sovereign immunity

Leroy LaPlante, Jr.: Effective Bureaucracies and Independent Justice Systems: Key to Nation Building

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Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Leroy LaPlante, Jr., former chief administrative officer with the Cheyenne River Sioux Tribe and a former tribal judge, offers his thoughts on what Native nation bureaucracies and justice systems need to have and need to do in order to support the nation-building efforts of their nations. 

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Citation

LaPlante, Jr., Leroy. "Effective Bureaucracies and Independent Justice Systems: Key to Nation Building." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I'm honored to welcome Leroy LaPlante, Jr. Leroy, who goes by "JR" to many, is a member of the Cheyenne River Sioux Tribe. He worked as chief administrative officer for his tribe for three years from 1998 to 2001. Around that time, he was named ambassador of the tribe by the then-chairman, a great honor. And he currently works as an attorney working with tribes on a number of different, in a number of different areas including economic development and housing. Welcome JR."

Leroy LaPlante, Jr.:

"Thank you, Ian."

Ian Record:

"We're here today to talk about a couple of topic areas relevant to Native nation building and governance, those being tribal bureaucracies and then tribal justice systems. And I want to start off with tribal bureaucracies. And I'm curious to learn from you, what role do you feel bureaucracies play in advancing the nation building goals of their nations?"

Leroy LaPlante, Jr.:

"Well I think it's really important for Native nations to have a strong infrastructure in order for them to really accomplish their goals. They've got to have, I think, one, they have to have a strong legal infrastructure, but I think they have to have a strong infrastructure where they can deliver services and their programs are functioning in an effective manner."

Ian Record:

"So what, in your experience, do Native nation bureaucracies need to be effective?"

Leroy LaPlante, Jr.:

"Well I think, for one, there needs to be, I think, a good system in place: policies, procedures, ways to measure outcomes. There also needs to be a very good financial accounting so that performance on a lot of tribes function under grants, federal grants and so forth. And so there's a big need for tribes to have a way to make sure they're performing well on these grants and so forth. But you know, in my experience as the administrative officer for Cheyenne River for three years, we had the privilege of having a good tribal controller who kept us on track financially, and we had a good planning office and we had a good grant oversight. But for me, what I think was really important -- and we grew exponentially in those years that I was, that I had the privilege of working as the administrative officer -- but the key was we had a separation of roles. The administrative or the executive branch of our tribal government, we knew people respected what we did and they trusted us to do what we did. The tribal council, the legislative branch of the government, they had an understanding of their role. And I think that that's really, really key. If you can have that, I don't want to call it separation of powers necessarily, because it's more so, I really see it as the government having different roles. And I think that's what resonates with Indian people, more so than powers. So I think that was key, to have this sort of hands-off approach and letting us really manage the programs and let the programs do their work."

Ian Record:

"We've heard others who either serve or have served in positions like you did for your tribe, draw the distinction between those who make the decisions and then those who carry out the decisions. Is that essentially what you're talking about?"

Leroy LaPlante, Jr.:

"Absolutely, that's exactly what I'm talking about. And I think that if you have a tribal council that tries to micromanage a lot, I think they can get in the way of what we're trying to do. And because, you know, the daily decisions that we make in government, you know, especially when we get caught up in personnel issues and those sorts of things, it can really bog down government. And when government gets bogged down, government gets slowed down, we all know that the real losers, in that instant, are the people. And we're there to serve the people, we're there to provide services to the people, we're there to provide critical services to tribal members. So it's important to just let those programs function freely."

Ian Record:

"So what happens when -- and granted it sounds like during your tenure there wasn't a lot of this going on, but based on your experience perhaps working with other tribes -- what happens when that political interference in the carrying out of programs, in the delivery of services, and just the day-to-day bureaucracy of the tribe, what impact does it have within the bureaucracy itself?"

Leroy LaPlante, Jr.:

"Well, I think the immediate...I think there's immediate impacts and there's long-term impacts. The immediate impacts are, you get this...the services aren't provided in an equitable fashion, you have this favoritism towards certain, maybe employees where you have some...so nepotism can come into play in terms of hiring. They get...if there's this micromanaging, there's this...it can interfere with personnel decisions. And also, just decisions in terms of where these programs need to go in terms of their planning and so forth. The long-term effect that it has on it is it does affect long-term planning, and I think that if they would just let the programs function and plan out their work like they're supposed to, then things will work out accordingly."

Ian Record:

"We've seen instances among nations where formally, there was that situation where there were elected officials interfering in program delivery and administration, bureaucracy of government. They make the necessary changes and that micromanagement stops or at least is reduced to the degree where the elected leaders suddenly find that they have more time to focus on, ideally, what they should be doing."

Leroy LaPlante, Jr.:

"Well that's what I meant, Ian. I kind of misspoke on the last response to your question, but that's what I meant by the long-term effects. I think there's a short-term effect and that the interference, it prevents those programs from functioning the way they're supposed to, it prevents them from hiring the way they're supposed to, making personnel decisions the way they're supposed to, making fiscal decisions the way they're supposed to. But I think the long-term is it detracts from what their job really is, and that is to plan long-term for the tribe. To think where, you know, the bigger decisions. So you kind of have this hierarchy of needs in a tribal government; you have these everyday, daily operations. And, you know, who decides, you know, what to purchase with a particular program budget is a very small matter. But when you have legislators and tribal council members making those kinds of decisions, obviously, that's going take away from the bigger things they should be doing, which is planning for the tribe's future, creating laws that are going to be implemented for the improvement of the tribe. And so it does detract from those bigger things and those are the things that they're likely to do. And so that's what I meant by a short-term effect and a long-term effect."

Ian Record:

"And it also has a direct effect on the people who've been charge with administrating the decisions that the elected officials make, does it not? The program managers, the department heads, the administrators?"

Leroy LaPlante, Jr.:

"I think it really does, because you're hired to do a job and you want to...in terms of developing that leadership, in terms of utilizing those people for what they're hired to do, it does stunt their growth, in a sense. So that's...it does have an effect in that regard. But here's one of the saddest things that I see happening when you have talented people, tribal members that are doing these program management jobs or whatever, filling these tribal positions. I think when you get this interference from tribal council, it can get really discouraging. We hire people who are capable, we put our, everybody that applies for a tribal position through an application process, and we feel like we hire the best person. What happens I think with people, people get frustrated, they feel like they're not, [don't] have the freedom to do their job and so they end up, we end up losing I think some very talented people. So I think one direct effect is that it does maybe impact and where we have somewhat of a brain drain on the tribe. I mean, if you get hired to do a job, you expect to be able to come in and freely do that job."

Ian Record:

"So then...what role then should elected leaders play in ensuring an effective bureaucracy to carry out the wishes and priorities of the nation?"

Leroy LaPlante, Jr.:

"Well, I've never been an elected official. And, you know, I think, I don't know if I'm qualified really to speak to that. I guess I could, I guess I'm qualified enough to say what they should be doing, or what we'd like to be doing. So in a perfect world -- and of course we all know it's not a perfect world -- but in a perfect world what you would like to see elected officials do is really put the people before themselves. And put the interest of the tribe as a whole, collectively, before themselves. I think, too many times, people that are elected to tribal council or to an elected position sometimes have their own agenda. And I think it's important that -- it may be a good agenda -- but I think that it's important that they try to serve the people first and carry out those duties. Now again, elected officials have different roles. And I think it's really important. A long time ago, Indian people had different roles in our society, and you even see that today. If there's somebody in our community that makes drums, for example, that's that person's role. People respect that. And anytime somebody needs a drum, they go to that person to make a drum. And I think that those roles in tribal government are very similar, and I think that that's where we can import some of our traditional ways of perceiving what we do is that you have a role.

The problem I think, Ian, is that sometimes when people take a position in the tribe, they don't what that role is to begin with and so when they come in, I think, there should be some sort of orientation process. There should be some sort of time where they're brought in a transition period and they're saying: this is what we understand to be your role as an elected official, as an elected councilperson, as a tribal secretary, as a tribal treasurer. And you know, it's really, you know sometimes we're a little too hard on elected people because I think that we assume that they know what their role is when they're hired or when they're elected and I don't think we should make that assumption. I think we should, if we assume anything I think we should assume that they could use some mentorship; they could use some instruction.

So that person comes in, they take that elected office, and then they don't perform or they start micromanaging or they start doing something other than what we think they should be doing. But it really should come as no surprise, "˜cause they're walking into a position that they have no formal training for. And so I think that we need to really be understanding of, you know, and if you look at a majority of elected people in tribal government, they are people that don't have a lot of formal training. They are people that are from the community, that people trust, that are respected. You know, the qualifications of an elected person in tribal government is different from an elected person in state or in federal government. There's an emphasis...or in the non-Indian world, in dominant society, there's a great emphasis placed on education, there's a great emphasis placed on experience, and so forth. Maybe they were a former businessperson, maybe they were law trained. But in Indian Country, the emphasis on qualifications for elected officials is how well do they understand their culture, how connected are they in the community, how strong are their kinship units and, you know, how committed are they to helping the people, did they, how long have they lived on the reservation? And those sorts of things.

And so, I think if we're going to assume anything about people that are elected, I think we should assume that they probably could use some training. But with that, if that training's provided up front, I think what I would expect of an elected person is that they, if you're elected to council, obviously, I believe that first and foremost you need to represent your people as a whole and what's in the interest of the tribe as a whole. Set your personal agenda aside and really try to fulfill your obligations to uphold, number one, the constitution of the tribe, the laws of the tribe, and that includes our policies and procedures, and to do what's in the best interest of the people. And not just for what's going get you elected for the next term, but what's best for the people five, ten, fifteen, twenty years from now.

The other thing I would expect from elected people, Ian, is that I think we have a commitment to...as Lakota, as Sioux people -- I speak specifically to our tribe -- we talk about our [Lakota language], our lifeways. We talk about our traditions. We talk about everything we do is for that seventh generation. We try to plan that far ahead. I think it's really incumbent upon officials that are in a position to make laws, that are in a position to make policy decisions, it's really incumbent upon those elected officials to plan ahead, and to really walk that talk. Not just talk a good talk to get you elected, but really live out those core values of who we are as Lakotas. And I think that in and of itself would drastically change the landscape of tribal politics."

Ian Record:

"You made reference to this, essentially this need to plan for the seventh generations forward. And seventh generation planning, strategic planning really; when that strategic planning process has been undertaken and there's really no end to it, but when the nation and its leadership has done that hard work to forge a strategic vision, put a plan in place to get there, doesn't it make the day-to-day bureaucracy work that much easier because those people that are in charge of carrying that out, understand clearly where we're trying to head and does this decision that's performing today, does it contribute to that or does it detract from that?"

Leroy LaPlante, Jr.:

"Right. I mean it's very...you put that very succinctly. I think that that's exactly what long-term planning does. I think, when you have a strategy in terms of where, and a vision of where you want the tribe to be, you know, generations from now, everything works toward that end. And so people, it does give program managers more focus and it does...but you know, that example being set by elected officials is so critical. Because if they're setting that example, then it trickles down to your administrative personnel, it trickles down to your program managers, it trickles down to your tribal employees -- that there's this conscientiousness that what we're doing is really for the betterment of the people not just here, today, but further down the road. But in order for that to happen...we really talk a good talk. I think Indian people, we're very eloquent and I think that there are words that we have in Lakota or in our Native language, our Native tongue that when they translate to English, they're very beautiful concepts. And when the outside world hears them, they're very impressive. But do we really live by them? And I think that that is really, that's really the test. And if we do, if we're really committed to them, what you will see in a tribal government is you will see a structure. And that structure will have, it'll be a system in terms of how we go about our business. And it'll start, you'll see it in a way that we conduct council meetings. You'll see it in a way we...you'll see it in our organic document. You'll see it in our policies and procedures. You'll see it in our day-to-day operations. There'll be this structure in terms of how we go about doing our day-to-day business, and so you...and that's the infrastructure that I'm talking about. That you've got to 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 got to have the practical policies and infrastructure that get us from point A to point B."

Ian Record:

"You mentioned earlier the importance of serving the nation as a whole, essentially treating citizens fairly and consistently. How can Native nations achieve fairness in service delivery and within the bureaucracy of government?"

Leroy LaPlante, Jr.:

"That's a big challenge for tribal government, because I think that tribal governments are already kind of up against the wall because they got to overcome the perception that they don't provide services in an equitable fashion. And there's always these horror stories about nepotism and all these other things that we have to overcome. You know, I think one of the ways you make sure that our services are being delivered in an equal fashion to everybody is I think you have to have transparency in your government, and I think you have to make sure that you have sound policy, and you have sound procedure. That when you draft these laws and you draft these policies and procedures, that you don't deviate from them, and I think that's the key. I tried to engage in a policy and procedure revision in my tribe, and I think the plan sat on the table for the full three years I was there. You find that you don't have the time, but the key is that you got to work with what you got, and as long as you're consistent with those policies, and they may not be perfect, but utilize them and force them, stick to them, and don't deviate from them. You've got to have a rule that you go by. And of course, and this is true with the community as well. You've got to have a rule of law where people understand that this is what's acceptable and what's not acceptable. The same thing in tribal governance, you've got to have policies, procedures, you've got to have ways of operating so that...and you've got to stick to them."

Ian Record:

"In one of the areas where we commonly see deviation, as you put it, or inequitable treatment from a policy or something like that within the tribal government is around personnel issues -- hiring, firing, other sorts of issues like that. Where should...where and how should those issues ideally be resolved? Or if there's disputes around personnel, where should those issues be resolved?"

Leroy LaPlante, Jr.:

"It's going to differ from tribe to tribe, Ian. And I think the important thing is that whatever process you set up, that it be a fair process and that you follow it every single time, and again, you don't deviate from it. When I served as the administrative officer for my tribe, there was so many things I wanted to do. I wanted to engage in economic development planning, I wanted to...there was so many other grants I wanted us to look at and really decide whether or not we should even apply for certain grants because there are some...as an administrator you don't want to apply for everything, but sometimes you do it because you have an ambitious program director who writes a grant application, but you want to be able to look through and make a sound decision to make sure it's in the interest, in our best interest. And those are those big decisions, right? And you want to focus more on areas, departments that are weaker and get them stronger. Those are the bigger issues you want to deal with as an administrator. But I spent, I would say, roughly 75 percent of my time bogged down in personnel issues. And so one of the things, I would say, is your administrator has a role. That role is to administer the programs of the tribes. I wished I was never involved in personnel issues as an administrator, because I didn't see that as my role, but council did. The problem was was that a lot of times council would get involved in that. So we had system where if a personnel action was taken, the immediate supervisor would take action. The appeal process was that you were allowed to go to a program director. If there was a department chair, that was another level in the appeal process. I was included in the process, and then of course we had an elected personnel policy board that was the final say on all personnel issues. Now, sounds like a great system, but if you add up the time frames an employee had to appeal, you're looking, you could be bogged down in a personnel issue for 45 to 60 days. And if council got involved, it could stretch out for several months. So, I think, you really want to try, what I tried to do is streamline the process as much as I could. I recommended to council on several occasions that I be removed from the process because I wanted to focus on some of the more important requirements, job requirements of an administrator of a tribal government. We had over 75 tribal programs, we were managing over 50 federal grants, we had over 600 tribal employees -- there's just a tremendous amount of responsibility. But that's the system my tribe went with, and so the next best thing is to try to train your employees, your supervisors, your department chairs, your program directors. I couldn't say much of the policy personnel board, but our HR [human resources] person did a good job of training the board, making sure they knew how the system worked. And just trying to make sure that people follow that process as closely as they possibly could and just try to get a personnel issue through that process without it getting bogged down somewhere. And if we all kind of stuck to the process and followed it according to the books it would usually go through smoothly, but the x-factor was always council."

Ian Record:

"You mentioned that your nation -- when you were working in this administrative position -- had more than 75 programs operating at once. And among many nations, the number of programs is often hard to count. And a lot of that is a legacy of federal grant programs and things like that, which some have pointed to as a major source for what is commonly called the 'silo effect'..."

Leroy LaPlante, Jr.:

"Sure."

Ian Record:

"...Where you have all these different programs kind of operating independent of one another, don't really communicate with one another, and then there's in turn, often a negative impact on the use of typically limited tribal resources. Do you see this silo effect at play in your own nation? Or perhaps have you seen it in other nations? And what do you think are some of the consequences or the drawbacks of that situation."

Leroy LaPlante, Jr.:

"Well, I don't think there's anything positive about the silo effect, obviously. I think, you'd like to see a department chair or a program take ownership of that job and really grow that program, but I think the negative downside of that is you could get a program director that is, that does become too territorial. And so it does infringe upon our efforts to be more cooperative and to share resources where we can, but more importantly I think there are some real, I guess if, I'm not sure how to put this, but there are some areas, some issues in tribal life, in tribal government that we, there's environment. There's, where I'm from it's, there's management of land resources, social services, education. And I think that what I try to do, when I was working for the tribe, is that I tried to identify those areas and the more we could get programs to work cooperatively, collaboratively, to address those needs, the better. The silo effect, as you call it, really prevents those programs from doing that and it does have...and it does have an adverse effect. The other thing I will say about the grants is that sometimes as tribes we can get too dependent on those grants. I think early in the '90s, mid-90s, in the '90s period, it was an era where there was a lot of application for grants and tribes that were good at it, you know, they were getting grants. It was, you know, if you had a good track record, it was pretty easy to get certain grants and so forth. But sometimes we can get too dependent on that. I think what you want to see eventually, and again this is where if you free up time for an administrator, in my role, you can do more of this planning where you're not so dependent upon these grants."

Ian Record:

"I want to switch gears now to another topic that you're very well versed in and that's tribal justice systems. And I think it's no coincidence that in this era of Indian self-determination, this federal policy era of Indian self-determination, we're seeing a groundswell of attention by tribes to strengthen their justice systems. And I'm curious to get your perspective on this question of what sorts of roles can tribal justice systems play in rebuilding Native nations?"

Leroy LaPlante, Jr.:

"Well I think they're critical, I think they're foundational to nation building. You know, I think the creation of your own laws, the promulgation of those laws, the adjudication of cases, the creation of case law -- all of that is so important to strengthening tribal nations. I mean, our tribal courts is probably one the most fundamental exercises of tribal sovereignty that we have -- the creation of laws and enforcing them. But the thing is the courts...if courts are effective and judges are performing their jobs in a good way, and the courts are functioning in a way we would like them, it gives the perception to the outside world that we're very good at resolving our matters in dealing with internal matters. But not only that, but we can also deal with any matter that comes through our courts on our reservation."

Ian Record:

"What, in your view, does strong, independent justice system look like? What does it need to have?"

Leroy LaPlante, Jr.:

"I think a strong independent justice system, first of all, is tribal. I think it should be tribal in a sense that it knows how to deal with tribal issues and yet it's diverse enough to handle and adjudicate all matters that come before it. I think you should have conmpetent judges. I think you should have strong advocacy for clients and it must have a way of measuring its performance. But yeah, a strong tribal system should be tribal in nature. In other words, what I mean by that is it shouldn't just be a boilerplate replication of what a state court looks like and promulgate those laws, but those laws should be traditional in nature, it should reflect our customs, it should reflect our customary law, our traditional laws, and we should know how to deal with those and inject those viewpoints in our decisions."

Ian Record:

"It's interesting you bring that up, because I've actually heard that from several other tribal judges that I've had an occasion to interview. That in many ways, the tribal justice system and the tribal court in particular is the most direct, concrete way that a tribe can convey its core values, its cultural principles, not only to the outside world, but its own citizens. Is that something that you feel is accurate?"

Leroy LaPlante, Jr.:

"Oh, absolutely. You know when you think about the types of cases that come before our tribal courts, you know you're dealing with a lot of domestic cases, domestic violence cases, family cases, so the courts have the opportunity to resolve disputes between tribal members. And so there's a tremendous opportunity for our tribal court system to really bring into that process some of our traditional ways of resolving conflict. You hear a lot of tribes speak of a peacemaking court and so we don't have to necessarily engage in an adversarial process with tribal members, but you can actually promote some sort of peacemaking where people are, where we promote restitution and restorative kind of justice, which is more in line with our traditional values."

Ian Record:

"So we touched on this issue of political interference and bureaucracies. And I'm curious to get your thoughts about political interference in tribal jurisprudence. What are some of the impacts of political interference in court cases, for instance?"

Leroy LaPlante, Jr.:

"Well, obviously, you want your courts to be able to make decisions without any fear of consequence from an elected official, tribal council. You want them to be able to adjudicate matters in a way that is just and do so freely, and without any free of retribution from anybody. But unfortunately, in instances where council do get involved, it does create some hesitation on the part of tribal judges to really deal with matters as like they're trained to do. And unfortunately, the result of that is we've seen a lot of good judges come and go out of our court system. I think that, you know, your courts are, you have to have judges with good experience, if not law trained, with great, good experience, with sound awareness of tribal law, and some experience with handling a diverse number of matters. But you know, when you have this turnover of tribal judges because they end up not being able to stick around very long because they're doing their jobs properly. It's detrimental."

Ian Record:

"So you mentioned this issue of transparency with bureaucracies, and the delivery of services. Isn't that equally important when it comes to the administration of justice in Native nations?"

Leroy LaPlante, Jr.:

"Yes it is, and I think that there needs to be a sense of predictability when people come to, when they're coming to tribal court, there needs to be this sense that they know what to expect; there's not going to be this 'kangaroo court' process. And so, you know, we want to make sure that people know what to expect when they come into tribal court, that they know they're not going to have any surprises. And I think that's...that not only has an impact upon plaintiffs and defendants in tribal court, but here's another aspect of this, it affects who practices in tribal court, you know, because one of the things we lack in tribal court is sound advocacy. You know, we don't just want lay advocates practicing in our tribal courts. One thing that lends credibility to our tribal courts is the fact that a licensed attorney who practices regularly in state court and federal court has no hesitation to come and represent a client in tribal court. We want more participation from the state bar, wherever you're at, whatever state you're in, but we want more participation from lawyers and the state bar in tribal court, because what that does is it improves the perception of our court systems, it improves the advocacy in our court systems. And so you want that transparency, you want to know exactly what to expect when they show up in tribal court, that we have consistent, strong, civil procedures that we're going to follow, criminal procedures that we're going to follow, that there are going to be no surprises."

Ian Record:

"You know, it's interesting, we've been talking about tribal bureaucracies and tribal justice systems and a lot of the criteria or components you need for each to be effective are similar, are they not? And isn't it very difficult, for instance, to have one without the other? Specifically, in our experience, we're working with a number of Native nations and it's very hard to have an effective bureaucracy, for instance, if you have a kangaroo court system, as you talked about. Can you elaborate a little bit more on that?"

Leroy LaPlante, Jr.:

"Well, I think that it is very important that you have some predictability, that you have that infrastructure, legal infrastructure, if you will, a strong tribal code where people can have a remedy for whatever, an issue that they're, a legal issue that they're involved in, that there's good procedure that we follow. Bbut in addition to that, I think it's important that we have, that we document our case law, that we...and so people know what to expect. I've received calls from people that will say...practicing attorneys that are members of the state bar that will say, "˜Is there a case on point in your tribal court on the following issue?' I'd like to be able to respond, "˜Yes, and I can get you a copy of that opinion.' And I think that that's the transparency, that's the kind of infrastructure that you want, where people can say, "˜Okay, when I go to Cheyenne River and practice law, I know what to expect when I go there.' And so yes, it's absolutely...in fact, if it's...I'm not going to say it's more important, but it is absolutely, at least, equally important as it is...to have that, those types of infrastructure."

Ian Record:

"So, to generate that infrastructure, to create that infrastructure, that takes funding, does it not? And essentially, an approach on the part of elected officials, or those who set the budget of the nation, to treat it as not just another -- the justice system, the courts -- not just as another tribal department, but as kind of a stand-alone, larger, more encompassing branch -- that may not be the best word -- but branch or function, fundamental function of government, does it not?"

Leroy LaPlante, Jr.:

"I think at least our tribal officials need to recognize our court system as a stand-alone entity that has a specific function, a very important function."

Ian Record:

"So you mentioned this need for tribes to ensure that the infrastructure's in place for the court system, the justice system overall to function effectively and essentially, act as the nation's protector, as its guardian. That infrastructure, achieving that infrastructure takes money, does it not? And perhaps a realization on the part of elected officials, or those who control the purse strings of the nation, to treat that system as more than just another department, but to actually treat it as a fundamentally critical function of government."

Leroy LaPlante, Jr.:

"Right. And it takes time to educate and to help our elected officials understand that. And I don't think it's a matter of our elected officials not knowing that it serves an essential function of government, but I think that they have to understand and it takes time to educate them that what the courts do is so vital to tribal sovereignty, it is so vital to self-determination, it is so vital to us. You know, if we want to engage in any type of regulatory authority on the reservation, you know, our courts have got to be equipped to be able to carry out, you know, adjudicating any matter. And so yeah, it takes a while to get them to prioritize, I guess is what I'm trying to say, Ian. I think they understand that it serves an important function, but for them to understand that it should be up here on the fiscal or the financial fundraising list is another matter. So, sometimes it's just about...I would like to see elected officials just take a run through tribal court and just to see what they do on a day-to-day basis. I think you have committees and tribal council that obviously understand that and who hire judges and hire tribal attorneys and they're well versed in the importance of that. But unfortunately, when you look at the tribal budget, Ian, there's just so many other needs. And how do you say...it's like trying to pick your favorite child, so to speak. It's really hard. And so that is a problem with courts. And I think one way is to maybe look at some of the available federal funding that's out there, but again that takes planning. And it's being able to have that foresight to see when those opportunities are going to come down the pipe."

Ian Record:

"Isn't it important for the connection to be drawn not just for elected leaders, but also citizens that when you have a strong, effective, independent judicial system, that empowers you as a nation to tackle those other needs through restorative justice, through healing people, through healing families and things like that."

Leroy LaPlante, Jr.:

"Yeah, and it does. I think people...the thing about the law is it doesn't get a lot of publicity. When a case is decided, even if it's an important, an appellate case in tribal court, when it's decided it doesn't get a lot of fanfare. The people that pay attention to it are people like myself, but as far as a general public, there may not be any publicity about an important case that our tribal court decided that's going to have some sort of ripple effect across Indian Country. But there is this general understanding by tribal members that the courts serve a special role, but I don't know if they really see the long-term effects of that. For example, Cheyenne River just had a case recently that went all the way to the Supreme Court. I don't know if people see that and how that impacts. And if that case would've been decided favorably by the United States Supreme Court that would've changed our civil jurisdiction authority over non-Indian people on the reservation. Unfortunately, it wasn't decided favorably, but it could've had that kind of impact. And so yeah, I think people are starting to see it more and more. And you mentioned some of the benefits. The other thing is when we have a solid court system and we have remedies, especially in civil matters, it does encourage things like economic development and corporations coming on to the reservation and things like that. So, and again it goes back to council. Is council willing to do a limited waiver of sovereign immunity so that these matters can be resolved in our tribal court? Because I think the courts are ready to do it. I think the court, I have a tremendous of confidence in our courts that they're willing to take on any issue. We have a very strong appellate court that's willing to hear these matters, but is our council...so I think that that appreciation for our court system, I think, really starts at the top. And I think our appreciation for any of this stuff and appreciation for improving tribal governments really starts at the top [with] your leadership.

Ian Record:

"You mentioned this issue of investment and the role of courts in that. How does a strong, independent justice system create an environment of certainty and competence for investors -- not just financial investors, but people willing to invest their own human capital in the nation and its future?"

Leroy LaPlante, Jr.:

"Well, I think, you just...I think the main thing is that you want to be able to, the tribal court, you want to be able to have a statement that says, or a law that says, or a code that says that matters of dispute will be resolved in tribal court. And I know, people that come into contract with tribes, they want to be able to say that if we...if things don't work out with this specific contract, we want to be able to enforce this contract somewhere. And hopefully, we can say it can be resolved in tribal court. Like I said, I don't think it's a matter of the court not being able to handle those matters, but again, it's whether or not the tribes and the tribal council feeling confident enough to be able to open themselves up to that sort of court action."

Ian Record:

"I want to follow up quickly on this issue of sovereign immunity, and this is an increasingly critical topic. What we're seeing is more and more tribes approaching that issue strategically, whereas before it was kind of this blanket response of, "˜We don't want to waive sovereign immunity because we're sovereign,' as if those two things are the same. And more and more tribes are coming up with innovative approaches and doing exactly what you say. 'We'll waive our sovereign immunity through this contract into our own tribal court system.' Isn't it incumbent upon tribes to really approach that issue in a very calculated, deliberate manner of, "˜Okay, this is a tool that we can use, but it has to be used wisely'?"

Leroy LaPlante, Jr.:

"Well, and I think, to answer...I guess I'll answer it this way. Yeah, I do think tribes need to be very deliberate with that approach and I think maybe the reluctance would be again...you got to have a competent court though. And so what I think we're seeing with some tribes, they may -- I think we talked about it today -- some tribes have considered setting up a separate business court where you might have special judges come in and hear these matters. Because I think there's this perception in the outside world that either, you know, you're typical tribal court judge can't handle a very complicated, contractual issue. So set up a separate contract court where those issues are heard by a special judge that would come and hear those matters and is well-versed in that area of the law. So there are some very unique ways that tribes can try to address this and to improve the outsiders' perception of how we conduct business on the reservation."

Ian Record:

"I want to wrap up with I guess you would call it a personal question. Last year, you were selected to be a part of the first cohort of the Native Nation Rebuilders program, which is a program that was developed by the Archibald Bush Foundation out of Minneapolis in conjunction with the Native Nations Institute at the University of Arizona. And I'm curious to get your thoughts on the program. You're almost a full year through the program now. I'm curious to get your thoughts on what the program is about, the potential for the program moving forward, and how it's empowered you to contribute to Indian Country."

Leroy LaPlante, Jr.:

"Well, I...first of all, it's just an honor to be a part of the program. It was an honor to be selected. And, you know, since I came on as a Rebuilder, you know, I've been through a couple trainings, which I thought were absolutely fantastic. I think our first training was tribal governance and, I think that, being able to participate in those courses, in those training courses, it just kind of gave me some hope that there are resources out there for tribal governments. I've been law-trained and I've taken courses in Indian law, tribal law and different other things pertaining to Indian Country. But a lot of -- like I said earlier -- a lot of our elected officials aren't well equipped to do their work. And I think a lot of our tribal officials could use a crash course in federal Indian law, a crash course in tribal bureaucracy, a crash course in tribal governance. And being a part of the Bush Foundation has exposed me to those resources and hopefully those resources -- more people will take advantage of them. My overall impression of being a Rebuilder is really is it's opened up doors, because I meet so many people from across, from other tribes. It's given me some good tools to do my work."

Ian Record:

"One quick follow-up: As part of this Rebuilders program, you were asked to go through a distance-learning course on Native nation building. I'm just curious to get your thoughts on that course and what it could bring to Indian Country."

Leroy LaPlante, Jr.:

"Well, I think it's...I hope our elected officials take advantage of it. You did a really good job of putting it together, Ian, I know that you worked very hard on that. And, you know, it's easy to maneuver your way through the online course and the material is very well researched. But what I gained from it mostly was just hearing other tribal leaders and other members of tribes and citizens of tribal nations that are doing a lot of the same work that I'm doing. Hearing their stories. I think Joe Kalt said today that he's just kind of a pipeline, where he's gathering the stories and kicking them back out to Indian Country. And I think that's a good characterization of what Native Nations [Institute] is about and what the Bush Foundation is doing through the Rebuilder program. We're taking this information, we're funneling it through, we're getting it disseminated out to the people that need to hear it. And those stories are inspirational and if anything else, what it does is it says, you know, that nation building is taking place and it's being done very effectively."

Ian Record:

"Well, JR we really appreciate your time and thanks for joining us."

Leroy LaPlante, Jr.:

"Thanks, Ian. I appreciate it."

Ian Record:

"That's all the time we have 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 2011. Arizona Board of Regents."

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

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

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Resource Type
Citation

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

Ian Record:

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

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Raymond Austin:

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

"Oh, yes."

Ian Record:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

"Or a Bivens."

John Petoskey:

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

Ian Record:

"Any other questions for John?"

Raymond Austin:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Thank you." 

NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

Producer
Native Nations Institute
Year

In the second of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the legal doctrine of tribal sovereign immunity and the future of the doctrine with respect to the Michigan v. Bay Mills Indian Community case pending before the U.S. Supreme Court. He also discusses how GTB has worked to systematically build its justice system, and stresses the need for Native nations to adequately fund their justice systems.

People
Resource Type
Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 3, 2013. Interview.

Ryan Seelau:

"Welcome to Leading Native Nations. I'm your host Ryan Seelau. On today's program we have back with us John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians. This week, he is serving as the Indigenous Leadership Fellow with the University of Arizona's Native Nations Institute for Leadership, Management and Policy. Good to have you with us, John."

John Petoskey:

"Thank you."

Ryan Seelau:

"We're here today to talk about a few other nation-building topics to build on the things you've talked about this week, and the first topic I would like to talk about is sovereign immunity. And the first question is hopefully sort of a simple one. Can you just tell us what in layman's terms the doctrine of sovereign immunity is and sort of why it exists and what the rationale behind it is?"

John Petoskey:

"The doctrine provides that a sovereign is not subject to suit unless there is a consent to that suit, unless the sovereign either waives sovereign immunity or -- in the case of Indian tribes -- if Congress statutorily enacts something that abrogates the immunity of the Indian tribe. So sovereign immunity for a state, for example, is recognizing the 11th Amendment of the U.S. Constitution and sovereign immunity of the United States, although not recognized in the U.S. Constitution, is part of the Law of Nations that was adopted in the early part of the constitutional history of the United States, that the United States could not be sued without its consent. So it's a doctrine that provides immunity for a sovereign, in this case the United States, a state or tribe from un-consented lawsuits."

Ryan Seelau:

"And what is sort of the rationale behind why it exists in the tribal context?"

John Petoskey:

"In the tribal context, it's to protect the tribal treasury, and it's also the same rationale that exists for state and federal that the governance process of the tribe should be immune from undue influence by private suits."

Ryan Seelau:

"And in your day-to-day work as general counsel, where does the doctrine of sovereign immunity come up?"

John Petoskey:

"Well, let me preface my response with my history with Grand Traverse Band. Grand Traverse Band was the first tribe to achieve federal recognition in 1980. That was two years after the Santa Clara [Pueblo v. Martinez] decision, which recognized sovereign immunity as a valid doctrine in the modern era of federal Indian law. And so in the early years of representing Grand Traverse Band, we would have a number of off-reservation creditors or off-reservation contract partners or tort people who would be suing in state court against the tribe and we would have to assert the immunity of the tribe, that it had not been waived nor had Congress abrogated that immunity and therefore the...it was generally in the context of a motion to dismiss that there was no basis for the lawsuit because of the immunity of the tribe. And in the early years, I probably did over 30 lawsuits of various litigants suing the tribe and the response from Grand Traverse Band generally evolved from those 30 suits to enacting statutory structures and resolutions that waived immunity and provided redress for people who were suing."

Ryan Seelau:

"Let's talk a little bit more about those statutes. Can you give an idea of some of the areas that immunity's been waived and what the thinking was behind that process and then, not going into specific codes, but what that looked like in practice?"

John Petoskey:

"Well, I know you said not going into specific codes, but I can only talk in terms of the specific codes. First of all, the constitution of Grand Traverse Band provides for a waiver of sovereign immunity for its tribal citizens to sue under rights that are similar to the Indian Civil Rights Act in the Bill of Rights of the United States Constitution and the constitution, the tribe's constitution, limits those remedies to prospective relief without any relief from the tribal treasury. The other two major statutes that the tribe passed was one on contracts and one on tort. The contracts we passed a general waiver of sovereign immunity for expectancy damages on the contract limiting the remedy to consequential damages and so our off-reservation vendors, when they do have a dispute with the tribe, do file a contract claim in the tribal court asserting expectancy damages and you just go through the regular contract analysis. With regard to torts, we have also waived immunity similar to the Federal Tort Claims Act in providing a limitation on remedies that are available for people who suffer, allegedly suffered a tort, and the big limitation that we have on that particular statute is that pain and suffering, which is the large area of tort case compensation, is limited to one-and-a-half times actual physical damages. And I might add that after we passed that statute our insurance premiums, the level of risk, actually declined because the insurance company could then therefore measure the level of risk and knew what the risk was less than not having a tribal waiver of immunity for tort actions."

Ryan Seelau:

"It's very interesting that the insurance premiums declined. Were there other benefits that you saw from the time before that those statutes were enacted to when the policy...when the constitution was passed and other policies came into play?"

John Petoskey:

"Yes. First, for tribal citizens it provides a method to dispute tribal council actions either in the executive or legislative capacity as being a breach of the Bill of Rights, if you will, that's... in our constitution it's Article X, which parallels the Indian Civil Rights Act. And so tribal citizens do bring causes of action against the tribal council or against the tribal councilors or against the executive departments alleging that the implementation of a particular tribal statute or particular tribal program is a violation of the Bill of Rights. The remedies that they seek are modification of the program, prospective relief in other words. With regard to the tort and contract issue, the tribe is involved with off-reservation vendors and also involved with off-reservation business invitees to its casinos and its hotels and we needed to provide a remedy for those people who come on to the reservation to engage in business with us and to have a determinate process of dispute resolution. When we did not have the waiver of sovereign immunity, we always had an indeterminate process of dispute resolution because the suit would be filed and in some cases given the merits of the suit the council would prospectively waive immunity for that particular suit to resolve that issue. In other cases, the council would not waive immunity and would just argue that we're immune from suit and not provide a remedy for the person who allegedly suffered harm. The statutes now provide a determinate response for all litigants on what they're going to do. And so when they enter into business with the tribe, they enter into business with the tribe knowing the risks and understanding that if there is a dispute, there is a remedy to resolve that dispute."

Ryan Seelau:

"I'm going to break my own rule and go into specifics a little bit, but procedurally in the contract instance or when the tribal council wants to waive immunity, is there a procedure or are those automatically in certain instances...?"

John Petoskey:

"No, there is a procedure. We have resolutions. The tribe does waive its immunity for transactional documents related to financing, for example, and we have chartered subordinate organizations and we have a Section 17 corporation under the Indian Reorganization Act that has a process for waiving immunity and that process has to go through the Economic Development Corporation through a resolution authorized by the corporation. That resolution then has to come back to the tribal council and the tribal council has to concur in the waiver prior to the waiver being effective. With regard to...there's one statute I didn't mention that I would like to mention very quickly and that is that the tribe has also enacted an arbitration provision, and primarily the reason we enacted an arbitration statute was because we have done substantial construction projects, multi-million [dollar] construction projects and we needed a methodology to resolve those construction disputes. The expertise of a tribal judge is not necessarily related to the complex problems related to construction activities and the American Arbitration Association has a wide variety of arbitrators that are specialists in different subject matter areas. You could have maritime...well, not maritime jurisdiction, but you could have commercial arbitration, you can have construction arbitration, and so this process that we enacted references the people who have the dispute, the off-reservation contractors and the tribe to go through the arbitration process with construction arbitrators, and it's a much quicker way to resolve disputes because the parties involved are speaking the same language in terms of construction activities. They're engineers, construction managers, they're architects and they generally have the same sort of two standard form of documents. There's two sets of documents, the AIA documents or the Engineer and Construction Management documents that really structure disputes between the owner, the construction vendor and the architect. And so we enacted that provision in arbitration to access that resource. Once the award is given in arbitration then it's enforced by the tribal court and if it's not enforced by the tribal court, which has never happened in our case, but the parties do have relief in federal court through the Federal Arbitration Enforcement Act. So that provides a lot of security for off-reservation contractors that come on to engage in business on the reservation."

Ryan Seelau:

"Has arbitration been used outside of the construction...is it available to other...?"

John Petoskey:

"It is available to other disputes. The arbitration procedure has been incorporated into our transaction documents for loans on the reservation. These are very large loans that we've negotiated with syndicated loan companies in which arbitration is used for the dispute resolution to determine whether there was a even of breach or interpreting the loan documents, which are extremely comprehensive."

Ryan Seelau:

"I want to turn back a little bit to sovereign immunity and talk a little bit about what role do you see sovereign immunity playing in negotiations with either state governments or local governments? Do you see it as having any impact in those...?"

John Petoskey:

"It does have an impact because sovereign immunity serves as a leverage value for the tribe to negotiate agreements with the State of Michigan in the context of what I'm familiar with. The Grand Traverse Band along with several other tribes in Michigan have negotiated a comprehensive tax agreement with the State of Michigan covering sales and use, income tax, utility tax and this agreement really resolves...it also covers tobacco and gasoline tax. The comprehensive tax agreement resolves a lot of disputes that the tribe could engage in or would have engaged in or other states and other tribes are currently engaging in, and that is the scope of the state's authority to tax for on-reservation transactions. What we've done in Michigan, it's called the...it's a tax agreement that is on the Michigan state website and it details what's called a tax agreement area in which the exemptions of the tribe will apply both for state income tax, sales and use tax, gasoline and cigarette tax, and also creates a situation where the sales tax is shared between the tribe and the state on a percentage basis that is subject to negotiation. Now a lot of those negotiations would not have gone forward if the tribe did not have sovereign immunity, because you have the Citizen Potawatomi decision of 1991 that directly relates to tobacco tax in which the Supreme Court held that the tribe was immune from the Oklahoma Tax Commission's collection efforts against the tribe for on-reservation sales of cigarettes that the tribe did not have to collect on behalf of the state, that there were other methods upstream that they could use to collect. And there have been well-publicized disputes between tribes and local taxing authorities, states in particular, in which things have degenerated into violence and road closures and burning tires and things like that. So that specter of civil unrest related to not having an agreement or enforcing an agreement through extra judicial means was one of the circumstances that both the tribes in Michigan and the state wanted to avoid. And incident to that was the immunity of the tribe, that the immunity of the tribe provided a negotiating leverage point as represented by the Citizen Potawatomi case for the tribe to argue with the state to say there's a different way of resolving this issue, we can do a mutual waiver of immunity, we can enter into this tax agreement and we can establish a regime in which the state and the tribes share the tax revenue and recognize the exemptions that are under federal law and this has been in existence since...we started negotiating in 1999 and very complex issues wasn't resolved until 2004. So it's been existence for about 10 years and it's been administered...the tribe -- both the tribe and the state are happy with the results and we are hopeful that will continue into the future."

Ryan Seelau:

"One of the interesting things about Grand Traverse Band's agreement with the State of Michigan in taxes to me is that if there's any disputes they first go to tribal court. My question for you is first of all, was that an important part of what Grand Traverse Band wanted to get out of the agreement and the other tribes? The second, you may or may not be able to answer this, but why do you think the State of Michigan was comfortable first going into the tribal court to deal with those types of disputes should they arise?"

John Petoskey:

"Well, first we wanted them to go to tribal court because our view of National Farmers and jurisdiction was exhausted in tribal court remedies, but also for some cases where it was on-reservation transactions involving tribal members. We felt that we had exclusive jurisdictions in some context and so we were very...not adamant, but we had very strong views that any initial dispute resolution should go to tribal court. The state has had ongoing relationships with the tribes and the Michigan Supreme Court and the tribal courts have had past reciprocity agreements, the Michigan court rule is at 2615 and that rule recognizes tribal court judgments and orders, subpoenas and other matters and so long as the tribe passes a reciprocal rule for the recognition of state court orders in its tribal court system. So that was the key, the existence of that rule and the history of mutual cross recognition without going through the full faith and credit analysis that had to be done previous to that, in which you had to petition the court and then establish on an itemized basis that the particular subject matter issue that you were involved in met the full faith and credit requirements of the host jurisdiction. All of that process is no longer done in Michigan because it's done via a court rule, Michigan Court Rule 2615 and Chapter X of the Grand Traverse Band court rules. And so it's become a matter of local practice for attorneys up there to understand that they can get their state court judgments enforced in tribal court and that the tribal court judgments conversely can be enforced in state court. So the existence of that rule gave comfort, if you will, to the state, and in addition we wrote statutes to reflect the agreement that we had negotiated, the substantive agreement that we negotiated, the state didn't have sign-off authority on them, but once they saw the scope of the statutes and our enforcement mechanisms that we established for the agreement then they didn't have an objection to having the agreements resolved in tribal court and we have done that. We have, in fact, enforced our tax agreement against our tribal members who have violated it in tribal court for the benefit of the State of Michigan because they are part of the revenue-sharing agreement of the taxes that are generated."

Ryan Seelau:

"Following up briefly on this Rule 2615, was that something that the tribes in Michigan fought to get to occur or do you know the history behind how that came about?"

John Petoskey:

"The history behind it was Justice Cavanaugh who was on the Michigan Supreme Court was interested in this reciprocity between tribal courts and a cousin of mine who's also a lawyer and a tribal judge, Mike Petoskey, and Justice Cavanaugh, started a committee years ago to have coordination between the courts. Justice Cavanaugh attended the Federal Indian Bar meeting in Albuquerque, New Mexico, sometime in the 1980s and that's when Mike and Justice Cavanaugh first met and developed a friendship and in part it was that friendship and the rule-making process in the court that they utilized to...in the Michigan Supreme Court that they utilized to resolve the questions of full faith and credit between tribal courts and state court systems."

Ryan Seelau:

"Are you aware of how many of the tribes have passed the necessary rules or statutes in order for this reciprocity to..."

John Petoskey:

"There are 12 tribes in Michigan and approximately, off the top of my head I don't know the precise number, but I would venture to say 9 or 10 have passed that rule and of the tax agreement, for example, again, it's the same thing, about 9 or 10 have signed onto the tax agreement. There are a couple tribes in Michigan that take a contrary view and that there shouldn't be the reciprocity agreements, there shouldn't be the tax agreements, and they have their own political views as to the source and scope and extent of the tribe's sovereign authority and how to implement that. And I'm not criticizing that. I'm just saying that people do take contrary views from the path that we have taken."

Ryan Seelau:

"I don't want to get too far into it, but in those contrary views to sovereign immunity, the mechanism by which the taxes are not being exchanged?"

John Petoskey:

"Yes. Yes. Yes, sovereign immunity is asserted as a basis for not...sovereign immunity is asserted as a basis for those tribes that continue to sell untaxed cigarettes, for example, or engage in transactions that they allege are not subject to the sales and use tax of the State of Michigan and that ties into a different question, which is, what is the scope of Indian Country based upon the exterior boundaries and the scope of the treaty provision areas?"

Ryan Seelau:

"I want to turn attention to something related and something that you've talked quite a bit about in your time as an [NNI] Indigenous Leadership Fellow and that's the Bay Mills Indian Community case and you gave a talk on the case yesterday so we don't need to go into all of the history and details, but I was wondering if you could just briefly give a quick synopsis of what that case is about and perhaps more importantly why that case has been in the news lately or what the concerns about that case going before the Supreme Court are."

John Petoskey:

"Okay. So the Bay Mills Indian Community alleges that under a statute called the Michigan Indian Land Claims Settlement Act, which implements an Indian Claims Commission judgment, that the terms of the statute created automatic restricted fee if they used resources from Michigan Indian Land Claims Settlement Act funds to buy property. They presented that theory to the National Indian Gaming Commission in a geographic specific amendment to their gaming ordinance, which the National Indian Gaming Commission informally rejected. They then revised their amendment of their gaming ordinance to basically parallel and parrot the provision of what Indian Country is in the Indian Gaming Regulatory Act. And based upon that provision of their gaming ordinance and the acquisition of an off-reservation casino located in Vanderbilt, Michigan, which is in basically the backyard of another tribe, the Little Traverse Bay Bands of Odawa Indians, they opened a casino alleging that the acquisition of the property created automatic restricted fee and that based upon the federal rules promulgated May 20, 2008 in regard to the Seneca Indian Land Claim Settlement Act, that restricted fee was not subject to Section XX of the Indian Gaming Regulatory Act. In other words that it was effectively a loophole, that they didn't have to go through the after acquired property analysis under Section XX and that restricted fee automatically became Indian Country, and if it was automatically Indian Country, they could engage in gaming and they opened a gaming facility. The State of Michigan along with Little Traverse Bay Bands sued for an injunction arguing that Michigan Indian Land Claim Settlement Act did not create restricted fee. They based their authority for the suit under a provision of the Indian Gaming Regulatory Act, which was 2710.D.7.A.ii which provides a five-part test for a state or tribe to sue in federal court to enjoin a gaming operation on Indian lands conducted in violation of a compact that is in effect. And so in that statement, there are about five elements that you have to meet for the cause of action. That provision both establishes federal jurisdiction, creates the cause of action, and waives by statutory abrogation, waives the immunity of the tribe that you're suing against. So Bay Mills argued that the complaint by the State of Michigan and Little Traverse Bay Bands was defective and did not meet all of the elements of 2710 because one of the counts alleged that the casino was not on Indian lands. Therefore if you're construing the complaint, if it's not on Indian lands and the conjunctive nature of 2710.D.7.A.ii of the five elements that the Little Traverse Bay Band had a defective complaint by alleging that the casino was not on Indian lands, if it's not on Indian lands there's no federal jurisdiction and there's no waiver of...there's no abrogation of immunity by the statute because the statutes in order to abrogate the immunity under case law have to be strictly construed and followed. That argument was not successful in the federal district court by Judge Maloney and he had an expansive reading of 2710 and relied on a 10th Circuit case that focused more on whether the gaming activity is a violation of the compact and ruled that there was also federal jurisdiction under two other related provisions, 1331 for the federal question of whether or not the Michigan Indian Land Claim Settlement Act created the restricted fee, and also that 1362, which provides authority for a tribe to sue in federal court, that that provided an additional basis for federal jurisdiction. He did modify both of those provisions when Bay Mills pointed out that the Sixth Circuit decision had already issued opinions contrary to that in 1331 and 1362, but he did reaffirm the proposition that an expansive reading of 2710 focusing on whether the tribe, Bay Mills, was violating the compact was a sufficient basis for the abrogation of their immunity under federal law and continued...and rejected their motion for reconsideration on the injunction. At that point, Bay Mills filed an interlocutory appeal to the Sixth Circuit and then briefing was completed and oral argument was held in May of 2012 and then opinion was issued by Judge Kethledge of the Sixth Circuit was the author and he essentially accepted Bay Mills' proposition that 2710.D.7.A.ii has five elements and all of the elements have to be met for there to be federal jurisdiction and for there to be a statutory abrogation and if you construe the complaints of the Michigan...the State of Michigan and the tribe, they are alleging that the casino is not on Indian land, therefore effectively they knocked themselves out of court because they are missing an essential element. So that is the case that's up on appeal. There are some ancillary issues in there that I don't want to go into that relate to the State of Michigan's argument under the Assimilated Crimes Act and also the scope of 1331. The issue that is up on appeal is whether 2710 waives the immunity in the expansive reading that Judge Maloney had in the federal district court or whether 2710 has to be read in a very restrictive manner...explicit manner such as Judge Kethledge said in the Sixth Circuit. So the state's argument, which was filed in August, argues that there's a statutory misinterpretation and that Judge Maloney is correct in his interpretation, but then they go on to an extreme position by saying, "˜And even if Judge Kethledge is right that sovereign immunity, in this particular case, should be modified by the court as part of the common law of the court, the state is urging the Supreme Court to essentially override its common law jurisprudence on sovereign immunity,' and that's where the big danger lays because the jurisprudence has established in the past through CNL in 2001 and Kiowa in 1998, there was a developing analysis of on-reservation, off-reservation, commercial versus governmental and the state is urging that the Supreme Court should adopt an analysis that off-reservation commercial activity is subject to a common law diminishment of sovereign immunity. They are urging the court to say any activities that are off the reservation of a commercial nature the tribe cannot assert sovereign immunity. So that's where the big danger is."

Ryan Seelau:

"I'd like to change topics a little bit now and talk about the sort of legal foundations of nation building. And what I want to talk to you about specifically is sort of the role of culture in legal institutions or in legal doctrine and things of that...and I was wondering how you, over your career, have seen the role of culture play out in legal systems because previously you talked about how, in the previous interview you talked about how you worked...in various parts of the country you worked with the Pueblos in New Mexico and you worked with Alaska native villages in Alaska and you've worked in various contexts and I was wondering how you see the same sort of goal, which is carrying out justice in Indian Country, how you're seeing that process change based on the culture that you were working within."

John Petoskey:

"The example that I used is actually quite dated and I don't think it's relevant to New Mexico anymore, but earlier in my career I worked at Indian Pueblo Legal Services and I worked for the eight northern pueblos and one of the pueblos I worked for was Taos Pueblo and at Taos there was an individual who was a tribal member that only spoke the Taos language and she was suffering from extreme alcoholism that impaired her judgment. At that time they called it 'organicity.' I'm not certain what that phrase means, but she would not leave the village and she was creating distress by her behavior in the village through her alcoholism. The pueblo had made numerous attempts to correct her behavior in their internal mechanisms that I'm not familiar with and then they came to the Legal Services and said, "˜Well, how do we deal with this particular situation?' And in the state law system at the time for somebody that was suffering from extreme alcoholism where they were doing harm to themselves you could petition under the New Mexico Health Code for an involuntary commitment in the district court of New Mexico to place the person in an institution against their will, an involuntary commitment petition is what it was called, but the problem in that case was that the person lived in Taos and would not leave the pueblo. So there was no subject matter civil jurisdiction for an internal relation that was taking place at Taos. So the court didn't have civil jurisdiction, the New Mexico Supreme Court did not have civil jurisdiction to initiate the process, nor would the individual come out of the pueblo. So given that set of circumstances and the language problems connected with her simply speaking the Indian language as her primary language, I met with the pueblo officials and with three caciques and explained that I thought what we should do is establish if you will a panel of caciques that would address this issue in the context of New Mexico law of the elements that you had to meet for an involuntary commitment under New Mexico law. And so they agreed with that and the panel of three caciques were convened with the person who was suffering from alcoholism and I went through the New Mexico Health Code on the elements that had to be met to prove that this person should be subject to an involuntary commitment and it was translated into the Taos language for the individual and explained what was going on and the caciques then agreed that she met all of those criteria and ordered that there would be this involuntary commitment. I then wrote up the order following the procedures that had just taken place and took that order to the New Mexico District Court and sought full faith and credit of what had occurred at Taos Pueblo and had to go through a hearing with a district judge in New Mexico arguing that the process that occurred at Taos Pueblo conformed with the procedural due process values of the New Mexico Health Code and the judge did order that the person was...could be involuntarily committed to a facility that was under New Mexico's control and that's what occurred. And so that was somewhat of a creative use of...I'm not saying that in a self-congratulatory sense. In response to your question that's what I'm saying. It was a use of using the cultural norms of the caciques having the authority that this person, the person suffering from alcoholism, respected and going through that process even though it was New Mexico substantive law, but explaining it to the pueblo officials and the pueblo officials opining that they agreed that this individual should be involuntarily committed because of her behavior."

Ryan Seelau:

"Another experience professionally that you have mentioned, which in some respects is very different from what happened with the pueblos, but on the other hand, also involved getting the sort of cultural norms into a concrete legal document was that of the Chickasaw Constitution being written."

John Petoskey:

"Oh, yes."

Ryan Seelau:

"I was wondering if you could talk a little bit about that story and what you observed and how the Chickasaw people...what the process they went through to sort of write and get their constitution done."

John Petoskey:

"So in 1908 the Curtis Act was passed and what the Curtis Act did was allegedly dissolve the Choctaw, Chickasaw and Cherokee legislature and created a system of appointment of governors for those...for the five civilized tribes in Oklahoma and that system existed from 1908 to the 1970s when the National Indian Youth Council, a place I worked at, in the late...in the early "˜80s, but in the, I think it was 1973 two attorneys, Tom Lubin and John Kelly filed a lawsuit on behalf of private plaintiffs called Harjo suing the Secretary of Interior and the case was entitled Harjo v. Kleppe arguing that the 1908 Curtis Act did not dissolve the Chickasaw legislature. So here you have a historical basis of the five civilized tribes having a history and a culture of constitutional government of checks and balances and having vibrant complex governments servicing the needs of Choctaws and Chickasaws in the...after their removal from the southeast to Oklahoma, they had a legislature, they had the Light Horsemen Cavalry, they had enforcement of their...they had a functioning democracy and a constitutional form of government. And then you had the United States basically destroying the government saying, "˜You can...we are going to destroy your constitutional government' and that's what the Curtis Act attempted to do. And the argument in Harjo v. Kleppe was that the Curtis Act did not, in fact, dissolve the Chickasaw government and the regime that the Secretary of the Interior had set up over the last 50 years of appointing the governor was clearly in violation of the constitutional cultural history of the Choctaws and Chickasaws and that the Curtis Act's implementation by the Secretary was incorrect. That argument and proposition ultimately prevailed in the federal district court and in the federal court of appeals and that was due to the litigation efforts of, as I said, Tom Lubin and John Kelly. And so when I came into the case in the 1980s, it was implementing that decision to reform the constitutional government and our clients, which were the, if you will, the dissidents against the governor of Chickasaw and the dissidents against the governor of Choctaws were leading a method that was...had to be administered by a federal supervision because of the level of animus that existed between the parties to re-establish a constitutional government and it was negotiations under federal supervision of a constitutional structure that was to be re-implemented at Choctaw and Chickasaw in a constitutionally supervised election of the constitution once it was completed. And that was basically bringing back the cultural tradition of a legislature in Choctaw and Chickasaw in the mid "˜80s and the constitution was approved and the tribe continues today."

Ryan Seelau:

"I'd like to talk a little bit now about Grand Traverse Band's justice system, ask you a few questions about that sort of along the same lines, but first I was wondering if you could just talk about maybe just a brief history of how the justice system, not how it started but when it started and what it looked like and then how it's grown into -- you've already mentioned the arbitration proceedings that are now available in the justice system, you mentioned in the previous interview about peacemaking -- and just sort of take us a little bit through the timeline of how that's grown over time."

John Petoskey:

"As I mentioned, the tribe was recognized in 1980. The tribe was engaged in litigation with the federal government over our constitutional provision on membership. At that time [President] Reagan and James Watt was the Secretary of the Interior and our membership was expansive in terms of the number of people that we said were eligible for enrollment in our tribe and then the Reagan administration and James Watt's position was essentially that the membership shouldn't grow because that's a bigger liability on the part of the federal government and therefore we're arguing for a more limited membership, and that took some time to resolve that issue because our argument was that the tribe determines its membership and not the federal government. The federal government actually alleged in letters that they would and essentially terminate the tribe again by taking away federal funding and taking away the recognition and the tribe's reaction was, "˜It takes an act of Congress to do that. You're going beyond the scope,' and so things...it took several years to resolve that membership issue. I only say that because, as a consequence, the constitution was not actually ratified until 1988. And so...but we were developing the tribal court even though we didn't have a constitutional basis for that tribal court because of this membership dispute. But in our constitution, we provide that the judiciary is a separate branch of government and is independent. So once the constitution was provided, we wanted to assure that independence of the judiciary. And one of the legislative acts that was done was to fund the judiciary on a percentage basis of our net income that did not...that could not be varied without essentially a super majority of the legislature changing that. And so that worked relatively well for the first couple of years, but then our enterprises became very successful, and as a consequence the percentage of funding for the tribal court went up dramatically given the fact that it was based upon a percentage of the net income of the tribe. And so there was the super majority to revise that allocation of funding to comport with the amount of money that the tribe was making at the time. And that's still a question that we have on how properly to fund the judiciary without using the power of the purse string to incapacitate the judiciary. The percentage method was one solution that we thought. It didn't work out because of a mechanical application of that percentage method and a rising income stream has a disproportionate impact on the amount of money that's available to the judiciary, and so I am really open to other avenues that people have on how they fund the judiciary on a basis that doesn't use the power of the purse string to limit the judiciary. That's what part of the independence question that frankly...a riddle that we have not solved. And I'm not certain how other tribes do it. I know there's that common problem in the federal government that has that. Justice Roberts is always complaining about the lack of funding that Congress is giving to the federal court systems. It's not a problem that has been solved in the greater federal system, but I think it's a problem that tribes should attempt to come up with a solution [for] if they want an independent judiciary. But having said all that on the funding, part of developing the culture of a strong judiciary is to recognize the power of the council and what it can do with an opinion that they don't like that the judiciary issues. It's easy to say that you shouldn't remove an individual or fire an individual for an opinion that has been issued and Grand Traverse Band does not do that. We have in our constitution the individual is appointed for a term of years, compensation cannot be reduced while the individual is in office and the only...but an individual -- and this is in our constitution -- individual can be removed for gross neglect, misconduct in office, and we incorporate by reference the American Bar Association Judicial Code of Conduct for a basis for removal. And Grand Traverse Band has undertaken removal proceedings against a judge on the basis of misconduct in office and that involves not a decision of the tribal council -- the tribal council is a litigant, a petitioner -- involves a decision of the appellate judiciary people at Grand Traverse Band judging a member of their own on whether or not the petition has merit for removal. So that's what I've always advised the tribal council. You can either appeal a decision you don't like, you can wait until the power of appointment is up and appoint that individual and you can use, and I know this...you can use political considerations in the appointment process. It's perfectly legitimate in my view when you're appointing a judge to say, "˜I don't want to reappoint you because you made XYZ decision that I disagree with.' That's an appropriate political exercise of the power of appointment. Or you can petition for removal under a decision that you don't like and those are the three methods that the council has used in its relationship with the judiciary. And conversely, the judiciary has removed members of the tribal council where the council members have committed self-dealing acts and the petitioner in that case is a other...majority of the council members vote to file a petition for removal against an individual councilor, the judicial panel hears the matter, an attorney is appointed for the councilor that is subject to removal and it's a litigated question on fact and law, on whether or not the particular alleged behavior amounted to misconduct in office by the tribal council. So the judiciary has opined in the past that the petition that the council filed by majority vote for removal was...had a meritorious basis and the councilor was removed from office by an opinion of the judiciary. So it goes both ways. Those are building strong institutions."

Ryan Seelau:

"We don't have a lot of time, but I want to ask at least one last question, which I think relates or is connected strongly to what you were just talking about and that's this week several times you've talked about how at least at Grand Traverse Band you've seen the sort of process...the justice system-building process as a goal of moving from an indeterminate process to a determinate one and I was wondering if you could tell us what you mean by that and explain why you think that's a good goal to have."

John Petoskey:

"Okay. This was in response to a -- which I have heard repeatedly here and also in other contexts -- that politics should be out of the judiciary, and it's using 'politics' as a negative word. My point was is that I don't think that is the appropriate description. Politics is, in some senses is a dirty word, but in my perspective it's not necessarily a dirty word because it's the process of governance of competing interests that constituents bring to the tribal council and they...this has happened on occasion that a tribal member will have an adverse decision from the judiciary and will call up a councilor and say, "˜This is a bad decision by the judge. You should do something about it.' And then people say, "˜Well, that's politics, that shouldn't happen.' My point is that that conversation between the constituent and the council member is hard to control because that's a council member listening to his or her constituent talking to them as a representative. It's a republican form of government and so the impact that the tribal citizen has is to complain to their elected official and that's what they do so I don't see that as necessarily bad. I do think it's inappropriate though if the elected official then attempts to intervene in the process and to change the end result and that's where I bring up the dichotomy of 'determinate' and 'indeterminate,' because when the elected official intervenes in the process, there are no rules that govern the elected official's behavior and the scope of his intervention and the standards that define what is permissible and impermissible. In other words, it's indeterminate. And the types of activities that should be allowed are only determinative activities where the standards of conduct and the rules of conduct and the appropriate actions are defined by past precedent in which people are arguing about standards that are already in place. Where we get in trouble is when we enter into relationships where there are not pre-existent determinate standards and that goes across the board. Everybody wants to know that what is happening is going to be resolved by a determinate process. They may not agree with the end result, but they do not disagree with the process and in the United States, Bush v. Gore is a perfect example of that. Both the partisans on the part of Bush and Gore disagreed with the end result that the Supreme Court had, but they didn't disagree with the process. Once the decision was made it wasn't...armies weren't called out to enforce it, there wasn't contrary protests of...it was over. Everybody agreed the process had worked and you continued to disagree with the opinion, but it was a determinate process that ended. And that should be the goal of judicial systems and legislative systems to act in a determinate manner and not an indeterminate manner because your constituents, your vendors, your business invitees, your tribal citizens will all appreciate that even if they disagree with the end result because they recognize that the process is determinate and legitimate. Indeterminacy makes illegitimacy."

Ryan Seelau:

"I think that's an excellent point and I'm glad that we were able to talk about it a little bit. John, thank you for sitting down with me and talking again. That's all the time we have in this program of Leading Native Nations. To learn more about Leading Native Nations, please visit the NNI's website at nni.arizona.edu. Thank you for joining us. Copyright 2013. Arizona Board of Regents."

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 2)

Producer
Native Nations Institute
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses the critical role that intergovernmental relationship building plays in the practical exercise of sovereignty and the rebuilding of Native nations. He shares several compelling examples of how LTBBO built such relationships in order to achieve their strategic priorities.

Resource Type
Citation

Ettawageshik, Frank. "NNI Indigenous Leadership Fellow (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 13, 2010. Interview.

Ian Record:

"So we're back with Frank Ettawageshik. This is a continuation of the interview from April 6th. Today is April 13th and we're going to pick up where we left off, which was talking about constitutions. And I want to essentially go back to the very beginning on this topic and ask you for your definition of what a constitution is."

Frank Ettawageshik:

"The constitution is the method by which the people inform their government how they want the government to serve them and the government is a tool of the people to achieve what they need to achieve in terms of relations to other governments, in terms of relation to how things are going to work internally. The people themselves maintain the complete power. And then they can either give or take back certain powers to the government through the constitution. The constitution also establishes the mechanism for how the tribal government, the tribal nation will deal with other nations. It sets up the parameters for how you are going to do that, "˜which branch of government has which authority?' and all of those types of things. To me the constitution is a tool of the people for how they are going to manage their government."

Ian Record:

"What key ingredients do you feel constitutions need to have in order to be effective?"

Frank Ettawageshik:

"Well, constitutions...to me, there's a legislative function, there's a judicial function, and an executive function, and these need to be acknowledged and then the interplay between them is what the constitution does. Some tribal nations have constitutions where all of those powers are wrapped up into one body. Others have clear separations of powers, but even ones that have separation of powers the balance of those changes from one to another. So really those are important functions, I think another thing needs to be clearly you have to have an amendment clause on how you are going to amend it. You need to have some basic statements. I believe that it is extremely important to have like a bill of rights built into it. I think that's very important because those things need to be part of what our people come to expect in terms of how they are going to relate with their government. And when the people are telling the government how it's going to function they need to reserve for themselves certain rights, certain ways to protect themselves. I look at a constitution in a way as the people trying to protect themselves from their own government and I think that not only does it say how it's going to function, but it also limits how it's going to function, and guides it so that it will...constitutions that are poorly conceived or poorly written or ones that the community, the tribal nation has grown beyond, they can hamper how things will function. They can be difficult. For instance, constitutions do not require, nor does federal law require that they be adopted by secretarial election. Nor do they require that amendments be done by secretarial election, yet many constitutions throughout Indian Country require secretarial election by their own words, and so I think an important function there would be to not have that in your constitution. To me, you are either sovereign or you aren't, you are not part sovereign. And as a nation, tribal nations, sovereign tribal nations are constantly negotiating the exercise of that sovereignty with the other sovereigns around them. We may be with another tribe, another tribal nation close by, having some disputes about whose territories is whose or what...in economic development, there's room for competition and some issues. There could even be citizen issues regarding membership or citizenship. And we need to...the documents need to sort of deal with those things that are coming up."

Ian Record:

"I wanted to follow up on something you said. You talked about a number of Native nations growing beyond their constitutions. We hear that sort of refrain, particularly in the discussions of tribes who have Indian Reorganization Act systems of government that were adopted in the 1930s. They had a very different conception of the scope of self-governance, if you will. Is that something you've seen in your line of work, working with tribes both as chairman and now as executive director of the United Tribes of Michigan?"

Frank Ettawageshik:

"Every tribe has its own constitution or its own, either written or not written, in terms of how the government's going to function. Most of the tribes I've worked with have written constitutions and they're all different and they have...there are clearly times when you move beyond something. The United States has amended its constitution a number of times, and not always successfully. Witness Prohibition for instance, and the fact that there's one amendment that brings it in and another one that takes it out. So the fact that a government might need to amend its constitution is not unusual. Some amendments may be more far ranging than others. Some amendments are a sentence here, or two. Other amendments might be more drastic than that, but I would think that, think of it rather that the constitution is an organic document that is evolving as the nation evolves."

Ian Record:

"I wanted to pick up on a specific aspect of the Little Traverse Bay Band of Odawa Indians' constitution, which was adopted in 2005, and it gets at this issue that you mentioned in the outset when defining constitutions, which is international or diplomatic relations. And explicit in your constitution is an acknowledgment of other sovereign nations and their inherent powers presuming that those sovereign nations, in turn, recognize and respect the sovereignty of your nation. Can you summarize what that clause says and give an overview of perhaps why your tribe felt it necessary to include that?"

Frank Ettawageshik:

"Well, when you, like I said, when you acknowledge that sovereignty in yourself and in others then you have to exercise or negotiate that sovereignty with your neighbors. So what I think is here is that you're constantly working with those other sovereigns, but you need to figure out how to decide who you are dealing with and who you aren't. And so the most basic way of that is that if somebody else acknowledges you, well you can acknowledge them, but you have to have some sort of a process for that. What this clause in our constitution does is it establishes a basis for some office, or staff person, or somebody that would be akin to a state department for instance, where there's an international relations office that deals with negotiations with other sovereigns and those types of things. Those negotiations, those other sovereigns might well be the United States and the laws that they are passing could have an effect on the way we exercise our sovereignty, but the fact that, for the most part, what we have done in Indian country is that we have federally recognized tribes deal with federally recognized tribes and I think what that does is that sort of...we're letting the United States decide who we're going to have diplomatic relations with, and I don't think that is a good idea. But we have the right to make that decision ourselves, but then along with that right comes the responsibility to do it in a way that you are doing it reasonably. So then what do we do? Do we have a whole acknowledgement process, each one of us? How do we go about doing that if we're not going to sort of let someone else vet the potential list of people with whom we'll have relations. I think the whole federal acknowledgement process doesn't grant sovereignty to those tribes that make it through, instead it acknowledges that they have it and that's what it's all about. So what that means is that the non-recognized tribes also are sovereign, and the state recognized tribes are sovereign, and the federally recognized tribes are sovereign. Tribal governments have inherent sovereignty and no one gives it to them. They have it because it comes through being in this creation. Well, you still have the responsibility to do it, to do it wisely because not everyone who claims to be a tribe is a tribe and that's the difficult thing. There are examples of people who have formed...recently, there have been some prosecutions here across the United States of people who have had various money, get-rich schemes, that involve pretending to be a tribe and issuing cards and charging people for it. Those are things we have to look out for, but then that's the responsibility of a sovereign nation is to not just look inward, but look outward because threats come from outside as well as potential good things come from outside and we have to be able to recognize them and deal with them."

Ian Record:

"You mentioned or we've been discussing the constitutional mandate within your tribe's constitution to essentially engage in international relations. It places a high value on that process. Since the 1980s, there's been an incredible growth in intergovernmental relations between Native nations and various other governments and I'm curious to learn from you, what do you think is driving this growth?"

Frank Ettawageshik:

"A recognition that we need to look outside ourselves and work together. I mean if you look at what has happened across the world in this time, the European Union is formed and variety of very nationalistic individualistic nations realized the value of working together. While they still have their independence and unique in their own countries, at the same time, they have a centralized currency and other things that make for a good sense. Tribes have the same kind of thing. We know that there is strength in numbers and as a matter of fact back there in the revolutionary time here in the United States, many of our leaders spoke to the Continental Congress and to the early [U.S.] Congress about the strength of working together. As a matter of fact, there is a famous speech about 13 fires being stronger than one that was given and these are the kinds of things that come from us and our understanding and we often formed alliances of some sorts with us coming together, the Haudenosaunee Confederacy for instance is one, the Three Fires Confederacy is another, and there are others all across the country where different tribes have worked together. So what kind of things have we done?

One of the examples of working together is the formation of the National Congress of American Indians back in the '40s. It was formed to combat the national trend towards not recognizing the tribes, tribal governments or saying, "˜alright the tribal governments have progressed far enough, now we can terminate our relationship with them.' And so the whole Termination era came through and NCAI, that was one of the big pushes for NCAI. One of the things that we found as we were doing some studying and I still have more to do on this, but not only was there the non-profit corporation created that is the National Congress of American Indians, but at the same time there was also a treaty written and was signed by a number of the nations that acknowledged each others' sovereignty. I mean, it's a very...it showed and demonstrated in writing, the understanding of the tribal nations that they were and still are independent sovereigns and no matter what other people may think about it. And so, I think that that was one example, NCAI.

Other examples of working together I'm going to put up, more recently, we in the Great Lakes signed an agreement called the Tribal and First Nation Great Lakes Water Accord. This was done because the states and provinces were working on the issues of bulk ground water and diversion of water from the Great Lakes and how are they going to work together to deal with those issues as they came up and there had been a succession of agreements, finally one where they would agree and create binding agreements and then it was in the creation of these binding agreements that they started work and we got wind of the things. They talked to us a little, but they always talked to us as stakeholders and we felt that that wasn't correct. They needed to talk to us as sovereign governments within the region because we had court-adjudicated rights within that region. We were the only government with government-to-government relationship through treaties and that was important that we be apart of it, so when we weren't part of it and they did treat us as stakeholders we went out and called a meeting of all of the tribes and first nations in the Great Lakes Basin. There is about 185, some are together and some are not, and so when I say about there is a couple different ways of looking at it, but it's over 180 tribes and First Nations in the Great Lakes. We ended up having representatives -- either individually or either through consortia -- we ended up with representatives of 120 tribes and First Nations at a meeting with just a few weeks notice, which we negotiated and signed this water accord. Within one day, we were at the table, invited to the table to negotiate with the states and the provinces and what they planned on signing at about a month, it took actually almost a year before it was ready to go and we managed to strengthen those documents in a way that they will help protect the environment and the waters because we plugged holes that were there that were wide open because tribes and First Nations weren't there. We also took offending language out; they managed to negotiate language to come out of these documents that didn't acknowledge tribal property rights or tribal treaty rights. So in the end there's an interstate compact that's agreed [to] by all of the governors signed it with the tribes had to agree. And then the governors all had to get the state legislature in each of eight states to pass the identical wording which was no easy trick and they got that done and it went to the U.S. Congress where there was a lobby to push this through. If the interstate compact is approved by Congress it becomes law of the land and it's a provision within the U.S. Constitution that allows it.

So this interstate compact, there was a strong lobby trying to fight it because they thought it didn't go far enough. One of the key things it didn't do is it didn't bottle water in containers, 5 gallons and less is considered a consumptive use as opposed to a diversion. A lot of people felt that it should have been a diversion if that water was bottled and shipped outside of the Great Lakes aquifers. And so nevertheless it ended up passing at the U.S. Congress and it became law, then it was an international agreement that was signed between the eight states and the two Canadian provinces, Ontario and Quebec. With parallel language, but the two provinces weren't able to sign onto the interstate compact so they created this other document that has that in it. It at least deals with issues when there is a permit for a withdrawal of a lot of water from the ground that will be vetted through a process. The tribes and First Nations agreed that we would have a parallel process to the states, rather that all be a part of one process. So we are still working on how that is going to be set up, but nevertheless we've all agreed to it. Since that was signed there have been another 30 nations sign on, tribal nations and we now have about 150-160 that have signed out of the 185. So that is an example of an international agreement working between the tribes and working across what the United States calls an international border between it and Canada. And there are others, League of Indigenous Nations is another way we're working with, not only First Nations and tribes, but also with the Maori and the Aborigines, potentially with the Indigenous folks throughout Mexico and Latin America and other places. So we're looking at what kind of things are there that we all have in common. And Indigenous intellectual property rights, our medicines and stories for instance...issues of climate change and there's substantial things that we all have in common, trade relations with each other, the ability to trade not just in goods perhaps, but to trade in ideas and thoughts. Those are things that are important."

Ian Record:

"You've been discussing international relations primarily between tribal peoples, between tribal nations. Little Traverse Bay Bands of Odawa Indians has also been very active in the arena of intergovernmental relations between your band and other local governments, state governments and that sort of thing. I'm wondering if you could discuss in what areas is your nation currently engaged in that arena? I know, for instance, you have cross-deputization agreements with two counties. Maybe talk a little bit more about what your tribe is doing in that area."

Frank Ettawageshik:

"And we've come a long way from the point...quite a long time ago as the chair, I received a letter from a local prosecutor who indicated that our police were impersonating police officers and they couldn't be on the roads with their lights and they couldn't have car with emblems and most importantly they couldn't have radios with those little chips in them that allowed them to pick up police frequencies and that I had 10 days to deliver them to them. So we wrote them a letter back and said "˜You know where those cars are, you are welcome to takes those anytime you want, but as soon as you do be prepared for a visit from the U.S. Attorney.' So we called the U.S. Attorney and had a nice chat and that same person ended up signing off on a limited deputization agreement within about a year and a half after that and then we have full deputization that has been signed since then with two different counties. We worked on trying to have seamless public safety within the community. We didn't want to be a haven for people who were breaking the law on one side of a line and then crossing the other and then thumbing their nose at the police or things like that. So we worked hard to make sure that when there's a search and rescue for instance that is going on, our officers are trained and a part of the team and can help. And the public safety of the community is enhanced because they have this additional training. In addition to that, we have crowd control issues. Our officers have worked on part of the security detail for the governor when the government does the Mackinac Bridge Walk every year. And every year it's a five-mile span. Every year on Labor Day we walk the bridge. It's a huge crowd and frankly, they pull in different local people and our officers as well. We also work closely with the county and state police. One of the stories from this inter-cooperative agreement kind of thing that we've been able to do: we had the U.S. attorney general come to visit at Little Traverse. And we had all kinds of security things and there's all kind of things you have to do. We, of course, had to have a bomb dog to sweep the whole building and they have this and that and all kind of things. And as he was leaving after this meeting, and he was meeting with all the tribes in Michigan, and after he was leaving, he pulled out from our grounds and drove by Little Bear Cave and saw that there was a state trooper, country sheriff, a city policeman, and tribal police all standing together chatting right there. And we got a call from the FBI in the car with him. He got a question, 'How did we do that?' But that was part of what we tried to do, we tried to build that relationship. We also, if they come on our territory unannounced, we're not against making sure that they know that they're not supposed to do it. So if we had an investigation going on and they forgot to call us or something, we'd let them know. But likewise, if we did something that they didn't like, they'd let us know, so we developed, what we did is we built in safety valves in our relationships so that they were there if there was an issue, we had a way to deal with it right away. And so it's been a cooperative venture when the sheriff of both counties and his deputies show up and they stood before me as the tribal chairman and took an oath to uphold the tribal constitution and all of our laws, that was a pretty big step."

Ian Record:

"This case is interesting because it calls to mind this perspective or mindset you used to see more in Indian Country than you do now, but the idea that, well if you enter an agreement or develop a formal relationship with a local municipality just off the reservation, or a county or a township or something like that, you're somehow relinquishing your sovereignty because those are minor-league governments and we're sovereign nations. That -- from what I can gather -- that perspective is being replaced gradually by the perspective that when a tribe chooses to engage those other governments, in whatever way they see fit, that it's actually an exercise of sovereignty. How do you see what your tribe's been doing in that area?"

Frank Ettawageshik:

"Well, that's exactly the way I'd put it, it is an exercise of sovereignty. An example of an exercise of sovereignty working locally is if you have someone slip and fall at your casino and they hurt themselves and they sue you, of course you've got the insurance company, but if the insurance company turns around and claims sovereign immunity every time somebody sues what are you paying the insurance for? So an exercise of sovereignty, one that helps us protect us and our customers would be [what we did] is to waive our sovereign immunity up to the limits of our insurance policy so that someone could sue and be taken care of if they needed to be, therefore getting what we were paying for when we bought our insurance. Well, that's an example of an exercise of sovereignty that works well. And governments waive sovereignty on a regular basis for things. I mean they waive their immunity but never waive sovereignty, let me correct myself there. And that exercising your sovereignty through a waiver of immunity is a responsible thing for a government to do towards its own citizens and towards the citizens of other nations with which we deal: our customers at the casino, our guests at the gas station, the customers coming by, and we have a hotel and we have conferences there, we have lots of people coming through. We have to deal with the issues of...I mean, one of the issues we ran into was within Indian Country it was illegal for anyone to carry a firearm unless there was some law that was passed that allowed it. So in the absence of it, it's illegal to have it. Well we had guests; we had the outdoor writers coming as an association. They were coming to our hotel and one of the things they were going to do was a rabbit hunt and they had all brought their guns and it was going to be illegal for them to have them in their room, to have them in their car in the parking lot, and so we had to pass a law that allowed how this set up, how this was going to happen. It was one of those responsibilities of being a sovereign that it became important to work on."

Ian Record:

"And so what you're saying is it's not just international relations, it's not just a sovereign challenge involving other governments, but involving individuals who are citizens of those governments, individuals like these sports writers and the casino patrons and so forth."

Frank Ettawageshik:

"Well, ultimately it actually is dealing with the other sovereign, it's just that the other sovereign has citizens. And so as you interact with those citizens, you're interacting with that other sovereign government and you have to figure out how that's going to be done. So those are just some examples of things that we had to do that I felt are important. And ultimately, these things were things that our tribal council passed as laws and our tribal courts have worked to enforce and for the police and the courts to go through this. And so this is our tribal government at work in the process of making laws, being responsible, and exercising sovereignty."

Ian Record:

"I wanted to follow up a little bit more on intergovernmental relations. And obviously the water accord that your nation participated in is one example of many that your tribe's been engaged in developing over the course of the last several decades. And I'm curious to get your thoughts about taking collectively all those relationships that you developed, all those formal agreements you forged, how do those collectively work to advance your nation's rebuilding efforts."

Frank Ettawageshik:

"Well, the prior administration to me, actually it was a four-year time period when I was not in office and during that time period, our tribe was one of the tribes that worked with the governor of the state in a tribal-state accord in which the State of Michigan acknowledged sovereignty of the tribes, pledged to work together and establish certain things that they would do. We...I came back in office, we were preparing to have, I think one of the first meetings where we'd all get together following that. And as we were preparing for that meeting, I just don't like to go to meetings where the outcome of the meeting is, "˜Well, we'll have another meeting.' I'd really like to actually have a product from the meeting. And I spoke about that and wanted to do that, other people agreed, and as a collective we developed a water accord with the State of Michigan. So this was how the tribes and the state would deal with the collective, our collective interest in the waters of the state. And the accord itself was one that's right about...it's on the heels of our tribal and First Nations water accord and it's all this, this time period is all sort of involved in the same effort. But with this one, instead of the tribes pledging to work together, we pledged to work together with the state and establish twice-yearly meetings, staff-level meetings, not elected-level, but staff-level meetings where we would deal with the issues of what came up relative to water. And of course water is part of the environment, so certain environmental things started coming in. Subsequent to that, we came up with another agreement that we put together creating an accord on economic development. And then we came up with an addendum to that, creating, establishing an agreement to do and economic development fellows program that would say, half state, half tribal –- state folks and tribal folks –- that would work say, over a couple-year period to get a cohort of participants on the same page relative to the issues of economic development in Indian Country. Well this has been a little slower to take, but it's been one that's been brewing and we have a meeting coming up in just a couple weeks from the day we're doing this interview that, where we're going to be furthering some of those issues with the Michigan Economic Development Corporation.

Well, those are some of the things that we did and then, we also have signed a climate action, climate accord, dealing with climate change issues, also establishing twice-yearly meetings. I served on the Michigan Climate Action Council. I was appointed by the governor to be part of that council that helped create the plan for the reduction of the emission of greenhouse gasses and all the different issues surround climate change. And we turned in a report to the governor, and part of that report recommended that the tribe, that the state negotiate and sign with the tribes a climate accord. And the reason for that is because tribes are not political subdivisions of the state and it made, it would've been really difficult to incorporate us into the state's plan, but part of the state's plan was to sign an accord with us to work out common issues. And also part of the state's plan was to work with tribal organizations to further the issues. So for instance, they send a rep to the National Congress of American Indians' meetings relative to climate change, and to NTEC, the National Tribal Environmental Council, other meetings to make sure that they're, the state is sort of on sync with those things. So that's part of how we do with that accord. So when you look at each one of these accords, you put all this together, the tribal-state accord and the water, the economic development, the climate accord, you put all that together in terms of how we've related to the state, we've...I guess I should mention a couple of other things.

We also signed a tax agreement with the state. The state realized that we probably could go to court, which other tribes had done and that it was going to cost both of us millions of dollars and the outcome was uncertain. The uncertainty was there enough for the state that they felt that it was worthwhile trying to find a way to negotiate. So we ended up with a tribal-state tax agreement that is negotiated as a whole, then signed individually with the tribes and there's slight variations in each of them, but they're all pretty much set up...the system and then that also establishes an annual meeting where we get together to talk about the issues related to the taxes in the state. And sometimes our meetings, we've actually had a couple meetings that were over in 20 minutes. We had the meeting, we all got there, and we said, "˜Boy, it's really nice not to have anything to talk about.' So we chat with each other a little bit, reacquaint ourselves and eat a donut or two and we're done. Other times, we are actually in very long discussions and I've been in both of those kind [of meetings]. But the tax agreement was basically how the state is not going to collect taxes that it can't collect and what the mechanism is going to be for that. Well, these are other things that helped establish things. So we did this without having to go to court over the issue. And we believe that we got things that we wouldn't have gotten had we gone to court, but we also perhaps didn't get some things we might have gotten. So the question is, the state, both of us benefitted and we think that it furthered our interest by doing this."

Ian Record:

"I mean, I guess overall, overall from what you're saying, is that by consistently, continuously engaging in these sorts of efforts, you send a very clear message to the outside world -- whether it's the feds, the states, local neighboring communities to the reservation -- that, "˜We're big league governments. We're sovereign nations for real.' And then there's the message that you send to your own citizens. Isn't there a strong message that these sort of actions can send to your own people?"

Frank Ettawageshik:

"Yeah. Well they, I think that and one of the other agreements that we did was we settled U.S. v. Michigan fishing rights case and as we worked on that the original case had been filed years ago and then it was bifurcated. The inland portion was sort of put on idle and the Great Lakes portion proceeded through court and we won the right in court and there have been a 15-year and then a 20-year consent decree that have been negotiated on how we are going to exercise that right on the Great Lakes and so we continue to work with the five tribes in the state that are involved in that. Well, the inland portion eventually got to the point where it eventually where it was heating up and looked like it was getting ready to go to trial and we actually hired our witnesses and expert witnesses and we had done depositions and we were moving towards court, but we at the same time worked and a couple opportunities came up and we moved ahead in some negotiations and we thought we try to negotiate. We successfully negotiated a settlement in the inland portion of the U.S. v. Michigan fishing, hunting and gathering rights case. Unprecedented. I believe it's an exceptional agreement in that the tribes gave up things that we surely would have won had gone to court, but those are things that we already were not likely to want to exercise ourselves and one of them was commercialization of inland harvest and also putting gillnets in inland streams and rivers. Both of those were things that we didn't think were too wise, but we could have won those rights and probably would have if gone to court.

However, the state stipulated without going to trial that our treaty right existed perpetually. It's a permanent consent decree and so this was a big deal to us. The second thing was is that they ended up agreeing that we could exercise that right on property that the tribe owned whether they had just purchased it or whether it had been purchased years before and or whether it was a part of the reservation, whatever. They also agreed to do this on private lands with permission and this is way more than we would have won had we gone to court. So we think that we got a lot of things that are very important to us and gave up things, while they are important, they also were worth it in the deal and this is without spending millions of dollars and continuing to spend. It would have been appealed; it would have been a 10-year case by the time it went on. This was a success.

Well, what did that do in the end? At the end when we got this agreement, together we had the state DNR [Departemtn of Natural Resources] touting the agreement and holding classes and seminars around the state to let their citizens know about this agreement and to say why it was such a great idea and we had tribes doing the same thing, but on top of that we also had the various sportsmen associations and the lake owners' associations that had been advising the state on the case and had been working with the state and they called it, the term was "˜litigating amicae,' which I understand is a term that the judge may have made up, I don't know at the time, but they were parties to the case and to that extent -- not parties, but they were amicae. Well, we had these groups, the Michigan United Conservation Club, the lake owners' association, and they were all promoting this so that instead of...result of this and in other states have had to call out the National Guard when they were dealing with this issue when they have really potential dangerous things going on and in Michigan when we got this settlement, everybody realized that it was going to protect the resources and it worked with minor exceptions here and there. I mean there were some tribal members that were upset and there were others. I mean we had some folks just as soon die on the sword, they would just as soon fight and lose rather than negotiate. There was more honor in that. And to me, I look at it, I wasn't worried about my honor or I was worried about that, what I was worried about is the long term. What are our great-great grandchildren going to be doing? And now in Michigan, they're going to be exercising treaty rights."

Ian Record:

"That's a great story and we're seeing more and more of those kind of stories across Indian Country because, I guess, this realization that negotiation, if done right and if done for the right reasons, can bring you much greater outcomes in both in the present and in the future than litigation. Because litigation, even if you win the case, there's this issue of enforcement can be very costly and then there's this issue of litigation begets more litigation. And then, on the flipside though, I mean you have negotiation where it sounds to me like this served as a springboard from improving relations between traditional adversaries, improving relations or perhaps dampening hostilities that had long been there. And, I mean, do you foresee this consent decree as perhaps serving as a springboard for other forms of cooperation in other areas."

Frank Ettawageshik:

"Well, it's important that we sort of keep it alive. One of the things there is from this is there's an annual meeting, executive council, where all of the parties come together to deal with issues. And we have issues; we have issues. We'll have members who push things a little bit. We'll have state game wardens push things the wrong way a little bit and then we'll have to, we have to work through all those things. We'll have disputes about what actually was meant by a sentence and there will be differing views on that and those are things that have to be worked out. But in the process of doing that, we have regular relations; we worked hard and we developed a level of respect for each other and trust that we could achieve, that we were working together on an issue. It wasn't just working against each other. There are times, believe me, out of these...these were tough negotiations, these were not easy. I mean every one of us at the table, every one of the tribes, the state, I mean everybody at the table at some point or another was the one who walked away, and then came back, but everybody got upset. You don't have forty-some people negotiating every three or four or five weeks or two or three days at a time...that takes a long time. So some of those days were long days. We had some 10-12 hour days we were doing this. And so it was tough, but in the end we got something good, and these kind of agreements, building these relationships help because our tribal citizens...I'm a member of Farm Bureau for instance and I look at...we have other people that are members of Trout Unlimited and all the other groups. We have people, lake front owners that are part of lake owners' associations. So our citizens are actually a part of all these other groups with whom we were dealing and we need to strengthen those things. We need to let people know. So now when we do a fish assessments, it's just as common to have the tribes and the state out working doing the assessment fishing on a lake all together because the state's in a budget crunch and so are we, we have our equipment, when we all work together we have enough to do a big job, but just by ourselves none of us really could do that big job all by ourselves. So when we're doing the shock boat and the fish assessing and trying to explain to people that we're not killing the fish, the mortality rate is less than one percent with a shock boat that we have, those are good things and it's good to be working together on this stuff. In the end, what we're doing is we're all working toward similar goals. We aren't always going to agree, but then that's part of governance. In fact, if everybody agreed, that's a little dangerous. You need to have that, a little bit of tension in there to make sure you're doing things right."

Ian Record:

"So you mentioned the hard work that's involved with establishing, cultivating and maintaining these relationships. I'm curious, based upon your extensive experience in this area, what advice would you give to Native nations and leaders for how to build effective, sustainable governmental relationships?"

Frank Ettawageshik:

"Patience. One of the, probably the biggest thing I learned and one of the things that guided me is that eventually, eventually comes and that you need to work towards things. You need to be willing to work a little piece at a time. You need to have a sort of longer-term vision about where things are. I was out walking the other day on a path, and I was, I was looking up at the mountains and to my detriment, I tripped on something right in front of me. But if you look in front of you all the time, you never see the mountains, you never see the other things around you because you're paying so much attention right in front of you. You have to -- without endangering yourself -- have to be looking up as well as in front of you. I think that that's a part of the whole thing about this patience. You have to have a longer-term vision and the government itself needs to work through and think about those longer-term visions."

Ian Record:

"And doesn't that involve educating citizens because leaders? As you've often said, leaders are transitory, they come and go, and some of these efforts are multi-year, if not multi-decade to get the outcome that you've been seeking at the beginning and doesn't that require, I guess, a certain level of understanding and approval by your own people that this is a priority of the nation?"

Frank Ettawageshik:

"Yes. I mean, it's really important for people to understand what...like I said in the beginning when we looked at the constitution and I said the constitution is the method by which the people inform their government how they want it to work. The people need to always be aware of and remember that that is what that is and that they...so they need to understand where those things are when you have a constitution that has a focus on international relations. They need to...when you have your budget hearings, there need to be...someone needs to stand up and speak up and support that budget line item that's going to involve some international travel, some travel that needs to be done. When you have...you have to have...people need to be aware of how things work to know how to allocate resources and how to support that or detriment. One of the issues that I see across Indian Country that I think is...it's a big issue and that is that leaders who do a lot of this international work with other tribes or that are working in a basis across the country often are away from home a fair amount and that needs to be supported. But too often people think that those of us who are traveling are wasting tribal resources, that we are out having a good time, that we're enjoying things at the tribe's expense and that there is no need to be doing this anyway. And so when people are traveling often there is quite a pressure or a candidate becomes vulnerable because of being gone and traveling. So you have to balance that domestic program within your nation with the international program and you have to find out how to balance that, but with the people themselves, there needs to be an acceptance. I was recently -- after I had left the chairmanship -- I attended a conference and elected leaders were taking it on the chin pretty high at the conference over the days because most of them...there were very few elected leaders at this conference. It was almost all other folks: individual activists and former elected leaders, but lots of people were very involved in working on environmental issues, but...and so I, towards the end of the conference I got up and set my regular program aside and I said, 'Listen. You've been...you're sort of upset because elected leaders aren't here.' I said, "˜When's the last time you ever thanked your leader for attending a national meeting like this. When the last time you went to a budget hearing and demanded they put more money in there in the line item for travel so that the leaders could afford to go? When's the last time you wrote a letter or stood up and supported this outside external activity at a community meeting or in conversations in your family or things? You need constantly, if you want leaders to do those things, you can't complain because they don't. You need to actually support them when you do, that way it becomes a priority and if that's really the priority for our nations to make sure that we have this balance between domestic programs and international programs.' We have to have a populace that actually understands and supports why that is necessary, and it becomes necessary. Going to Washington, D.C. is critical for leaders because the U.S. Congress passes laws that effect...while they can't, their laws don't limit our tribal sovereignty, they certainly can limit how we exercise our sovereignty. They limit how Health and Human Services can deal with us. They can limit how the justice system deals with us. And so because of that, it's important for us to pay attention to those laws and it's important for us to know what's going on and to have the relationships necessary there that when we speak, we're not going just to build a relationship. We're going and we already are known so that we can carry through on the issues that support us. And there are plenty of people that are going there on a regular basis who are detractors of tribal sovereignty and don't support tribal sovereignty and who want to do everything they can to do away with it or limit it or whatever. And so we have to constantly be on target and work on these things and that's a very important part of that international because we're dealing with tribal nations to the United States, that's an international arrangement. We have to be very careful on how it works. So it's essential to do that kind of stuff. We also have to do that with our state government because a lot of the funding that tribes get comes from federal government, but it's funneled through the states, even though we'd like them to all have set-asides and deal directly with...so that the tribes deal directly with the feds on those things. There's a number of programs that go through the state and the manner in which the state chooses to set up its programs, how they choose to write their programs or write their proposals and their agreements with the feds can limit how they deal with tribes. So you're constantly having to pay attention to that. And you have people who, once again, would be supporters and other people who wouldn't, but for the most part you also have people that just don't know. And so it's constantly our responsibility to make sure that they do. And whatever mechanism, whether it's the tribal leader going or whether there's an ambassador, I think that we could... I think there's a time coming as we're evolving our tribal governments that we're going to actually have people that ambassadorial function may well be through an ambassador at large. Some of the tribes already have these. And I believe that this relationship with the other governments with whom we deal, we need to have staff people that can deal with that. I use an example, the recent arms treaty signed, where the presidents of Russia and the United States were together to sign the treaty. You know that the two of them did not sit down and hammer that treaty out. They had staff that were working for years on this to work together how to deal with it and may have met a couple times to iron out a point or two, but for the most part, their major thing was to have the photo op of them signing it and shaking hands to sign the treaty and that was the top of the executive functions there. And then of course it's got to be ratified, yet. Well, these are...our governments function in the same way. We have those same kind of interplay of things and...but we need to make sure that we have built in the ability to deal with other governments and that it's a very important role for our tribal nations."

Ian Record:

"I wanted to switch gears, one last question before we wrap up this interview, to tribal justice systems and specifically ask you a question about the Odawa Youth Health to Wellness Court, which your tribe established several years ago, which by all accounts has proven quite successful. I'm curious to learn more about why did the tribe establish this program? How is it structured? And how has it benefitted your community?"

Frank Ettawageshik:

"Well, we clearly have a problem that other communities have, other tribal nations have. As to why we have it, I guess that's another whole other story, but the fact that we actually have this problem with drugs and we have problem with the youth and there are individuals who just don't seem to be able to respond to parental controls and/or other societal controls and end up being in the court system; and the court system is basically a win/lose kind of system. We've tried to develop other systems that are options and this is an option and can be chosen by someone who is before the court, by the youth and this particular thing is based around that wrap around concept where we have staff from a lot of different departments. I think there's 10 different departments, but they are all working with one youth and their parents and all focused on one case. There's responsibilities on all their parts by bringing a multi-disciplinary approach to this wrap around concept we're able to see success with individuals we had not been able to see success with other programs. This has gotten so successful that we have actually had offenders that are before the local county court who they've offered the option of coming to our program and actually people who they didn't have to assign to the program at all, the local judges have sent people to our program and has been because they recognize the success of it. So this is another way of building an intergovernmental relationship, building community relations with various institutions with whom you have to deal in the community."

Ian Record:

"And this, from what I understand, this health to wellness court is not so much focused on punishment, but on restoring health and harmony not only to the individual defender, but also to their family, to their community at large. Is that true?"

Frank Ettawageshik:

"Yes. And I think that that part of the approach, restoring balance is important. And I think that's true in a lot of our programs, that's one of the things we try to focus on. And we have, when you follow our traditional teachings, that whole thing of being in balance is your goal, it's the center, it's what you try to achieve, where you're not at any one extreme. No matter how that extreme may seem, as you move towards that, you're pulling away from being in balance and so something else gets out of balance. So the whole goal is to try to maintain that calm center in order to achieve that. In our traditional ways, that's one of the teachings. And so when we apply those teachings to, trying to apply them to court systems, trying to apply them to our various other social programs, frankly I'm working on how we apply the teachings of the medicine wheel to our budgets. How do we take a budget and determine whether that budget is in balance? And I think that the way we spend our money, the way we allocate our resources, can be just as out of balance as any other thing and it can be symptomatic of we might be having problems in our tribal community that are inexplicable to us. And it could be because the way we're choosing to allocate our resources is out of balance. And so, to me, this is something I'm working on and particularly now that I'm no longer the tribal chair, but I have time to reflect on these things. I want to work on that issue and try to see how that can be, that idea can be furthered."

Ian Record:

"Well Frank, I really appreciate your time today. I've learned quite a bit and I'm sure our listeners and viewers have as well."

Frank Ettawageshik:

"Thank you."

Ian Record:

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

Jamie Fullmer: Taking a Strategic Approach at Yavapai-Apache Nation

Producer
Native Nations Institute
Year

Jamie Fullmer, former chairman of the Yavapai-Apache Nation, discusses how his nation developed a strategic approach to tackling its nation-building challenges during his time in office. He stresses the importance of Native nations and leaders conducting comprehensive of the state of their communities and people in order to engage in informed, effective decision making that yields positive, lasting results.

People
Native Nations
Resource Type
Citation

Fullmer, Jamie. "Taking a Strategic Approach at Yavapai-Apache Nation." Emerging Leaders seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona, Tucson, Arizona. April 12, 2007. Presentation.

"My name is Jamie Fullmer. I'm Chairman of Yavapai-Apache Nation. I'm President of Inter-Tribal Council of Arizona and this is my second term in office.

As the Chairman of Yavapai-Apache Nation, I understand what all of you as tribal leaders are going through. We go through some strange and unique times because we come in with dreams and goals and commitment to doing great things and then we get hit by the reality of what goes on in our communities.

I had been graced with the idea and the fortunateness of working with my tribe as the Health and Human Services Director and I got to see what was really going on. I know about the drug problems in our communities. I know about the young people having babies in our communities. I know about the hard fact that some of our people don't have education. I know about the reality of the difficulty of finding jobs. And I think one of those things that...all of these things really connected to me and it helped me as coming into the chairmanship that I needed to do some things that were very important, but I also needed to be realistic. And I think that's the one thing that I'm very grateful for today is that my experience in social work and working with people helped me to be realistic.

It doesn't mean that we can't have dreams and hopes. It means, though, that as tribal leaders and as people working for our tribal governments that you take an honest look at what's going on in the community. I heard one time a tribal leader that said something that hit me home because I didn't agree with it, but out of respect I listened. He said, ‘I like to think that we don't have any problems in our communities,' when I was the Director of Health and Human Services and I knew full well what the problems were in our community. But I think that the important part of what we're learning in these sessions and what we're learning through NNI is that we have to be reality-based and we also have to be based in understanding or learning to understand what is it that we have.

And I guess the challenge for us all is to take a look and do a survey. In my community, I do an annual survey on a couple of different areas. And before I get to that though, Manley [Begay] had represented the idea that when I got into office I knew that I needed some help. I knew that I needed some ideas. I knew that I needed expertise. I knew what we had internally and I knew we needed more, because sometimes the outside words of wisdom are listened to a little more clearly than the inside words. And I think we all face that in our own lives and in our leadership roles. So I reached out to the group down here, NNI, Native Nations Institute and I was pleasantly surprised and I'm very appreciative.

And we did...originally we had worked out a 30-year comprehensive plan. And when I got into leadership I thought that 30 years is a long time. In this pace of reality, 30 months is a long time. Things change so fast and so I asked that they come back and we did another work session where we narrowed our 30-year vision down into a three to five-year increment because I felt like that's manageable, that's something that all of us can feel. I can say, ‘We can accomplish this in 30 days, in 90 days, in one year and we can put actions behind the words.'

When I got into the office I got into a very...somebody was talking about a corner office. I have a corner office. But when I walked into that office there was a bookshelf and it was full of books and every one of those books was a master plan. And these were plans from 1975, 1985, 1992, 1994 and believe it or not I read through them all. But I understood why the leaders couldn't accomplish what was in those plans. Because they weren't realistic and they weren't...I heard the word earlier...they weren't culturally matching to our community.

So when I challenge people to do a survey of your community, I'm not only asking how many people do you have? I know in Yavapai Apache Nation we have 2,020 tribal members. We just enrolled a handful more and we're growing and we're proud of that. I know that half of them live in the community and half of them live off the community. I know that of that half that live off the community, a majority of them live in Phoenix. I know those things about our community based on our demographics. I know that we have a young people, that 1,000 of our people are 18 and under. I know that we have only 60 of our very important and critical resources, which is our elders over 60 years old. I know these things and because I know these things, we plan around that. How do we utilize our human resources? And I'm not talking about human resource...some of you are probably human resource for employees, but as a leader we need to look at what are our human resources in our community.

I'm very proud to say our people today, we have 240 tribal members in a college or higher education. I'm very proud of that. But then the next step of that is how do we get them to come back into our community? It was talked about earlier, brain drain. What is it that we can provide for our community that will give them a commitment level to want to come back? In my case in coming back it was more of a spiritual thing and I know that not everybody is driven by the spirit in their young lives but they become more driven by the spirit as they grow older. But how do we get people to connect to the important part of our culture, which is spirit. I think those are the challenges that every one of you as well as myself face in our leadership roles and in our management roles.

Because one of the things we heard earlier was colonialism. I've heard that a lot over...I guess I'm still young. Some people say I'm not a spring chicken anymore. This colonial ideal: how do we as traditional people living in traditional ways move forward with this colonial system? We adopt constitutions; that's not our way. We adopt European laws; that's not our way. And then we have to put inside of that the parts of our culture that maybe sometimes don't fit. So at times in our modern-day systems, we have pieces that don't naturally fit. What is it that leaders need to do to be able to mend that or create that weaving or that tapestry that will connect those pieces? Those are the questions that every one of you are asking or you wouldn't be here for the last two days. Those are the questions that we need answers to that we can pass along to our people.

Because I'm proud of my people, but my people challenge me. They challenge me all the time. And as a tribal leader, you may be thinking about a big decision, ‘We need to create policies for commerce and economy, we need to create laws that will govern the future of our people,' and still you'll have an elder come in and say, ‘My transmission's broken and you need to fix it.' And I'm going to tell you what, if you don't treat those two on equal grounds, you're not going to be in the seat very long as a leader because they are just as important to our people. Or when a young person dies in the community and yet you're considering and you're thinking, ‘I'm developing an economy for the future. I'm developing things for the future.' All of you as leaders know that in your heart you're crying about the young person who's died in the community and yet you have to be the one to stand strong so that your people can rely on your strength. I think those are the critical pieces that we face in the modern world as tribal leaders.

I'm fortunate to live in a time as we move into the 21st century, well into it now, as we move into it, we are in a time where we have the most...from the 20th century to now we have the most political freedom that we've ever had. Believe that or not. We're still oppressed, but we have the most freedom that we've ever had. And how do you exercise that? How do you exercise sovereignty in this world? Some people would argue, ‘Well, when you waive limited sovereign immunity you're giving up something.' But you know what, if you don't, if you don't acknowledge that you have something, how can you give it up? You have to acknowledge that you have something. That's what sovereignty is, in my humble opinion. There are challenges to that and I respect those challenges. Every community is different and every one of you have different priorities in your community. I respect that.

I think that one of the biggest pieces that I see now as we move into things is that as we're all here trying to figure out how to govern our societies, how to create economy, how to do important things for the people, and yet at the same time still be close to the heart, still be close to the earth, still be honest about the social problems, because we can have giant dreams but if people don't buy into the dreams, it doesn't go anywhere. I think that that's probably the biggest challenge for leaders, for those of you working for tribes. The leaders care deeply about their people. They wouldn't sacrifice their personal lives to lead if they didn't care deeply about their people. But yet your job as management is to understand their vision, learn from them, and use your skills to help move the system forward. These are the challenges that all of us face and I know that and I respect you for facing that.

As we...as I talk a little bit I'm going to go over just a few areas and then I know it's time for dessert so you'll be ready for some carrot cake or...Torry, did you cook dessert, too? We move forward and we have to look at the reality of it is that everything we do in this modern world that strengthens our government or strengthens our society is in some strange way connected to our financial resources. And this is a hard thing for us. We saw earlier the very powerful speaker, Professor [Robert] Williams. We heard about him and how the trade was governed differently, how the thoughts were governed differently. But I know very well in our community, and I pray about it -- I'm a prayerful man, I live in that world -- and the answer always comes back that if you have strong ties to culture, if you have strong ties to spirit, and you can learn to respect and understand finances, you will be successful and last a long time as people. Those things are critical. Even though I'm not a man that's tied to finances in my own thinking, I understand that you have to respect it in order to strengthen it. Just like with everything. You have to respect yourself to strengthen yourself. You have to respect your people to strengthen your community. Those things go together.

And so as I look at this, I think there's some important things and you're taking part in one of them and that is council training and learning how to teach one another to be a team. The one thing about council is that we are in...as leaders we're in oppositional seats at times because we have to fight one another to get where we're at. That's part of the politics. But when that's over and the battle's over and that's won and you've organized your group, it's in the best interest of the people to learn how to work as a team. That doesn't mean you shouldn't have your opinions, that doesn't mean you shouldn't debate, because I also believe that strong and powerful debate makes for strong and powerful decisions. So you should debate, you should argue, you should do all those things on behalf of your people but at some point you have to say, ‘This is where we need to stop the debate and move forward with action.' And so I think that's a critical link.

The other thing as a tribal leader and as the head of my executive branch -- many governments are defined differently -- but one of the things that I look at is the organizational structure. The organizational structure has to do a couple of things: it has to help you as leaders and managers govern your programming and it also has to help the people that work for our nation, that work for our community, understand and learn to respect our system and if the system is, what's the word they used to use in that political or flip-flop or wishy-washy, 'some way' is the word we use. If it's 'some way,' if it's not consistent, then you don't get good quality movement from your people, from your staff. And so I think one of the critical things that I've noticed in my government is make the policies, and this was brought up earlier, make the policies and stick to them.

I've taken a lot of criticism for that. ‘You're doing things the white way.' And I'm like, ‘Business isn't a white concept.' Business is a worldwide concept. Discipline is a very important concept to my people traditionally, very strict discipline. We live very disciplined lives, so if they say that's not an Apache concept, they're completely off the track 'cause we did live very disciplined lives. So if we can keep that as a cultural thing and say, ‘This isn't a white concept or a non-Indian concept, this is a concept that we embrace.' That's how the organizational structure should work.

The other thing I'd like to point out is that there needs to be...when you create your chain of command, it needs to be an honest chain of command, because again people will try to go around the structure and the structure is what creates the strength. If you're like a jellyfish...relatives from right off the coast here. If you're like a jellyfish, you go like this. You kind of float around, you don't have the backbone. For us that live on the ground, we need a backbone to move forward.

The other thing is, I think this is critical and I know it's been brought up a little bit, but you have to have your financial house in order. You have...you don't necessarily have to be an accountant or finance wizard or anything like that, but you better have people in those positions that you trust. You also better get...we focus on ours, we created an internal audit so that if our leaders have question or our people have question we can go audit ourselves and take a look at it and give a response to them. That way it's dealt with and if they don't believe that then they can wait until our annual audit comes up by the outside auditors. But I guess what I'm saying is that for this to work, in my opinion, this is only my opinion, but you have to have the financial house in order and you always have to keep your eye on the money. Not to say that you have to be so scrutinable that you forget everything else but know your financial position, know what needs to be in place. These are things that are challenges for us, because not a lot of us are financial wizards. I trust the people that work for me and if I don't, then I can't rely on them to do the things that the tribe wants us to do.

Finally, I think as we get ...am I okay on time? Is everybody okay, you want me to shut up and get down? Sit down, shut up and get out. Finding a balance in the priorities as leaders and as managers and I think...I'm going to talk a little bit for you tribal leaders because again, this is only coming from me and what I've seen, but I've been fortunate in my I guess middle-aged life now to see a little bit in Indian Country and I think that we're pretty consistent in that we've all faced the same struggles. No matter where I go I'm like, ‘Wow, that sounds just like home.' I'm like, ‘That is so strange that coast to coast we're so similar and yet we have so much difference,' and I respect the difference, but I also think that we have to appreciate the similarity in our worlds. We've seen the historical perspective. We've all faced oppression for hundreds of years. So right now when we have political freedom, when we have a way to express our sovereignty, we need to look at a couple of things as leaders. We need to look at and set priorities to our legal...we heard earlier, what codes do you have in place? What guides do you have in place? What policies and procedures do you have in place to govern, which in my mind is leadership, governing? Those are critical things to work on.

Right now in our community, we're definitely not where we need to be, but we're very aware of what we have gaps in and so we're working on it. It takes a long time to put in a judicial code because it impacts all of your kids, or excuse me, a juvenile code. It impacts all your kids. It takes a long time to put in a commercial code, because you're not only considering yourself, you've got to look, what's it going to look like 50 years down the road. These are big decisions and so leaders who take your time, I appreciate that, but at some point you have to get through the discussion and make it a law and live with it. I think that's the big part about the legal piece that comes into play because I know we can debate, we're good debaters. In the Yavapai-Apache Nation, we like to debate. But you can debate so long and then at some point you have to just draw the line and say, ‘This is where we need to stop and if the future leaders want to change it, they have that right but at least they have a baseline, at least they have ground to walk on.'

The other is the social issues. I always look at that. I'm very proud of our people who are getting educated. I'm very proud that we have been able to get resources through our gaming to begin to expand our economy, but there's still social problems. This crystal meth in our communities -- and I don't know how many of you are afflicted by this plague -- but it's terrible and I don't know the answer. We've made our laws stronger, we've increased our police force, we've increased our treatment services, we've done educational, and the only thing you can do is keep doing more so that you never give up on your people. And I guess that's the big thing about social programming is that you have to keep doing more and never give up on your people.

Cultural: this is one unique area for our tribe because we have the Yavapais and we have Dil zhę̨̨́é and we have Apaches in our community and each of them over time we've grown together and we call ourselves one nation 'cause we live together, but we have distinct differences in our historical culture. So how do we embrace that, what I'll call 'ancient history' with our more recent history in that we've been a nation together for 100 years? How do you make that bridge in a helpful way or a healing way and some of you may have those issues with traditional and non-traditional, people who live in the old way and practice our traditional value system and people who have adopted the Christian viewpoint or whatever other viewpoint out there. How can we embrace that and still be one people? It can be done, but it takes a mature...it takes mature leaders to teach people to be mature about how we can be separate but equal.

Economic, very proudly...we were one of the poorest tribes in America before we got our gaming. Gaming has changed us in that we have been able to begin to create economy, but you also have to look at your economy as what are you doing? We talked about that this morning. What are you serving, what purpose is it serving? So there needs to be some evaluation in that is our economy just to create money or should it create jobs or can we do both. Is it on reservation, off reservation, in Arizona, out of Arizona, in America, out of America? The world is our playground now so we may as well use that.

Sovereignty is an important thing. We're very proud at Yavapai Apache Nation because we appreciate partnering with other tribes and expressing our sovereignty through tribe-to-tribe relations. We've helped four other tribes build casinos and we have a partnership with an Alaskan Inupiat company for constructing buildings. And we've also...right now we're in a partnership...

And believe me, I'm not saying this as a bragging thing. I just think it's an important thing to express that I don't just say this before you and walk out of here...'I really pulled the wool over their faces,' but it's not that way. We do...we say it and we do it and we do it and we say it. We're proud of what we do...what we do, what we say we're going to do. That's cultural. I'm sure every one of you are that same way in your cultures, but some of these things are important because we've got to bridge a gap that was created between us as Indian people. This whole federal government got in the way and said, ‘You guys can't do anything on your own. We've got to be your big brother.' We seen earlier the river, the wampum belt with the river. That's how it has to be. It's not...we don't need a big brother. We need partners, we need relatives, we need friends, we need things that are going to go a long way together. We don't need a big brother anymore. We're all grown up. We never did need a big brother.

So I think those are important things, but we also have to respect that there's that mindset there. We have to be honest and I think that's the important thing is be realistic and that's a difficult one because I would like to...I'd be like that one that said, ‘I'd like to think that the federal government, the BIA [Bureau of Indian Affairs] and IHS [Indian Health Service] and all those are out to help us.' I'd like to think that but my eyes that don't deceive me, they tell me the truth. So if that's the case and I hear them saying, ‘Oh, we're giving all the help that is humanly possible,' but my eyes see that we still struggle because there isn't that help. What can we do? How do we embrace it? And I think that's where we're at in the modern sense is we're in that place of questioning. We're in the place where we have to be careful about the challenges. Because as was brought up earlier, the swipe of a pen in 1875 we had a...Yavapai-Apache Nation in Camp Verde was 800 miles, was the original reservation, and with the swipe of a pen Ulysses S. Grant completely wiped it off the face of the earth. So it can be done with the swipe of a pen today and so we have to be careful about that but we have to be strong in our assertions.

We also have to be science-minded in a sense. We have to...brought up earlier, demographics. Understand your needs, understand your community, understand your natural resources and your cultural resources and how to protect the integrity of your society. I think that's a critical piece to it. What are the faux pas and the 'no nos' and the 'yes yes' and everything else? Feasibility and market studies; get your experts to analyze things. To me, I think it's worth paying the $30,000 to prevent a $5 million loss even though we can debate all day long to say, ‘Why do we need that feasibility study and why do we need to study this, we already know it's going to work.' But if it doesn't work, would your people be more angry at the $30,000 expense for the study or the $5 million loss because of a bad investment. I'll take the heat for $30,000. I'm not going to take the heat for $5 million. So that's important too as leaders and as managers: realize that you have a fiduciary responsibility of your people's financial dealings. I think that's an important part of this. Put yourself in the same boots because you're walking for your people when you're out there. You're walking and talking for your people.

Also I think...I brought this up just a touch, but I'll get into it a little bit about the political landscape. Right now in Indian Country, we're in a difficult political landscape around us. We've had some negative vibrations come to us. And so how do we as people need to be...how can we be public and create relations with our local communities around us so that it isn't so bad of a taste? You go to the east over there and they're all crazy right now. This, that and the other, we need to change all the laws against gaming and it's kind of mind boggling in a sense but then you have to go home and say, ‘How do we keep ourselves stable at home? How do we protect home?'

And then not only your external landscape, but your internal landscape. Are you in an oppositional system or do you guys fight a lot and is that your customs? That's fine, but can you get agreement on some things so that at least something comes out of it? All of us that have term limits have a limited time to get things done. And I think that's the important thing too as leaders of things. What kind of compromises can you make and what ones do you need to stand by? And I think that's an important thing, at least for me. There are things that I'm willing to compromise to make the bigger picture work. There are things that I won't because it's in my heart not to and I think as people we need to take personal integrity inventories to decide...I guess it's an internal code of ethics. What drives you and how...what drives your other fellow leaders and how can you work together?

And I think one of the discussions that was brought up, Joan [Timeche] you brought this up, and it's about the community readiness. One of the things that we really have to understand is what is our community ready for. My Indian name is [Apache language], which is 'Jumping Lizard,' because my people say I'm always jumping around. And I think that's the biggest thing that you have to look at is what is the community ready for? Because some things get exciting and then some things get scary and then some things feel overwhelming. I think that's one of the important facets to this and that's. What these sessions help with is taking little bites out. We're all going to hopefully eat this carrot cake when it comes but can we...some of us, like me, we'll put it all in and eat it and some of us got to take it one bite at a time. And I think that's an important thing that...I know that I've been...one of my challenges is being able to see and instead of asking, ‘Why aren't you ready?' asking, ‘What can I do to help you be ready?' And it's a simple question of change, but it's a hard one for someone who says, ‘Everybody should know why we should be able to build more, bigger, better, faster-moving machine.' But not everybody feels that way. Some people like to go slow. Some people like to think through things and I respect that.

Just in closing, I really appreciate the concepts that have been brought out because this is really what we need. We need to have leaders coming together because again today I hear all of these important questions coming out of you obviously important people and they're the same questions that I'm asking at home and I'm like, ‘Gosh, this is a good day and age because we're growing, we're doing important things,' but now we've got to have a change of thinking. We can't think about what is the world around us going to give us. We have to think about what in the world can we give ourselves and can we give that to others as well. And it's our time. I really believe that it's our time, that we can do good things with one another like's being done today by learning together. We can do good things with one another by teaching together. We can do good things with one another by creating fantastic, amazing businesses together and we can do a very important thing which is, as was brought up earlier, about teaching Americans, teaching the Indians how to be Americans. We can teach the rest of the world how we are and they can learn to respect us as we learn to respect ourselves. And so I appreciate the opportunity to speak to you all today. It's an honor and it's a privilege and thank you, [Apache language]."

Michael Taylor: The Practical Issues of Business Development - Some Things to Consider: When to Waive Sovereign Immunity (or Not)

Producer
Native Nations Institute
Year

Tulalip Tribes' Attorney Michael Taylor explains when tribes should and should not waive sovereign immunity and why. He also discusses some effective approaches to doing limited waivers of sovereign immunity, and stresses the importance of Native nations building a track record of fair and effective use of the sovereign immunity waiver as an important tool for exercising sovereignty.

Resource Type
Citation

Taylor, Michael. "The Practical Issues of Business Development - Some Things to Consider: When to Waive Sovereign Immunity (or Not)." Building and Sustaining Tribal Enterprises seminar. Native Nations Institute for Leadership, Management, and Policy, Udall Center for Studies in Public Policy, University of Arizona. Tucson, Arizona. March 29, 2007. Presentation.

Michael Taylor:

"I want to say my main experience all these years has been using tribal corporations like CTEC [Colville Tribal Enterprise Corporation], which is a special kind of tribal corporation. I call it a tribal governmental corporation. What's a governmental corporation? The post office is a governmental corporation, Amtrak, the Corporation for Public Broadcasting; those are governmental corporations and that's what CTEC is. And that's what Wright vs. CTEC is about, this tribal governmental corporation. But every tribe that I work with has a modern Section 17 corporation. Why? Why is this? Because, for example, over at Colville, they have this corporation. Occasionally I get calls from the rez attorney's office over there and they say, "˜Now, Mike why do we have this Section 17 corporation? We don't remember.' So I have to tell them, "˜Why do we have it?' When I went to Tulalip, they had a Section 17 corporation, it was an old one, 1930s vintage, the language was terrible. So we got another one. The original one had only one asset. It was a Superfund site, a polluted, a highly polluted Superfund site. So you don't want to put other stuff into that corporation. You need a new one because that corporation had enough stuff in it; that was the problem. Why do you need a new one? And I went to Ada Deer, I think [she] was the Assistant Secretary of Indian Affairs at the time, and I said, "˜I want another Section 17 corporation.' And she said, "˜You can't have one, you can only have one.' And I said, "˜Where's it say that?' So we got another one and it doesn't have anything in it either. Okay, why taxes? These forms of corporations are, it's, at this juncture, unclear as to whether the IRS considers the income of these tribal corporations as taxable. They made some moves on this some time ago and they decided that state corporations owned by tribes, whether they were wholly owned or not, the income is taxable. Corporate income tax is due on the earnings of these corporations. But they stopped and so we don't know what this, what the income of this entity is in terms of the views of the IRS. So the Section 17 Corporation sits out here as kind of a tax lifeboat. If our entity starts to sink in the troubled waters of the IRS, we move the assets to the Section 17. So don't start doing business and think you're okay without this Section 17. And if you have an old one, I think you should get a new one. It's easier to get a new one than to try to amend the old ones. That's my comment.

Sovereign immunity: when to waive it, when not to waive it. Well, how many people in here think that if you waive sovereign immunity it weakens your sovereignty? How many people think that? I would say, sometimes, at the risk of being charged with showing off, I sometimes do a push-up at this juncture right in front of the crowd. And the reason is to make the point that sovereignty is a power, sovereign immunity is a part of that power and whether you're waiving it or asserting it or writing it into an ordinance or a contract or whatever it is, you're exercising it, and indeed waiver strengthens it. It strengthens it, by actually showing that you have it and putting it out there in whatever form. So the waiver of sovereign immunity -- this is an issue with a lot of tribal people and a lot of tribal councils, they're very worried that waivers, however they're written, whether they're written sloppily, which they sometimes are, or whether they're written carefully, will somehow erode tribal sovereignty, and that's not true at all. It's an exercise of a power. Waiver is the same thing in technical legal terms as asserting it in a lawsuit or some other way. So it doesn't weaken tribal sovereign immunity...or tribal sovereignty to execute a waiver. Got it? Do I have to do the push-up? I can do it. When I go down, that's a metaphor for waiver. It strengthens me in the same fashion as when I come up. So that's my take on it. Is that right? I don't know. I made that up.

When do you waive it? When you're asked. If you're not asked don't do it. The Tulalip Tribes is a party to literally hundreds of contracts all the time. Uniform cleaners, rug cleaners, towing cars, building hotels, and when the other side comes in and says, "˜Well, here's the contract,' or asks us to write the contract, we write the contract. If the other side knows that they've got to get a waiver in order for the contract to be enforceable, then we start working on it. But if they don't, if they don't ask or they don't care, sometimes they just don't care, then we don't go up to them and say, "˜Hey, we're sovereign, you can't... if something happens under this contract to say that you have a claim against us, unless there's a waiver in here, you can't do anything about it unless we agree to it.' You have to be asked; B of A [Bank of America] always asks. They all say, "˜Oh, yeah.' I've never met a B of A guy that didn't ask. Right away, it's the first thing they ask."

Brian Spencer:

"It's a starting point. If you can't get beyond that, then we're not going anywhere. It's got to be there."

Michael Taylor:

"If it's part of the deal, then you work on it and you craft it carefully. You pay attention to what the issues are and you work on it. So the most common waivers that we have at Tulalip I'd say are major lending contracts, contracts for construction, the construction firms have now gotten savvy to this, and so they're immediately asking for a waiver. There are lots of other ways, other places where you should waive your immunity. Tribal civil rights act: you should have a tribal civil rights act. People can sue the tribe if the tribe damages them in some way and it should have a waiver in there. Tribal tort claims act: we have a tort claims act. All our cases go through tribal court. Tribal tort claims act: if you follow the process and you've been injured by the tribe, you're going to get paid something to make you whole. And as a hospitality entity, we've got to do that. If people fall off the curb at the casino parking lot and it's our fault and they injure themselves, it's quickly going to be known around the region that you shouldn't go to the Tulalip Casino because you can fall off the curb and hurt yourself, the tribe's going to raise sovereign immunity and you can't collect anything. So people are not going to come. We're in the hospitality business; we've got restaurants, we've got an amphitheater, we've got all this stuff. We need to make sure that tribal sovereign immunity is not an impediment to people getting reasonable compensation if they're injured by the tribe. Another piece of that is you've got make sure that you're insurer recognizes tribal sovereign immunity and sovereignty and writes into the contract that they can't raise it. When Joe [Kalt] comes to see the casino and falls off the curb and hurts his knee and so he makes a claim and we take the claim and give it to the, he follows the tribal tort claims act and we take the claim and give it to the insurer, we don't want the insurer saying, "˜Sorry, Joe, sovereign immunity, you don't get anything,' because then we'd be paying for insurance that's worthless. We pay a whole lot money for insurance to cover Joe when he falls off the curb, and if we don't get our insurer to say that they won't raise immunity, we've just paid for nothing because they stand in our shoes when Joe is injured and they can raise all the defenses that we have.

Tribal grievance procedures, tribal employee grievance procedures: set up this code to deal with tribal employee grievances. And now I work with a tribal chairman who's 80 years old. He can remember when the tribe didn't have any employees at all. Now we've got 3,000 or 4,000 or something like that. So they're always grumpy, aren't they? They're always after you for something and we've got a raft of codes and procedures to deal with grumpiness because that's part of life. And when they come into the tribal court where most of our grievance procedures end up, if you don't like what the administrators do and that sort of thing, and the tribe waltzes in and says, "˜Hey, wait a minute judge. Sovereign immunity -- can't do anything with regards to this,' you're not doing the right thing. All the stuff that you've done in personnel and HR [human resources] is worthless because the person can't get their grievance heard. Housing appeal, same kind of thing. Tribal self-insurance programs; we have several self-insurance programs. They're much cheaper than buying insurance, but they require us to waive our immunity so that the people who are relying on these insurance programs, if they don't agree with what they got, worker's comp [compensation] is a very common one, that they can go to tribal court and that requires a waiver of immunity. In my mind, there's a lot of reasons why you want to set up these numerous waivers. You get, I get, my office gets sometimes, we haven't had a lot of them, but you get claims of waiver of immunity where there was none. So you want to be able to show that the tribal council knows how to waive immunity and has done it numerous times so you can go into court, federal, state or tribal, and say, "˜Look, your honor, there isn't any waiver here and I can show you why because there are plenty of tribal waivers that have happened and here they all are.' They're resolutions and in ordinances and sections of contracts and that sort of thing. The tribal council knows that as the only entity that has the power to do that is the tribal council, in some cases delegated power to someone else but the tribal council and here's how they did it and there's no other way to do it and here's all the list of the waivers that have happened. So this claim that the tribe somehow inadvertently waived sovereign immunity isn't valid. So in corporate enabling acts, tribal court jurisdictional statutes, enrollment ordinances, you want to create a pattern. If you're a serious tribal governmental entity, you want to create a pattern and this is the way you do it.

We're building a hotel now. It's, I don't know, $160 million or $260 million or whatever it is. My mother advised me not to sign the loan documents. She said, "˜That's way too much money.' We sent out a request for proposals for contractors and the lowest bidder was this company, it's a big company, Canadian company, but they've got an American division. It's called PCL Construction; maybe you've run into them. They wanted a waiver of immunity and we said, "˜Fine.' And we worked and worked and worked on this waiver of immunity but at the end of this, not at the end, in the middle of this, they said, "˜We want state court.' We did an arbitration provision, which allowed disputes to be arbitrated by an appropriate arbitrator, but arbitration awards have to be enforced by a court. There has to be a court out there that will enforce the ruling of the arbitrator. The arbitrator doesn't have judicial authority. Arbitrators can, under the contract, act like a judge, make an award to one side or the other, but if one side or the other won't follow the directions of the arbitrator, the ruling of the arbitrator, you have to have a court at the end, federal, state or tribal. Federal court doesn't work in this circumstance. I won't tell you why because I've only got 50 seconds. PCL said to us, "˜We won't accept your tribal court.' You have to waive immunity in state court. So, we got another contractor. We just finally said, "˜We're not doing it. We put a lot of work into this tribal court.' Joe gave us an award recently. Our tribal court's good. We've got good judges, we've got a good court of appeals, we've got good ordinances, we even took the extraordinary step of having the chief trial judges in tribal court go over and sit down with the president of PCL and tell him, "˜Look, the tribe -- here's the ordinance -- the tribe has given me authority to enforce arbitration awards. I've got 40 years of experience both as a lawyer and as a court commissioner in King County, Seattle.' He's an Indian, he's a Colville Indian, but he said, "˜Look, now I'm not going to decide on your case when there isn't a case, but if there's an arbitration award I'll enforce it.'

We have built an institution, our tribal court as part of our sovereignty, and if they don't accept it, let's get somebody else. And they did. So that's when you don't waive. That's when you say, "˜It's affecting our sovereignty and we're not going to do it.'"

From the Rebuilding Native Nations Course Series: "Test: Does Your Nation Have an Independent Judiciary?"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. shares a short test to help a Native nation and its leaders and citizens determine whether or not their judicial system is truly independent.

Native Nations
Citation

Williams, Jr., Robert A. "Justice Systems: Moving Your Nation Forward." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2012. Lecture.

"So, like Miriam, I'm going to ask you to take a test to see whether or not you have an independent judiciary on your reservation. Get out your pens, check yes or no, and we'll tally at the end:

On my reservation, the Chair is related to the Chief Justice -- yes or no?

On my reservation, the Chair is poker buddies with the Chief Justice.

On my reservation, judicial review means the Council can review any judge who makes an unpopular decision and fire him.

On my reservation, checks and balances are something the tribal finance office can’t keep track of.

On my reservation, separation of powers means the Council doesn't ask questions about the judiciary's travel expenses, and the judiciary doesn't ask questions about the Council's.

On my reservation, the question of whether the tribe has waived its sovereign immunity is something that only the Council can decide.

Now, if you had six to five "no's" you are very independent, but if you only had one to two, it's kangaroo court city, babe. Where do you stand on that test? And as tribal leaders, you need to engage honestly with this issue of, 'Are you ready for an independent and strong tribal judiciary?'" 

Hepsi Barnett: How Did We Go About Remaking Our Constitution?

Producer
Native Nations Institute
Year

Former staff member Hepsi Barnett of the Osage Government Reform Commission discusses the process by which the Osage Nation approached the task of developing a new constitution and system of government, and also provides the complex history that necessitated their creation.

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

People
Native Nations
Resource Type
Citation

Barnett, Hepsi. "How Did We Go About Remaking Our Constitution?" Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota, May 2, 2011. Presentation.

"It's an honor to be here today. I want to...you good people get the opportunity to kind of get ‘Osage Nation Government Reform, Part 1' today, and I know that Chief [Jim] Gray is going to speak with you tomorrow. So there's a lot to tell, so I think it's going to work out pretty well. Hopefully we won't over inundate you with our 'Osage-ness,' but we're often...people often claim that we do that, so we'll try to keep it moving along here.

In terms of the Osage Nation government reform, I guess what I want to say is when we began this process...I have a picture up here, you can't really see it though, it's unfortunate, but it's a funnel cloud, something that we see often in Oklahoma. And I think that government reform lots of times is precipitated by some kind of crises. I think that's very typical, whether it be from corruption and fraud or just inability of the current structure to actually govern the people in the way that they see fit or larger issues. When it came to the Osage Nation, we actually had a larger issue and we were at risk of actually becoming extinct as a people by bureaucracy.

It's an interesting story and really to tell it, what I'll have to do is go back just a little bit and talk about the historical context of what brought us to where we were in...starting in 2003 with the 31st Osage Nation tribal council, how we began this change. When we got back, I think Regis [Pecos] touched on this this morning in terms of traditional governance; Osages had a traditional what they called Osage cosmology. I think our ancestors studied the universe and our relationship to the universe. They spent a lot of time looking at the night sky and the day sky. It was a highly complex political, social, and religious order, and it really reflected the natural order of the universe. We had an ancient clan system with 24 clans and those were divided between two moeities. The Osage's traditional form of governance really was based a lot on dualism, the dualism between the sun and the moon, day and night, sky and earth and our two ancient moeities were based on the earth and the sky. Similarly, men and women had very distinct roles. They weren't lesser roles; they were just different roles. So we had a war chief, we had a peace chief, there were lots of examples of how they used dualism as a way to structure themselves. So we existed under that system as it evolved for thousands and thousands of years.

I was just speaking with Miriam Jorgensen and she lives in St. Louis now, which was part of a vast territory that Osages lived in again for thousands of years and it was really a huge territory. I was talking to her basically saying that when Spain was a world power I believe the only tribe that they actually waged war against...declared war on was the Osage Nation. So we had a vast territory, we were quite powerful up into the 1800s. And then looking back on your American history, does anybody recall what happened in the 1800s? It really started with the Lewis and Clark expedition. They came right through Osage territory. When that expedition ended, it resulted in great change for the Osage Nation. We lost huge portions of land during that time through treaty process. We were first moved on to smaller lands in Missouri, eventually moved down into Kansas. I like to tell the story of everybody knows about 'Little House on the Prairie.' Well, in reality, it was 'Little House on the Osage Reservation.' And so during that time period, once we were moved down into Kansas settlers started moving, westward expansion started moving into our territory and as a result of that, during that time period, we ended up selling that reservation and buying our current reservation in Oklahoma. So we got cash for that and we paid cash for our reservation in Oklahoma, which were actually the very southern part of our traditional lands.

During that time period of moving and turning over big portions of our land, we were diminished quite a bit as a people mostly due to disease, small pox and the like. When Dave [Wilkins] was talking earlier about tribes that preemptively adopted a new system of governance to deal with the shifting geo-political sands of time that were going on during that period, the Osage Nation was amongst that group. We actually...there is a reference to an Osage Nation constitution in 1861. I don't have that up here because for whatever reason, this is where we have to go back and do the research, historically I couldn't find a lot of information about that, but what's clear to me is that the nation actually never governed itself under that constitution. There was a constitution, the Osage Nation 1861 Constitution, and I'm not sure if it's because it was one of those transitional attempts and there was a reluctance to give up our traditional ways during that time, but in terms of the 1881 constitution, we did govern under that constitution. Our ancestors adopted a three-branch system of government I think as a way to adapt and endure. We had already been through...we had already lost so many lands and been through so many treaties at that time. It was a great tremendous sacrifice for our people to give up our traditional ways. But they saw it as a way to endure as a people and so they adopted that three-branch system, had a separation of powers. The land was held in common, there was a residency requirement, and there was a whole body of law that was created under that constitution by Osages during that time.

One of the sort of more interesting laws I thought was that we had a death penalty, so if anybody killed somebody else on the reservation, they would suffer the death penalty. We had several laws that included for violent acts the punishment in terms of 50 lashes or whatever. But there was actually quite a foundation of law developed under that 1881 constitution. We governed under that, we had a principal chief, an assistant principal chief, national council, and a sheriff. We governed under that until 1900. It was a pretty extensive system of government. And then there...during that same period, from the latter 1880s until the 1900s, one thing that happened that really impacted the tribe greatly and that was that on the reservation that we bought in Oklahoma oil was discovered, probably the largest deposit of oil at that time in North America. And because of that, it really complicated our situation in Oklahoma. One of the things...one of the saving graces was that because we had bought that land we retained the mineral rights and we...that property was protected under the Fifth Amendment. In terms of that period of time, the nation -- when the Secretary of the Interior abolished the government under the 1881 constitution -- the nation defied that order and continued to meet as a council. They had...the only thing left under the Secretary's order was the principal chief for signatory authority to basically turn over as much of our resources as we could. It was sort of an exploitative move by the United States government.

At that same time Oklahoma was opening...getting opened up for statehood. You know the big land run in Oklahoma, you always see those Conestoga wagons and everybody's lining up to go get a piece of land. Well, it was really a piece of Indian land. And so through the cleverness of the Allotment Act they basically had divided all Indian lands into 160-acre parcels and were opening up every other one to white settlement. When it came to Osages, they had some difficulty, because we had bought and paid for our reservation and we had not treatied for it. Well, there was a treaty, but it was just a result of almost like a bill of sale really. They really honestly...we were holding up statehood and we were holding up the land run because we would not agree to allotment. We were heavily pressured to do so. All of the other tribes ended up agreeing to allotment and eventually the Osages made an agreement with the United States that we would allot our lands but we would only allot them to Osages. So they were divided up into individual parcels, 160-acre parcels. They went around at that time and everybody received a parcel of land to homestead. They went around again, you got another 160 acres, they went around again, you got another 160 acres until all of the lands were allotted to Osages.

Under that Allotment Act -- when we agreed to allotment basically the United States Congress passed an act called the 1906 Osage Allotment Act. That really impacted the tribe right up until 2006. So from 1906 really to 2006 when our new government came in, we basically were to a degree governed ourselves under the Osage Allotment Act. It created a final membership roll in 1908. There were 2,229 Osages. When I talk about our history, it's a complicated history. We're a complex people with a complicated history and part of that is that we...each member also received an interest or a head right in the tribal mineral estate. So the mineral estate itself was reserved to the tribe because the tribe had bought it and held it in common, but the royalties from the sale of the oil from the mineral estate went to individuals. So when you were allotted land you also were...received a head right to the royalties from the oil. Now you can imagine that during that time that was actually a lot of money. Literally over night during that time up into the 1920s the Osages became the richest group of people in the world. Now what that really created was a system where when there's a lot of money and it's flowing, it also brings a criminal element with it. That played out on the Osage reservation during that time period.

Before...at this point, the only way you can get a head right to the oil is to inherit it. During that time, there was not that stipulation by the federal government and as a result you had vast numbers of people coming to the Osage reservation to try to marry an Osage. And what was happening is that we would have non-Osages marry into the tribe and then the whole rest of the family would be murdered so that the only person left was the non-Osage who would then collect all of the royalties to the oil. So there was mass murder happening across the reservation during this period of time as well. I don't know if any of you have ever seen that FBI story, it's an old James Stewart movie. No, you've probably...maybe some of the elders here have seen that. There's a part of that movie that talks about when the FBI was first created really one of the first things they were sent to do was to deal with all of the murders on the Osage reservation because obviously it was a reservation, the jurisdiction went to the federal government, the FBI came in, basically there was all kinds of conspiracies going on. There were some people that were convicted of the murders. They did not serve very much time. You know the old saying, ‘If you want to murder someone go to a reservation,' well, that was certainly true during that time period. Like I said, I think this history is important because it tells you...when Dave [Wilkins] was talking a while ago and saying that we've adapted, we've endured, and we've been impacted by the different forms of government that we take on; I definitely think during that period Osages were impacted greatly.

Eventually the BIA [Bureau of Indian Affairs] as a result of the 1906 Act promulgated regs limiting voting and holding of office to adult members possessing mineral interest. So do you see what I'm saying? At that time there were 2,229 Osages. Every one of them had a head right so at that point every one of them could vote. Basically the BIA, which we all know stands for 'Bossing Indians Around,' created a system of governance that was really based on holding property or a plutocracy. So in order to be able to vote or serve on our imposed tribal council you basically had to own royalties to the mineral estate. Well, Osages have always governed themselves and even during that time, it's like I was saying under the 1881 constitution in 1900 and that was abolished, Osages continued to defy the federal government. As we...under the 1906 Act there were always groups of Osages that tried to defy that system of governance and rule ourselves. There were folks that ran for the tribal council that were eventually kicked off the tribal council by the Bureau of Indian Affairs for trying to assert their inherent sovereign rights. We appealed to the BIA a number of times to no avail.

Eventually what happened is there were a couple of court cases where Osages basically went to district court to try to remedy the situation we were under. You can imagine as we went through several generations from 1906 up into the ‘50s and ‘60s, now the system that we were creating was a system where more and more people within the tribe were becoming disenfranchised and could not be part of the tribal government. They could not vote nor could they run for office unless they had inherited a head right. Well, if you're Osage, it's a pretty bittersweet experience because eventually because of all the Osage murders they created a law basically saying that you can only inherit a head right. So by the time you actually become a member, you hope that you're of old age, you want to keep your parents with you as long as you can, depending on how many siblings you had perhaps not all of the siblings were left a portion of the head right so you had brothers and sisters, some older some younger, that may or may not have been part of the tribal government at that time. And like I said, greater and greater number of people becoming disenfranchised.

There was a guy named Leroy Logan. I think him and six other folks basically took this to district court and what they alleged was that the federal government had acted beyond the scope of their authority in approving actions taken by the council beyond those expressly enumerated in the Osage Allotment Act. If you look at the Osage Allotment Act, basically what it said that the tribal council could do was manage the mineral state. Basically approve leases and even the approved leases was a little bit of a stretch because they could approve them by resolution but then they went to the agency, BIA, and it was really the BIA who had the final approval power. So the tribal government really could not do much. Basically the court ruled...this is where it gets really...you know when they talk about schizophrenic court decisions, this is a schizophrenic court decision. The court basically ruled that the power of the Osage tribal council was not limited to those matters specified by the Act. And how they came to that conclusion was that tribes had the ability to self-rule. But why the case was taken was because we weren't under our own self-determination at that point. We were under a system that had been imposed upon us. There were a couple of different cases. They were a little bit crazy. Basically in the Logan case, what was eventually decided or not decided was one of the things that was brought up in the appeals was that the validity of the 1881 constitution and the unconstitutionality of creating a system of government where people were disenfranchised; that was left unanswered.

So what happened in the Fletcher case was a group of Osages then took that...what was not answered in Logan, took it to court. Basically the tribal council at that time was the defendant in the case. They made a motion to dismiss based on sovereign immunity. The court ignored that motion and set about resolving voting rights because the judge at that time felt like it was such an injustice what was happening at the Osage Nation and the court established a commission to reform the constitution and system of governance. Now, it was the right idea, but you had the same thing where now the court is reforming our constitution because they think it's wrong that the executive branch had done that. It was crazy. Basically the court formed a commission, they held a referendum, a court-ordered referendum to adopt a court commissioned constitution and they opened it up to all of the lineal descendents of the 1908 rule. So that was appealed by the tribal council... Based on the vote of that referendum there was a parallel government set up. So now we had the tribal council running and we had a parallel system of government running at the same time with a president, a vice president, a national council, judiciary, where as the tribal council had continued running the way that it had since 1906 where it was basically judge, jury and executioner, so to speak. So you had these two parallel systems. You can imagine that division that caused in a tribe that was already fairly divided. Basically the appeals process finally went through and in what's considered a landmark decision pro Indian Country is that the courts upheld the sovereign immunity of the tribe. So this parallel government that had been operating for three years overnight was disbanded and abolished.

That brings us up to the...Chief Gray likes to call them 'The Fighting 31st.' We had lots of problems at that time. One of the problems, I'm going to go back to the extinction. One of the problems that we had is that we had a solicitor that had interpreted an opinion on the tribal membership and basically his interpretation, and I won't name names -- Scott Keep -- basically had decided that the only real members of the tribe were the original allottees. When the 31st tribal council was elected, I think there were four allottees still alive and based on that opinion, what that meant was that when the last allottee passed on, the tribe would cease to exist. So Osages were aware of this fact. Like I said, it created somewhat of a crises. Chief Gray, under his visionary leadership, many of the tribal council members elected campaigned on resolving the membership issue. There was a...after determining that the membership issue could not be resolved without legislative action by U.S. Congress, a plan of action was developed and allies were engaged. So we had exhausted all of our judiciary remedies and it was basically determined that the only way we could change things at the Osage Nation was to go back to the United States Congress.

Congressman [Frank] Lucas and Senator [James] Inhofe of the...you don't necessarily think of Inhofe as Indian friendly, but he took up the Osage cause so I can't say anything much beyond that. They worked on our behalf. Wilson Pipestem led the lobbying effort, helped the tribe considerably to create a strategy and they introduced HR 2912 to the U.S. House of Representatives. On December 3rd, 2004, President George W. Bush signed Public Law 108-431, which reaffirmed the inherent sovereign right of Osages to determine our own criteria for membership and our own standards for citizenship and also affirms the inherent sovereign right of Osages to determine our own form of government. The only other thing that the act really did was to protect the head right property. So that was the one caveat, that we could basically determine our own membership just like every other tribe -- this was in 2004 -- and we could determine our own form of government. It was a huge, huge...I still can't believe it actually happened. That created a window of opportunity, ended a century of conflict and division.

Basically what happened at that point was this was in December of 2004, in February there was a big celebration. That left basically 16 months, and the reason that I say that is there was a bit of a time constraint because the 31st tribal council that was in there had run on the issue of reform, they found a way to make it happen, created the opportunity, but they knew that when basically their term was up in June of 2006 that there was a very good chance that the next tribal council may undo everything that they had just done. So they created an independent government reform commission. It was comprised of 10 people, eight members, two alternates. It was completely independent. There was a provision in the ordinance that they created around nepotism in terms of the people that they appointed. They could not be related to [them]. All of the folks basically that were on the government reform commission were head-right holders at that time. The duties were prescribed in the ordinance. There was monies appropriated for them to operate. They were basically a volunteer group of commissioners. They had no glaring political aspirations at that time. And basically what they were charged with doing was hiring a staff. Actually when I came on board, they held weekly business meetings, we also held more than 40 town hall meetings. We were charged with getting citizen input, we were charged with drafting a constitution. We were charged with conducting a referendum and holding elections for the new tribal government. That was all to be done within that 16-month period, which was now really...a lot of time had gone by. When I came on board, we had about a year. We had regular mailings. We tried to do as much education on government reform as we could. We held youth summer camps where we had the kids come in, create constitutions. We conducted a nationwide survey. It was mailed out to every eligible member. When you look at this, this is...the majority of the tribe is disenfranchised. When we started this process, if you look at the blue, those were the number of people at that time that could vote or be part of the government. The greatest majority of Osages could not.

Basically as we started narrowing down and getting down to drafting the constitution after we held all the town hall meetings, there were still some issues that were very controversial. I'm kind of skimming over this, but I can't tell you...with this kind of change and with so few holding so much power, you can imagine that there was a group of people that did not like what was happening. Even though we were all related, even though most people knew that it was the right thing to do, I affectionately like to refer to them as the 'Osage Taliban.' There was a group that were digging their heels in. They did not want to see this. Every tribe has this group. And we dealt with them throughout that reform process.

The very last thing that we did before we drafted the constitution was we held a referendum. And I say that because for us at that time it made a huge difference. We felt like there were some issues that were so controversial that if we put them into a constitution we had so little time that the constitution would not pass. So we put it to a vote of the people, the issues that we found most controversial. Some of them were on membership, blood quantum, no blood quantum, I can go back but during that time before the Osage Allotment Act there were probably at least half of the Osages that were considered by the other half as not eligible for membership. So there was huge controversy. With so much money at stake, you can imagine that there were a lot of other Indians and there were a lot of non-Natives who wanted to be Osage during that time because it meant getting a whole lot of money. So membership had always been very contentious and so we put that on the ballot even though we felt like we really wanted to unify the tribe that unless that question was answered, the question on blood quantum or lineal descendency, that we would have great difficulties. Also dual membership was another issue that we addressed.

There were seven questions on governmental structure; there were two questions reserved on reserve legislative power of the people, recall, citizen initiative, that kind of thing; one question on whether to separate, structurally separate business from politics; and then the last question was probably the most controversial question and that was the question on, what would the new role of the current tribal council be in the new government? We'd gone to enough town hall meetings that we knew that they had to have a role. How...what that role would look like, basically there were two choices put on the ballot. One was to create a bicameral system of government where the current tribal council would serve sort of as a House of Lords and there would be another legislative body and then the other question was to create that tribal council as a mineral council that served as an independent agency. That was really the only close split vote. I think it really literally was like 51 percent to 49 percent. It was really, really divided. And basically 51 percent of the people that voted in that referendum wanted the Osage Minerals Council to be an independent agency. Now I don't think what they realized at that time in retrospect was that meant they would have no legislative authority whatsoever and that it would actually exist as an independent agency under the executive branch because there were only three branches of government. When they figured that out it became pretty controversial. Basically the commission hosted a legal symposium after the referendum and just to have as many Osage lawyers come in and clarify what the vote on question number eight meant in regards to the minerals council.

We then, after that clarification, we drafted a constitution. We basically edited and edited and edited and then that draft constitution was mailed to every eligible member. This is just a little thing that Charles Redcorn had written. Basically on March 11, 2006, by two-thirds majority vote the Osage Nation constitution was ratified. Yay! In terms of fulfilling our duties as the Osage Government Reform Commission, we still had work to do. Once the constitution passed we created a transition plan for the new government. We formed a minerals council election board and tribal council adopted election procedures, formed a constitutional government election board, tribal council adopted election procedures. That was way more complicated than I'm making it sound right now. I won't even get into it, but not only were we having difficulty with our Osage Taliban but the BIA was, who had pretty much ruled at Osage 400 years gave us a whole lot of trouble, too. The government basically came in on July 3rd and the Osage Nation constitutional government was formed."

Joseph P. Kalt: Sovereignty: Your Best Tool for Development

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph Kalt share some innovative ways that Native nations have exercised their sovereignty in order to foster sustainable economic and community development.

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Sovereignty: Your Best Tool for Development." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2009. Presentation.

Joseph P. Kalt:

"What I'm going to do is...this is fun for me. Part of what our jobs let us do -- [because] we work for universities and we don't really have to work -- is we get to drive around a lot and see the world and see really cool things out there. And so the real title of my talk is ‘Some Cool Ideas We See Out There That Might Be Interesting to You.' [Because] part of our job...I had, actually, a tribal chairwoman up in the Pacific Northwest one time say to us, ‘Oh, I get you guys. You're just a pipeline; you suck up information over here and shoot it out the other end.' [Because] you guys are too busy. You don't work for universities; you don't get to run around like we do and just sort of hang out. Really, some cool ideas we see out there, maybe they'll be useful to you. But the theme is, the theme is ‘Sovereignty is your Best Tool for Development.' You can feel in these sessions the only policy that's ever worked to turn things around in Indian country -- rebuild the communities, give people jobs, rebuild families -- is self-determination. That's the only policy that's ever really worked. Why? Well, sovereignty is a tool of development. I'm just going to show you (if I can figure out how this works...see I can do it; here we go) some cool ideas, things we see out there, people using their sovereignty as an asset, just like having money in the bank.

Create a city: what a cool idea! All around the earth we human beings, everywhere, we create little towns. Just pause and think about it. We do that, that's what we do. And they usually have a title like alcalde, if you're in Mexico, or mayor or something like that, whatever. You go out in Indian Country and quite often, there's only one town with any government. It's in the central, where the tribal headquarters are. Why is that? Why don't we see more? Not just a little community, but a real self-governing town? We human beings do this because someone's got to decide what the speed limit is down there on the road. Someone's got to decide, 'Where are we going to locate the solid waste facility?' Somebody's got to decide these very local things that all over the world we human beings have to face, but you don't see it in Indian Country. The tribal government, the central tribal government does it all. Why is that? ['Jurisdiction.'] What do you mean? She says 'jurisdiction.'"

Audience Member:

"The town of Mission, on the Rosebud Reservation in South Dakota, is the only real city in Mission, South Dakota. And they have their own functioning city council and this kind of thing. So it's a jurisdictional issue for us because if a non-Indian gets a DUI, then the city sheriff would pick them up and haul them in."

Joseph P. Kalt:

"And one of the reasons everything out there is run through the central tribal government is because historically, when the feds controlled everything, they only wanted one government to deal with, partly so they could control everything. ‘If I channel all my money through you, name you tribal chair; well then I can control everything.' And so you've got this legacy out across Indian Country of -- like you say -- no towns, in the sense of little governments. Not big governments trying to rule the world, but just getting the little things of daily life done. Alright. So there's some real cool cases out there.

One of the fastest growing towns in Indian Country for the last ten years has been Kayenta on the Navajo [reservation]. Interesting. Notice how I wrote that. That's the way towns identify themselves. You don't see that in Indian Country, right? [Because] of this legacy of, ‘We're going to channel those dollars so the federal government and all the power through the central tribal government [because] we want to control that. We don't want real self-determination for tribes. We want to control it.' What did Kayenta do? Well, they went out and basically said, ‘Darn it, we're going to create a town,' basically, a township. And they said, ‘We're having trouble with things like, well...' It's no different than any other nation. They were complaining about the central Navajo Nation government, just the typical thing. There's nothing wrong with central Navajo Nation, it's just they had local needs down on the ground, so they go in and they create a township.

They didn't levy taxes. They're not called taxes; they're called fees, little business fees. And they convinced the local, very small business owners and so forth, ‘Look, if you'll pay small fees to support what we're doing, we'll go out and do things like go in and do all the archaeological surveys we need to do as one big block and create a little industrial or business area.' Because what was going on was every time anyone would want to open a business, it'd then take 18 months to do...’Well, we'll go do it ahead of time and figure out, okay, this is a safe place for our history. We can have some business. Oh, we'll also use our little fees to put in, oh, water lines, buy a fire engine,' the things that towns do, okay? Oh, and they promised the community business permits. ‘You submit a permit,' I think they said, ‘we'll have it to you within 10 working days,' not two years -- fast. We'll try to provide local service for you.

Here's another case. Quil Ceda. Quil Ceda Village at the Tulalip Tribes north of Seattle. This is a really cool case. Sort of like, ma'am, like what you were saying about Mission. Well, they're a little frustrated. They're sitting next to Marysville, Washington and Seattle sort of dominating them. So they went out and they created a village. And it's this chartered city. It's a separately chartered city. It's a separately chartered city. This is actually their charter. That's actually part of their charter. They said, ‘We're going to exercise our sovereignty and...' you can just eyeball it there. ‘There's going to be a village council, there's going to...' the bottom right-hand corner, ‘we're going to start putting in our own public utilities.' They actually now have a company that runs the fiber optic system on the rez and it's taking over the cable television operation and the telephone operation and all the data stuff and so forth. They have ordinances and resolutions about how they're going to operate. They have administrative departments of clerks and treasurers. They have boards and commissions. They have taxes. They basically created a town.

They went to the feds and got their congressmen -- lobby, lobby, lobby. It's a federally chartered city. It's only the second federally chartered city in the United States. Anybody know what the first is? What's the first federally chartered? Huh? Washington, D.C. And now the Tulalips have the second federally chartered city. Why'd they get it federally chartered? [Because] they're getting -- don't tell anybody else -- they're getting ready for a big fight with the State of Washington over taxation. And by getting themselves federally chartered they can build an argument that, ‘Hey, wait a minute, Washington. We're not a city of the State of Washington, we're a city of the United States. You state, you don't have jurisdiction over us.' Pretty cool little try they're doing.

And what did they end up with? They've ended up with this economic powerhouse, just an absolute economic powerhouse. Quickly, their two basic businesses are two shopping malls. They just opened a major casino a year ago April, but they basically built themselves on two shopping malls. There's one of them. Just the classic big box stores; Home Depot, Walmart, etc. And then they have one of these high-end outlet malls. And the payoffs for them: jobs. It turns out by creating a city, it's like running a business. There's lots of jobs. ‘Oh, I now have to have a crew, because I've made myself a city, I have to have a crew who takes care of the strips along the roads of the grass and so forth [because] you've got to keep vegetation a little ways off the roads so you don't have fires and so forth. Oh, and I have to have my own water company and I have to have my own cable TV company and I have to have my own building inspectors and I have...' and on and on and on. If you pause and think about it, it's actually a pretty good business because you create all these jobs.

They now are the economic powerhouse of their region. I think they employ something like three times more people than are members of the tribe, or at least adult members of the tribe. And most of their citizens are working for their tribal government. Go ahead and let somebody else stand behind the cash register at Walmart. Their tribal members are out there running the highest tech -- I took a tour recently of it -- running the highest-tech water treatment facility in the United States. They've got this, they've got a special -- I'm not very good at science -- but it has something to do with a membrane that you push the water through and so forth. And they're now being looked at around the United States as one of the best water companies in the United States. And they have fire departments and they have health inspectors and so forth -- income for people.

They started asserting jurisdiction. You gave me the perfect lead for this. They started asserting jurisdiction. Because now, ‘Wait a minute. No, thank you. Our cops will patrol here. No, thank you. Our school buses will go here. No, thank you. Our health inspectors, our fire inspectors...' Jobs, jobs, jobs. But also, jurisdiction, jurisdiction, jurisdiction: using that power to create a town, using sovereignty to create economic development, but also to expand their jurisdiction. Also, in the process, building an unbelievably qualified and capable set of employees. They're sitting there now as the economic powerhouse, as the economic powerhouse in their region.

So what happens? They get invited to every damn meeting. They're starting to complain. They basically are starting to be treated like another county or city [because] they're so powerful. All the other governments around them have to recognize their sovereignty and have to deal with them. And so they now have these employees who are getting so well trained, they go to the meetings and they're the dominant, they dominate the meetings. They go to the meetings with the surrounding counties and they're going to have a meeting on, they have big problems, they live right on an interstate highway and -- the weirdest thing I ever heard -- right on this interstate highway, whenever they need a medevac [helicopter], they close down I-5, right in front of the Tulalip's, and land helicopters and it causes all the traffic to have to get off the freeway and run through the middle of Tulalip. Well, this creates all this jurisdictional trouble. The tribe basically controls the process, because they've got the best traffic planners out there. They can tell you -- it's just fascinating -- they can tell you exactly the rate at which light posts will be demolished by cars at parking lots. You might think it's crazy but it's some crazy...They have to apparently replace like 65 light posts a year. They all cost like $8,000 or something like that. But they're in charge of this in building essentially a city that is dominating their region.

Jurisdiction: it also gives them pride. They're the ones calling the shots on water treatment. They're the ones calling the shots on traffic control. It may seem like little things, but now the kids grow up with a different image in their mind, don't they? The kids grow up thinking, ‘Hey, this is sort of cool. Yeah, we go down to that meeting with the counties and we're there. So they're kicking butt. We know what we're doing. We've got the best-trained people. We've got jurisdiction.' And you see that resurgence of pride. How did they do it? How did they do it? How did they do it?

They started to get a mentality -- when I talk to people there -- they start to get a mentality that they don't run grants and programs, they don't have a housing program, they don't have a fire prevention program, they don't have a street-paving program run on some grant. They have departments. They're a government. They're a city. They have to do all of these things. And it's a change in mentality to think, ‘We're not just here living from hand to mouth.' And if someone funds highways next year we'll have a highway program. Nuh uh. They're investing in the planning, building the infrastructure to be departments, if you will, not grants.

And codes for everything. Codes for everything. These guys are code mad. They have the health code, they've got the fire code, they have the code for how far the sidewalk has to be placed away from the street, how often the grass has to be cut next to the street. Why did they do that? Why would anybody...they spend all their time writing codes, writing codes. Jurisdiction. They describe it as just a shield. When somebody wants to assert, ‘You don't have authority to have your own fire department.' You pull out, ‘Yes, I do. See my code? See my code? I do too.' ‘Where'd you get it?' ‘Well, our government created it. Well, that's the same way you, City of Marysville, got your fire department is you created a code.' So this tribe very much is conscious of the number, one of the main tools they have now to fight with over this issue of jurisdiction, is they basically any time anyone comes at them, 'Well, you don't have a good health department.' 'Wait a minute, my health department's better than your health department.' They're very aggressive, very, very aggressive about this.

They also have an attitude. 'We're going to do it ourselves and we're going to do it better. We're going to do it ourselves and we're going to do it better. When we walk into that meeting, when we walk into that meeting with the counties on traffic flow, or whatever it is we're going to do, or sharing the cost on repaving a road that cuts across the res, we're going to be better prepared, we're going to have better training, we'll have harder numbers. And if you fail me, if you don't do your job and don't show up, you're not going to have this job anymore as the head of our highway department.' I'm picking on you, I don't know why. You look like a nice guy, too, I don't know. My point is, they have this attitude and they hold each other to it. It's an attitude of, ‘Look, guys, let's go out there and really, really be a nation.' In this case, be a city. They hire the best. They hire the best.

Now, that sometimes means they don't hire Indian, but it doesn't bother them because they say, ‘Well, we're in charge.' Now watch me pick on somebody. ‘I'll hire this white guy here to be my police chief.' Why? Because he's the former president of the State of Washington's police chief's association and no one's going to be able to come in and push him around. Now, sure, part of his job is to try to get a young Tulalip guy to come along and be the next police chief, but the attitude is one, ‘We're going to go out there and we're going to get the best, and I don't care if you're Native or not [because] we the city, our sovereignty, our jurisdiction controls you.'

And then taxes...and not grants. It's that same mentality. It's that same mentality. All over Indian Country, people have to live in this environment in which the governments are so weakened because people keep taking jurisdiction away. Most governments in the world, it's actually not an evil thing -- if you provide services back to your citizens, it's not an evil thing that you go out and levy taxes. And so this tribe is sitting there, taxing these businesses -- actually trying to tax even more -- starting to tussle with the state, as you can imagine. But again it's that mentality of being a real government. They don't spend their time with grant writers. They've got a couple, I think they have one grant writer, but that's not what they fundamentally do. They don't make their life and their livelihood off of that mentality. They say, 'Look, we're going to provide services to our citizens and to the people who are in our shopping malls. We're going to provide them services and we provide good services, actually people don't complain.' And the result of this is they are not putting pressure on their neighbors, these sort of horribly run cities around them, who are now having to reform themselves because the non-Indian citizens at the next town were saying, ‘Hey, wait a minute. Quil Ceda Village is much better run than the town of Marysville.' And so you start to see that assertion and the pride and the ability to get these things done.

Now maybe this works for you and maybe it doesn't. I don't know. But it's a pretty cool idea in terms of using your sovereignty, using sovereignty to really go out and make it an asset in the fight for development and jurisdiction. A couple more real quick ones. Start taxing: another cool idea. But maybe you don't call it that. It's still a bad word. I'm not stupid. But, well, maybe I am stupid; you guys can judge that later. But start taxing. Why? Because you're trying to get off of that system of, ‘Oh, is my department going to survive depending entirely on whether I can go get a grant,' and whether, ‘you got sick last year and didn't get the grant written,' or whatever it was. But to do it, you've got to do the first thing, in a sense. And it doesn't have to be a city. The message obviously is if you can provide capable and high-quality services to the people, they turn out not to fight you quite so much about that second thing up there.

Examples: 2002, the Navajo Nation instituted the first comprehensive sales tax in Indian Country. What did they do? They earmarked it for things that met their priorities, for their priorities -- trust fund, land acquisition, local governments. And then they had smart and culturally based exemptions. Cultural organizations not subject; if you're selling things and you're a non-profit, not subject to our sales tax, for example. [Because] you're trying to design a system that works for you, not somebody else's sales tax. The payoffs? Started to build the missing infrastructure. What do I mean by missing infrastructure? All around Indian Country, I'll give you an example, there are no street lights [because] the feds never fund street lights. Another one: dental clinics, eye clinics. It's real interesting, you look around Indian Country, as tribal governments start to generate their own resources under their own jurisdiction, you can see actually where the missing stuff is, the missing services. Things like eye care never was a priority. Teeth. ‘Oh, teeth didn't seem...' ‘Well, wait a minute. Why should some outsider tell me whether my teeth are important?' And also, again it's very interesting -- here's a guy standing up here to tell you to go tax your people, but in all honesty it starts to send a signal. This is our government. It's a government of us. It's a government of the people.

One last idea: leverage your sovereign immunity. What do I mean by that? Incorporate under your own laws. It's kind of a movement around Indian Country now. Why incorporate under the State of Montana law? Why incorporate under the State of New Mexico law? Why not incorporate under your own law? And so you have cases; here's a tribe actually in El Paso, Texas, Ysleta Del Sur [Pueblo], can't get any economic development going. They feel like every time, they've got kind of a racist government around them in the State of Texas, and they create their own laws of incorporation. That's just parts of it there, sort of again, it's what the Tulalips are doing: codes, codes, codes. Well, in this case, we're going to create our own through our own jurisdiction. You don't have to incorporate in the State of Delaware or the State of South Dakota. You can incorporate here at this nation. This just goes on and on. It's interesting, Ysleta Del Sur is a Tigua, is Tigua. And so notice down at the bottom there: 'Corporate name shall be in the Tigua...' This is their law. The State of Texas, I'll guarantee you, never would have said, ‘Any business incorporated in the State of Texas shall have a Tigua name.' Ain't gonna happen, guys.

Challenge the nation with sovereign immunity. Waiving sovereign immunity? Where did this idea of immunity come from? Do you know where the word sovereign comes from? Do you know who the sovereign is? It's the king. This idea of sovereign immunity comes from British and European kings saying, ‘I am above the law. You, my subjects, cannot ever sue me or come after me in anyway. I am above the law.' Well, that's interesting. So the idea of sovereign immunity actually comes out of these Western European kings. Here's what real nations do with sovereign immunity.

My first one is, who wants to be West Virginia? Here's an interesting little tidbit. The poorest state in the United States is West Virginia. What's West Virginia also known for? They get on TV now and then. Coal mining. When do we see them? Yeah, or when there's an accident and there are 32 miners trapped in...now that's interesting, the government mine inspectors don't seem to work very well. We did a little analysis of the state constitutions around the United States. The State of West Virginia has the absolute strongest prohibition on any waivers of sovereign immunity of any state in the United States. You can't waive sovereign immunity in the State of West Virginia for anything. And they're the poorest place in the United States,

Now that's a tough issue, right? Wait a minute. Waive sovereignty? Well, waiving sovereign immunity isn't the same as waiving sovereignty. What real nations do all over the world because, face it guys, they're not going to lend you money unless there's some recourse. You're not going to get lended; no one's going to lend you money. So what governments do all over the world? They create international treaties. Example, the Treaty of Mauritius, [because] it was signed in this little country called Mauritius. A bunch of countries in the world said, ‘Okay, I'll deal with you, you deal with me. We'll set up our own separate court system. We'll set up our own separate court [because] I don't want to waive sovereign immunity into your courts and you don't want to waive sovereign immunity into my courts.'

Options: more and more tribes are succeeding in writing contracts in which they waive sovereign immunity on their company, but they don't waive sovereign immunity on the state, that is on their nation. They waive sovereign immunity into their own courts. 'Yes, you can sue my coal mine company. Yes, you can. I'm waiving immunity, but you've got to sue in my own courts.' That's what other governments do. That's what other governments do, except for West Virginia. West Virginia can't sue anybody from the state. And so those mine inspectors are just horrible, they have no accountability and they get on TV [because] they kill people. Waive sovereign immunity into your own courts. But to do that you have to have courts that work. You can talk a big talk, you can talk a big talk, but you have to have courts that work.

Second, waive sovereign immunity into international courts. Examples: Pacific Northwest. The Northwest Indian Tribal Court essentially says to a bank or a car dealer, ‘Hey, I'm going to waive my sovereign immunity, but we're going to waive it into the Northwest Indian Intertribal Court.' Oh, that's sort of cool. How's it work? Fundamentally it works if I'm a car dealer and I'm going to...'What tribe are you from? You're not Pacific Northwest. Okay, you're Tulalip. I'm going to waive...I'm going to sign a deal with you and if we get into a dispute, we're going to go into...Okay, I'll do it.' 'I'm the banker. I'll sign a deal with you. We're going to go into the Intertribal Court. We get to the Intertribal Court and nobody from your tribe can be on the hearing panel. We'll have judges from other tribes.' As long as you're not AIG, that's right. As long as you're not AIG, good point. So creating courts among tribes is one way by which you can provide assurances. Investors don't think the best things of state courts. It's not like people, like business people have great confidence in state courts. In fact the State of West Virginia has some of the worst courts in the United States. Indian tribes can out-compete by making yourself safer and a true rule of law.

Last point: waive yourself into arbitration. More and more tribes essentially say, 'We'll waive ourselves into arbitration,' meaning, you pick. 'If we get in a fight, you and the banker, we're going to...you pick one person, I pick another, so we're equal and then they'll pick a so-called neutral and we'll have...at least we'll have a level playing field.' But then you have the issue of -- and I'll tell you one last sort of cool story -- you have the issue of, if you have an arbitration award, who enforces it? Who enforces it if you have an arbitration award? 'You owe me money. The arbitrator, our arbitrator here just said you owe me $10,000,' and you go like this. You say, ‘I'm not going to pay you.' How do we enforce it? Very interesting. There's a very interesting case of a tribe borrowing like $110 million. They set up an arbitration clause and they had this big fight in the tribal council, should we waive sovereign immunity and here's what they did. It's kind of a cool idea. This is what I mean by challenging your own nation. We're trying to borrow $110 million. We don't want to waive sovereign immunity completely. We'll waive into arbitration. By that I mean, if we get in a fight, we'll go to arbitration and then on enforcement of an arbitration award, that will go to tribal court. If our tribal court won't enforce an otherwise proper arbitration award, then you can take us to state court.

This is a tribe that basically said, ‘Look, the tribal council meeting was cool. Look, we're talking big shots like we're sovereign and all that. We might as well back it up.' If we won't enforce our own agreements, what's it do? It puts the pressure then on the tribal council to make sure that they've got a good tribal court because that arbitration award, if it wasn't enforced by the tribal court, then it was going to go to state court. And the bank said, ‘Yes.' They've never had a fight, never had to do this, but it was enough for the investor to say, ‘Hey, we'll do it.' You waived yourself into your own courts.

Alright. I don't know, just kind of cool ideas we see out there, just kind of things we see that tribes are doing. Whether they work for you, I don't know. Everybody's different, but there's a lot of cool stuff going on out there."

NNI Forum: Tribal Sovereign Immunity

Producer
Native Nations Institute
Year

Tribal sovereign immunity has far-reaching implications, impacting a wide range of critical governance issues from the protection and exertion of legal jurisdiction to the creation of a business environment that can stimulate and sustain economic development. Native Nations Institute (NNI) Radio convened a group of tribal leaders and Indian law experts to discuss tribal sovereign immunity and the need for Native nations to approach the issue strategically. Moderated by Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt, the forum provides tribal leaders and their constituents some important food for thought as they seek to protect their nations' interests and advance their nation-building priorities.

Resource Type
Citation

Native Nations Institute. "Forum on Tribal Sovereign Immunity" (roundtable forum). Native Nations Institute For Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 14, 2007. Interview.

Joseph P. Kalt (moderator): "Like other sovereign nations around the world, Indian nations have powers of sovereign immunity to be free from lawsuits, other challenges to their authority. At the same time, the realities of a globalized economy, a very competitive world, often puts tribes under pressure to waive that immunity and tonight we’re going to talk about the issue of sovereign immunity, when to waive it, when to use it, when to not waive it and we’ve assembled a very distinguished group really representing all walks of life here. On my right, Lance Morgan is the Chief Executive Officer of the Ho-Chunk Inc. tribal enterprise of the Winnebago of Nebraska, well known for its success over the last decade in building a conglomerate of businesses to really rebuilt and strengthen the Winnebago Nation. On my left, Professor Rob Williams from the University of Arizona Rogers School of Law and Director of the Indigenous Peoples Law and Policy Program is one of the nation’s leading educators in American Indian law, has written on all aspects of law and teaches tribal audiences law students at the University of Arizona all the aspects of American Indian law and focuses a great deal on the issues of sovereign immunity. On my right, Chairman John 'Rocky' Barrett is the long-serving Chairman of the Citizen Potawatomi Nation of Oklahoma. Starting a couple decades ago with very little, it’s now the engine of Shawnee, Oklahoma, and the surrounding region and noted for its success not only in its economic development, but in rebuilding a community that had been scattered across the United States. On my left, practicing attorney Gabe Galanda from Williams Kastner. Gabe is an expert working with tribes particularly in the Pacific Northwest really doing innovative things with handling sovereign immunity, its uses and misuses, providing advice to tribes, to clients, on these challenges the tribes face as they struggle with the question of when to waive their immunity, when to not waive it. And so we’ve assembled these folks to talk to us about their experiences, their views on this challenge that so many tribal leaders face across the United States. I’d like to begin with all of you, and maybe start with you Lance and work down here, we hear a lot about the issue of sovereign immunity, often out on the ground. Waiving sovereign immunity is equated with waiving sovereignty and you’ve faced this I know in your business enterprises. What are your views on that, what’s the boundary there? Is waiving sovereign immunity waiving tribal sovereignty?"

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Lance Morgan: "I really don’t…I think they’re two different things. I think they’re easily confused because they both use the word 'sovereign' in it. I always say that on our reservation, if somebody were to try to take away a tribal sovereign right, maybe a state or a county or somebody else, then we’ll fight to the death, it’s on, we’ll empty the tribal treasury to fight that one. But if it’s a business transaction where we want to play a game, we want to take someone’s money or we want to make sure that we do something together, I really want to make sure that we’re playing the game by the same rules, and waiving sovereign immunity really is not that big a deal for us in those situations. If we want to access that capital or to enter that relationship, then it’s only fair to be able to level the playing field between the two parties. So in those instances we’ll waive it all the time. It really isn’t that big a deal for us."

Joseph P. Kalt: "Rocky, from your point of view, tribal chairman having dealt with these issues so much, with your bank, with other aspects, what’s your view on this question is waiving sovereign immunity waiving your sovereignty?"

John "Rocky" Barrett: "It’s actually an exercise of sovereignty. I know from our perspective, we sort of look at it as how would we feel as lenders if someone came to us and wanted to borrow money and said, 'We’re not interested in waiving sovereign immunity in dollar amounts for this particular note or this contractual obligation that we have with your bank'? Our first reaction would be, 'Well, you don’t intend to pay us.' We take the same perspective at the tribe, that if we’re going to behave as responsible lenders, we have done our due diligence, we know that the cash flow is there, we have reasonable expectations for the success of the project for which we’re borrowing the money, and if we do not then we still feel duty bound to pay the loan off. So the waiver of tribal sovereign immunity from suit, particularly for financial transactions, we think is a part of doing business responsibly as a tribe. But it’s not a waiver of your sovereignty. You as a sovereign have the ability to say, 'I’m going to, as a sovereign, I’m going to put us on equal footing in this obligation and I’m doing that as a choice.' So you’re really not giving up…you’re exercising your rights."

Joseph P. Kalt: "Gabe, what are you seeing with your clients and what are you telling them about this issue?"

Gabe Galanda: "Well, we look at sovereign immunity primarily through two lenses. One is the proactive use of sovereign immunity as Chairman Barrett said as an exercise of sovereignty, essentially defining the time, scope and manner by which a sovereign may consent to suit or invite lawsuit against the sovereign and ultimately the tribal treasury, so that’s looking at it proactively perhaps in a means of drawing commercial investment to the reservation or other private investment to the reservation. It really becomes an exercise of sovereignty. But defensively is perhaps where the line between sovereignty and sovereign immunity blur, because defensively most common you will find tribes leveraging their immunity to withstand attack by local government or state government as Lance eluded to, and in that instance you are using sovereign immunity as a defensive mechanism to protect your sovereignty and without sovereign immunity state courts will be presented with questions of regulatory jurisdiction, in particular whether cities, counties and states have jurisdiction over affairs arising out of the reservation and as a threshold defense to that type of question which would be brought in state court by such entities, tribes can assert their sovereign immunity. So in asserting their sovereign immunity defensively, they are protecting their sovereignty, and in some instances that’s where the lines between sovereignty and sovereign immunity blur."

Joseph P. Kalt: "Rob, I know you’ve got strong views on the origins of this concept of sovereign immunity. Where does it come from?"

Robert Williams: "Yeah, I’m always amused when I hear tribal people defend sovereign immunity as one of their inherent rights as if it was something that existed prior to contact, and actually sovereign immunity originates in the 14th, 15th century, it comes from this notion that the English king could do no wrong and that would be exactly what the old common law courts would pronounce. The king can do no wrong and since the king maintains his courts and pays the judges, the judges aren’t going to dare challenge that notion. So it’s really an idea that you find replicated in no tribal culture in North America. In fact, the traditions of most tribes are that leaders are totally accountable to their people, and oftentimes leaders take on additional responsibilities for their people. So it’s a countercultural notion. I think the important thing to recognize is that sovereignty is really the big-picture issue, and that sovereign immunity is a tool of sovereignty and that’s how governments have always looked at sovereign immunity. The United States has sovereign immunity, the federal, the state governments have sovereign immunity, tribes have sovereign immunity. The big difference has been that for the past 100 years, the federal governments and state governments have used their sovereign immunity as a tool, making strategic decisions about when to use it, when to assert it, when to waive it, when to limit it, when to cover it by insurance, and so I think what you’re seeing many tribes now understand is that this is an important tool of sovereignty, of control over the reservation, of control over economic development, and it has to be used with a lot of thought and has to be used strategically."

Joseph P. Kalt: "Pick up on that, all right. I’ve heard a lot of tribal council members view a request by let’s say an outside investor for a waiver of sovereign immunity as an insult because it says to the outside investor I don’t trust your court system. I don’t trust you to adjudicate any disputes between me and you. I don’t trust that. And I sense sometimes there’s some truth in that, that is that all you’re hearing is just mistrust of tribal court system. Should tribal councils take it that way as an insult?"

Robert Williams: "I think that tribal councils should really look at what’s being said when outside investors say, 'We don’t trust or we don’t know your court system.' That’s a challenge for the tribe. Many tribes have established very effective court systems. They have courts of appeals, they have codes and business codes that they operate under, but sometimes they don’t do the job they need to do to make sure that the outside investment company understands that. So if what the tribe is hearing is we don’t trust your courts, we don’t know about your courts, rather than look at that as an insult, I think it’s better to look at that as an opportunity to educate and if the tribe really can’t say to these outside investors or to entrepreneurs on the reservation -- because Indian people have to use those courts as well -- if they can’t say that we have a fair court system, that we have transparency, that you can do business here, that your debts will be obligated. Rather than take that as an insult, I think what the tribe needs to do is look inside itself and make a decision about how important that is. We’ve talked about sovereign immunity as a tool of sovereignty, an effective judicial system, an effective dispute-resolution system is also another important tool."

Joseph P. Kalt: "Gabe, what do you see out there? You deal with tribal clients and they hear it as an insult. It’s an insult to their sovereignty."

Gabe Galanda: "A lot of it, though, really depends on the way in which the request is made. As a threshold matter, if you are a non-Indian entrepreneur approaching a tribe to do business, you must appreciate that there are blurred lines between sovereign immunity and sovereignty and choice of law and choice of forum, first and foremost. And then beyond that these are not just legal terms of art that can be plugged into a boilerplate contract. These are legal terms, certainly, but they have social overtones, political overtones, cultural overtones. Along the lines of what Rob was suggesting, some people believe that they have a treaty right to tribal immunity when in fact they probably do not. But you have to understand the consciousness of Indian Country and tribal council who are elected by their people, and ultimately what their people are thinking about issues of sovereignty, jurisdiction, sovereign immunity and the like before you even approach a tribe. So it’s much like going to the Far East and before you would ever go to the Far East to do business, any business person knows you would become savvy in the ways of people doing business in the Far East, the custom and traditions of those folks sitting around a board room or even a restaurant. You may take a translator. When approaching a tribe, you may take a corporate Indian lawyer who understands the philosophy of tribal government, who understands those political, social and cultural overtones and ultimately understands the pragmatic approach that tribes are taking to resolve issues of common concern. And they are valid concerns: the integrity of tribal court systems, the transparency of tribal government, the sophistication to do business in seven, eight or even nine figures. Those are very valid concerns, but it’s really in the art of the delivery and in making sure that when you approach tribal government, you are doing so very sensitively and you appreciate that it may be your only approach, only opportunity to really convey to them that you are there to do business in a meaningful way and you are there to meet halfway on these very important issues."

John "Rocky" Barrett: "The exercise of sovereign immunity has become in some ways the way that Indian Country seems to be using it is presenting a threat and judges, particularly Supreme Court judges, seem to find the concept repugnant, and unless we tailor the use of sovereign immunity in the same way that state legislatures have and the federal government has, where you provide recourse in situations where tribes want to take sovereign immunity now. If they don’t provide some other form of recourse, to someone with a complaint within their judicial system, they’re going to find themselves on the receiving end of some very adverse rulings."

Joseph P. Kalt: "In your case, too, Rocky, I take it you all have taken this prospect of an insult and basically turned it into a challenge to build your own court systems and to be able to sit there and say our court system…I take it…Hearing you talk before, I know you think you’ve got a court that’s just as good as any other. What have you done in that arena to build that court system?"

John "Rocky" Barrett: "We do think we have a very good court system but if a lender, if we have a project that we need a lot of money for that project from a lender and the lender…we exhaust all the lenders who say everyone says we’re going to have to have a tribal sovereign immunity waiver, well, then I guess we’ll have to have a sovereign immunity waiver. I’m not saying there’s situational ethics there but…"

Joseph P. Kalt: "But you’ve built your Supreme Court."

John "Rocky" Barrett: "We have built our Supreme Court and they are a very knowledgeable, responsible group of experienced jurists."

Joseph P. Kalt: "And how do you relate to the State of Oklahoma courts?"

John "Rocky" Barrett: "We have a full faith and credit agreement with the Oklahoma courts, which has only been tried a couple times. Once, the first time not successfully, but after we appealed the process through I believe that the state is more comfortable with that process now. But the idea that we would defend ourselves from jurisdictional threats from the state governments, we would not hesitate to use sovereign immunity from suit as a defense in that matter, the same as the state would not hesitate to use it against us if we were to make a similar jurisdictional threat."

Joseph P. Kalt: "So you’re looking for parity there."

John "Rocky" Barrett: "Yes."

Lance Morgan: "I think it’s important to understand that you’re talking about sovereign immunity and sovereignty in a couple different contexts. In the United States, the government makes up maybe 25 percent of the economy. On a reservation, typically the tribe might make up 95 percent of the economy and because of lots of reasons, the tribes are forced to be the economic engine on their own reservations also. And so you have a governmental context in this really emerging, fastly emerging commercial context in business, and they’re really two separate issues and I think that what happens, the confusion is that political leaders think of it a certain way. But in a business context you have to think of it, it’s a much more flexible dynamic, and that’s what causes confusion I think at the local level. And tribal government leaders are right to protect sovereign interests for the government, but it becomes an impediment to the growth on the economic side that really in all cases isn’t really a rational kind of reason to not go forward, and it can end up hurting you by limiting your opportunities on your own reservation."

John "Rocky" Barrett: "There’s definitely a misunderstanding of what it is on the reservation, too. It’s amazing what people will come up with of what their perception of sovereignty is. We recently in the performance venue of our casino, we had Three Dog Night there to perform and of course that drew all the old hippies in half the State of Oklahoma."

Joseph P. Kalt: "Did you go, by the way?"

John "Rocky" Barrett: "Oh, yeah. My hair’s shorter now. One particularly grizzled, tattooed old guy showed up and immediately sat down and fired up a joint. Of course our police descend on him and put him in cuffs. He said, 'I thought you guys were sovereign.' And I said…"

Lance Morgan: "It’s a crime not to care on the reservation."

John "Rocky" Barrett: "His idea of sovereignty was a total absence of law. That was his perception of it."

Robert Williams: "Let me pick up on a point there. Those full faith and credit agreements, which essentially allow tribal judgments to be enforced in state courts and state judgments to be enforced in tribal courts, there’s an example of exercising your sovereignty. When you can have another court take a look at your own tribal court’s judgments and say we’re going to enforce those, that extends the reach of your power, and so there’s an example whereby using sovereign immunity creatively, combining it with some of these other tools like the full faith and credit agreements, gives a tribe a chance to really project its sovereignty beyond the reservation borders, and that’s what sovereignty is all about."

John "Rocky" Barrett: There were some practical applications that really what generated this thing was child support payments. We were having difficulty getting child support judgments enforced in state court. People would go off reservation and we could… non-Potawatomi spouse, we couldn’t get child support judgments enforced and when the thing was reversed for the state where they wanted to enforce a garnishment I think or I think there may have been a child support issue, we finally sat down with the local district judge and said, it looks like we have the basis for a quid pro quo here and we worked the agreement out and filed it with the Oklahoma Supreme Court. This was back in ’84. It’s been a long time ago. ’85 I guess.

Joseph P. Kalt: "We all work with or know tribes where they’re a long way from being able to walk in and negotiate or secure for example full faith and credit agreement. Where do you start? Think about some of the tribes out there that are struggling without the economic development, without the economic resources, still saddled without a court or with an older constitution not of their own making. Where do you start in this game to build these kinds of capacities to walk in and be able to stand there toe to toe with the state of Oklahoma and say look, 'Our child support system is just as good as yours, we can do this reciprocally?' Where do you start in that?"

John "Rocky" Barrett: "We are the court for another tribe in Oklahoma. We are the court for two of the local municipalities around us who can’t afford their own court and police systems. This other tribe that has come to us, we enforce their statutes. They’ve maintained their sovereignty from the standpoint of having adopted their own set of statutes, but our clerk, our judge, our prosecutor, our public defender, they all function on a…we do it on a contractual basis. They function to act as that tribe’s court, and if it were not for that they couldn’t afford the cost of the infrastructure."

Robert Williams: "And talking about sovereign immunity may be a bit of the tail wagging the dog, because to even get to the point where you can talk seriously about thinking about sovereign immunity, thinking about taking out insurance policies to cover liabilities, negotiating these types agreements with the state, you better have your self-governance act in order, you better have an effective tribal council, you better have an effective constitution, you better have a really good tribal court system with independent judges who are not afraid to make decisions that might be politically unpopular. And so in many ways, to even get to this point that we’re talking about where you’re going to be thinking creatively and strategically about using sovereign immunity as an economic development tool, as a sovereignty tool, there’s a lot of steps that need to go beforehand that tribes need to think about seriously."

Lance Morgan: "It’s a tiny piece of the puzzle. I think that sometimes people talk about sovereign immunity in a negative fashion or something you have to waive or something that will hold you back or keep people from dealing with tribes, but I think that once you get your act together and you start evolving as an entity, as a tribe and as a tribal corporation or something, sovereignty starts becoming a positive. You can use it to ward off kind of nuisance-oriented suits. You can also use it to really start asserting your rights as a tribal government. One of the examples I like to give is that we were in the tobacco business and the state controlled every element of the manufacture, the distribution and we were just at the retail end and they would just cut us off. They’d tell the non-Indian distributor don’t sell to us without state taxes on it or we’ll pull your license. They would never go to bat for us. But we were part of this thing in the late ‘90s where there was a tribal manufacturer, a tribal distributor and a tribal retailer all with sovereign immunity and the state would tell them…they’d call us up and they’d say, 'You better not do it.' Well, we only sold to tribes. We sold to each other. We created an entire distribution system that was protected by sovereign immunity that allowed the tribes to assert what it wanted to do, its own taxation rights on the reservation that it couldn’t do before under the old system. That’s just one example, but there’s a hundred ways that you could use it as a way to step across the line and assert your rights."

Gabe Galanda: "And I would say at a very basic level, you have to walk before you can run as Rob is suggesting, but you can begin to empower a tribal council to begin assessing their sovereignty, just assessing what it means to have sovereignty, and maybe you’re a P.L. 280 tribe which means you have by federal law ceded criminal jurisdiction to certain states. Well, that doesn’t mean that you’ve ceded civil regulatory jurisdiction and the Cabazon case tells us that. So you may have somebody on your reservation who is a nuisance, who is causing problems, who you cannot criminally prosecute by way of P.L. 280 or Oliphant but you can civilly exclude them from your reservation and that is an exercise of sovereignty. Now best-case scenario, you’re civilly excluding them through a tribal court process, but even without a tribal court the tribal council could have the inherent authority to exclude someone civilly from the reservation and they begin to establish their sovereignty in that way. You may have a reservation that’s been completely allotted by the Dawes Act essentially creating a checkerboard environment, where you have fee parcels next to trust parcels next to fee parcels and so on and so forth and you’re confused about who has jurisdiction over what. Well, there’s a law suggesting that you have civil regulatory jurisdiction within the exterior boundaries of your reservation, irrespective of whether there are non-Indians who own fee parcels that were essentially taken from tribes and tribal people in the 1800s. So there’s another exercise in sovereignty. How are you going to harness that sovereignty -- and irrespective of fee title over your reservation in the fact that it’s checkerboarded -- assert civil regulatory jurisdiction over these activities that are taking place within your reservation? Maybe you begin to tax your non-Indian neighbors under your local taxing power, or maybe you begin to assert zoning authority. So there’s a number of ways tribes can begin to walk again before they run to begin understanding what their sovereignty is, notwithstanding all these erosions of sovereignty that Congress and the courts have forced upon tribes, and then once they are more accustomed and more fluent in the language of sovereignty, then comes the more sophisticated discussions about building tribal justice systems, about exercising your sovereign immunity in certain ways, which ultimately is an exercise of sovereignty. And then you can begin to take those steps, and I think it becomes circular and somewhat starts to perpetual itself."

John "Rocky" Barrett: "Yeah, if you don’t exercise it, it doesn’t exist."

Gabe Galanda: "And if you don’t exercise it Congress or the courts will."

Lance Morgan: "You don’t get elected one day and all of a sudden you’re a sovereign, tribal sovereignty, sovereign immunity expert. Those things evolve over time. With Chairman Barrett, you’re talking about somebody who’s been there and functioning and has dealt with all these situations and has learned how to approach these things. This is an evolutionary process and you’ve got to figure…you talked about walk before you can run. You’ve really got to figure out a way to internally in your tribe nurture that kind of environment where a sophisticated approach to this begins to evolve internally."

John "Rocky" Barrett: "I remember the night where we sat down and said, 'Let’s sit down and list everywhere that tribal law applies or could apply if we had the statute.' And we sat down and worked with Browning Pipestem. I don’t know whether you remember Browning. And Bill Rice, who's a law professor at Tulsa University Law School. And we sat down with them one night and basically walked through our set of statutes and what their experiences were with other tribes and talked about what our, what is the gambit of tribal law that could apply that we could use. Interestingly enough, from that night we probably doubled that list since then because of the evolving picture of how we interrelate because we got in the rural water district business and we started operating a state-licensed rural water district basically where the water district leases the operational facilities, the pipe and the water treatment plant and everything from the sovereign of the Citizen Potawatomi Nation and that interaction between essentially what’s the state body -- which we control the board of directors of it -- back to the tribe. That’s a hybrid that we never dreamed that we would have, or this hybrid of us providing the court and police for a municipality, a charter municipality. That’s an interesting cross-deputization issue."

Joseph P. Kalt: "One of the dimensions here that sometimes comes up and you’re starting to touch on it, so often this issue of sovereign immunity is accounted around the big business deal, the bank is depending, whatever. But so much of sovereign immunity often has to do with littler things. A tribal chairman friend of mine one time said, 'You know, if you get a reputation, someone slips and falls in your casino and hurts themselves 'cause you had improper equipment there or you had not repaired the floor or something, that reputation spreads around the community pretty fast and you start to lose business and so forth.' Maybe starting with you, Rocky, there is an element of accountability here not only with outsiders, non-Indians, but Citizen Potawatomi citizens."

John "Rocky" Barrett: "Well, for us in particular, because we operate the largest chain of tribally owned national banks in the country -- and banks are purely creatures of public confidence -- if people don’t feel confident about your behavior as a sovereign in the ownership of this national bank, they’ll take their money out. Obviously, we have more money loaned than we have on deposit, that’s part of the nature of the banking business, and if you can’t keep a reputation with the public intact that you’re going to behave responsibly in all matters, it’s going to end up costing you the capital of the bank. People will run from your bank."

Joseph P. Kalt: "We’ve started to do some research. It looks like the states in the United States with the strongest prohibitions in their constitutions against any waiver of sovereign immunity are the places with the greatest poverty and the greatest reputations for corruption and other malfeasance among the public officials."

John "Rocky" Barrett: "A lack of accountability, yeah."

Joseph P. Kalt: "Lack of accountability."

Lance Morgan: "Sovereign immunity is a wonderful thing to have in a fight. It’s excellent. But it’s also a responsibility. If you misuse it, you won’t have it for long is my guess. If you use it in small context or small ways to hurt someone else’s interest when it’s really not fair, that’s what you have insurance for because you need to hang on to it for the big things, when someone’s attacking the tribe’s assets or going after really a jurisdictional kind of right or a regulatory thing, then it becomes important. But if you use it as a run-of-the-mill thing, it’s really going to be looked on as a negative, and I don’t know many tribes that do that to be honest."

Robert Williams: "There’s a lot of hidden costs here for tribes, and I like the point you make about when we think about sovereign immunity, we think about the big multi-million dollar deals, but if you sit around and think about what Indian people expect of their tribal governments, well, they expect them to provide an economic environment for jobs, they expect them to provide help out on healthcare, they expect them to help out on education. But suppose you can’t get the teacher to come out and teach at that school because they don’t think they’re going to get a fair shake in an employment context because they’ve heard there’s no protection out there for job tenure. Suppose you can’t get a construction company to build that tribal health clinic because they feel that they’re not going to get their contracts enforced. And so it may well be that one of the biggest barriers to exercising sovereignty in all these different areas is this one issue of sovereign immunity, because it creates a perception out there not only amongst non-Indian businesses but amongst the Indian entrepreneurs that this isn’t a good place to invest, this isn’t a good place…"

Joseph P. Kalt: "To be a school teacher."

Rob Williams: "This isn’t a good place to work, this isn’t a good place to teach, and it just might be that one little issue. I like what you said, Rocky, how you guys sat down that one night. I call that the sovereignty audit. I actually encourage tribes to do a sovereignty audit and see where you’re exercising your sovereignty at, and what you’ll usually find out is that you’re not exercising it nearly as vigorously as you think, and it may well be because of this barrier that sovereign immunity may be creating for you."

John "Rocky" Barrett: "Well, it’s claiming where your government has jurisdiction. If you claim the jurisdiction and authority, governmental authority that you’re entitled to, that’s basically the exercise of sovereignty. But the use of sovereign immunity defense in a court action, like Lance said, you don’t just do that casually. That’s using a hand grenade in a fist fight. It’s too much. You just don’t do that until you are attacked by a larger sovereign my guess would be."

Gabe Galanda: "I think sovereign immunity presents the most imminent threat both to business and ultimately sovereignty in the tort regime, and if you think about Mexico for example, people hesitate to drive south of the border because there’s a perception that there is no law and order in Mexico. So on some level that effects their economic bottom line. People would rather just simply go to San Diego or somewhere else rather than Rocky Point or Tijuana, given that perception or even misperception. The same thing holds true to some extent for Indian Country, which is not to suggest it’s not a safe place, but when you have headlines that read 'XYZ Tribe Dismissed Wrongful Death Suit Out of Court Leaving Grieving Widow Without Redress,' people are going to think twice before they head to the casino to ultimately do business and leave their money there for the tribe to then reinvest it in governmental service programs. Same thing can be said of amphitheaters, which are now opening up on the reservation. Casinos and amphitheaters, by the way, are a pretty interesting mix of alcohol and music and dancing and a whole host of things so things will naturally happen."

Joseph P. Kalt: "A lot of slip and falls."

Gabe Galanda: "There’s a lot of slip and falls, there may be in fact fist fights, and that’s not again to suggest that the reservation’s not safe. There is law and order there, there is law enforcement and security. These industries are regulated and over-regulated as a matter of health, safety and welfare, but when headlines begin to appear in the Sunday paper people getting dismissed out of court when something happened and perhaps it was to no fault of their own, someone falling and being hurt or being assaulted by a non-Indian patron and ultimately questioning security of a tribe, those are the kind of headlines that tribes must avoid or those people will not do repeat business and in turn the economy on the reservation will suffer."

John "Rocky" Barrett: "Well, and slip and falls, our grocery store is just a lawsuit magnet. We have one tape after another of people walking in, taking out a bottle of detergent, pouring it out on the floor and laying down in it and start yelling. It is…phony slip and falls. We probably have 20, 25 a year in our grocery business."

Joseph P. Kalt: "Now those kind of situations, I think I’m seeing a trend out there of tribes more and more waiving sovereign immunity around say an enterprise or a particular…and waiving it in to their own courts. Is that what you’re trying to do with your torts for example?"

John "Rocky" Barrett: 'Well, of course the first thing we do is call the insurance company. We try to insure in order to keep it out of the issue of what court has jurisdiction. We’ll let the insurance company handle it as much as we can. Of course, if we can show the person that has the phony slip and fall the piece of tape and say, 'Do you want to go to court on this one?' We’ll try to get it into our courts. We can’t force the non-Indian to appear in our court, but we can if we can prove that person wrongfully came after us, we’ll come after them civilly in our courts and test that issue. The most difficult part of dealing with non-Indians is not having criminal jurisdiction, and most tribes should invoke some form of civil code of behavior that if someone over whom they do not have criminal jurisdiction commits a crime of some kind they should pursue them civilly. In most cases, that’s probably a fine is all they’re going to get any way out of the issue if they’re fortunate to get that."

Joseph P. Kalt: "Lance, you mentioned a moment ago that if you abuse it you’ll lose it, basically. If this is used to really do what is sometimes the fear of essentially escaping responsibility, escaping accountability. I know Rob, as a tribal judge you’ve had some experience with this as a tribal judge. You actually have ruled in such a way as to send the signal."

Robert Williams: "And this is the point I try to make to tribal councils, is that if you look at the experience of the United States government and the state governments, they all asserted sovereign immunity and they asserted it very aggressively and what happened was in the 19th, early 20th century, judges don’t like it. Judges don’t …"

Joseph P. Kalt: "No judges."

Robert Williams: "Yeah. Someone who sits as a judge, you have the sense that your job is to do justice, and here’s this doctrine of sovereign immunity asserted by the State of Arizona, where there’s obviously a debt owed to a contractor and this poor guy may well be going broke because the State of Arizona is asserting sovereign immunity unfairly. You’re going to work very hard to find a way around that, and that’s exactly what happened in other state and federal courts is the judges were starting to chip away. We’re seeing that right now. We’re seeing lower courts, the Supreme Court chipping away at tribal sovereign immunity because quite frankly tribes are the outlier here, that most other governments have taken a very flexible approach and many tribes haven’t taken that approach. So as a tribal judge when I get a case and I feel that there’s an honest debt here or that the tribe was clearly grossly negligent, I’m going to listen to the arguments for that lawyer who’s trying to make a case that the tribe may have impliedly waived it here, but that’s really not good public policy. You really don’t want judges on the tribal court sitting there making these types of ad hoc decisions. What tribes really need to do is do what these other governments did and that is pass tort claims acts, pass administrative procedure acts where the tribe makes the sovereign decision on what forum these claims are going to be litigated at, what’s the amount of liability, when, where and how to keep control over that process so that judges like me can’t go off the reservation as we say and try and make law and make policy on our own."

John "Rocky" Barrett: "Best way to maintain the limits."

Joseph P. Kalt: "Now, Gabe, I’ve heard you express a view though that, 'Let’s not get too easy about waiving sovereign immunity.' I think you’ve had some concern that you waive it too easily you may give up your sovereignty."

Gabe Galanda: "Yeah, and I guess what I’m talking about is the alternative to the sovereign controlling and defining the time, place and manner by which it would waive its sovereign immunity as an exercise of sovereignty. My concern is when tribes are not doing through tort claims ordinances or well-tailored alternative dispute-resolution clauses to commercial loan agreements or other such things, that Congress or courts -- be they tribal, state or federal -- are standing by waiting to define sovereign immunity and waiveall sovereign immunity for the tribal sovereign. So unless you take affirmative steps to do that, you better believe that people on Capitol Hill or in courts throughout the country -- and that includes Indian Country -- will do it for you. And so there’s a number of protective pragmatic steps that tribes can take to insure that they are the ones ultimately legislating waiver."

Joseph P. Kalt: "Give us some examples of those practical steps."

Gabe Galanda: "Well, for example, just looking at the tort environment again, which I believe presents the most imminent threat to sovereign immunity, and the reaction that judges like Rob or judges on the tribal or state bench have is, 'Where is due process?' This person unknowingly perhaps came to the reservation, something happened, they were hurt and now you’re suggesting by way of your 12B motion there is no redress for this person. Well, there are alternatives to even filing the motion to dismiss on sovereign immunity grounds, which in this day and age, with an increasingly skeptical bench, is not wise for tribes to do without at least carefully considering alternatives. So you have an iron-clad general commercial liability insurance policy that makes very clear in certain instances when there are acts or omissions on the reservation by tribal employees or the tribal government itself that there is liability insurance money available. What liability insurance policies give you is two things primarily: defense and indemnification. So the first thing, there is a carrier or carriers on the line who must pay your legal defense bill, and then secondly, in the event a judgment is issued against the sovereign or even an officer or an employee they will indemnify those defendants for that judgment. It all starts with iron-clad liability insurance policies and making sure that ultimately the carrier is standing by to defend and indemnify, but the tribal sovereign still retains all policy-making decisions, decision-making, including whether to assert sovereign immunity and whether to do a host of other things. So first, make sure you have a very good liability insurance policy, and then once that lawsuit is filed and between that point in time and the time when you file, even file an answer, let alone file the motion to dismiss on sovereign immunity grounds, consider alternatives to putting your sovereign immunity in play in court and ultimately your sovereignty on trial. And two, that I recommend increasingly are if the claim has merits and there are available insurance proceeds and as a result of your liability insurance you have some sovereign decision making and authority, perhaps settle the merit, the claim with merit and then again that is good business and that keeps people coming back to the reservation to do business and that avoids the Sunday morning headlines about something happening on the reservation and someone being left without any redress. Secondly, if the claim is just outright without merit like the detergent claim in the grocery store, one alternative is to simply allow that person his or her day in court and to defeat them on the merits. You have a pretty good idea at the outset of a claim whether you can win a case on the merits, and so you might move right past the jurisdictional motion practice and simply beat them on the merits of a matter of summary judgment. They can’t prove that they were hurt, they can’t prove that you caused their harm or they can’t otherwise can’t prove their case against you. So there are alternatives to filing that motion to dismiss that I think tribes need to be very, very concerned with and thoughtful about such as what I just mentioned."

John "Rocky" Barrett: "Yeah, the issue of venue almost always arises in these deals. They want to sue you in state court because they know that you’re going to resist the venue. The lawyers that specialize in defending these phony slip and falls know you’re going to object to the venue, and so they put you in the position of analyzing what the cost of litigation is going to be and tailor their settlement at some number under what they think your cost of litigation is going to be."

Lance Morgan: "I want to change the subject a little bit to something I want to talk about: sovereign immunity, surprisingly. I think sovereign immunity is dangerous in the hands of the politically motivated or the uninformed. I’ve been in so many business deals with tribes where it’s about to happen, something critical that needs to happen and somebody gets up, either on the government side or in the audience in the room and they start making a speech and the speech is wonderful. I start believing it. And really it’s a great speech from a sovereign context, but in a business context or development side, it doesn’t make sense. But since these issues are so easily confused, lots of good things that should have happened don’t happen. And I always make the comment about the proud guy who makes the speech, stops the deal, then goes back to live in his car that’s got an extension cord into someone else’s house, and he’s talking about how sovereign he is. I’m thinking about the implications of doing these kind of things, and it really can hurt you if you don’t understand it or you allow it to be used in a political kind of way."

Joseph P. Kalt: "Particularly the two of you, it sounds to me like there’s got to be an educational role then, in other words to educate your own people so that you minimize the kind of speeches you’re talking about that sidetrack a deal or whatever. Early on in your efforts did you have to talk this issue through or did it just evolve that you got a consensus?"

Lance Morgan: "I think what really happened, I think you’re always going to have the speech problem where someone gets up and does that because you confuse the issues and what we did in our situation was is that we had this problem before, the first time the tribe started a corporation. The second time we started a corporation, 'cause we had failed -- the first one was a total disaster -- and on the second time we did it, we granted the power to waive the sovereign immunity to that corporation through a resolution of the board, so we developed our internal expertise on how to deal with this particular subject and took it out of the political context altogether, because frankly I don’t know how you ever divide it other than by just separating it, because a politician thinks in a certain way and there’s always a way to stop it by giving this kind of speech."

Joseph P. Kalt: "Is this an issue for you?"

John "Rocky" Barrett: "We asked for…we went back to our people for a specific constitutional amendment to put language in our constitution that authorized the tribal legislative body to waive tribal sovereign immunity in dollar amounts for contractual purposes because we thought that if people were going to do business on reservation we wanted to be able to make viable, enforceable contracts with those people and we wanted them to know that we had the authority to make that waiver. In the process of going to the people and asking them to understand this concept, I think our people came out of that with a clear understanding that waivers of tribal sovereign immunity in these kinds of situations was responsible behavior that was expected from its tribal government and it wasn’t something that we were giving up, but it was a business practice."

Robert Williams: "And that’s where education comes in, and I know those speeches, because I’ve given talks before tribal councils before about this issue and someone gets up and makes a speech and what I find is that oftentimes if you say, 'Well, let’s talk about waiving tribal sovereign immunity,' someone gets up and says, 'You’re asking us to give up our sovereignty,' and then what needs to be done is for the leadership to say, 'Well, not really. What we’re talking about is waiving tribal sovereign immunity up to $100,000, up to the limits of liability insurance policies, of only waiving it in tribal courts, backing that up with some education and training for our own tribal judiciary and our own tribal lawyers.' In other words, part of the education process is to make the tribal membership understand that when you talk about waiving sovereign immunity, it’s really limited waivers. I don’t know of any tribe that’s embarked upon this challenge of addressing the issue of sovereign immunity as a sovereignty tool which gives unlimited waivers of sovereign immunity. In fact, some of the research that Joe and I have done has shown that…I was actually surprised, there are many, many tribes that have selectively chosen where they’re going to waive their sovereign immunity, where they’re going to assert their sovereign immunity. So it’s as much a…sovereign immunity -- I think, Lance, you and I have talked before -- it can be a weapon as well as a tool and it has a defensive aspect to it and an offensive aspect."

Lance Morgan: 'Well, there’s really no surprise that there’s confusion about this issue, because it has so many different uses and to use it smart takes awhile to get all the context of it down, so it really is an issue where education matters in these kind of things and discussing it are very important."

Robert Williams: "Yeah, and I’ve looked at some of the laws you guys have passed, and Rocky, and if you sit down -- and maybe I’m going to sort of pull the curtain here and sort of be the Wizard of Oz -- but if you look at tribes that have really thought about this issue and if you look at where they’ve waived their sovereign immunity, it’s a pretty small exposure of liability there, which is exactly what states do. But let me tell you something, when you go to the state court or when you go to the federal court and you can show them all these statutes you’ve passed and all this legislation, what you’ve shown them is you take this stuff seriously and you’ve debated it and these are your public policy decisions and you’re going to get that respected a lot more than just going into that state court and say, 'Well, what have you done on sovereign immunity?' 'Nothing, we don’t have to worry about it.' And that’s what happens."

John "Rocky" Barrett: "I think…I don’t know how many tribal leaders have sat down and played out what happens if the United States Supreme Court essentially rules that sovereign immunity defenses are no longer allowed Indian tribes. How do you…"

Lance Morgan: "Don’t even say that."

John Rocky Barrett: "Well, but it’s something to look at, it’s something to worry about and it’s something to look at. How do you defend the treasury of the tribe, how do you shield its assets? There are still alternatives left to us in creating trusts for the cash assets of the tribe, in protecting…through the tribal courts in protecting the non-cash assets of the tribe, and of course those assets that are held in trust by the United States which can’t be encumbered are in some ways protected. But if you walk through whether or not someone could -- in the absence of sovereign immunity defenses -- make an assessment against future income, there are certainly governmental functions that would shield those in how you assert your tax authority, you could protect income by asserting tax authority over your enterprises. In the event that it happens, I believe that well-thought-out strategies could…you could defend the tribe against a raid on the treasury."

Robert Williams: "And isn’t it true that when you’re thinking about these things, what you’re really thinking about is what’s the least amount we have to give up to get business on this reservation. You don’t want to give away the whole store. You’re really making a calculated decision about sort of the minimal amount of sovereign immunity you have to waive, right?"

Lance Morgan: "Right. It’s always a calculated decision. I mentioned earlier that yeah, we do it all the time, but we’re very specific about how we approach it. We don’t show up with that on our forehead: we’re ready to waive."

John "Rocky" Barrett: "Aren’t you guys doing pretty much what we’re doing? We want people to want to do business on the reservation. We want them there."

Lance Morgan: "It’s a flexible dynamic. We fight hard when someone’s pushing our rights. If it’s a commercial transaction, we’re very flexible. I bet you we have 1,000 commercial contracts and we probably have waived sovereign immunity 30 times. Most of them don’t matter, they’re just small potato kind of things."

Gabe Galanda: "And I guess I would just follow up what the Chairman said, and ultimately there is the threat to tribal sovereignty, most notably by and through local and state government in the event you didn’t have your sovereign immunity, and there’s a great case that the tribes can still use as a shield, which is the Oklahoma Tax Commission vs. Citizen Band, a Potawatomi case -- thanks to Chairman Barrett -- but the other target, if you will, is the tribal treasury as the Chairman suggested, and if or when that day comes when sovereign immunity is no longer a viable defense for tribes, they will be sued frequently like corporate America is being sued. And unfortunately the potential through litigation, class-action litigation or other personal injury litigation could ultimately bankrupt the tribe and leave them without a viable operation. So that’s really what’s at stake is at the end of the day tribal proceeds that are used to provide governmental services to Indian people is what’s really at issue when sovereign immunity is not used responsibly."

Joseph P. Kalt: "I’m going to have to wrap this up, but I want to say first thank you to all of you. I’m struck by this conversation. What we’re actually watching is this increasing sophistication of tribal governments playing on the stage with other governments, because all around the world the strategic use of things like your sovereign immunity is an asset you don’t want to waste. It’s what governments all around the world tussle [with] and think through all the time, and it’s very encouraging, I think, to see the kinds of lessons you all are bringing to us. Thank you very much for this discussion."