reach a treaty. In fact, our American cousins tell us, ‘Why do you want to sign a treaty with the governments? They never live up to them, so why are you engaged in this?’ But for us, it’s been a really good process for our own people of engaging ourselves.”

Ian Record:

“In past conversations, you have pointed to the act of defining citizenship or more appropriately redefining citizenship as a critical first step in the Ktunaxa Nation forging a vibrant future of its own design. How so?”

Sophie Pierre:

“Well, I think that the, one of the key elements or one of our key pillars of course are our people, and our people embody our language and culture and you don’t have a choice what you’re going to be born as. Any of our people, when they’re born, we’re Ktunaxa, just as Italians are Italians and it doesn’t matter if they marry a Chinese [person], it doesn’t change them from being Italian. Well, same thing with us. And there’s been so much interference from government in terms of our own Aboriginal identity, Indigenous identity -- and I’m talking about all governments, not just in Canada -- that I think that one of the key elements of rebuilding nations is to take back ownership of the recognition of our own people. And I know that it creates difficulty because there’s a lot of, there’s very few pure blood as you would imagine, as you could say in this day and age just because of all the interaction that we’ve had with the rest of the world. But that doesn’t take away from someone who can trace their ancestry, if you can trace your ancestry to being Ktunaxa, then you’re accepted as Ktunaxa. I’ve mentioned before that our language and culture is very important and in the Ktunaxa language the word for our ancestors is '[Ktunaxa language]' and the root word of that '[Ktunaxa language]' comes from '[Ktunaxa language],' which is a root. You talk about the roots of a tree and any kind of a plant it’s '[Ktunaxa language]' and for, when you put those two words together '[Ktunaxa language],' meaning 'our roots.' And so if you can trace your ancestry to being Ktunaxa, then that’s who you are and you’re accepted as such. So that it’s not a matter of again the government interference saying that there are certain percentages or if you’re, like we had in the Indian Act. For a while, if you’re an Indian woman and you marry someone who’s not a status Indian, then you lose your status. That’s fine, that status was determined by the federal government to begin with, but it never ever changed the fact that that Indian woman is and always will be an Indian and so will her children.”

Ian Record:

“So has that taken some getting used to among some community members, ”

Sophie Pierre:

“Sure it has.”

Ian Record:

“, who have for so long relied on that blood quantum?”

Sophie Pierre:

“Absolutely, yeah. And I expect that it will affect probably all of our people in that way wherever there’s been government interference in terms of determining who the people are. So again it goes back to your original question, what is sovereignty? Sovereignty is being able to determine who your own people are and welcoming all people that are of your blood, whether they’re full blood or one-sixteenth. If they can trace their ancestry, that’s what that word means '[Ktunaxa language],' you can trace your ancestry, you can trace your roots to whatever nationality and I think that it would be the same if you’re English or German. If you can trace your roots, there’s sort of this Pan-Canadian or Pan-American, like what is that? They really should, everyone has roots from somewhere else other than the Indigenous people. We’re the ones that have roots here.”

Ian Record:

“And in some way doesn’t that entail at least some level of cultural engagement? So what you’re saying is you have to be able to trace your roots. It’s very hard to do that unless you’re participating in that culture, right?”

Sophie Pierre:

“Exactly, that’s right. Yes. Yeah, we’re going to have Ktunaxa people that probably will never become, will never come home, will never be part of our activity of our government, of our communities, simply because they don’t choose to. Maybe they’re part Irish and that’s the roots that, that’s the [Ktunaxa language] they’ve chosen to follow. That’s fine. What I’m saying is that when a person chooses to follow their Ktunaxa [Ktunaxa language], then we have a responsibility to that person, to that individual.”

Ian Record:

“The how of constitutional reform, of government reform is as important as the what. That’s been our experience at the Native Nations Institute and research we’ve done. What process has your nation employed to ensure that the governmental reform that you’re undertaking proceeds the way you envisioned and what have been the keys to that success thus far?”

Sophie Pierre:

“Well, I think that we’ve had the fortune, we’ve been fortunate to have the acquaintance of such people as Stephen Cornell and Joe Kalt and Manley Begay. I remember that when we first started talking about this that Stephen and Manley came and spent some time with our leaders, and it was really interesting because all of our leaders and particularly the older people who maybe didn’t speak English as well, but they were all saying the same thing and they could really connect with the discussions that we were having around the necessity of the definition of our governance being formalized if you will into a constitution. Like other Indigenous people, we come from an oral culture. So when we talk about and when we have a good understanding, and particularly when we use the Ktunaxa language, it’s all in an oral manner, but you take that to the next level and you start putting that down into a constitution and it makes sense to people when you do that.”

Ian Record:

“So if you can give us a little bit more specifics about the process that Ktunaxa Nation has employed to engage in governmental reform and what is really key to the success thus far, because it’s a very difficult process. It’s confronting a lot of colonial legacies that a lot of people would just as soon not confront.”

Sophie Pierre:

“Absolutely. The main activity that we’ve done is that all of our discussions have been open and these go back again to the negotiations that we have with the other two levels of government. We chose that ours would be called a citizen-led process. Unfortunately, some of the Indian nations in British Columbia that are involved in treaty go behind closed doors and it’s their lawyers that are negotiating and then they bring something back to the people later. We knew that that’s not what we wanted, that wouldn’t work for us. It might work for other people, but it wouldn’t work for us. So we started with a citizen-driven process right from day one and so it was that engagement of our citizens from the beginning. And I’ll tell you, that wasn’t easy because the first reaction we got was, ‘Yeah, right. You’re going to ask us a bunch of questions, but then it’s going to sit on a shelf somewhere. Our input is never meaningful, our input never gets into the final action,’ but I think that the, well, not I think, I know that our citizens are very pleased when they see their own thoughts, their ideas, they see themselves as we move forward in the final documents that are coming out that are reaching fruition now and people can see the input that they’ve had. And so then of course it’s more meaningful for them.”

Ian Record:

“The Ktunaxa Nation has made a concerted effort to get its young people heavily involved in governance and governmental reform. Why is this so critical?”

Sophie Pierre:

“Because they’re the ones that are going to live with the consequences and of course that underlies this whole thing -- is they’re the ones that are going to live with the consequences. I’m going to be long gone and it’s going to be the younger people that are going to have to put this into fruition for us and for their children and their grandchildren. But I think that how we’ve done that is maybe as important, it goes back again to when you engage people to actually make them feel that their engagement is worthwhile. So that it’s young people that we’ve had out there that have been leading the meetings, they’re the liaisons that go into the community, that sit at the kitchen tables and talk with people or go into Band meetings or make presentations at nation meetings. You don’t always have the old-timers like myself up there speaking. No, it’s, the presentations are made by the people that are actually out there gathering the information.”

Ian Record:

“And how have perhaps the older generations responded? Are they inspired by the eagerness of the youth?”

Sophie Pierre:

“I think as a whole, yes, and of course there’s always some old curmudgeon that sits somewhere thinking that, ‘These kids should be listening as opposed to talking,’ but I think that you learn by doing and I think that the majority of people recognize that.”

Ian Record:

“One of the great success stories of the Ktunaxa Nation is the St. Eugene Mission Resort, which I know you’re very proud of.”

Sophie Pierre:

“Yes.”

Ian Record:

“Can you tell us in a nutshell the story of St. Eugene and how what is now the resort and a major economic development engine for your people, how that story is emblematic of the Ktuxana Nation’s effort to reclaim their culture, their identity and their future?”

Sophie Pierre:

“You’re right, we are very, very proud of the St. Eugene Resort and because, I think the most important reason is that we chose to take something that was so negative in our past and turn it into something positive for our future. I say it that way because it really was a choice. When the residential school was shut down in 1970, the oblates, the priests who ran the school, the priests from the Catholic Church who ran the school, they turned over the property to the federal government with the understanding that the federal government would then turn it over to our tribal council. And when that was done, we were a bit unsure on what we were going to do. It’s a huge building and we could have turned it into like another school or health facility, some social-type program that would always be needing an infusion of cash; [we] chose instead to turn it into a business. And so we needed to have the approval of our people to do that and there were some people that told us that we should just knock it down. They said like that was such a horrible place, they suffered so much in that building that they wanted to see it just flattened, take it off the face of the earth. However, there were a greater number of people that understood what we were saying about turning it into something positive instead of knocking it down. So we made that choice rather than knocking it down to turn it around, and it was not easy and in fact it was very, very challenging. But we persevered and we were successful and we now have two other First Nations partners, Samson Cree Nation from Alberta and M’Chigeeng First Nation from Ontario, and it’s doing very well.”

Ian Record:

“So has that decision that you talked about, has that helped at least in some measure the community to begin healing from the experiences that took place there?”

Sophie Pierre:

“Very much so. I think a lot more so than if we had just knocked the building down. I think that actually seeing what it’s become and knowing that we did that ourselves, knowing that we made that decision and that choice to do that ourselves, I think that’s just been phenomenal and it really has had an impact. And what you see now is the younger generations refer to that as the resort. It’s only my generation that refers to it as the former school. It’s something positive and that’s what we wanted to do.”

Ian Record:

“So for younger generations and those to come it’s going to mean something a whole lot different then.”

Sophie Pierre:

“Absolutely, yeah. Yeah. For them it means a place to work, it means a place to go and recreate and it just means so much more and it’s so different from what it meant to us, to my generation.”

Ian Record:

“So you’ve been a leader for quite a long time, probably even longer than you were a leader in an elected capacity, I would imagine in my interactions with you. Pretend that I am a newly elected tribal leader who has been chosen to serve his nation for the first time. Drawing on your extensive experience as I’ve talked about, what advice would you share with me to help me empower my nation?”

Sophie Pierre:

“Talk to people, always just go around and meet with your citizens and talk with them. From elders, you’re going to learn so much from the elders, you’re going to learn from people who’ve served on council and you’re going to learn what people need when you talk to the younger generations so that’s what I, when I, the other piece of advice that I always give is that being elected is a privilege and it’s something that you have to, you are taking on a responsibility and it’s not, it’s not a position of power, it’s a position of serving your people. That’s what being elected means and you can only do that well if you know what it is your people need and assuming that your people need one thing when you haven’t gone out and talked to them about it is not a good thing to do.”

Ian Record:

“That’s interesting you mention this kind of axis between power and responsibility because we hear that so often among tribal leaders of nations who are really breaking away as we like to say, who are really finding success with their efforts to rebuild their nations in a way that they see fit and not perhaps a way that outsiders see fit -- we see that axis kind of, that axis pivoting on this issue of clearly defining your roles and responsibilities and that the conversation around leaders, it’s about responsibility and not so much power is when those roles are clearly defined. When they’re not clearly defined, it’s very hard to get away from the power issue because there’s nothing to keep you from overstepping your bounds.”

Sophie Pierre:

“Yeah, exactly and I think that that’s where it’s the process that we’ve gone through just in this last little while, because things are changing for us, and we are starting to see more financial resources coming into our communities for example, financial resources which are not grants from government, these are our own revenues, our own source of revenues, and it’s imperative that we’re ready for that and that those decisions have been made on how those resources are going to be shared among everyone before it actually starts to flow and how everybody is going to be able to benefit from it. So having that kind of responsibility and understanding that kind of responsibility as opposed to seeing it as power and using it over people -- we’ve seen the results of that. I don’t want to take any community, but you’ve seen the results of that. It’s not a good place to be.”

Ian Record:

“You kind of stole my thunder with this next question already on the advice question I asked you, but one of the things you and I have talked about in the past is this issue of effective leaders not just being decision-makers but effective leaders being good educators and good listeners and really what we’re talking about, we’ve talked about is this issue of citizen engagement, that it’s not enough just to engage your citizens come election time, but that to be an effective, empowered leader you have to be engaging your citizens all the time and that comes in the form of one-on-one personal interaction to getting the word out on the internet, whatever it might be. Can you just discuss your perspective on this issue of leaders as educators, leaders as listeners and how that plays out in your community?”

Sophie Pierre:

“Well, I think that it’s important that when a person is in a position of leadership that you also recognize the, not just the responsibility but the onus that is on you to ensure that people feel confident that you’re going to be able to represent what they need both within the community and also on the outside. So I think that that’s another very important part of leadership is to be able to go into the wider society and talk about the issues that are important to you like say some of the land development that’s going on and I would think [is] affecting all Indian nations. I was listening to that, the presentation just a little while ago from Ak-Chin and how they’re taking on the development that’s going on around them and getting, and their leadership made sure that the community that has infringed all the way around them is aware that, what the outside community is doing is going to affect life in their community and I think that that is a very important part of leadership. So there’s the leadership within the community and you’re absolutely right about, that you need to have input and you need to be able to listen to everybody’s point of view. And half the time, they’re not going to agree with what you’ve said and that’s okay. You engage in those discussions and eventually come to an agreement where that everybody can live with. So you engage your own citizens internally, but then you also have to engage the people that live around you and you have to do it in such a way that it’s respectful, but it’s also forceful so that people will listen.”

Ian Record:

“So really what you’re talking about in terms of leaders as educator,s it’s not just a challenge to educate your own citizens but there’s this kind of constant challenge of having to educate those people outside of your nation that are making decisions that are going to impact your nation’s future.”

Sophie Pierre:

“Absolutely, yes. And I think that that is becoming more and more a very important part of leadership. I think it probably always has been but it has not really, it hasn’t played as prominent a role, but I think that nowadays you cannot be a leader in your community without being able to communicate with the wider society about what it is that your nation or your community is involved in, and I think that one of the very important messages to make, too, is how much our communities are part of the larger community so to speak in terms of, even just in terms of economics when you figure how much money is actually spent in the local town of Cranbrook, for example, by people from my community and how much the businesses rely on that and what would happen if we were to suddenly not support Cranbrook business anymore. I think that it’s those, that kind of being real players in the whole life of the region. I think it’s very important.”

Ian Record:

“One of your neighboring nations, the Osoyoos Indian Band, shares this, at least their leadership shares this perspective about the importance of their nation going out and educating again these outside decision-makers whose decisions impact the nation. They made a concerted effort to do that, particularly around economic development as you mentioned and the incredible ripple effect that takes place when economic development takes place in Aboriginal communities.”

Sophie Pierre:

“Absolutely. That’s the point that I always make is that when we’ve got any financial resources coming into our community, we don’t squirrel it away in some Swiss bank. We go and spend it in the local community so it’s, it makes a big difference.”

Ian Record:

“We call it the 'Walmart effect' down here in the United States.”

Sophie Pierre:

“Yeah.”

Ian Record:

“It was interesting, in preparing for this interview I happened to Google your name and one of the first links that popped up was YouTube, and I had occasion to review a video that was recently posted on YouTube about the Farnham Blockade. Can you tell us a bit about the background to that story and why you felt it so important to take part in the blockade?”

Sophie Pierre:

“Well, it’s a major development, major tourism development on a very fragile glacier and the whole development itself from the get-go has been of great concern to us because we see that it’s, the development is of such a magnitude that it’s going to have impacts not only on the environment, which it’ll have a very detrimental impact, but on the wildlife and on the people that live there. It’s going to affect us in every way possible. So we’ve always been concerned about that and we have not been able to find any reason from the studies that have been done and everything that has been given to us, we haven’t been able to find any reason to support that level of development. And the provincial government has been kind of interesting in the position that they’ve taken here, because on the one hand they say that people in the local region should be the ones to make a decision because they’re the ones that are going to be impacted by the development. But on the other hand, they do these kind of, it’s almost underhanded actions that they take, where we found out in terms of the Farnham Incident, we found out that the provincial, one of the provincial ministries had actually transferred a license that they had given to a non-profit, Olympic ski organization that trains Olympic skiers, they had transferred that tenure from this non-profit to the development, to the profit-oriented group and in a very major way they transferred this tenure and hadn’t told anyone. And so when my colleagues brought this up, the response from the ministry was, ‘Oops, I guess we forgot to tell you.’ It was just very, very irresponsible kind of actions. So I think that the government really need, the provincial government in this case, they really need to put their own actions in what they say that they’re going to do. If it’s important for local citizens to make the decisions about the areas that they live in, then they should be allowed to do so and not have the provincial government step in and decide what’s going to be in our best interest. I think we’re beyond those days, I would certainly hope that we are anyway.”

Ian Record:

“So what do you see for the future of this issue?”

Sophie Pierre:

“Well, right now I think that we’re going to have to continue to fight it, quite frankly. I don’t see a whole lot of support coming from the province, I don’t see a lot of leadership coming from the province and the local people, I think at the last count and they do it fairly regularly, it’s like 85 or 90 percent opposition by our local citizens and I’m not talking just about the Aboriginal people of which our tribal council has had a formal position that we are very concerned with the proposed development because of its size. It doesn’t take a rocket scientist, as they say, to figure out that our environment is in real dire straits and you take a look at that poor glacier. It is just ravaged and they’re talking about building a resort on it so that people can ski on it in the summertime. At some point, rational thought has got to start kicking in.”

Ian Record:

“Do you feel your nation and others have a leadership role to play in that regard?”

Sophie Pierre:

“Oh, absolutely, and we are very, we very much step up to the plate with that one.”

Ian Record:

“What do you see for the future of First Nations in Canada when it comes to self-determination and specifically governance?”

Sophie Pierre:

“That’s an interesting question because the, on the one hand, our Canadian government would probably say that there’s a very large, there’s a big move towards self-determination and governance. In fact, they’ve got programs called 'Self-Determination' and 'Self-Governance.' And of course that is the exact opposite of self-determination and self-governance. However, I think that there’s a couple things that are at play that will support self-determination and self-governance. In British Columbia, we have the treaty process, which some of us are taking advantage of in that way to re-establish our own governments but then there’s, we’ve also been fortunate in some of the court decisions that have been made, the legal cases that have been made that have led the government to actually vacate areas that they assumed that they had some say, and so we’ve been able to enforce Aboriginal title, Aboriginal rights in that way so yeah, I think that that’s, that’s been sort of an interesting outcome of some of the court decisions.”

Ian Record:

“So what about your nation specifically? You mentioned earlier on in the interview about...that strategic planning has been a key for you as you’ve moved towards governmental reform for instance, you’ve got a strategic plan in place or a strategic vision of where you want to head. What does the future look like for Ktunaxa Nation and how is the nation today working to get there?”

Sophie Pierre:

“It’s our mission statement. I’ve mentioned that it covers all aspects, it covers the Four Pillars that are the Bible for us, so to speak. And so for our organizations, our governments, our elected leadership, we know that that is our path and so if the government comes along with a new program, we measure it by our mission statement. Does it fit with our mission? If it doesn’t, carry on, move on to somebody else, leave us alone. We have our path, we’ve set our sights on what our nation is going to look like and it’s going to be the embodiment of that mission statement and if other people’s actions don’t fit in with that, then we don’t become involved.”

Ian Record:

“So what you’re saying is that this mission statement, which is essentially as you’re talking about your strategic plan, it’s where you want to head long-term.”

Sophie Pierre:

“Yes.”

Ian Record:

“It gives you a basis upon which to decide matters that are before you, day to day.”

Sophie Pierre:

“Exactly, yes.”

Ian Record:

“And that essentially, does that not really empower you as a leader?”

Sophie Pierre:

“Absolutely and well, yeah, it’s actually, it makes it a lot easier I think to start, when you start juggling things and particularly as we’ve come to this place where we’re at and we’ve had to depend so much on other governments to...and other sources of resources coming into our communities, whether they’re financial resources or whatever to keep our communities moving, we’ve always had to react to somebody else’s agenda and it’s been so empowering to say, ‘We don’t have to do that anymore. We know what it is we want: strong, healthy citizens speaking our language and practicing our culture in our homelands in a self-governing manner and looking after our own lands and resources.’ It covers all those areas and so if something comes along that doesn’t fit in there, then like I said, I don’t have to worry about it. As chief, I don’t have to worry about it. And the next administration, they will find that it’s going to be a lot simpler just to follow that plan.”

Ian Record:

“Well, Sophie, I’d like to thank you very much for taking the time to join us today. I’ve certainly learned a great deal and I’m sure our audience has as well. That’s all for today’s program of Leading Native Nations, produced by the Native Nations Institute and Arizona Public Media at the University of Arizona. To learn more about this program and Sophie Pierre and the Ktunaxa Nation, please visit the Native Nations Institute’s website at www.nni.arizona.edu. Thank you for joining us. Copyright 2008. Arizona Board of Regents."

Walter Echo-Hawk: In the Light of Justice: The Rise of Human Rights in Native America & the U.N. Declaration of the Rights of Indigenous Peoples

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Indigenous Peoples' Law and Policy Program
Year

Walter Echo-Hawk, legendary civil rights attorney, discusses his latest book In the Light of Justice: The Rise of Human Rights in Native America & the UN Declaration of the Rights of Indigenous Peoples, stressing the need for Native nations and peoples to band together to mount a campaign to compel the United States to fully embrace and implement the UN Declaration on the Rights of Indigenous Peoples.

Native Nations
Resource Type
Citation

Echo-Hawk, Walter. "In the Light of Justice: The Rise of Human Rights in Native America & the U.N. Declaration of the Rights of Indigenous Peoples." Indigenous Peoples' Law & Policy Program, James E. Rogers College of Law, The University of Arizona. Tucson, Arizona. November 20, 2013. Presentation.

James Anaya:

“The Indigenous Peoples Law and Policy Program is pleased to host a range of thought-provoking speakers in multiple settings over the course of each academic year as part of our multi-faceted program of learning and outreach. This evening we are especially privileged to have with us one of the truly groundbreaking advocates and thinkers of recent decades on issues concerning Native Americans in the United States and abroad, Mr. Walter Echo-Hawk.

A citizen of the Pawnee Nation, Walter Echo-Hawk is a distinguished lawyer who for years was one of the leading attorneys of the Native American Rights Fund, a former justice of the Supreme Court of the Pawnee Nation and now the Chief Justice of the Kickapoo Supreme Court, an author with numerous influential books and articles, and an activist whose energies extend to innovative initiatives to support Native American arts and culture. His vast legal experience includes precedent-setting cases involving Native American religious freedom, prisoner rights, water rights, and rights of reburial and repatriation. His work litigating and lobbying on Native American rights goes back to 1973 and much of that work occurred during pivotal years when America witnessed the rise of modern Indian nations. As American Indian tribes reclaimed their land, sovereignty and pride in an historic stride toward freedom and justice, Walter Echo-Hawk worked at the epicenter of a great social movement alongside tribal leaders on many issues, visiting Indian tribes in their Indigenous habitats throughout North America. He was instrumental in the passage of numerous important laws like the Native American Graves Protection and Repatriation Act of 1990 and the American Indian Religious Freedom Act amendments in 1994.

As a scholar and author, Walter Echo Hawk’s numerous published works include his acclaimed book In the Courts of the Conquerors: The 10 Worst Indian Law Cases Ever Decided. This is an outstanding and insightful critique of the evolution of federal Indian law doctrine and its social implications. This evening we’re privileged to hear Walter talk about his most recent book In the Light of Justice: The Rise of Human Rights in Native America & the UN Declaration on the Rights of Indigenous Peoples. In this book, Walter explains how the harm historically inflicted on the Indigenous peoples in the United States still commands attention because of the ongoing affects of the past on conditions today. He helps us understand why justice requires confronting the combined injustices of the past and present and he points us to tools for achieving reconciliation between the majority and Indigenous peoples focusing on the United Nations Declaration on the Rights of Indigenous Peoples of the United Nations as such a tool.

This UN declaration is an expression of standards grounded in fundamental human rights and a global consensus among governments and Indigenous peoples worldwide. It was adopted in the year 2007 by the UN general assembly with the affirmative votes of an overwhelming majority of UN member states, [and] expressions of celebration by Indigenous peoples from around the world who had been long advocating for the declaration. At the urging of Indigenous leaders from throughout the country, President Barack Obama announced the United States’ support for the Declaration on December 16, 2010, reversing the United State’s earlier position and he did so before a gathering at the White House of leaders of Indigenous nations and tribes. In his wonderful new book, Walter Echo Hawk shows us the seeds of change in the Declaration. “With the Declaration,’ he tells us, ‘we are in a rare moment of potential transformation, of a tectonic shift toward a new era of human relations that extends the promise of justice beyond the boundaries set by the past. It is a move farther along the path of greatness for which America yearns.’ This book inspires and moves us to seize that moment. Please welcome, please join me in welcoming Walter Echo-Hawk.”

[applause]

Walter Echo-Hawk:

“Well, thank you so much Professor Anaya for that very kind and generous introduction. I have admired Professor Anaya for many, many years. We first met in the mid 1970s when Jim was the General Counsel to the National Indian Youth Council [NIYC] and I was on their board of directors, and at that time he was deeply involved in civil rights litigation on behalf of NIYC and international litigation and international tribunals as well way back in the early 1980s. I’ve admired your work and your groundbreaking career for many, many years in the field of international human rights law and I think that your work has really opened new vistas for our Native people here at home and I’m very, I think, indebted to you also for writing the foreword to my new book In the Light of Justice and I’m grateful for that. It just put a lot of pressure on me to do my best because I have respected your work so much over the years.

I want to thank Professor Tatum, Melissa Tatum, the Director of the Indian [Peoples] Law [and Policy] Program here, Professor Mary Guss also as well for your kindness in showing me around town, making my presence possible here this evening. And lastly, I thank each and every one of you for coming tonight to be with me here. It’s certainly my great honor and privilege to be here at the Law School. This ranking law school is well known throughout Indian Country and among my colleagues in the practice of federal Indian law as being an important center for Indian law and policy. Some of the very brilliant scholarship that has emanated here from the Law School with folks like Professor Anaya and the other faculty, all-star faculty that is assembled here at the Law School including Professor Williams, Rob Williams, have truly opened some major vistas for Indian tribes and my colleagues throughout the nation. So I’m very glad to be here, very honored to be at this center of knowledge here. I feel like I’m very at the fount of knowledge if not very close to it.

And so I’m very honored to give a presentation this evening about my book In the Light of Justice, and this book is about a brand new legal framework for defining Native American rights here in the United States. The book does basically three things. First, it examines the landmark UN Declaration on the Rights of Indigenous Peoples that Professor Anaya mentioned. This is a landmark international human rights instrument that creates a very comprehensive stand-alone legal framework for defining the rights of Native Americans as well as Indigenous peoples worldwide. As Jim mentioned, this UN declaration was approved in the year 2007 by the General Assembly. It was endorsed by the United States government in the year 2010 so it’s technically a part of U.S. Indian policy and today 150 nations around the world have also endorsed this UN Declaration, making it the new order of the day it seems to me. Secondly, this book goes on then to compare our existing law and social policy with regard to Native Americans to these UN standards, these minimum human rights standards that is established by the Declaration to see how well our domestic law stacks up against these human rights standards. And then thirdly, the book urges our nation to undertake a social and legal movement to implement these UN standards into our law and social policy.

What I’d like to do tonight is to basically cover three areas with you this evening. First, I’d like to talk about why I felt compelled to write this book. Secondly, I want to describe briefly this declaration and this new human rights framework for defining Native American rights. And then thirdly, I want to discuss some of the findings that I made in my comparative legal analysis and some of my conclusions that I drew in this legal analysis of the declaration and especially to talk about the need for implementing these standards in our own nation here in the United States, including some of the implementation challenges that our generation or this generation will face in implementing these UN standards into our law and social policy. But before I begin, I need to add a caveat here and that is that I am not and don’t hold myself out to be an international law expert. I haven’t gone to the UN, I haven’t gone to Geneva, I did not participate in the making of this declaration and the book simply examines this declaration and its implications purely from the standpoint of a domestic practitioner of federal Indian law to look at the possibilities of this in terms of strengthening our existing law and policy. So with that, I think after I hope we’ll have time for some questions and answers and then we’ll be able to sign a few books afterwards and I think this’ll be a rare opportunity especially if James joins me in signing some books. So you’ll have the signature of both of the authors of this book. So it should be a collector’s edition for you book collectors out there.

But at the outset, I’d like to just begin with the premise of this book and that is this -- that I believe that this is a historic time for federal Indian law and policy and of course we know that federal Indian law is our current legal framework here in the United States for defining Native American rights and we know through our experience in the modern era of federal Indian law that federal Indian law basically has two sides to it. On the one hand, it has some very strong protective features that are protective of Native American rights that arise from the doctrine of inherent tribal sovereignty and the related protectorate principles that was articulated in Worcester v. Georgia, and within that protective side of federal Indian law in the last two generations our Indian nations have made great nation-building advances in this tribal sovereignty movement and we can look around the country and see the fruits of that effort all around us, and it’s been described by Charles Wilkinson as giving rise to our modern Indian nations rivaling the great American social movements, the environmental movement, the women’s movement, the civil rights movement in American history. But on the other side of the coin, federal Indian law also has a dark side to it as well with some very clear anti-Indigenous functions that are seen in a whole host of nefarious legal doctrines that were implanted in the body of federal Indian law by the Supreme Court many decades ago, in numerous unjust legal fictions and a significant body of the jurisprudence of racism as defined by Webster’s dictionary book can be found in some of these Supreme Court decisions that are still the law of the land today. So this dark side to federal Indian law holds us back as Native people, it makes us vulnerable and it also keeps us poor. And so we have these two sides of our existing legal framework.

But today as I mentioned is a historic time because we can now clearly see two legal frameworks for defining Native American rights. Our old legal framework of federal Indian law and then out on the horizon we can see this brand-new human rights framework out on the horizon and it reminds me of an old Pawnee song about a spotted horse that we see way far away and it’s coming our way and it makes us feel good because we know it’s bringing good things for us and that’s how this declaration is. And so we can clearly see these two frameworks now and we stand at a crossroads today between these two legal frameworks here in the United States and I think that the challenge of our generation of legal practitioners and tribal leaders and Native American peoples is to basically work to save the very best from our old framework, our most protective features and to merge that with this new human rights framework to create a stronger body of law that is more just and to make it a seamless…to merge the two frameworks into a strengthened and more just legal framework for the 21st century in a post-colonial world.

So I want to turn to my first task tonight and that is: why did I write this book? I was motivated by three reasons, the first being the need to strengthen federal Indian law. As I’ve alluded to earlier, although we’ve made great strides under our existing legal framework, I feel like we have stalled out in recent years because there’s been a gradual weakening of federal Indian law since 1985 with the U.S. Supreme Court trend towards trimming back hard-won Native American rights beginning with the [William] Rehnquist Court in 1985. Court observers tell us that Indian nations have lost over 80 percent of their cases into the present day, in some terms losing 88 percent of our cases, and that frightening statistic means that prison inmates fare better before the high court than our Indian nations. That’s caused some of our leading legal scholars to ask, ‘Is federal Indian law dead?’ And then we have this dark side to our body of law that I mentioned earlier and that compounds this problem it seems to me. Scholars have thoroughly studied this dark side to federal Indian law. They’ve identified these factors there that make our rights vulnerable today. These nefarious legal doctrines have been traced to their origins in medieval Europe. These internal tensions that are found in our body of law between self-determining peoples that have [an] inherent right of tribal sovereignty on the one hand being hostage to these doctrines of unfettered colonialism, conquest and colonialism. You can’t have these two conditions, they’re mutually incompatible so we have these inherent tensions that struggle…are pitted against one another in our body of law. And so that’s not questioned today in the year 2013 in any serious way, but we’ve lived with this body of law since 1970 at the inception of the modern era of federal Indian law. Our litigators basically took this legal framework as we found it. We didn’t create federal Indian law, we simply took this legal framework as we found it and tried to make the best of it. We tried to coax the courts into applying the most protective features of this legal framework and then simply living with this dark side. But it seems to me that now in recent years we have stalled out. I think we’ve faltered in recent years. I think Indian Country is huddled against an assault by the Supreme Court for its further weakening our legal rights and we’ve stalled out it seems to me at the very doorstep of true self-determination as that principle is broadly defined in modern international rights law and it may be that our Indian tribes have come as far as we can go under this existing regime and to go any further we’re going to have to reform that legal framework. I think there’s an axiom here and that is that a race of people can only advance so far under an unjust legal regime and that there’ll come a time where they have to turn on that legal regime and challenge it to go any further in their aspirations. And I think we may have rode our pony as far as we can and to go further we’re going to have to focus for the very first time on challenging some of the dark side of federal Indian law and strengthening our legal framework. So these problems in the law have troubled me as a lifelong practitioner of federal Indian law and I felt that federal Indian law today is in deep trouble. It needs a lifeline and perhaps this UN Declaration is that lifeline. So I felt it well worth my while to examine this new legal framework.

The second reason that motivated me to write this book was if you look around Indian Country today and in our tribal communities, we will see numerous, hard-to-solve social ills that stalk our tribal communities today. Despite our best efforts to redress these social ills, we see these shocking socioeconomic gaps between Native Americans and our non-Indian neighbors with the lowest life expectancy in the nation, the highest rate of poverty, poorest housing, serious shocking gaps in the medical treatment, mental healthcare, highest rate of violence in the nation, highest suicide rates, unemployment. These ills have lingered for so long in our tribal communities that they’re seen as normal and they threaten to become permanent. How do we account for these shocking inequities? Social science researchers tell us that these are unhealed wounds inherited from our…as historical trauma from [the] legacy of conquest; dispossession, subjugation, marginalization created these open wounds and they haven’t healed yet in the year 2013, despite our best efforts. These are the end products of our current legal regime, our existing law and policy, and I believe that this declaration is specifically designed to redress this inherit…the inherited effects of colonialism through a human rights framework. It’s a prescription for the social ills, and so I therefore thought it was worth my time to examine that framework in this book.

The third reason that I wrote this book is that the UN approval of this declaration in the year 2007, which was done in a landslide crowning victory for over 20 years in the United Nations of work by Indigenous pioneers who accessed the international realm for the very first time in a couple hundred years. This landmark achievement was basically unheralded. It caught the United States by surprise; it caught Indian Country by surprise. I feel like it caught our tribal leaders and our tribal attorneys [who] were unfamiliar with it. We hadn’t read it. It caught us with our chaps down, so to speak. And so since that time, and especially since the year 2010, Indian Country has just begun to read this document for the very first time and our tribal attorneys to read it and educate ourselves. It’s been the subject of a Senate oversight hearing. It’s been the subject of conferences at the federal bar, at NCAI [National Congress of American Indians], at tribal leaders' forums and law school conferences. And as we study this document I felt that it would be helpful to provide some baseline information about this declaration to help our self-education process on this new human rights framework, to look at some of the implications, to provide some baseline information about it, some reconnaissance-level legal analysis and that’s what this book attempts to do, to assist Indian Country and our nation in looking at this new legal framework for defining the rights of our people.

Let me turn now to: what is this UN framework? And let me just ask you, if you’ve read this raise your hand. If you’ve read this declaration, raise your hand. By golly, I’m glad James has read it. That’s a pretty nice substantial fraction. But many places where I ask that question, very few hands will go up.

So I just want to make about seven fundamental points about this new human rights framework. The first, the point is that it…in 46 articles, it lays out the minimum standards, minimum human rights standards for the…protecting the survival, dignity and well-being of Indigenous peoples worldwide -- that includes Native Americans, American Indians, Alaska Natives, Native Hawaiians. As Professor Anaya mentioned, it was approved by the UN in 2007, it was formally endorsed by the United States in 2010, 150 nations around the world as well.

Secondly, this document contains the authentic aspirations of Indigenous peoples in large measure because they wrote it and they negotiated it through the UN human rights framework. And if you read it as a practitioner of federal Indian law, you’ll see that all of the issues that our clients are concerned about and that we’ve litigated on and towards are contained in this document.

Thirdly, these standards as I mentioned earlier are comprehensive in nature. They address the full range of our Native American issues and aspirations. Our property rights, political rights, civil rights, economic rights, social rights, cultural rights, religious rights, environmental rights; it’s all there in this framework. And the interesting thing about it is the rights that are described in here are described as inherent, inherent human rights and I think that that’s very significant because an inherent human right means that the UN didn’t give these rights to Native people. These are rights that we already have.

So these are inherent human rights that nobody gave to Indigenous peoples, but rather they arise from our Indigenous histories, our Indigenous institutions, but were beyond reach by Native people in their domestic legal forums. What the United Nations did here was basically look to the larger body of modern international human rights law and simply pulled the norms and the human rights treaty provisions, pulled it out of this larger body and put them into this declaration and it’s showing the 150 nations of the world how to interpret this larger body of human rights law in the unique context of Indigenous peoples so that Indigenous peoples have the same human rights that the rest of humanity already enjoys. Further, these rights that are described in here, it is said that they’re supposed to be interpreted according to notions of justice, equality, good faith, democracy, a very just foundation for these inherent human rights, more just foundation than that found in the dark side of federal Indian law. Moreover, related to that, these rights are not considered to be new rights or special rights, but simply as I mentioned earlier just simply rights that are drawn from the existing body of international human rights law.

Next I’d like to talk about some of my major finding about these rights that I… conclusions that I drew in this book. Firstly, that these UN human rights standards are largely compatible with our U.S. law and policy in its finest hour. And at its very best and in its finest hour ,our federal Indian law in the 10 best cases ever decided about Indians show a fundamental compatibility with many of these standards. And those standards, if they were to become part of our body of law would simply make the very best in our legal culture more reliable and more dependable, but at the same time I also found, secondly, that many areas in our existing law and policy simply fail to pass muster under these standards, they don’t comply with these standards. And the book goes on to lay out these many, many areas that we need…where we need to uplift our existing law and policy so that they conform or are compatible with these minimum human rights standards.

The sixth point I wanted to make about this framework is that the Declaration is not a self-implementing instrument. It’s not legally binding law that federal courts must enforce, but rather the Declaration asks the United States to implement these standards in partnership with Native people, that the United States and all these other 150 nations are supposed to work with Native people to implement these standards, to provide technical assistance, to provide funding, to go forward in a nation-building kind of an effort to implement these standards. And so I think that that is a call to action to Indian Country to sit down with the government and see how we should go about implementing these standards in partnership.

I’d like to begin winding this lecture down here by looking at the need for these standards in our own country here. I think that the threshold question for all Americans of good will, including our tribal leaders and our tribal attorneys, is why do we need these standards in our own country? Aren’t we the leading democracy? Are you saying that we have injustice in our midst? Many Americans of goodwill will admit that yes, our nation was birthed on the human rights principle and we’ve got a very proud heritage of human rights that have always animated our nation from the very inception down to the present day. We’ve gone to war to protect human rights, to punish those who violate human rights, and it may be true that we haven’t always lived up to these core American human right values throughout our history in terms of our treatment of Native people here in the U.S., but are we responsible for healing a painful past when we didn’t personally have any hand in these appalling miscarriages of justice? It’s unfair to come to me when I had no part in that and ask me to heal the past. Others will ask, honestly ask, ‘Is an international law ineffective and unenforceable?’ That’s a myth that I once believed in as a dyed-in-the-wool practitioner of federal Indian law. Besides, many people just don’t like the UN. We don’t want to be bossed around by the UN or international law. Other Americans of good faith, goodwill, will say, ‘Why can’t we just rely on our existing law and policy to address these problems? After all, we have the Bill of Rights. Why not just apply the Bill of Rights and treat everybody alike and nothing more? We’ve got a comprehensive body of federal Indian law already. Why not just rely on it to fix these problems?’ And as advocates we must be able to answer each of these questions in a very persuasive way at the outset, otherwise we should fold up our tents and go home. So this book tries to answer those questions about the need for these standards in our nation. It explores answers. It looks at…it basically sees four reasons regarding the need for these standards: legal reasons, political reasons, social reasons and environmental reasons. And I hope that after you review these reasons in the book that you’ll agree with me that we do have compelling reasons and a compelling need to implement these standards here in the United States.

The first reason being a legal reason. As I mentioned earlier, to strengthen our body of federal Indian law, to reform that dark side of federal Indian law and root out the law of colonialism, the doctrines of conquest, doctrines of racism, all of these dark sides of our existing framework that have anti-Indigenous functions, to resolve our internal tensions and we have to remember that as I mentioned earlier or maybe it was later today that right now in our existing legal framework if you read our Supreme Court decisions in our foundational cases you will see that when it comes to defining Native American rights that the Supreme Court expressly eschews looking at ‘abstract principles of justice’ or ‘questions of morality’ when defining Native American rights. So this has produced an amoral body of law that is bereft of the human rights principle and I think that that has led to an amazing prevalence of unjust cases in federal Indian law. And so there is a need to reform federal Indian law to try to inject this human rights principle. I know as a litigator whenever you’re able to inject human rights into your issue, your position is immediately strengthened, and we found that when we were making the NAGPRA [Native American Graves Protection and Repatriation Act] statute that we were stymied in our negotiations, stalled out because of self-interest between the scientists, museums and the tribal communities until we agreed to follow the human rights principle and that kind of cracked the case and led to the passage of NAGPRA. And you can imagine if your client’s right to self-determination was considered an inherent human right, your client’s right to culture, your client’s right to accountable public media and so on and so forth, rights to protect Indigenous habitat were deemed to be inherent human rights, that’s going to put you in a much stronger legal position. So we have a legal reason here.

Secondly, we have social reasons, that is this inherited legacy of conquest that I talked about earlier, and the need to finally try to solve these hard-to-solve social ills. These are root problems that we’ve inherited in our tribal communities, cry out for healing in a national program of reconciliation and I think that this declaration is the antidote for those social ills and will enable our nation to solve them at long last and then move forward.

Thirdly, we have these political reasons to implement this declaration. Our nation has long been plagued with the Indian question or the Indian problem, ever since the United States first embarked on colonizing Indian lands and peoples. The political question has always been, ‘What do we do with the Indians once we’ve colonized everything? What do we do with them?’ And this has long perplexed our nation and historically…well, it’s a universal problem that all settler states with a history of colonialism have had to confront. How do we bring the Native people into the body politic? What’s the best approach for doing that on a political basis? And we’ve tried many approaches here in the United States. We’ve tried this Worcester framework of inherent tribal sovereignty for domestic dependent nations operating under the protection of the United States. We’ve tried Indian removal, to remove the tribes from our body politic. We’ve tried to exterminate Indians at the zenith of the Indian wars. We’ve zigzagged back to guardianship and Christianization methods to bring Native people into the body politic. We’ve tried self-government under the Indian Reorganization Act of 1934. We’ve swung back from there to termination to make our Indians disappear and then in 1970 swung back to Indian self-determination. So we’ve had these zigzagging policy shifts in U.S. history trying to figure out the best way to bring Native people into the body politic. The problem is that the normal mode for assimilating immigrants into our free and democratic society simply doesn’t work for Native people because we already inhabit the nation and we want to retain our Indigenous rights. Well, this declaration shows us how to do that. It tells us that we want to bring Native people into the body politic using the self-determination principle with our Indigenous rights intact, basically saying that we got it right with our Indian Self-Determination policy of 1970, that we should stay the course and do whatever we need to do to bring Native America into the body politic with all of their Indigenous human rights intact.

Fourth reason that is discussed in this book is environmental reasons. I think that there’s a healthy byproduct in recognizing and protecting Indigenous rights and that healthy byproduct has to do with this environmental crisis that our nation is confronted with. We have a growing environmental problem and a crisis that is a worldwide environmental problem that threatens human security. We see it in the mass extinction of animals and plants, the pollution of Father Sky, Mother Earth, our waters, our oceans. We see it in this climate change. We now live in a warming world thanks to the industrialized nations emitting these gases into the atmosphere. And this has caused…this crisis has caused scientists to fear a catastrophic collapse of some of our important global life systems. And so the scientists are sounding the alarm, but no one is listening. This crisis continues to get worse and not better. We can’t solve it without first getting a land ethic and [an] ocean ethic that can guide us, a moral compass to show humans and our modern society how we should comport ourselves to the natural world. And as far back as 1948, Aldo Leopold urged America, ‘Get a land ethic.’ But it’s never taken root in our nation yet. Why? We don’t have any clear guidance from our Western traditions, the Western religions, science or technology. They don’t tell us how humans should comport to the natural world. We have to look to Indigenous peoples for that, into their value system, our primal tribal religions, our hunting, fishing and gathering cosmologies and those value systems, which were the first world views of the human race that were wired into our biology as humans spread across the planet, and in that set of Indigenous value systems I think our nation will find the ingredients for an American land ethic. Without that ethic, we’re not going to be able to solve this environmental crisis and we’ve placed ourselves on the path of failed civilizations. We can’t solve it, the problem, without an ethic to guide us. It’s just simply too expensive. The problem is too severe. It costs too much money and we lack the political will to address and solve this problem. So we sorely need a land ethic and I think that there is a congruency between protecting Indigenous habitat and Indigenous land uses of Indigenous land, Indigenous cultures, empowering the Native people to protect their ways of life so that they can come to the seat at the table and maybe share some of their traditional knowledge and their value system and help us forge a land ethic. If you look at the Amazon forest, the remnants of that forest exist because of the Indigenous peoples that reside in these habitats that have been empowered to continue to live there and to defend those areas. Were it not for them, that forest would probably have long been gone. So there is that relationship between protecting and empowering Indigenous peoples and their environmental rights and addressing this environmental crisis.

So I’ve spoken too long and I want to just simply close with some quick concluding observations about the challenges in implementing this declaration and I think that I would direct your attention to James Anaya’s report that he submitted to the United States in his capacity as the UN Special Rapporteur on the Rights of Indigenous Peoples. In the year 2012, he conducted an official mission to the United States to consult with the United States government, to consult with tribal leaders to identify the human rights situation of Native Americans and barriers to implementing all of these human rights standards and he compiled this report in August of 2012. It’s entitled The Situation of Indigenous Peoples in the United States of America. And I would urge you to go to your computer and download it, and in fact I think we may have copies here this evening alongside my book tonight, our book I should say, in which Professor Anaya gives recommendations to the United States for steps that our nation must take to implement these standards. He concludes that we have a significant challenge in doing that, in rectifying and addressing our legacy of conquest here in the United States and it calls for changes, fundamental changes in all three branches of the federal government -- Congress, the President and the Executive Branch and our courts -- and these are fundamental changes that he is recommending that our nation take. And so it lays out a big task it seems to me for our generation and the next to implement these challenges to…I think this report is one of those rare policy analyses that come across from time to time, once in a great while, that can become a catalyst for change and so this report is a good starting place to download it and read it and I think you’ll agree that it does lay out a big task for our generation. And there’s a role for our law schools, our law professors, our law students, Native people, Americans of goodwill to come forward, our tribal leaders to come forward, to reach out for these human rights standards and work to implement them.

And I think the first step here is a…there’s a need for a focused national dialogue on the nature and content of human rights for Native Americans. And our nation has never had such a national dialogue of that nature in the same way that we looked at…our nation looked at Black America and the need for equality under the law for Black America. That was serious national conversation, but we’ve never had one when it comes to talking about human rights for Native America and our legal framework has no human rights judicial discourse in it at all and so we need to have a national discourse to understand the need for these standards in our country, to debunk the reasons not to act and I think that that’s a first step.

Secondly, I think we have to build a national campaign to implement these standards, to coax the government into developing a national plan of action through a national program of reconciliation to implement these standards in partnership with Native America. To do that…unless we do that, nothing’s going to happen and these human rights standards will remain beyond reach. So we need the internal machinery to set that in place for a campaign complete with guiding legal principles to develop this seamless new framework, employing some of our finest legal minds in our ranking law schools to help us do that, strategies and a focused public relations and public education campaign to educate the public about this, very similar to the campaign that Black America engaged in for 58 years to overturn Plessy v. Ferguson in the landmark case of Brown v. Board of Education. There’s lessons to be learned there in that campaign. There’s lessons to be learned from our tribal sovereignty movement that could be helpful in guiding a campaign to implement these standards in the 21st century.

And so with that brings me to my final point that this campaign has to also develop some philosophical foundation, some philosophical principles to motivate social action, social justice action and to guide our campaign into the light of justice. I don’t think we have to look far for that philosophical foundation for this campaign. We only have to look as far as to our wisdom traditions of the human race, remembering that from day one of the history of the human race has been one of atrocity, acts of genocide, warfare, catastrophes brought about by man’s inhumanity to man in the whole course of human history and along the way our ancestors developed some wisdom traditions that come to us from the world’s religions that teach us and tell us how to heal historical injuries, injuries of the kind that we have perpetrated on other people. These wisdom traditions work as sure as the rain must fall and they tell us it’s just five steps, it’s not rocket science. The first step being an injury has taken place and here we’re talking about this legacy of conquest that is still seen and felt today.

The second step is whatever tradition you come from your finest and highest teachings tell you that when you’ve injured somebody you must go to that person and apologize, prostrate yourself and ask for forgiveness. It’s a very hard step to do because we often demonize the people that we have harmed, wished them ill and it’s inconceivable, unthinkable to then go to them on bended knee and ask them to forgive us. It’s a hard thing to do, but our wisdom traditions teach us that we have to do that to relieve our guilt, to relieve their shame, to begin clearing the air for a healing process.

And that brings us to our third step in this healing process and that is to accept the apology and forgive; also very hard to do. I think one of the indicia of a traumatized community is simply they’re unable to forgive those who have trespassed against them. It’s hard to do, but it’s important that we forgive. Only the strong can forgive. It’s probably our highest, strongest human spiritual power that we have to forgive and all of our traditions teach us that we must forgive.

That third step then leads us to the…once peace is made it leads us to the fourth step in this process, acts of atonement. The burden shifts back to the perpetrator’s community to perform acts of atonement, to make amends, to wipe the slate clean as best as humans can do. We know we can’t turn back the hands of time, but we can do everything within our power as humans to make things right and I think these acts of atonement and this process are laid out in that declaration. It shows us what we must do here.

Once that step has gone through, it brings us to the last step and that is healing and reconciliation and at that point we’ve done everything that humans can do to heal, taken that high road to heal a historical injury in our midst regardless of the cause and from there we sit at the center of human compassion and we can honestly say at that point that I am you and you are me and we are one. We’ve been reunited and we can go on from there. And so I think that these wisdom traditions work in even the most heinous situations and I think we only need to look that far as a philosophical foundation for a campaign to guide us to that promised land so that we might all stand in the light of justice.”

[applause]

James Anaya:

“Walt has agreed to take a few questions. You have about five, maybe 10 minutes.”

Walter Echo-Hawk:

“Okay. I was hoping to filibuster so that we wouldn’t have to do any questions, but as long as they’re easy ones but please…yeah, five minutes, questions and then we have some books compliments of the campus bookstore. Anyone? Sir.”

Audience member:

“I think it was wonderful to hear you. And you have talked about how the United Nations Declaration can help the United States of America and do you have anything in the United Nations Declaration, which could be taken from the United States? I mean is there some teachings of United States Native culture, which is endorsed by the United Nations Declaration?”

Walter Echo-Hawk:

“Well, I feel that it’s very important for the United States to take a leadership role in implementing these standards in its own backyard. As President [Dwight] Eisenhower said, ‘Whatever America wants in the rest of the world first has to take place in our own backyard,’ and we hold ourselves out to the world as a human rights champion. We’re always running to the UN to have humanitarian intervention, to get support of the UN, and so I think that we don’t want to be the last nation on earth to implement these standards. We want to be among the first and the rest of the world is already embarking upon implementing these standards and that train is leaving the station and we need to be in there because I think that we are a very strong world power, we have influence around the world and if we’re able to successfully implement these human rights standards here in our own land, in one of the hard-core settler states or settler nations, then that would provide, I would hope, precedent for other nations to do the same thing around the world. It’s getting to be a smaller globe and we need to look across our boundaries to other lands. Certainly that’s what happened in the making of this declaration when Indigenous peoples came together and went to the UN. But I think it’s important for America not to be the last country on the planet to fully implement each and every one of these standards, that we should be among the first to try to take a leadership role to redeem our place as a champion of human rights worldwide because we use this as a tool in our foreign policy. Human rights is an important tool in our foreign policy and so we need to get matters fixed in our own backyards before we can do that in a legitimate way. Ma’am?”

Audience member:

“What suggestions could you give us in regards to getting such a national campaign you’re calling for moving, to find who needs to listen, who can move things and basically who can do what? Do you have any suggestions of how to achieve this, how to support and contribute?”

Walter Echo-Hawk:

“I think that…well, I have a couple, two chapters in the book that’s devoted to that, chapters nine and 10, so you’ll have to read it. You have to buy the book and read it. I think we have to mount a social movement, maybe a mother of all campaigns. To do that we have to internally put in place the machinery to do that, we have to go to our tribal leaders, ask them to get out of the casinos for a little bit, uplift their vision to see this new framework. We need a cadre I think of tribal leaders that can lead us into the light of justice. We need to staff them with some of our best attorneys that we have that are versed in human rights law and we need to have a lot of ingredients internally to vet some of these remedies that we’re talking about. We want to be sure we’re not going to make bad law or we’re not going to weaken our rights as Native Americans that we already have, rather we want to be sure that we strengthen them. Then we have to develop a strategic law development strategy and guided by astute political strategists with a…armed also with a very vigorous public education campaign. So I’m talking about the entire race of people and all of our assets and I think that we’re in a much better place to do that, Native America, in the year 2013. We’ve come a long way. We’ve got the experience, the capability and the resources to do that. Our survival, cultural survival depends on it. And you can look back to when the national…the NAACP was founded in 1910 and they were trying to overturn Plessy v. Ferguson and they had enormous hurdles in front of them at that time and yet it took them 58 years, but they did it. And I think we’re more poised now, Indian Country, to do that, but it’s going to be…take a lot of work. I think our young attorneys have to talk…learn the parlance of human rights, international human rights because we are now in a brand-new era of federal Indian law, a human rights era. And when President Obama endorsed this declaration, it ushered in a brand new era for federal Indian law and I think that the task for this next generation is to implement that declaration. Just like back in 1970, our goal at that time was to implement the Indian self-determination policy and it took a couple generations to basically do that in full measure. As I say, I think we’ve made big advances, we’ve come as far as we can though and now we’re in this human rights era of federal Indian law and policy and I think it’s incumbent upon you younger people, it’s easier for me to say, to take that up and carry it forward. Sir?”

Audience member:

“I was wondering, you mentioned some domestic examples like NAACP sort of leading the way for Black America. You also mentioned we should be sort of the leader as the United States in implementing human rights. Are there any…the declaration granted in 2007, are there any countries that sort of set a good precedent for us to follow?”

Walter Echo-Hawk:

“Yeah, I think…was it Bolivia or which country…? It just simply passed a statute incorporating the whole declaration in one fell swoop, but I think Jim may have a better idea on that. But there’s other countries. I think each country is unique. They have their own Indigenous issues, they have their own legal cultures that they’re looking at and I think we can look around the world and benefit from the experience in other countries in implementing it and the book kind of does that in a few limited examples. But I don’t know if you have anything to offer, Jim, from your perspective? Sir, in the back.”

Audience member:

“In your perspective, what is self-determination? Is there a timeframe of that since 1970 to now or further?”

Walter Echo-Hawk:

“Well, I think that in the United States we reached our low point in 1950. In the ‘50s it was the termination era. It was a low point in Native life in our country it seems to me. The policy was termination, to make Indian tribes disappear as quickly as possible. And our activists and tribal leaders in the 1950s and in the 1960s worked as best they could to resist immediate and wholesale termination by the federal government. And their work…in the ‘60s, Vine Deloria was the Executive Director of NCAI and Clyde Warrior was the President of the National Indian Youth Council. They were articulating, especially Vine was articulating this self-determination principle to set our Indian tribes on a different path to the promised land in the civil rights movement, which was implementing Brown v. Board of Education. He articulated the self-determination policy to -- ultimately, that was approved in 1970 by President Nixon in a historic message to Congress -- and that Indian self-determination policy broke from termination and forced assimilation to transfer power back to the tribes as much as possible. And so from that point, from 1970 to the current date, I think that’s been at the center of our tribal sovereignty movement and I think it will continue to be. The UN Declaration, at the very core of this declaration is the self-determination principle, and so it shows us that our nation is sort of on the right path here with our self-determination aspiration, self-government, Indigenous institutions, tribal cultures, the right to culture. All of these are related to our self-determination or sovereignty -- political sovereignty, cultural sovereignty, economic sovereignty. And so I think that this, as far as I can see, it’s still…and it’s the centerpiece of this UN Declaration and that’s why it’s pretty compatible with our existing U.S. policy and we need to continue on that path by just simply uplifting these different areas where our existing laws fall short of the UN standards.” 

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

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Native Nations Institute
Year

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

People
Native Nations
Resource Type
Citation

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

Ian Record:

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

John McCoy:

“I’m very happy to be here.”

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

“Right.”

Ian Record:

“Isn’t that right?”

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

“Yes.”

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

“Yes.”

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

“Yes.”

Ian Record:

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

John McCoy:

“Yes.”

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

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

John McCoy:

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

Ian Record:

“Well, thank you.”

NNI Indigenous Leadership Fellow: Rae Nell Vaughn (Part 1)

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, discusses the critical role that justice systems play in the rebuilding of Native nations and shares how the Mississippi Band of Choctaw Indians has worked to develop its justice system to reflect and promote its culture and meeting the evolving challenges that it faces.

Resource Type
Citation

Vaughn, Rae Nell. "NNI Indigenous Leadership Fellow (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Ian Record:

"What role do tribal justice systems play in rebuilding Native nations?"

Rae Nell Vaughn:

"It's been my experience that it plays a significant role in regards to tribal government. One thing that I have found within the 11 years of my judicial experience is the fact that tribal governments as a whole have had to play a role of catch-up, fast tracked. In regards to Mississippi Choctaw, we established our constitution in 1945 at a point in time where we were living in very oppressed conditions. Of course, as you know, historically the tribe was removed to Oklahoma and we're the descendants of the members that chose to stay. No federal or state recognition at that point up until the time of recognition and the development of our constitution, and it was a building process. You had a number of leaders who would step up and were wanting to form a strong government. Of course, the justice system itself came in years later, but overall they've had to try to fast track a government in order to provide the people with services, and it was a struggle, it was a definite struggle. And of course ultimately, a justice system was developed under the BIA [Bureau of Indian Affairs], a court of regulations, a CFR [Code of Federal Regulations] court, and that had its challenges all on its own because you have the mechanisms but not the resources to provide law and order. And your reliance was on the BIA and it was a definite struggle during the early years of this system. You had a membership maybe at that time of close to 3,000 possibly.

Now going back historically, the membership dwindled down in the early 1900s to less than 1,000 because of the influenza epidemic and here we are in 2009 and have a membership of 10,000. And you talk about a flourishing economy at some point with the successes of this tribe, but you also talk about the population growth and with it coming the social ills and influences that impact a community. And so I've seen this system evolve, even prior to my interaction with it, becoming a judge. It's grown by leaps and bounds. They started off with a staff of maybe three: a tribal member judge -- when it was under the control of BIA -- and maybe one or two folks that also participated. And to this point, once...during my tenure as a judge, we were up to 32 employees. You had 11 members on the judiciary, which is so unheard of, but for me it was a signal from the government [that], 'This is important. A justice system for this government is important and we are investing in our government and in our people to provide them a fair form of justice.' Knowing where we're at, we're located in Mississippi, and the struggles that minorities have faced, Native people have faced, has always been there, an underlying issue. And so being able to have our people be in a forum that's fair for them, being judged by their peers was the most important thing. But also it was the fundamental exercise of sovereignty, operating a system, a judicial system, which not many tribes have had the ability to do and maybe not to the degree that we've been able to do it. That's not to say that there haven't been any challenges. There are, just like there are with any system, whether it's a tribal system or non-Native system, but it's a work in progress. Codes are forever changing and you have to keep your hand on...keep on the pulse of what's happening nationally because what happens nationally will ultimately affect you locally.

And so cases such as Nevada v. Hicks, issues of jurisdiction, those have far-reaching ramifications. So having a stable, consistent, and well-educated and well-trained judiciary is very important, and those are the things that I think tribal governments really have to take a look at and recognize the investment that you're making."

Ian Record:

"And I would assume that in that understanding of what's going on nationally, it's not just the judiciary that has to understand, it's elected leadership and particularly the legislators, the ones that are making those laws to say, "˜We've got to be out front on these issues so we're not stuck in a corner one day in the near future having to react defensively to something we're not prepared for.'"

Rae Nell Vaughn:

"Exactly. We have to be proactive. It hits every area of government: economic development, education, healthcare. We have to be very diligent and we have to go the extra mile in making sure that we're protecting our sovereignty and at the same time being aware of what the landscape is looking like politically. There have been times in previous [U.S. presidential] administrations where they haven't been quite so favorable to Native Americans. And we may be here at a time of renaissance where there's going to be more participation, more of us as Native people at the table speaking on our behalves, on our own behalf. As a Native person, this is where I've been, this is what we've gone through and this is what we can do and this is what we want to provide for the people, because at times Native people get lost in the shuffle of all the social programs and issues that the federal government itself is dealing with. There are some tribes that are very fortunate to have the additional revenues to provide for their tribes and some aren't. How do we all work together to make sure that each of these tribes are able to have the type of support to be able to function and exercise as a government?"

Ian Record:

"Mississippi Choctaw's court system was recognized by the Honoring Nations program at the Harvard Project in American Indian Economic Development just a few years ago. And in large part it was recognized because of its ability to exercise or to be a vehicle for sovereignty for the nation. Based on your experience in that system, in that court system, I was wondering if you could speak to this issue of strong independent court systems and what those look like, what do those systems require to be effective?"

Rae Nell Vaughn:

"That's a very good question, because it's a challenge that all tribal court systems face. And let me say that the Honoring Nations program was such an excellent exercise for us, because as a system you're in the trenches every day and you don't realize the things that you're doing have such far-reaching impact. And so when we began this process of going through the rigors of the Honoring Nations project program, I was just so amazed. "˜We're doing so much here, we're looking at alternative resources and programs, we're trying to look at things more holistically versus using the American jurisprudence of dropping the gavel and that's it,' because we recognize that within Native communities we're going to be among one another. I'm not moving anywhere, you're not moving anywhere, we're staying in this community, and it's trying to ensure that we have healthy communities and using the justice system and possibly not just going before formal court, using our peacemaker court, using teen court, using our healing-to-wellness court, are other alternatives that are available to the membership and it goes back to our own Native teaching of who we are. We were never a people -- as with other tribes -- that all we wanted to do was fight amongst one another, but of course all of this takes place based on social influences and evolution of things and prosperity. And so going back to your question, it requires due diligence among both sides of the aisle, the legislative body, the executive as well as the judiciary. And it's a really hard balance because I'm a member of the community, I have children who attend the schools, I'm a voting member, I see people at the post office or at the grocery store, I attend ceremonies, I'm involved just as all the other judges are; simply because we put on a robe during the day doesn't mean that that robe ever really comes off, but we also have to be able to be participatory in our communities. And it is, it's a hard balance, even with your legislative body because we all know each other, we've all grown up with one another possibly or they've seen you grow up and know your mother and there's this tendency of picking up the phone and saying, "˜Hey, what's going on and do you know da da da da da?' And it is, it's a really hard balance because of the close ties and the close knitness of the community and it's that community mentality that you have. But we work diligently to ensure that the people recognize that this is a very independent justice system. Now granted, in the case of Mississippi Choctaw, we're a two-branch government. The court system is developed by statute and is controlled, maybe that's not a good word, but is under the oversight of the tribal council as well as the executive. There've been times where it's been challenging because you wear two hats. Not only are you a member of the judiciary, but you have to be an advocate for the system, and so there's that give and take, development of codes. How can I not be somewhat participatory in the development when I'm the one who uses that code in order to...we're creating law basically, and there are several instances where it's almost a gray area that you enter, but knowing what the spirit of the law is and where we are as a judiciary and what we're trying to accomplish I think speaks volumes because the people see the separation. And it's something that you have to work at every day. You just, you have to."

Ian Record:

"So in your role as advocate for the system in strengthening the system, do you find yourself compelled at certain points to say to the legislature, "˜Look, there's...I'm dealing with these...this area of jurisprudence, these types of cases are becoming more prevalent. There's nothing on the books that tells me how to interpret these cases. It's up to you to get out in front of this,' as you mentioned, "˜and develop law that I can then enforce in the court system?'"

Rae Nell Vaughn:

"Exactly. One case in point is the Tribal Notice Act and that's very important, especially if you have two parties coming in and there's an issue that could possibly have a detrimental impact on the tribe, maybe possibly in regards to jurisdiction. And the tribe needs to know; the tribe needs to be noticed. And so we worked towards getting that on the books and we were successful. And it's a mechanism or a code that's been used a number of times. And so things of that sort, because you recognize or the people recognize the legislative body and executive body, they're dealing with so many different issues from economic development, healthcare, education, housing. There's not one person or one area that they're focusing in on. So I would not be doing my duty if I didn't bring things to their attention that I think could provide betterment for the system and also protecting the people as well."

Ian Record:

"So you're also, in addition to your experience, your 11 years as you mention serving on the Choctaw judiciary, you've since...you left that, your tenure with the judiciary, and you've been working to evaluate other tribal court systems. And I was wondering if you could speak to this issue. We discussed this recently about some tribes, some tribal leadership not really treating the judicial function of their nation as an independent...as an independent function, as a true arm of the government, whether you want to call it a 'branch' or what have you, but rather treating it as a program. And we hear this a lot from particularly tribal judges who lament that fact that, "˜We're just considered another program.' I was wondering if you could speak to that issue and what you're seeing on the ground."

Rae Nell Vaughn:

"Oh, yeah. And it's not so much with the work that I'm doing, but additionally with my participation with the national organization, the judges association, as well as my own experiences with Mississippi Choctaw. There's the thinking that tribal court systems are more situated or in the organizational things as a program, and either we fund you or we don't or...there's not that understanding of the importance of justice systems and how in regards to economic development, justice systems are key. And a lot...I've heard so many war stories about how we are treated as -- I hate to use the term -- as stepchildren. We get the hand-me-down equipment, we get the little bits of whatever is additional that we can get in our budget, but what I found throughout my work and my experiences with the judiciary is the fact that there are so many good people out there in Indian Country, members of their own tribe who want to provide a forum, a fair forum for their people and they work diligently with what resources they have. Now if it was a perfect world and we were able to get all that we want, that would be ideal, but it's not and a number of tribes who don't have the additional resources struggle, and for some of these tribes it's a really challenging thing because you're also not only at the mercy of the government, but at the community as well and there...if you don't feel that support from your government, then obviously the community's not going to support you as well and those are some key things that have to happen is to have that support. 'Now you and I may argue here, but when we step out as a judiciary and as a government, we need to be unified, because each of us as a legislative body and as an executive body and whether we're a judicial branch or a statutory court, we still have to work and maintain as a stable government,' because if your leadership is bad mouthing your judicial system, what does that say of the leadership?"

Ian Record:

"What does that say to the outside world?"

Rae Nell Vaughn:

"Exactly."

Ian Record:

"So this issue of treatment by the leadership, by the community of the justice system as a program versus something more, among those tribes that tend to treat them as the latter -- just as a program -- aren't they missing the boat essentially on the importance of justice systems as a vehicle for not only advancing sovereignty, but also creating viable economies on the reservations and pretty much all around?"

Rae Nell Vaughn:

"Exactly, because a lender who is thinking about doing business with the tribe is going to ask, "˜I need to know about your court system. I need to know where litigation is going to take place,' and if they can't see a system that is stable and consistent, you're possibly missing an opportunity to bring strong economic development to your area and that's key. I think a lot that has to happen is education. Now again, I go back -- I recognize there's so much that tribal government has to do. They're overloaded, they're understaffed in some instances, and they're trying to do the best they can do, but at the end of the day it's important to make sure that each of your areas of government are strong and are working together and that's where your checks and balances are. It's basic civics."

Ian Record:

"One other issue we discussed recently was this issue of...this treatment of tribal justice systems as nothing more than programs may emanate in part from this sense of, "˜Well, that's where the bad things happen.'"

Rae Nell Vaughn:

"Oh, yes."

Ian Record:

"...That's where, kind of the social ills bubble up, that's where the kind of the underbelly of the community, the negative parts. "˜We don't want to deal with that. It's too painful,' or 'We don't...we're at a loss as to how to resolve these issues.' How do you get beyond that mentality? How do you get to a point where -- as you've told me -- where the people, the community, that the leadership will treat the justice system as a vehicle for not only restoring, as you say restoring health to the community, but also as a way to, for instance, teach the values of the people to say, "˜This is how we operate, this is how we resolve disputes.'"

Rae Nell Vaughn:

"One of the bad things or the negative side of the judicial system is the fact that a lot of things happen in the well of that court and at the end of it all, "˜It's the court,' "˜It's the court's fault,' or whatever it may be because it's surfaced, it has bubbled up as you said, it's surfaced and there it is black and white, right there in the well of that court. And ultimately it's the judge and their discretion as how they rule or decide or what it is that they end up doing for that particular case, whether it be a habitual offender, whether it be a family in need, a juvenile delinquent, a vulnerable adult. All of the social ills of your community hits right there and it is challenging more so again for your legislative body and your executive because what do they do, what can they do? We've developed so many different social programs, but we're not going to cure every ill, and unfortunately a lot of those things surface through court. And as I shared with you earlier, that's why we were looking at, in regards to Mississippi Choctaw, of other alternatives. We recognize these are social illnesses. This is not working, going through formal court. Something has to happen and it also has to happen not only with the individual, but with the family: accountability, responsibility, bringing in the people who matter the most to you and who you value, who are your mentors or your grandparents, your minister, your family to sit down and talk with you, help you in a peacemaking-type situation, a circle of sorts. Healing to Wellness [Court] is set up in that very same way, that we have there at Choctaw where the offender comes in, meets with a group of multi-disciplinary team and there's a check, there's this constant check, and we've had so many success stories come through there. Is it 100 percent? No, it's not, and it probably will never be, but there is an alternative, and with the one case that you have a success in, [it] ripples out to the family, to the community, to the nation in regards to the offenses, health issues that may have come from it, all the different things. And that success just can only breed more success because if you have this individual whose gone through this process, you see the community, see that individual being successful and others who are coming before the court say, "˜I want to try that because I'm ready to make that change,' then there's that vehicle."

Ian Record:

"So I would assume under the CFR system, there's no way that you guys could have developed these restorative functions."

Rae Nell Vaughn:

"There is no way, no."

Ian Record:

"So essentially by developing your own court system, by taking ownership of that critical function, you provided yourself the freedom to say, "˜What's going to benefit our community in the long run? What's the best way of doing things, because the status quo is simply not working.'"

Rae Nell Vaughn:

"No, it's not working and it doesn't work in Indian Country. And what may work for Choctaw, what may work for the tribes in the east may not work for tribes in the southwest or in the west or in the northwest or in the midwest or northeast. It works for us and looking at the different models you can see things that will work. There's this term I use, "˜Choctaw-izing it' -- making it your own, bringing in Choctaw values, culture, customary law into this model and it works, and it works, and the people understand it. That's the thing, the people say, "˜Hmmmm, yes, I know what you're talking about.'"

Ian Record:

"So can you give me just a...you mentioned this term 'Choctaw-izing' it. Can you give me one example, maybe one case of how the court system applied a core value of the Choctaw people to essentially try to bring that restoration to the community?"

Rae Nell Vaughn:

"As I shared with you earlier, we have a teen court process and in that process the individual, the juvenile delinquent goes through the formal youth court system. Teen court is more of a sentencing type court, but the uniqueness of it is they are judged, are sentenced by their peers, other teenagers in the community. We had a particular instance where there was this child who of course offended, committed a crime against the tribe, was found delinquent. The case wasn't or the offense wasn't to the level of the judge issuing the sentence so he transferred it to teen court and it went through the process, but the uniqueness is -- and this is where the cultural aspect came in -- is we had the judge bring the mother and the grandmother and auntie because we are a matrilineal society. And before the sentence was rendered by the peers, by the jury, the women stood up and they talked and they talked with both sides of the parties who were there -- because this was a boyfriend-girlfriend, teenager-type thing -- and how it was important to respect your family, respect your parents, to listen, and if that wasn't the most empowering thing along with their peers giving them the sentencing, I don't know what would be. It was so powerful and moving. And let me tell you, people sat up and took notice and you gave respect, you listened. And that's one instance where that...we were able to have that and that was just such a learning tool for our young people to sit there and go through that and to listen. Even though they weren't the offenders, but they knew exactly, they knew exactly. It was almost like a reawakening. "˜I know this, but we don't do it all the time,' and like, "˜Whoa!'"

Ian Record:

"So in that instance, the court was not even an intermediary between the community, the culture, and the issue at hand. They were actually just a mechanism for connecting those two."

Rae Nell Vaughn:

"Facilitating just basically, just putting those people and things together. And it's...one thing of...and when I first entered the court system I served as a youth court judge. And the one thing I would tell our kids, when they'd come before the bench and with that attitude, being rebellious, and "˜You can't tell me what to do,' is, "˜The offense you've committed, you think maybe committed against this particular individual or this particular family or to the school, vandalism, whatever.' I said, "˜But you're not hurting those particular individuals, you're hurting the tribe, and in essence you're hurting yourself. So what has to happen here is you have to make this right and you're making it right at the end of the day for yourself.' And for some kids it didn't click, of course being rebellious and angry and everything, but for some it did. They understood. And again, you never really had a lot of successes. You had some successes and statistically Native American Country and as well as in dominant society you knew that there were higher chances of your young people moving into the adult system, but we tried very hard and that's why we were looking at all these other alternatives. Many Native communities have such small memberships, and so when you have a lot of delinquency going on, number-wise it may not appear to be a lot, but there on the ground it's epidemic and that's one of the things governments need to recognize and why it's such an important thing to make sure that you're supporting and investing in all of these types of things that keep your system, your justice system strong, consistent and stable."

Ian Record:

"So what do you see as the major challenges facing tribal jurisdiction today?"

Rae Nell Vaughn:

"Oh, my goodness. That's something that tribes are facing all the time and it's amazing to me how we do have the jurisdiction that we do have. There have been challenges locally, and as I'm trying to think back here, we've had a number of cases that we've dealt with ourselves at Mississippi Choctaw where you have a civil matter that came before the court and they were running concurrently with the circuit court, the federal court. And it was an issue concerning a, it wasn't a loan company, a bank, it was a bank and a big problem with a salesperson going into the community and of the lender reneging of sorts -- just a really basic background of that case. And tribal members who had signed up for this service, which I believe was a satellite case, then did a class action against the lender. The party then went to the federal court, the federal court in turn sent the case back telling the parties that, "˜You have to exhaust tribal jurisdiction before you can even attempt to make it here,' which I think said a lot for not only our tribe, but for tribes in Indian Country to have a federal court say, "˜You have to exhaust all remedies before you even make it here.' Now you and I both know that that's not commonplace and I think that sent a very, very big message. Why would that have ever been decided? I think a lot of it had to do with the court itself because it was a functional court, it is a functional court, renders opinions, clear decisions and it's consistent. And I think that had a lot to do with why we were able or the federal court made the decision it made.

Now Indian Country, tribes in Indian Country are constantly faced with issues of jurisdictions and I can't speak so much for these other tribes, but just from the readings I've seen and in the issues that I've heard about, it's constant. For example, I know that there was a tribe in California that had the state come in wanting to look at employment records. If that wasn't a clear crossing of the line, a failure of respect of another sovereign, I don't know what is and that's clearly overstepping jurisdictional lines. But those types of things happen and that's where you really have to, as a government, make sure that you have the type of legal representation for yourself to protect you as a tribe because you have it coming from every angle, from every area of wanting to chip away at what jurisdiction you do have. It's bad enough that we don't have criminal jurisdiction over non-Indians and as a gaming tribe there's a lot of issues that we have to deal with and we're at the mercy of the county or we're at the mercy of the federal government and its system. It makes no sense to me. Logically, we know when, I know when I cross the boundary and I go into Philadelphia, if I commit a crime, I'm going to be dealt with in Philadelphia court. It's a no-brainer. And this is an issue that's been talked about time and time again. I know I'm not going to change it, but I'm going to give you my two cents. It sucks, it's not productive and there are people who agree. There are people on the outside who do agree that you should have the ability to incarcerate, to judge any individual who commits a crime, an offense against the tribe or this jurisdiction. And we don't have that ability. And then you have the civil jurisdiction, which is always being tested and it's just so important that when we have issues that come up through tribal court systems that as a judiciary you're giving well-thought-out opinions and it's iron-clad so that you can't...it won't be unraveled and then there you go, you've lost more jurisdiction."

Ian Record:

"And it's not just making the decisions, it's actually documenting those decisions and having those ready in an accessible fashion, and that's where it's important to build the system of justice not just have judges making decisions."

Rae Nell Vaughn:

"Yes, exactly. You're exactly right because you have a lot of these systems that are in varying degrees of development and I am a big believer of having tribal members sitting on the court. Unfortunately, you don't have enough people who come to the court, come to the bench with a legal background. I'm not law trained. And so it's challenging and it's a struggle. Fortunately, our tribe made investments of having individuals on the bench with the juris doctorate providing us with legal technical consultation so that we're not standing there twisting in the wind, "˜Well, what do we do?' And so we're able to have this body of law, opinions that come from this court, that are guiding tools for not only us as a tribe, but also for other tribes should they wish to use it. I know that there are different companies or organizations who collect all of these opinions across Indian Country, which is good so that there is a body of law for other tribes to go in and take a look at and look at precedent and things of that sort. And we need more of that, but what we also need to do is be able to reach out and get this information to people. As I said earlier, you have a number of people whose systems are at varying degrees, tribes whose systems are at varying degrees and there are times where I think we do a disservice. Again, I am a big proponent for having tribal members on the bench, but you also have to be able to have someone there who is knowledgeable and can understand law, the analysis, the logic and to be able to generate really good opinions and good decisions. Are we right all the time? No, not necessarily, even those who have the jurisprudence isn't right all the time, but it's based on interpretation."

Ian Record:

"So it's really important then for tribes to invest in capacity in not only of people...tribal members who eventually will be judges, but also those clerks and other people in law enforcement."

Rae Nell Vaughn:

"Because let me tell you, those clerks are down on the ground doing all the work and there have been instances where I have seen they have ultimately become judges and they come in with all the knowledge of working every facet of that system in the sense of dealing with attorneys, looking at orders. It's amazing to me. Some of these clerks that I've talked with in my travels would say, "˜Yeah, I knew that wasn't what needed to happen.' It's just amazing the knowledge, the experience they gain and I have seen many instances where some of these clerks did step up or were appointed to serve as a judge and made excellent judges because they had the hands-on training and going through the process of the documentation, the order development and things of that sort. So it's key, it's very key in regards to having strong judges training and education."

Ian Record:

"So backing up a bit to what you were discussing a few minutes ago and this issue of...essentially, what you were talking about was transparency and jurisprudence, that it's not enough just to make decisions. You have to make sure that those decisions are clear, that they're open to not only the citizens of the nation, but to the outside world and that they're understandable and that they're accessible. Is that what Mississippi Choctaw has done? Is that what you're seeing other tribes starting to do? Are more nations really beginning to understand the importance of transparency in jurisprudence?"

Rae Nell Vaughn:

"For Mississippi Choctaw, yes, it's something that we strive for; it's not cloak and dagger, it's no big secret. Whatever decision is rendered and the opinion is generated, we had a procedure where we informed all arms of government, especially if it was something that was very critical, maybe a jurisdictional issue, something that would affect the tribe. They received notice, they received a copy of the opinion, and then in general opinions that were generated from the Supreme Court, that's 101. You need to get them to see this and also there may be messages in these opinions that say, "˜Look, this is how we ruled, but if we don't make changes to the body of the law that we have, we're going to hit this time and time again. You might want to think about it, but we're not telling you...we're not changing the law, we're not going to change this piece of legislation, but we want you to think about it.' And so it is, transparency is important. Again, going back to the issue of where tribal courts are and the varying degrees they are, those more established courts such as Navajo Nation have a large body of opinions and a body of law there that you can...I tap into it. I've tapped into that as well as Eastern Band of Cherokee -- your bigger, more established systems. And so you have that transparency there, but again it goes back to where the systems are in development."

Ian Record:

"I want to switch gears a little bit and talk about an ever-present dynamic in tribal jurisprudence and that is tribal politics and there's a reason why you're laughing. I assume you know exactly what I'm talking about."

Rae Nell Vaughn:

"It's the bullseye right there."

Ian Record:

"But I wanted to get your sense of what you've seen in terms of the impacts of political interference in tribal jurisprudence and dispute resolution and essentially how far-reaching those things can be."

Rae Nell Vaughn:

"There are many tribes that face this very question of political interference. And it's a hard line to walk, it really is. I think a lot of it has to do with who you are as a person and your integrity and what you yourself are willing to allow and not allow. And at the end of the day, just like I tell my children, "˜If it's an issue that you're really passionate about and you know this is what you need to do, sometimes you're standing by yourself,' and as judges that's ultimately what we end up doing is end up there standing by ourselves and telling whomever it may be, "˜No, you cannot cross this line.' Are there ramifications for those choices? Yes, in some instances there are. And that's unfortunate because of the messages that it sends not only to your community, but -- again as we talked about earlier -- to the outside world. If an individual makes a decision and in the eyes of the government it's perceived as a bad decision and it possibly wasn't in favor of what they wanted and they make sweeping change, who is going to want to step up and serve if there's the possibility of failing to comply or abide by what they're wanting. When you step up and become a judge, all of what you may have supported or your political views all fall by the wayside. Your primary concern is the interpretation of law, dealing with that case that's before you, that's it -- not what the politics are because they cannot be influential, they cannot be influential to what you're doing because if that's the case, then why have a court? Why not let the tribal council run the court? They want to, I know they do, but it's again checks and balances and the maintaining of independence. And I see it time and time again. I've heard so many war stories."

Ian Record:

"Yeah, we see some tribes that still have, particularly with those tribes that have Indian Reorganization Act systems of government where the standard constitution said, "˜The council can create a court system as it sees fit,' essentially and..."

Rae Nell Vaughn:

"Oh, in our code it does state that. It says, "˜If funds are available,' and I thought, "˜Well, what does this mean?' But for the time that that code was developed, that's again going back to, "˜Well, is this is a system or is this a program?' It's clear even in our general provisions, "˜If funds are available, we will operate this court.'"

Ian Record:

"Yeah, some of those IRA [Indian Reorganization Act] systems you still see to this day where the root of appeal of a tribal court decision is back to the council."

Rae Nell Vaughn:

"And we do have that in Choctaw in some instances. Example, if there's an election challenge the court has no...there's no venue in our area. It goes directly to the tribal council once it goes through the election committee. And there is a valid challenge then it's ultimately the tribal council which makes the decision whether to say, "˜Yes, this is a void election or no, it's not.'"

Ian Record:

"You mentioned a few minutes back the messages that are...the very clear messages that are sent when there is political interference and tribal jurisprudence and I was wondering if you'd maybe perhaps talk about that a little bit more specifically because you mentioned messages not only to the community but to the outside world. What kind of messages do those send when you do see that political interference? And perhaps how does that impact the tribe in the long run?"

Rae Nell Vaughn:

"Oh, yes. It does not put tribal government in a very good light when you have that type of interference. Sometimes it comes across as being more of a dictatorship versus a democracy. It really makes greater society doubt in the ability of that government of being able to provide for the people true leadership. And I know as a sovereign nation there have been other tribes and this is just from my travels and visiting with other jurisdictions and sharing war stories. We are under such a microscope, not only the judicial system, but the overall tribal government in Indian Country. We are constantly being held at an even higher standard. Yes, we need to be at a high standard, yes, but it appears when there's just a small hiccup or a small misstep it's magnified 100 times. "˜Well, you see, that's why we don't deal with that tribe,' for whatever reason it may be and it could be miniscule, but for the outside world it's like waiting. They're lying in wait for you to trip and fall. Choctaw itself has had its ups and downs. There's not a tribe that hasn't. We've seen successes, we've seen challenges, but we continue to persevere because of our membership. We're not going anywhere. At one point we were the third top employer of the State of Mississippi providing economic development, providing income for this state and that speaks volumes. Now we're dealing with the issues of the economy, the national economy and the effects that it's having on our tribe and we're having to act and react to those things and it's not been favorable, but we also have to be sustainable for our people and there are hard decisions that we have to make and we've made those decisions, rightly or wrongly, whatever may be perceived on the outside world, as a sovereign we have to maintain for the people."

Ian Record:

"You mentioned this issue of outsiders are looking very closely at what tribes do and in many respects they're waiting for tribes to mess up and using it as an excuse to say, "˜Okay, either we don't want to deal with them or they shouldn't have sovereignty,' whatever it might be. And I think that's really where court systems are critical because in many respects they're the most tangible connection, the most visible reflection of what tribes are doing and what tribe's abilities are, what their capacity is, how they make decisions. Is that something you've experienced at Choctaw?"

Rae Nell Vaughn:

"Yes, very much so, very much so. We've been fortunate. Legal communities -- whether it's on the reservation or off reservation -- are small and word of mouth is very powerful. People know what's going on, whether they're on the reservation or not, they know what's going on and it's really key on how you bring these people in and how you...and also educating, educating them about what we are and who we are as a sovereign nation. One of the things that we provide as a system is a form of a bar meeting and providing them training, bringing to them things that are happening on the national level, educating them, and that's key -- going out and educating. And that's a lot of what I did as well during my time with the court. I've gone to Harvard, to Southern, to University of Southern Mississippi, to the University of Mississippi Law School, to Mississippi State [University], to a lot of the local universities within the state to talk about this very system. And they're so amazed at one, we're not just this casino that they see talked about on TV. Secondly, that there is a functional government, but what they're also very surprised at going back to what we've talked about earlier is the fact that there is no jurisdiction over non-Indians and that's always been the big, "˜Ah ha. Are you kidding me? How can that be if we're in this country of the land of the free and our constitution, our U.S. Constitution,' but that's what the cards we're dealt with. And that's how fragile these systems and governments are because I'm sure if the federal government wants to, and again looking at how governments are exercising their sovereignty or lack there of, they would be more than willing to come in there. It just says that we have to provide you with health and education, but it doesn't really say to what degree so I can...you'll take what I give you and that's where as sovereign nations we really have to be diligent about our exercise of government and of our sovereignty. We have to be. I know I sound like this...I sound like this caped crusader, "˜We've got to be. Somebody has to be at the gate and it's going to be me,' but there needs...there really needs to be more development of people who understand public service of giving back to the people and we've got to cultivate that."

Ian Record:

"So you've made references to the incredible growth of the Mississippi Choctaw's economy over the past several decades and I'll ask you a very blunt question. Could Mississippi Choctaw when it comes to economic development be where it is today if they, for instance had what's often referred to as a 'kangaroo court'?"

Rae Nell Vaughn:

"The short answer, no, I don't believe they could be. This system was and is, continues to be an evolving system and I think with the right leadership it was determined that there are certain things we're going to have to put in place in order to be successful and strengthening the court system was one of them. This system was taken into management of the tribe in 1985 and was operating with a very skeletal group of people and then they expanded the service. And then in 1997 there was another reorganization where they developed very distinct divisions of court. This would give the system the capacity to handle all civil matters. We had well over 1,000 people working for the tribe in the hospitality portion of it and of the industrial arm of it. The majority of these people were non-Indian. Where are civil actions going to take place? In our court if they're working for this tribe. You also had, once gaming came into play and tribal members were receiving per capita, a rush of people wanting to enroll and so our enrollment jumped by leaps and bounds from 3,000 to 4,000 to almost 10,000. And so you had to have the ability to handle all the issues that come with the economic growth and the court system and law enforcement are the people that deal with a lot of the day to day issues that come with that prosperity."

Ian Record:

"So in many ways the court system is the primary vehicle for managing growth for tribes."

Rae Nell Vaughn:

"I would say so. People may disagree but I would say so."

Ian Record:

"So I wanted to ask you a bit more about this issue of justice systems and how they maintain stability in law and order and how does that... how does the justice system at Choctaw provide that for the people?"

Rae Nell Vaughn:

"Well, we've been fortunate that the tribe has taken over, like I said earlier, management of the law enforcement division. It's now the Department of Public Services, as well as the court system itself. The tribe itself has also contributed to our legal community and I include law enforcement in that and detention as well by providing legal counsel for the tribe. We have an attorney general's office that's set up as well as a legal defense, which is the equivalent of legal aid for individual tribal members and so we have a pretty diverse legal community there. This provides for the community, for the people the ability to be represented within our system, but not only within our system, should there be issues that occur off reservation they have the ability to use legal defense to represent them as well in issues such as maybe child support type issues if it's a non-Indian and Choctaw union and the marriage dissolved and there are challenges and things may end up taking place off reservation for whatever reason. Also, the ability if they need counsel in federal cases as well because you know as well as I do that there's always challenges there where the level of adequacy of representation at the federal level. We've seen time and time again where Native people have just not had proper representation, which also dovetails into the additional work that I do as a commissioner for the Mississippi Access for Justice, ensuring that all people have the ability to have legal representation for their issues. But for the people, just knowing that there's law enforcement, there's a police officer there who is not out there on his own. There's a strong department and when I call I know they'll be here not in three hours, maybe within 30 minutes or 15 minutes depending on the location because we are managing our own law enforcement. What does that say for the greater communities? We're able to assist them as cross-deputized officers, peace officers, to assist them with whatever issues may be taking place. Again, going back to jurisdictional issues, there's always, "˜Well, where are we? Are we on Choctaw land or are we on county land? Where are we?' And so it's a tough call at times. Sometimes somebody has to pull the map out and say, "˜Yeah, well, here's the line.' And so it speaks volumes as to partnerships that have to be developed and strengthened to show stability, for them to see the stability of this system. And it spills over even into the court. We had an instance where there was an issue off reservation with two tribal members being dealt with in the county court and the court was familiar with our peacemaking, Itti Kana Ikbi, court, our traditional form of court. And he called up our peacemaker and said, "˜Look, I have this issue here. I think that it should be better resolved...it could be better resolved with you and peacemaking.' That is unheard of for a county court to turn its jurisdiction over to a tribal court. Even I was taken aback. But societies are changing and there are times of tension in race relations, yes, we recognize that. And to see something like that happen only proves more to me that we as a people, not only tribal members, but as people are changing and recognizing that we are just as capable as our counterparts are and that also signals stability."

Ian Record:

"I think in that particular instance, part of to me is them probably saying, that county court judge saying, "˜Hey, those guys do things, they do it right, they... yes, they have their own systems, their own principles that they administer justice on, but they do it consistently, they do it fairly and I have confidence in turning this over knowing that they'll resolve this dispute in a good way.'"

Rae Nell Vaughn:

"That's exactly right. That's exactly right. And so that generated even more conversation and we have a very good rapport with the county courts and so there have been times where other issues, other instances have taken place, but that was just the turning point. And to be quite honest, I never would have thought I would have seen things like that happen in my lifetime. There's always been this sense of separation and I'm sure it is with other Indian tribes. "˜You're the Indian tribe, you're over there. Here we are metropolitan society. You do your own thing and we'll do our own,' but we're all members of the community, of our communities, and it's being able to interact with one another and working for the greater good of the entire people because don't forget, it's the people who are living outside that are probably working for the tribes on the reservation. So there has to be, whether they like it or not, there has to be a relationship."

Ian Record:

"Yeah, we hear this more and more often, this refrain from tribal leaders of, Native nations aren't islands and they can't act like there are. They can't exercise their sovereignty in isolation, that for them to advance their strategic priorities they're going to have to, of their own volition, build these working relationships with other sovereigns, with other jurisdictions, with other governments, with other municipalities in order to advance their priorities and create a better community."

Rae Nell Vaughn:

"Exactly, and I think that's what has been the successes of what has created an environment of success for our tribe, for Mississippi Choctaw, has been those relationships whether it's local, state or federal, having those relationships not only within your executive branches and legislative branches, but also within your judiciary. Maybe I was in the judiciary the fifth year of my tenure and I had the opportunity, and it was such a very moving moment, when I had the Chief Justice of the State of Mississippi and his associate justice come down. He came down to Choctaw and sat down and had a conversation with me, the Chief Justice of Choctaw Supreme Court, his counterpart to talk about, "˜How can we help one another?' And that's something that is...I couldn't even imagine that happening. And I shared with him... and we got to know one another and we've become good friends and I said, "˜It had to do with the people and the timing.' Everything just came and lined up and it worked. And so we were able...and we have and we've continued that relationship even with the new Chief Justice, that there continues to be and as well as my new counterpart, there continues to be this continuation of the relationship and it has to be. And it's good that it's now recognized."

Ian Record:

"A couple more questions here. This issue of...getting back to the issue of when you have a justice system creating this environment of stability, of law and order, of certainty, of essentially offering a fair forum for the resolution of disputes where people feel that, "˜If I need to go have a case heard, whether I'm an offender or the one that's the victim in this case, that it will be resolved or adjudicated based on the merits of that case.' Doesn't that send a pretty powerful message to not just those outside investors, but also to your own people that, "˜Hey, this is a place where I can come or I can remain and invest my time, invest my resources, invest my skills, my ideas and the future of the nation.'"

Rae Nell Vaughn:

"One thing that I know people struggle with is understanding the system and once you enter in and begin going through all the different processes, they then realize how difficult it is to go through the court system per se. And it may have been designed specifically for that, because you certainly don't want frivolous actions coming before the court. You certainly don't want a manipulation of the system and so it's holding all parties accountable. And the messages that it sends to the people, I would hope, and that was always our hope, was that, "˜You will receive fairness here when you walk through these doors. You will see an individual there who is going to render justice, whether it's on your behalf or not, whether it's for you or it's not.' Of course when the person fails to get the decision they want, you have that as well. But I know that in my dealings with the legislative body, they recognize it as well and at times you have to let the community member vent. They're also your constituents and so you've got to let them vent, but also talking them through, "˜Well, this is what it is but you also have the ability to appeal,' which is the beauty of it all. There is still another forum to go to if you're dissatisfied and if it's a true error of law, then you do have another venue to go to. In some instances, most tribes don't have that luxury."

Ian Record:

"Several years ago we were talking with Norma Gourneau, she was...at the time she was the vice chair at Northern Cheyenne, and they were dealing with this issue of...the court judges were just getting steamrolled by councilors every time...they were having a big issue for instance with automobile repossessions by off reservation dealerships and these off reservation dealerships would get a default on a car loan, they'd come on the reservation to get the repo order enforced so they could actually come on the reservation and pick up the car. The tribal member who was in default would go to a council member and say, "˜Oh, I need my car.' The council member would lean on the judge, the judge would rule on the tribe's behalf. Before long nobody's selling cars to tribal members. And so what she said was they put a fix in there. They did a constitutional reform, they insulated the court from political interference and she said, "˜What I found was I had a lot more...I found myself empowered because I wasn't dealing with those issues anymore. I could now...I wasn't putting out those fires of having to interfere in the court system so now I could focus on what was really important for the tribe, which was where are we headed, where are we going and how do we get there?' Is that...do you see that as an important dynamic to have when the court system is insulated from that essentially liberates elected leaders to focus on those things?"

Rae Nell Vaughn:

"I wish there was more of a way to make that happen for all of us because we all deal with those...again, it goes back to what we talked about earlier -- political interference -- and again it's up to you as an individual of your integrity whether you allow it or not. Yes, they can be pretty quick to apply pressure on you. Yes, we've dealt with those types of things. It was always astonishing to me when a vendor would call and say, "˜Well, this is happening and I'm not getting service, I'm not getting the court system to react quickly enough.' And our council would be so quick to step up for those vendors and I'm like, "˜You have to allow the process to take its paces. It has to go through its paces. You can't speed anything up for anyone in particular. It doesn't matter, it just does not matter.' But yes, we have experienced in the past where because you had a number of tribal members defaulting on a lot of things, businesses begin then questioning, "˜Well, do I really want to do business with a Choctaw?' Not so much about the judicial process itself, but if I'm not going to be getting my money back or if I'm not going to get paid for whatever service I render, is it worth my time? Which is a much bigger question, but going back to insulating yourself, we as a judiciary, as many judiciaries, have canons of ethics and it depends on what those things mean to you. The legislative body as well as the executive body, unfortunately in our instance, don't have canons of ethics and...but those are to me things that are internal. You should have those types of ethics. You should know that it's not proper to go to the judge to say, "˜Change your decision.' It's not proper. You would feel...if there were clear lines of language that said, "˜No, you cannot approach the court,' then the atmosphere would be different. The atmosphere would be very different. Yes, there are tensions, there are questions, "˜Well, what's going to happen with the impact of this decision I've made? How is that going to affect possibly my appointment? Will I still be here in four years?' But if there were that...if there was the ability to have that happen where language could be developed and there were clear separations, you would be able to be in a position to judge more effectively without the fear of repercussion. You would. It's bad enough you have a lot of other things that you have weighing on you as a judge, to have that extra layer put on you and the sad thing is it's your own people, these legislative members are also your members, members of your community and of your tribe. I've heard one councilman tell me...he told me once, there was a case that was being dealt with and he was insistent on trying to get involved, to come in. And I said, "˜It's clear in the code, you can't stand as an advocate. It's clear in the code that you cannot post bond for this...bail for this individual.' And he would tell me real quick, "˜Well, out in this county I'm able to call the judge and da da da da da.' And I said, "˜Well, you know what, that's that court system, not here.' Needless to say, he wasn't my friend anymore, but that's the whole point of it. It's where your integrity lies and you have to. But again, it's also educating, educating the legislative body because of the evolution, the changes of a justice system, what justice systems mean, fairness and that, "˜No, you can't go and ex parte the judge.' It's about fairness and not so much about control. And that's the problem, it is an issue of control."

Ian Record:

"So the tribal code for Choctaw prohibits elected officials from, I guess, involving themselves in court cases in certain respects."

Rae Nell Vaughn:

"Yes, that's correct. If I as a tribal member would ask a councilman to come in to serve as an advocate or a speaker on their behalf of sorts, it's not allowed. They're not allowed to post bail or bond for anyone. It's right there in black and white, but they still continue to try to do that. I've always told my staff, the judges, when we look at the canons of ethics, "˜It's there to protect you so use it,' tell them that this is what the canons of ethics tell us in regards to appearance of impropriety, of political influence and things of that sort. That's what it's there for. And it's a struggle, it is a struggle and this is something that I know a lot of tribes face, a lot of judges face. It's a hard...it's a hard line to walk because again you are a member of the community, you do not have the ability to blend in with the general populace. It just doesn't happen. Like I said, for our tribe, we're a membership of almost 10,000. We have on the reservation over 6,500 people."

Ian Record:

"Do you think part of it, when elected leaders feel that impulse to interfere on behalf of a constituent, that they maybe haven't gone through the paces perhaps as you've termed it to think, "˜What's the long-term implication of my action here? Because I might be helping,' because that's their feeling, "˜I'm helping this person. I'm helping this person, but am I really helping the nation in the long run because this is going to be the ramifications of this. There's a ripple effect to what I'm doing.'"

Rae Nell Vaughn:

"Yes, and you're exactly right. I know in some instances their intentions are good, their intentions are good, they do want to help their constituent. They feel that someone needs to step up for them, someone needs to represent them, and maybe for whatever reason the different programs may not be able to help that particular individual, for instance, a vulnerable adult, an elderly person who may be being taken advantage of with his grandchildren taking the monthly check. And so I can see that, but when you don't allow the process to happen and if you don't follow the letter of the law, then the messages that it sends out is that, "˜Well, you can change the rules whenever you want,' and you can't do that. The rules are the rules for everyone, whether you're the community member, whether you're a member of the council, whether you're the chief, the rules are the rules. And although some people may think they might be able to change those rules; that's where the strength of your judiciary is the test not to allow those things to happen. I know within...in Indian Country those things happen where they're tested all the time. Like we talked earlier about jurisdictional issues, everyone is coming at you from different angles and let me tell you, being...living the life of a judge is not an easy thing. It's rewarding at times because you're providing a service to the people, the successes that you see make it worth all that you have to go through, but the political side of it can be at times very disheartening, very discouraging because you're having to deal with this mountain of things that are coming at you and you're trying to do the best you can do for your system. And sometimes people just don't see it the way you see it and it's trying to reach consensus with people, to get them on your side, get them to understand. Education, it's...it always goes back to education, teaching the membership, teaching the legislative body what these systems are all about and how important it is because at the end of the day that's going to be what makes you successful as a people, as a community. For me, it's always been my philosophy that tribal courts are the guardians of sovereignty. It's our job to make sure that we protect this sovereign through the well of the court, through this legal system and it's something that when you take on this judgeship, it's not about the notoriety, it's about what you provide, what you bring to the bench and the protection of the sovereign. That's the bottom line of all of this." 

Honoring Nations: JoAnn Chase: Cultural Affairs

Producer
Harvard Project on American Indian Economic Development
Year

JoAnn Chase reports back to her fellow Honoring Nations sympoisum participants about the consensus she and her fellow cultural affairs breakout session participants reached concerning the need for Native nations to fully integrate culture into how they govern, and also to ensure that their governance activities strengthen their cultures.

People
Native Nations
Resource Type
Citation

Chase, JoAnn. "Cultural Affairs." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 9, 2002. Presentation.

JoAnn Chase:

"Good afternoon everybody. As Heather [Kendall-Miller] helps put some of the notes from today's discussion that we had up there, I couldn't help but just look outside and see the beautiful blue skies today and another gorgeous day in Santa Fe, New Mexico, and just really give thanks for the opportunity to come together and meet together and gain from and learn with one another and exchange knowledge base and we thank you for the food that we have and for each other. So that may be a really appropriate way to start off our report on some of the really vibrant and terrific discussion that we had about cultural affairs programs.

We came to a simple bottom line, and I think it almost summarizes the whole extent of our discussion, which is that as we talk about building successful Indian nations, we cannot build Indian nations without a strong comprehensive fully integrated cultural component. And so the discussion, we actually engaged in some detailed discussion, but citing some examples just to the Honoring Nations of really driven cultural programs that are models for us to look at. The Ojibwe language program, for example, at the Mille Lacs Band of Ojibwe; the Elders Advisory Council for the San Carlos [Apache] Tribe; the Navajo Nation Archaeology Department at Navajo Nation; the Poeh Cultural Center for Pojoaque [Pueblo] that some of us will have the privilege of visiting today; the Navajo Studies Division at Navajo Nation are just among some of the examples of really terrific things that are being done.

Lots of our discussion actually centered around language, and language preservation being such a key component of who we are as Indian people. And somebody I think summarized it so appropriately that said, 'Without language we don't have culture,' and yet we face the challenge in so many of our communities of losing those languages. So how do we break down some of those internal barriers that exist? How do we break through some of the imposed structures that are upon us? We can't just rely on our school systems. Our school systems don't necessarily serve our families. What kinds of creative thinking can we do, and think beyond those imposed structures that we have had to exist under, so that we can in fact have language programs that involve intergenerational components and that involve our families collectively? Much of the discussion was also around it is so important to involve the entire family in the language process.

We talked about some ways of just preserving and protecting and maintaining language including taking the initiative to control our own schools, to make our own laws. Somebody in our group said that their tribe actually had...was [unintelligible]. I believe it was Marge Anderson at Mille Lacs that, in order to graduate from the school system, one had to have proficiency in the language and demonstrate fluency. With that bold move by the tribe and certainly then the program to support that so that that can happen. Involving speakers with the very young, we mentioned that; promoting pride in being Native and using the Native language. There was an example of a group of young people who, first graders who stepped out and sang songs in their own language and actually integrated some Western culture with some sort of rap overtones. And we asked Chairwoman Anderson to demonstrate for us. She refused to do that, but nonetheless, the point I think was so well taken that the language itself instills the pride and is such an important component of maintaining that pride and that the young people, the transformation, as they became more proficient in the language was so apparent the way they held themselves, the way they communicated, the brightness in their eyes and just the general happiness with who they are, which clearly related to their ability to speak the language. We know that's so tremendously important in maintaining our cultures.

We talked basically about strategizing to reach out to families, again breaking down some of those boundaries that exist and thinking creatively. After-school programs, evening programs, weekend programs so that we are indeed involving our families, concentrating on some of the internal mechanisms within tribes.

We talked about thinking beyond basic boundaries and we know that there's some wonderful programs out there. We have relatives that boundaries that exist have been imposed upon us and recognizing that they've been imposed, thinking beyond them, reaching to our relatives in Canada, reaching to our relatives in Mexico, looking outside again in supporting and exchanging our culture. Again, integrating those aspects of our culture into the...a comprehensive approach to building nations.

Let's see if I'm missing things here. We talked so much about language and why it was important. Then we actually then transitioned to some really important conversation about economics and we know that there are so many economic challenges for tribes. In fact, so much of this program about nation building is concentrated on engaging in initiatives and tribes being forced to sometimes make some difficult decisions about economic initiatives so that they actually can continue to build the nation. And the importance of recognizing that culture may not immediately...incorporating components of culture into a comprehensive nation-building strategy may not have immediate quantitative economic returns, but that certainly there are many, many returns that through a qualitative analysis bring tenfold back to the tribe and that, importantly, that if we look over the longer term of economic analysis we do see that cultural components built into nation building, in fact, do have economic returns, and encouraging that kind of thinking so that we aren't forced into decisions of we're not going to support the culture because we don't see the dollars immediately. These cultural components are a drain on our economic development initiatives. Clearly we know that that's not to be true and to continue to take measures that defy some of those thinking that we know really are conclusions that in the long run prove not to be true at all.

We talked about things like bringing artists together, thinking again creatively, reaching outside of our communities, involving, as I said, intergenerational components between elders and youth and so on. And then we talked a little bit about tribal politics and the necessity of getting tribal leaders involved and committed to cultural programs and recognizing of course that tribal leaders certainly have...are pulled in so many directions these days -- they need to be in Washington, they need to be working with state legislatures and so on -- but that, indeed, if they are not committed to the cultural programs and cultural adaptations that there is a real shortcoming in the kind of leadership that they're providing to the tribe. Basically it came down to walk the talk. There's some danger in a lot of rhetoric among particularly tribal governmental elected officials of supporting culture but not necessarily taking the appropriate actions to support that culture. Again bold steps like promulgating laws that incorporate culture into the overall development of our nations is clearly important. And so there was some very provocative discussion around that, making sure that we hold tribal leaders accountable to the kind of rhetoric and at the same time making sure that we do take the measures that we can to ensure that our elected officials are engaging and participating and supporting necessarily various cultural initiatives.

We talked a little bit about tourism and involving outside communities in our cultural affairs and how that can be creatively done. Of course we know that there may be some dangers, we've seen some of our initiatives taken from us, exploited, exported in ways that aren't healthy to us, but indeed, with careful thought there are some wonderful things that can happen so that not only are we building the culture within, but that we're also contributing to the broader fabric of society as well. Some strategies: we talked about using crisis to our advantage to teach and to pull in culture. It's that which sustains us to get us through those difficult times and we know that there's a lot of crisis in Indian Country so reaching to those foundations that keep us strong. Be opportunistic and look for opportunities to interject ideas and principles that come from culture, taking advantage of the situation, seizing the initiatives. Create formal roles for cultural leaders that bring their advice and ideas to the forefront. We mentioned the San Carlos [Apache] Elders Council as a perfect example of that and obviously they play a tremendously important role in the tribe. Funding, staffing, equipment and training for cultural centers, because clearly there's a service to those communities and we know that we need to be aggressive in seeking ways that we actually are able to provide funding and staffing and equipment. Those seem to be challenges for us all of us in so many programs but we must continue to pursue ways to actually ensure that there is that kind of training, there is the kind of equipment, there is the support necessary.

I think that's predominately the essences of the conversations that we had and I can say one more time, all those wonderful points and strategies really boil down to one main point and that is that we cannot build Indian nations without a very strong, a very comprehensive and a wholly integrated cultural component."

The Rebuilding Native Nations: Strategies for Governance and Development course series

Producer
Charissa Delmar
Year

This short video provides a comprehensive overview of NNI's "Rebuilding Native Nations: Strategies for Governance and Development distance-learning course series.

The curriculum examines the critical governance and development challenges facing Native nations and surveys the breadth and diversity of Native nation-building efforts across Indian Country. Sharing lessons learned through 25 years of community-based research by NNI and its sister organization the Harvard Project on American Indian Economic Development, it explores what is working, what isn’t, and why as Native nations move aggressively to reclaim control over their own affairs and create vibrant futures of their own design. Featuring eight different course options, Rebuilding Native Nations provides a dynamic individual or group learning experience, weaving together video lectures by course instructors, the perspectives of more than 100 Native leaders and scholars, curricular materials from NNI’s “Native Nation Building” and “Emerging Leaders” executive education seminars, in-depth case studies, illustrative graphics, the Rebuilding Native Nations course textbook (Univ. of Arizona Press, 2007), and original readings drawn from the NNI-Harvard Project research.

Citation

Delmar, Charissa (producer). "The Rebuilding Native Nations: Strategies for Governance and Development course series." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2013. Video.

Benny Shendo, Jr.:

It's not necessarily about nation building, but it's about rebuilding, because if you look at our communities historically, we were very powerful nations.

Robert A. Williams, Jr.:

Federal Indian law is not the reason that Indians are still here. The reason that Indians are still here is because tribal people and tribal leaders clung to their traditions and found ways to perpetuate them -- below ground.

Sophie Pierre:

We have a choice. We have a choice. We can continue, continue to go down that self-pitying kind of road, blaming everybody else for our problems, or we can take control of it. We chose to take control of it.

Anthony Pico:

Sovereignty is the right to govern ourselves, control our resources, follow our respective traditions and customs, and create our own visions for our own communities and our children's future.

Erma Vizenor:

And so we have to have structures and institutions that empower us so that we are never taken advantage of again.

Narrator #1:

"A revolution is underway among the Indigenous nations of North America. It is a quiet revolution, largely unnoticed in society at large. But it is profoundly important. From the High Plains states and Prairie Provinces to the southwestern deserts, from Mississippi and Oklahoma to the northwest coast of the continent, Native peoples are reclaiming their right to govern themselves and shape their futures in their own ways. Challenging more than a century of colonial controls, they are addressing severe social problems, building sustainable economies, and reinvigorating their cultures, languages, and ways of life. In effect, they are rebuilding their nations according to their own diverse and often innovative designs.

The Rebuilding Native Nations: Strategies for Governance and Development a distance-learning course series explores this growing movement. Sharing lessons learned from more than 25 years of community-based research by the Native Nations Institute and its partner organization the Harvard Project on American Indian Economic Development, it examines what is working, what isn't, and why as Native nations work to regain control over their own affairs and create vibrant futures of their own design.

Rebuilding Native Nations provides participants a dynamic learning experience, weaving together video lectures by course instructors, the firsthand perspectives of more than 100 Native leaders and scholars, case studies of nation-building success stories, informative graphics, the Rebuilding Native Nations course textbook, and original readings drawn from Native Nations Institute and Harvard Project research.

Featuring eight different course options, the curriculum offers Native nation leaders, key decision-makers, administrators, employees, citizens, tribal colleges and universities, and others a variety of options to learn about the keys to successful nation building and how to -- once again -- develop healthy nations that work."

Narrator #2:

"The Native Nation Building Introductory Course."

Patricia Ninham-Hoeft:

Nation building to me is about building a place -- a place where my children and their children will live and play and work and raise their families forever and ever as Oneidas. And this place is important, I think, because we allow a collective group of people to become Oneida because they live in this place, and it becomes a way of life.

Narrator #2:

"The Administration Short Course."

Wilma Mankiller:

"When I think about developing communities in a real sense, not in an abstract sense, but taking a community and developing the economy, or developing water systems or community buildings or health care or whatever, what I think is that you have to have a strong enabling center to do that. The people who do community development and develop the economy can't go out and do good work unless they have a strong enabling center. And so, again, it's important to have a good accounting system, a good administrative system, and a strong tribal government in order to do that work."

Narrator #2:

"The Constitutions Short Course."

Gwen Phillips:

"And as you were speaking, I was getting this picture in my mind of a shield, that a constitution should be like a shield, and I'm the battle warrior -- we're back to the 'Star Trek' theme. Did you see that? I brought it back to the 'Star Trek' theme. But that shield, to me, shouldn't be a big shiny shield that's really pristine and looks like it's never been taken out of the case. To me, it should be all dented and it should show your battle scars, 'cause to me your constitution should live through all of those, to be able to take the sideways hits, to be able to stand up to the arrows and sometimes the bulldozers and whatever else, and live through all those things."

Narrator #2:

"The Economic Development Short Course."

Lance Morgan:

"When we started our company, we created two missions. We have two primary goals, and one is to create economic self-sufficiency and the other one is to create job opportunities. And I think that, before we started, we had a long history of kind of having businesses there, and we kept them open even if they weren't necessarily profitable because of the jobs issue. And I always kind of thought that was kind of a bit of a cop-out for poor management or poor decision-making or poor governmental structure. I think that if you don't have the profits, you're not really going to have the jobs for a long-term, sustainable period of time. And so, I think you really need to focus on developing a successful business. If you do that, the jobs will follow."

Narrator #2:

"The Intergovernmental Relations Short Course."

Jaime Pinkham:

"It is an exercise of sovereign powers. When we do these intergovernmental agreements, it is we -- it is a sovereign decision for us as a tribe to pick and choose who we want to be our governmental partner. And we get to identify and set the stage, the framework for the nature of those relationships. So it is...it's not an erosion of sovereignty, but in fact it's an expression of sovereignty in working out these sorts of agreements."

Narrator #2:

"The Justice Systems Short Course."

Theresa M. Pouley:

"Your tribal court system is part of your government every bit as much as any other department. And the fact that we have separation of powers, doesn't mean we have separation of problems. You and I all have the same problems. It doesn't mean that we have separation of solutions. Because I am a judge, I know a variety of things about promising practices. Because you're tribal council people, you know a variety of things. If we put our heads together, we can get it done."

Narrator #2:

"The Leadership Short Course."

Ned Norris, Jr.:

"People ask me today, How do you like what you're doing? And I tell them, I love it. I love this job. It's everything that a job needs to be. It's challenging, it's exciting, it's frustrating, it's disappointing.' All of those things that our jobs need to be in order for us to grow, in order for us to challenge ourselves, in order for us to be challenged. We have to have all of those experiences, all of those ingredients in order for us to be successful as tribal leaders."

Narrator #2:

"The Rebuilding Native Nations Full Course."

Ivan Makil:

"The things that we do today are not new. The challenges that we face today may be different than they were 100, 200 or 1,000 years ago, but the way in which we start to resolve these issues, the process is very similar as to what our ancestors had to do to resolve the issues and challenges that they faced as well. And so if we look back and we start to reacquaint ourselves and again understand the challenges of our ancestors, and the processes that they went through, that they developed to respond to these challenges, to make decisions, we'll find that there are some answers for us that will help us to make really good long-term decisions."

Narrator #1:

"To learn more about the Rebuilding Native Nations: Strategies for Governance and Development course series, please visit: rebuildingnativenations.com."

The Rebuilding Native Nations course series was developed by the Native Nations Institute for Leadership, Management, and Policy at The University of Arizona. The course series development team:

Course Series Director
IAN RECORD, MANAGER, EDUCATIONAL RESOURCES, NNI

Lead Developers
IAN RECORD, MANAGER, EDUCATIONAL RESOURCES, NNI
RYAN SEELAU, SENIOR RESEARCHER, EDUCATIONAL RESOURCES, NNI

Graphic Designer
ARIEL MACK, GRAPHIC DESIGNER, NNI

Course Contributors
JULIAN BILLY
CHERYL ELLENWOOD
CHARISSA DELMAR
BEN DICKEN
DEIDRA GOLDTOOTH
DANIELLE HIRALDO
VICTORIA HOBBS
EMILY MCGOVERN
RAYMOND NAITO
SHERYL POLING
TARISSA SPOONHUNTER
JENNINE STEBING
CARRIE STUSSE

REBUILDING NATIVE NATIONS COURSE SERIES DEO

Writer & Director
IAN RECORD

Producer
CHARISSA DELMAR

Narrators
IAN RECORD
CHARISSA DELMAR

Music
KEITH SECOLA

Artwork
Shaman by PABLO ANTONIO MILAN

Images courtesy of
ARIEL MACK
GWENDOLEN CATES
HARVARD PROJECT ON AMERICAN INDIAN ECONOMIC DEVELOPMENT
HUU-AY-AHT FIRST NATIONS
KATE SPILDE
KERI PICKETT
JOHN RAE/NYC (RAEPHOTO.COM) and HONORING NATIONS
MOHAWK COUNCIL OF AKWESASNE
NATIONAL MUSEUM OF THE AMERICAN INDIAN
PROVINCE OF BRITISH COLUMBIA
RED LAKE BAND OF CHIPPEWA
WINNEBAGO NEWS

Funding for the Rebuilding Native Nations course series provided by
BUSH FOUNDATION
MORRIS K. UDALL AND STEWART L. UDALL FOUNDATION
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY
U.S. DEPARTMENT OF THE INTERIOR

This video is a production of The Native Nations Institute for Leadership, Management, and Policy at The University of Arizona. Copyright (c) 2013 Arizona Board of Regents. All rights reserved.

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

Producer
Harvard Project on American Indian Economic Development
Year

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

Native Nations
Resource Type
Citation

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

Andrew Lee:

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

Stephen Cornell:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the Rebuilding Native Nations Course Series: "The Role of Bureaucracies in Nation Building"

Producer
Native Nations Institute
Year

Native leaders discuss the critical role that bureaucracies play in Native nations' efforts to achieve their nation-building and community development priorities.

Native Nations
Citation

Giff, Urban. "A Capable Bureaucracy: The Key to Good Government" (Episode 6). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

LaPlante, Jr., Leroy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Mankiller, Wilma. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 29, 2008. Interview.

Pico, Anthony. "Building Great Programs in a Political Setting." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 10, 2004. Presentation.

Urban Giff:

"Well, I once equated that to and compared it to the older customs of tribes, my tribe included as well as other tribes, in which the villages of the tribe were safeguarded by sentries and warriors that were away from the villages and they sounded the alarm in case there was danger and they were effective in safeguarding the tribe, the people, their assets. I equated that and compared it to the modern-day tribes. We still need warriors and sentries, but in the field of accounting, in the field of law, in the field of human resources administration, in the field of management, all the functions that a government has to operate under, and that we need qualified warriors in those areas and that's what will benefit the tribes. As the ancient warriors did and benefited their tribes, we still need warriors today."

Wilma Mankiller:

"When I think about developing communities in a real sense, not in an abstract sense, but taking a community and developing the economy, or developing water systems or community buildings or health care or whatever, what I think is that you have to have a strong enabling center to do that. The people who do community development and develop the economy can't go out and do good work unless they have a strong enabling center. And so, again, it's important to have a good accounting system, a good administrative system, and a strong tribal government in order to do that work."

Leroy LaPlante, Jr.:

"You gotta have that infrastructure in place because it's one thing to take a vision and philosophies in terms of how we want to be, but you gotta have the practical policies and infrastructure that get us from point A to point B."

Anthony Pico:

"As Indian nations increasingly take over management of social and economic programs and natural resources on our reservations, as we undertake ambitious development programs or government tasks become more financially and administratively complex, our government infrastructure becomes more essential to overall success. By infrastructure I mean those bodies and directives that help keep the fire lit while the hunters are on the trail. It's the glue that keeps things going when the leadership changes or there's a political crisis. It means attracting and keeping loyal employees and developing and retaining skilled personnel. It requires establishing effective civil service systems that protect employees from politics. It means putting into place solid personnel grievance systems and that decisions are implemented and recorded effectively and reliably. It ensures that businesses and future government officials do not have to reinvent the wheel or lose momentum, but rather are able to build on the success and avoid the failures."