Citizen Potawatomi Nation

Stephen Cornell: Creating Citizens: A Fundamental Nation-Rebuilding Challenge

Producer
William Mitchell College of Law in conjunction with the Bush Foundation
Year

NNI Faculty Associate Stephen Cornell discusses how colonial policies have distorted and corrupted Native nations' conceptions of identity, citizenship and nationhood, and stresses the need for Native nations to forge a strategic vision of their long-term futures and then work to create among their people "citizens' committed to and capable of creating those futures.

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

Resource Type
Citation

Cornell, Stephen. "Creating Citizens: A Fundamental Nation-Rebuilding Challenge." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"Well, thank you all for being here. And I want in particular to thank the Bush Foundation and the School of Law, the Mitchell School of Law for putting this together and also acknowledge the first peoples of this piece of country, this piece of this magnificent continent. [I see I'm not yet quite there.]

I have found the discussion we've had already very interesting and I think it's unfortunate what's happened to this discussion of citizenship. And I think Bethany [Berger] did a really nice job of showing us the intrusion of outsiders' ideas of what citizenship should be and mean and the way that that has come to dominate the discussion of citizenship so that you -- whose citizenship and lives are at stake -- end up talking about blood quantum and other criteria which I don't think were ever -- as John [Borrows] has really shown -- were ever part of the way you thought about who you are. But that now dominates the discussion and the intrusion of the notion of boundaries. Gee, you either are or you aren't part of a people. How do we know? Because I went to court and the judge said. Is that really the way things should be? And then the counter to that intrusion and that transformation, that demand that you think about who you are in a particular way, then John presented a very different notion of citizenship as an expression of who you are as a people, of what kind of people you want to be. Not just what kind of people you were, what do you want to be? And that's a very different discussion, and I think it's unfortunate that a lot of the discussion of citizenship now is really bogged down in that first set of ideas and it needs to move to that second set that John really articulated for us. That said, my job, I was asked to...I want to do a couple of things here. I want to say something about what's happening across Indian Country in this area, and that's going to be just exactly the sort of criteria that have unfortunately come to dominate this discussion. And I want to say a little bit about some of the issues to think about as you wrestle with those criteria, but then I want to...I want to come back to what I think is important and that's something I'll talk about called 'creating citizens.'

So I'm going to give you some data. And unfortunately, this podium is beautifully placed so that half of you can't even see this and probably the other half can't read it because it's too small. But this is some of the citizenship criteria in Native nations. Now it turns out it's not easy to get a comprehensive view, maybe Matthew Fletcher or someone else knows of a place where you can find out all of these criteria. The best source I've come across was actually work done by Keith Richotte back in about 2007, when he went through a lot of tribal constitutions to track what they say about citizenship and how that's changed as constitutions changed. Tracked really some of the processes that you all are involved in and the point of this chart is really just to show you that today it's incredibly diverse out there from various kinds of blood quantum and what I've done is give you the criteria on the left and some examples of nations within the U.S. who are using those criteria or some version of them. And that list down the left, which matters much more than the examples begins -- for those of you who can't quite see it -- blood quantum; lineal descent from a base tribal roll; lineal descent and blood quantum in some sort of combination. We've got lineal descent and residency, that is, you have to show lineal descent and either your or your parents had to be a resident; a minimum percent of tribal or Indian descent–Bay Mills sets a percentage and says this is what you need to be a citizen; patrilineal descent; matrilineal descent; parental tribal residence at birth, that you don't see as much anymore, but there's still some nations that use that; participation in tribal affairs. I actually thought that was kind of an interesting one. Colville: you want to be a citizen, you better be involved, be engaged. Council discretion: Hey, we'll make up our minds, decide whether you are or not. General council discretion: open to a much larger body of already recognized citizens to decide. Comanche has special rules for minors. Nez Perce, Warm Springs allowing for adoption and naturalization.

In other words, there's a very diverse set of criteria currently existing out there. Which ones are the most common? Well, most include descent from a tribal member or citizen. Some include no further requirement. About 25 percent of tribes according to what Keith Richotte, Carole Goldberg, Ian Record, and others have been able to come up with, about 25 percent of tribes in the U.S. require descent from a tribal member, period. Parental tribal residence at birth still is a fairly large number, about 20 percent. One-quarter blood quantum is over 20 percent. One-half blood quantum less than 10 percent today. A quarter-blood quantum plus parental residence at birth less than five percent. One-eighth blood quantum, one sixteenth -- there are other criteria involved but the percentages get much, much less. They are getting rare. So while there's enormous diversity out there, there are dominate patterns and these are the things you see. What's the pattern of change, emerging trends? Reducing blood quantum, everyone's wrestling with the intermarriage question. If my nation requires one-half blood quantum, it's not going to take more than a generation or two before my children -- unless I marry someone else who is also a citizen of my nation by that criterion, or ideally someone who's full blood -- before I can't enroll in my own children in my nation.

I was talking to an Apache...a citizen of one of the Apache nations the other day and he was saying, 'My children are Apache, but I married outside the White Mountain Apache Tribe.' I can't remember whether it was Jicarilla or San Carlos Apache or who, married another Apache but not of that tribe, and as a result, he said, 'My kids can't be enrolled in my nation. They're as Apache as I am.' That's the result of this intrusion, this creation of boundaries that slashed their way right across peoples and said, 'Okay, you've got to set some criteria and then you've got to abide by them,' and now a lot of tribes are reducing blood quantum because as the generations pass they're starting to disappear so you've got to reduce the blood quantum in order to keep people within the boundary. Replacing blood quantum with lineal descent -- that's happening at a lot of places. From tribal blood to Indian blood, that is, we require Indian blood but not necessarily tribal blood. Growing attention to off-reservation representation and how you keep people not only as citizens, but engaged as citizens off reservation.

I don't know how many of you are familiar with the Citizen Potawatomi Nation's council. They recently redid their constitution. Any citizen, enrolled Citizen Potawatomi citizen, can participate in tribal affairs whether you live in Los Angeles or in Shawnee, Oklahoma where the tribal headquarters are. Their constitution, they have I think it's a 16-seat legislature. Eight members of that legislature have to be resident in Pottawatomie County, Oklahoma and the other eight can be resident anywhere in the United States. So they do their council meetings with video screens on the wall so that the councilor in Los Angeles -- where they have an office and who was elected to the council -- can participate real-time in the debates, vote, etc. And their argument is, 'We want to keep our people part of the nation, not just by saying yes, you're a citizen, by actually engaging you in what it means to be part of the nation.'

Dual citizenship: we're also seeing some tribes saying, 'No dual citizenship.' I don't know where that one is going. Unique sets of citizenship rules, that is, Grand Traverse is breaking away from some of the general patterns and creating its own rules. And of course we're seeing some of this extremely controversial and I think extremely dangerous phenomenon of disenrollment. What we're beginning to see now in California is people who've been disenrolled demanding that the federal government step in. That's the last thing tribes need is the federal government stepping in and saying, 'Okay, we'll decide who's a citizen.' But that's what's going to happen if it keeps on because there's going to be a large enough group of disenfranchised people saying, 'Who else are we going to appeal to? We'll appeal to the feds,' and there goes some of your sovereignty because the feds say, 'Okay, we'll take over this issue.'

So those are some of the things that are going on out there. As I say, the work that Keith Richotte did is about six years old. Carole Goldberg at UCLA has done some work on this a little more recently, but it's actually very difficult to find out exactly what's happening across the country, but I think this gives you some idea of some of the things that are going on. These things have real-world effects. When you change these things, and I think this is what...for some nations, I think the move to wrestle with citizenship criteria comes from some crisis. Either we get people demanding, 'I want my children enrolled,' so okay, we better fiddle with the citizenship criteria. Or there's a court case or there's a settlement and there's fighting over the benefits of the settlement or something like that. And very often, councils are under pressure to launch some kind of rethink of citizenship criteria without really sitting down and saying, 'What are the consequences of this action across the board?' And of course, some of these things are obvious. I think there's a consequence on numbers, that's perhaps the most obvious one.

As you loosen criteria, the numbers potentially increase; as you tighten them, the numbers potentially decrease. Does that matter to you? It's certainly got impacts on things like tribal capacities. Excluding someone is excluding a body of knowledge, a body of experience. Incorporating someone is bringing in knowledge and experience. What impact does the change in citizenship criteria have on your nation's capacity to do the things it wants to do? Political influence may be affected by this and not just by numbers, but in a sense you're...how you're viewed by outsiders may be affected by changes that you make in citizenship. The defense of sovereignty -- that's part of the disenrollment issue. What impact is this likely to have if we spin out the consequences of action? What impact is this going to have down the road on our ability to control what may be one of the most important aspects of nationhood, defining who we are? That should always be in your hands, not in someone else's, but you may take actions that make it harder to defend that sovereignty.

Compliance with federal regulations: there are federal programs, for example, including programs on which some of your citizens may depend to get through the winter, to survive, to meet the needs of their kids, where the federal government imposes regulations that your citizenship criteria may come into conflict with. On the unity and social cohesion of your people, on culture, and I think on self concepts, rigid technical and legalistic criteria versus the sense in the community of what it means to be a citizen, of those things that John just talked about. And I actually think that may be the most important of all these effects: What is the impact of the decisions you make about citizenship on your people's sense of what it means to be a citizen?

John mentioned some of what's happening in New Zealand. In August, I was teaching a course at a tribal college in New Zealand and for a group of Maori working tribal professionals who are working for their tribes in New Zealand. And I was struck by the fact that a couple of people were talking about their, who I would think of as the citizens of their tribes, as beneficiaries. They were beneficiaries of settlements; settlements over land claims and claims to fish into the four shores of New Zealand. And I asked them, 'Do you all really talk about your people as beneficiaries?' And they said, 'Well, that's kind of how the New Zealand government talks about them.' And we ended up talking about, what does it mean to be part of a tribe if you think of yourself as a beneficiary? I get something. It's like listening to radio station WIIFM, What's In It For Me? I'm a beneficiary. That's a limited conception of what it means to be part of a people, and I thought a really unfortunate conception of that. We need to find a balance somewhere between citizenship as rights and benefits and about me as an individual and citizenship as obligation and contribution and participation and as an expression of this collective consciousness, this collective understanding of who you are as a people. And what you do in citizenship is going to affect both ends of that continuum, but when I heard that term 'beneficiary,' I thought, 'Well, I know where at least those few people are. They're way over at that end.' Bad place to be for the future of a people.

And I don't know how many of you know Oren Lyons. I had an interesting conversation with Oren Lyons about seven or eight years ago. Oren is a traditional faith keeper of the Onondaga and a remarkable man, one of the architects of the U.N. Declaration on Human Rights, and we were talking about this term member and Oren, I thought...He said to me, 'Tell me something.' He said, 'Are you a member of the United States? Are you a member of the State of Arizona?' He said, 'At Onondaga we're not a club. We don't have members. We're a nation. We have citizens.' And I thought that's an important change in how you think. To be a member of something, what do I get? I get the magazine, I get a discount at the store, I get all these goodies because I'm a member. But if I'm a citizen, that raises questions about what do I give, what am I part of? It's about the thing itself, the nation, rather than about this flow of benefits to me.

I think the biggest challenge is not deciding eligibility criteria. You're having to do that, you live in a political and legal context where that's demanded of you. So you have to do it and you have to be smart about it and you have to think very carefully about what the consequences are of your decisions. But I think there's a much bigger challenge in this whole area of citizenship and I call it 'creating citizens.' Do you think about what it's going to take to create the kind of citizens that your nation needs? And I think that's really a strategic question. It has to do with what kind of community or nation do you want to be 25 years from now, 50 years, seven generations, whatever the time horizon is that makes sense to your people? What kind of community do you want your grandchildren to grow up in? What kind of citizens do you want your grandchildren to be? So when I talk about creating citizens, I'm not talking about adding to the roles or increasing your numbers. I'm talking about creating that future by creating people who can live it. If you know what kind of future you want, what kind of citizens will that require? Do you know? Have you thought about that and about how you'll create those citizens? And I think of that as something that...

In the work that I, and some of my colleagues, have done, we talk a lot about nation building, or as Oren Lyons says, 'nation rebuilding,' and I actually think this business of creating citizens is a fundamental part of it and it raises this question of, do you have a plan for creating citizens? And that would include things like language, culture, ceremony. The Cherokees investing...scavenging money from tribal programs so they can get their kids into immersion classrooms where they will learn their language and creating a school system where the teaching will all be in Cherokee. That's part of creating citizens.

History: I'll use the Cherokees again because I think this was another creative thing they did. Every employee of the Cherokee Nation -- whether you're a citizen or not -- has to take a history course on the Cherokee Nation's history and the chief of the nation -- the Cherokee, they call the top guy the 'chief' -- the chief of the nation said, 'We do this because we want to be sure everyone understands what's at stake here, what we've been through, what we lost, what we kept. When you work for us, what grand purpose are you serving? So we teach our history.' That's part of creating citizens.

Tribal civics: some of you know Frank Ettawageshik from the Little Traverse Bay Bands of Odawa, and Frank talks about tribal civics. He says, 'My kids know the capitol of this state, they can tell you the major rivers in the state, but they don't know anything about tribal government. They don't know what it's about because none of our schools teach any of that stuff.' He says, 'We need a tribal civics course that teaches you why we have a government, what it does, what nationhood means. That ought to be in our school system.' That's creating citizens. What's the role of elders in creating citizens, of youth, of tribal leadership in creating citizens? And do your citizens know what citizenship actually means? Maybe that's a discussion -- which, as you go through some of these processes of rethinking citizenship -- maybe it needs to be a community discussion not about legal criteria or technical details, but about what citizenship means or what you hope it will mean 50 years down the road.

I was reminded...I was chatting with a good friend who's from one of the more traditional Pueblos in New Mexico last week and we were talking about...I had mentioned that I was going to be at this discussion of citizenship and we were actually talking about the fact that this Pueblo still practices banishment. It happens very rarely. In fact, he told me it hadn't happened in probably a dozen years but I thought it was interesting, banishment means excluding someone from the Pueblo, and I guess the legal version of it in some places today would be disenrollment, but what I thought was interesting was the discussion about what happens. Banishment doesn't have anything to do with whether you're descended from the tribal roll, it doesn't have anything to do with blood quantum in this Pueblo, it doesn't have anything to do with any of that. He said, 'The question is, can you live as a responsible citizen of our nation.' And he said, 'We have some people who engage in behavior that is unacceptable among our people and we have a process...' It's not written down. This is a nation with no written constitution, it governs in a very old way. He said, 'We have a process. You correct the person. You sit them down, you talk to them, you say, "You are not behaving the way we expect of our people," and you give them a chance to correct that. And if they continue to show that they can't do it, you do it again. You do it with elders, you do it with their relatives. You do it three times and if after three times they still demonstrate that they cannot live as a responsible part of our community, then they have to go because they're a destructive force in the community.' And he said two things I thought were interesting about that. He said, 'We can't think of a more extreme punishment because what you're saying to them is, "You can't come home again, ever." But it's not about blood quantum, it's not about descent. It's about, 'Can you participate fully and responsibly in our notion of what it means to be a citizen?' And maybe that's more the discussion that we need to be having when we talk about citizenship. Thank you very much." 

Carole Goldberg: Internal Considerations in Redefining Citizenship

Producer
Native Nations Institute
Year

Scholar Carole Goldberg discusses the internal considerations that Native nations should ponder when deciding whether and how to change their citizenship criteria.

Resource Type
Citation

Goldberg, Carole. "Internal Considerations in Redefining Citizenship." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation.

"So what are some of the things to think about from within your own community?

Well, as we’ve said many times already in this brief amount of time this morning, constitutions need to have legitimacy within your community, which means they have to have continuity within the values and beliefs within your community. That’s not to say that those are static, that they never change, but there must be some organic sense that this reflects our community. So what does your community understand to be the expectation for someone to belong to that community? There’s a lot that’s been written by people in my academic world about whether kinship and descendants and blood quantum are new constructs for tribal citizenship that don’t really fit historical ways of understanding, of belonging for tribal communities. And they point to the fact that hundreds of years ago individuals who were not biologically related to members of a community might be incorporated through a variety of means -- through marriage, through captivity in warfare, through political alliances. For a lot of reasons people might be brought into a community even though they’re not biologically related. So why should native nations today care about descendants?

Well, I think there is an argument to be made that kinship has always been a fundamental component of belonging in tribal communities and how outsiders were viewed 200 or 300 years ago may not be the same way that outsiders would be viewed today. There is not the same concern 200 or 300 years ago about being overwhelmed by a population of immigrant colonizers from across the ocean. That wasn’t an issue 200 or 300 years ago and so maintaining some expectation of kinship may very well accord with foundational beliefs in a community. How that kinship is understood is going to vary from place to place, blood quantum may or may not capture that, but the idea that kinship matters I think is something to be considered from an internal perspective.

At the same time, another important consideration is going to be maintaining numbers, I suggest, and maximizing political impact. So I’ve worked with a number of native nations, and you heard from some even earlier today, who were concerned about reductions in their citizenship numbers over time if they maintain very high percentage descendance requirements.

One interesting example is the Otoe Missouria of Oklahoma, who just a few years ago reduced their percentage descendance requirement from one-fourth to one-eighth. And here’s what their leaders had to say. They said that, ‘Before the change there were about 1,400 enrolled members and only 129 of them were below the age of 18.’ Today, since they changed their requirements there are over 2,500 members, 479 of those are minors and what the chair said at that time, this was announced two years ago, is that, ‘The future of the tribe is more secure both physically and financially.’ The chair noted that a majority of the departments and services offered through the tribes are funded by grants and the higher the number of tribal members served by the grant, it means that the grant funding is generally higher. So there are many political, financial and other reasons. The chair also said, ‘Our tribe has gotten younger. A majority of our new members are younger people. This ensures a strong future for the Otoe Missouria Tribe. With a larger membership we should be able to obtain additional funds from government agencies and maintain and pass on strong traditional values to the growing tribal membership.’ So this was some of the thinking behind increasing the numbers by decreasing descendants’ requirements.

At the same time, Native nations have been concerned that if they expand their citizenship numbers too greatly, they may jeopardize cultural cohesion and they may be jeopardizing those who have shown their loyalty over time by maintaining affiliation. How do you at the same time sustain your numbers over time and at the same time not disburse your citizenship so widely that you lose connection to your home community. You saw from the depiction of the Citizen Potawatomi Nation, with their 27,000, how widespread their population is. How do you ensure that you don’t have a citizenship so large that the people are not vested in protecting their land and their home community? So that’s another issue to consider. And protecting the tribal land base is going to be very important, because if you have lots and lots of citizens who do not reside or feel a connection to that land base, you may very well be in a position where the majority of your citizens are willing to see it despoiled because it will provide benefits to folks who are not present. And that is a danger that one must anticipate in thinking about the design of citizenship and related provisions.

Do you want to secure future generations? What I’ve heard so often in working with Native nations on their citizenship provisions is they want to make sure that their future generations are not left out, that they are able to pass on that tradition and culture and they are able to pass on that sense of belonging. And finally, I want to make sure that I mention, because I’m a lawyer, sorry, that you want citizenship provisions that are not going to be too complicated. You want ones that are not going to turn into huge arguments over time about what they mean.

Okay. So the last thing I’m going to talk about before I let you move onto the next presentation is what are some of the design options that you can be thinking about to try to balance some of these, especially these internal considerations, because sometimes they point in opposing directions and you have to be able to accommodate them. So one thing to be keeping in mind is that citizenship and voting provisions can be considered to some degree on separate tracks. You have to be very careful that you not have classes of citizens. We all know that there  until 1919 women were citizens of the United States, but they could not vote. And certainly those in the 18- to 21-year-old range who were being drafted in Vietnam were pretty unhappy that although they were citizens they could not vote on whether they were even going to be involved in a war. So that there is a powerful force that moves towards the convergence of citizenship and voting, but still there are ways to design voting provisions so that you can both expand numbers and at the same time protect your core community and land.

So one of the ways you could do it is you could say, ‘Fine, everybody who’s a citizen can vote, but you must be living in the tribal community in order to have voting privileges.’ In other words, anybody is entitled to come and live there so anybody who makes that choice can be a voting member. That way you can be ensured that those who actually make the decisions are the ones who are invested in that community. Or you could simply say, ‘No absentee voting,’ meaning that you have to really care about this community in order to vote and make the journey. 'Come on voting day, but we will not let you sit in the comfort of your home in Anchorage and vote for what’s going to happen in Citizen Potawatomi.' Or what you could do is what Citizen Potawatomi and Cherokee Nation have done, both of them places with large off reservation populations, and in the case of Cherokee Nation even contested whether there is a reservation, and what they’ve said is, ‘We are going to structure our voting by districts. There will be districts within our territory and then we will construct districts outside our territory that will not have an equal voice, but they will have a voice.’ So the Cherokee Nation actually created a bunch of districts within their territory and then they said, ‘There is a separate voting district that will elect a representative for the off-reservation Cherokees.’ And that way they are not excluded, but they are not given overwhelming influence. Two other suggestions for design that can help you start to accommodate some of these considerations. One is the idea of the right of return and this idea is the idea that anyone who is a lineal descendant would have special privileges to become a citizen if they so chose. So they would have to make an active effort. They would not automatically as a lineal descendant be a citizen, but they would have to make the affirmative effort to affiliate and if they did they would be allowed to do so. It’s not that they would have to be subject to someone else’s decision about it, but they would still have to make the active choice. That way you can ensure that there is some real connection that that person has to the community.

And finally, you can think about doing what Fort Peck did back in the 1980s. They created a category that they called associate members and these were people who were given the belonging to the community because they had members by their title, but it was specifically presented that they would not be voting members and they would not be entitled to the distribution of tribal assets. So these were folks who had a lesser percentage of descendance or blood quantum, but they still were descendants of the nation. They just didn’t qualify for the percentage required under their constitution.

What I want to emphasize is that there are a lot of choices available, in theory. That doesn’t mean that all of these choices are available just because they sound intriguing. You have the hard work, the hard work of political process and I’ve worked with communities that have tried to develop consensus on what should be the criteria for belonging. It’s not easy."

John "Rocky" Barrett: Constitutional Reform and the Citizen Potawatomi Nation's Path to Self-Determination

Producer
Native Nations Institute
Year

In this wide-ranging interview with NNI's Ian Record, longtime chairman John "Rocky" Barrett of the Citizen Potwatomi Nation provides a rich history of CPN's long, difficult governance odyssey, and the tremendous strides that the nation has made socially, economically, politically, and culturally since it began reclaiming and reforming its governance system back in the 1980s. He also shares his and his nation's working philosophy when it comes to economic diversification and the building of a self-determined, sustainable economy.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "Constitutional Reform and the Citizen Potawatomi Nation's Path to Self-Determination." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. March 28, 2009. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program I am honored to welcome John "Rocky" Barrett, Chairman of the Citizen Potawatomi Nation. Chairman Barrett has served as an elected official of his nation since 1971, serving first as vice chairman and then becoming chairman in 1985. During Chairman Barrett's tenure, the Citizen Potawatomi Nation has experienced tremendous growth. With about 2,000 employees, the Potawatomi Nation is the largest employer in the Shawnee area and is a major contributor to the economic well-being of Potawatomi County. He was instrumental in the creation and adoption of the Citizen Potawatomi Nation's current constitution and statutes, which have provided the foundations for the nation's extended period of stability and progress. Chairman Barrett, thank you for joining us today."

John "Rocky" Barrett:

"Thank you for having me, Ian."

Ian Record:

"Well, I've introduced you, but if you'd please take a minute or so and just introduce yourself."

John "Rocky" Barrett:

"Well, as you said, I'm John Barrett, Rocky Barrett. That's a nickname my parents gave me at birth. My Potawatomi name is '[Potawatomi language].' It means ‘he leads them home.' I am a lifelong-almost resident of the area where our tribal headquarters is located, and have been on the Native Nations Institute Board [International Advisory Council] for I guess six years now. But it's an honor to be here. Thank you."

Ian Record:

"Well, thank you. My first question is the same first question that I ask of all of our guests, which is what is Native nation building, what does it entail?"

John "Rocky" Barrett:

"There was an interesting perspective that we heard on...from a number of tribal leaders today. It appears that the... for Native nations in general, that answer is as broad as the spectrum of individual tribal needs and wants, the way the tribes meet the needs of their people and their cultures. There are some commonalities. The common struggle of how we overcame the internal structural deficits that were imposed on us by the constitutional forms that the Oklahoma Indian Welfare Act, the Indian Reorganization Act gave all of the tribes around the country and the imposition of this quasi-corporate structure and the creation of these council authorities that didn't give a separation of powers -- how we overcame that, how we overcame the opposition of the states in asserting governmental authority and how we've...really how we've overcome the resistance of the free enterprise system in developing our assets have been...I think those are commonalities. The common attributes I think of successful nation building are stable governments, expanded representation, lawful behavior, and something that lends itself to consistent performance. All of those go back to constitutional forms, but they also...those are really accomplished by diminishing nepotism, which is...since everyone is related in an Indian tribe, that is an issue. Financial accountability is a huge one. Separation of powers seems to be a common attribute, and most importantly to make all that fall within a cultural relevance that means something to the culture of the tribe and the people."

Ian Record:

"A tribal leader...a fellow tribal leader of yours once said that the 'best defense of sovereignty is to exercise it effectively.' Can you comment on that statement based on your own experience?"

John "Rocky" Barrett:

"I will never forget the night that F. Browning Pipestem, a fairly famous figure from Oklahoma in promulgating the concept of Indian sovereignty and fighting for the sovereignty rights of Indian tribes, and William Rice, who's an attorney, who's a law professor at the University of Tulsa, gave a speech to our tribal government late one night back in 1983, and it was as if a light bulb went off, because [of] the idea that the exercise of sovereignty is what makes one sovereign. Browning ended up explaining it to several people that if it walks like a duck and talks like a duck, it is a duck. The business of the exercise of sovereignty...one hears too often this phrase, ‘We don't have to live up to our responsibilities or our contractual responsibilities because we're a sovereign and can't be sued.' Equally balanced with the responsibilities...or the authorities of sovereignty are the responsibilities of sovereignty. Our exercise of sovereignty really was a chain of events, I think, for our tribe and the concept of tribal sovereignty has certainly been interpreted differently in every single tribal environment. Our...the first opposition in my first election as chairman -- because I ran on this concept of tribal sovereignty in 1985 -- my opponent sent a letter to our congressional delegation in Washington saying that we don't want to be sovereign, we're citizens of the United States, which is completely outside of the point and displayed a clear misunderstanding of what sovereignty means or the historical context of pre-constitutional entities that were in place as functional governments before there was the United States and certainly before there was a State of Oklahoma."

Ian Record:

"How can leaders -- you've been through the ringer as a tribal chairman for more than 20 years now -- how can leaders manage the often overwhelming pressures that they face, things like citizen's expectations -- that's kind of the ever-present challenge -- social ills, onrushing events, never enough resources to do everything that you want to do. Then you have the other jurisdictions like the feds, the state, etc., and then you've got this big thing looming ahead of you, which is called the nation's future. How do you...how can leaders manage all those often overwhelming pressures in order to lead effectively?"

John "Rocky" Barrett:

"Of course everyone has a style of leadership and certainly every culture demands a certain pattern of behavior. Our tribe has a very unique history, having been relocated three times and then being subjected to a tremendous number of disincentives to stay on the reservation; the 1950s urban relocation program, the effects of the Dust Bowl days in Oklahoma, the fact that the area in which our reservation is located was...in the 1920s and ‘30s was an oil boom area and when the California oil boom happened a number of our people moved west for that purpose. Quite a number of things that caused our current population distribution to happen and leadership...I think leadership can lead to challenges of office and they're both internal and external. The only real way to meet that is by building a competent and professional management structure and then direct it with a clearly articulated plan of action and goals. And then I think any tribal leader, once you get that done, you should use all of the authorities of your office to protect that organization from...what happens with most tribes is that someone comes in whose objective is personal gain, and I think protecting the organization from people who have that agenda rather than the agenda of the greater good of the tribe. The other is to praise those that have a diligent work ethic and most of all I think to persevere in the face of adversity because it's a fairly...it is a constant that you will hear more from those who either have problems or oppose you for a number of other reasons. What's interesting in Indian tribes, the political oppositions are generational. Some of the folks who don't vote for me or don't care for me were folks who did not vote for or care for my two uncles that were tribal chairmen, my grandfather who was on the business committee, my great-grandfather who was the tribal chairman. I think that, unfortunately, there are some of those generational enmities that are there and there are those that believe that during that period of time when we had a very, very small group of people who exerted an undue amount of influence on the tribe's government because of the form of government when we had to govern by meeting in Shawnee, Oklahoma, and all elections and other decisions were made in that meeting, before we extended the absentee ballot privilege and allowed representation in a national legislative forum, that small group of people who exerted an undue amount of influence on the process of the tribe who were deprived of that undue influence, they are the ones who currently oppose whatever progress is being made. Some of that's human nature, it's understandable. I think our tribe in the...we had to make some extraordinary efforts to bring our people back into involvement in the tribal government because we had some extraordinary historical events that dispersed our people and there was a detachment from the tribal culture. We have 27,000 members. Nine thousand, basically, of them, 9,500 are in Oklahoma. The remaining are in eight sort of enclaves around the United States in California, in Kansas and well, here in Arizona there are about 1,500 in this immediate area, where there are these groups of folks who have been two and three generations removed from Oklahoma, bringing them back into the culture and making the tribal government something of value to those people that would make them or make them want to reassert their culture, become a part of it. The tribe has to make itself of value to its people and to accomplish that you have to reach them first. And so this structure of government that we have now and that we have been evolving into since 1985 is unique in that it was...that was required because of this distribution of people of where our membership is located."

Ian Record:

"One of the things I'm drawing from your answer to the last question is this issue of leaders as educators, that a major part of a leader's job is to educate and engage their people to essentially mobilize them, to get their input, to get them engaged in where the nation is heading as a nation."

John "Rocky" Barrett:

"Yeah, very much so. I haven't thought of myself as an educator, but as a motivator or of getting someone involved with the tribe. There seem to be two distinct kinds of rewards that our membership seeks: those who don't have physical needs that need health aid or need assistance with housing or education or some other form of assistance. Those are the folks who are most rewarded by the cultural aspect of the tribe, that go to the trouble to learn the language, to learn ceremony, to get their tribal name, to involve themselves in that culture that was a part of their heritage. Our tribe doesn't have a religious elite. Everyone in our tribe is enabled to perform any ceremony that we use because those ceremonies are their individual birthright and so because of that...and we have a long, over 300-year Christian tradition and the tradition of using our traditional ways, particularly a prayer...in our Christian prayers of using [Potawatomi language] and the using of sweet grass and cedar and sage and tobacco in those ceremonies that...those folks that seem to be most rewarded are those that rediscover the culture. The two often go hand in hand, someone who is helped by the tribe financially or physically often at that point is attracted by the culture of the tribe and begins to realize the value of, if nothing else, learning it so they can pass it on to their children. The system of meetings -- that we've been holding now since 1985 -- around the country are half cultural and half the business of the tribe. And watching people's attention in the audience, the cultural things seem to always generate more interest."

Ian Record:

"As I mentioned in the introduction, you first came into elected office in 1971, which is, by coincidence, the year I was born."

John "Rocky" Barrett:

"Ouch!"

Ian Record:

"Yeah. But I was curious to learn from you what you wish you knew...what you know now that you wish you knew before you took office in the first place?"

John "Rocky" Barrett:

"Well, hindsight's always 20/20. I think from the perspective of the '70s, the early understanding of...I'd like to say that I had these revelations in '71, '72, '73 of what was going to become of Indian...this was prior to the passage of the Indian Self-Determination Act. I was a 26-year-old vice chairman, my uncle was the chairman and he was -- along with my mother -- was an agency kid. My grandfather was the tribal...I mean, was the BIA [Bureau of Indian Affairs] marshal, the BIA police, and they lived at the agency across the street from where the tribal headquarters was and grew up as 'BIA kids' and my uncle believed, God bless him, but he believed that one could not have a formal meeting of the tribal government without the agency superintendent in attendance and that's what formalized the meeting. And I remember not finding the relevance in having the superintendent there because I had seen a number of instances where the superintendent's interests ran counter to those of the tribe and it was a period of time where...my realization that there was a...the Bureau was asking us to give them advice on the agency budget and then when we would, they would ignore us as far as the advice. And there were, almost at every stop, there was some deliberate statement of policy that the United States government and the Bureau of Indian Affairs job was to represent the interests of individual Indians and not tribes or tribal governments. And that had certainly been manifested almost entirely in the 1948 Indian Claims Commission settlements and it had forced us into a situation of closing our rolls in 1962 except for some arbitrary blood degree cut-off. The concept of blood degree was foreign to our culture and we did away with blood-degree determinations in constitutional amendments in the mid-1980s, but that period of time between '62 and '80 disenfranchised an awful lot of people and led to, on the whole, a great deal of the separation that the people felt from the tribe and its culture. It became all about splitting up this 'poof money' that was coming from the government, these little payments, and less about the fact that here we are a people with its own language and art and history and culture and territory and government that had been there for thousands of years, and suddenly we place these arbitrary stops in our system over a $450 check. In retrospect, it seems insane, and it was, just real truthfully it was. And Indian tribes around the country got caught up in this per capita business that is foreign...I know it's foreign to our culture, and I think it's foreign to most Indian tribal cultures. The very basis of tribal culture is uniting with a common purpose for the general good, and that doesn't mean cutting up everything into equally-sized pieces. Our tradition has always been those in need get served first, the mothers, the children, the elders, those people who are most needy are who are served. That has always been our tradition. The concept of...we had a [Potawatomi language], the word means ‘first hunter.' We had a man, who if there was a prolonged winter in the ancient days, who was best hunter who was sent out to kill game to relieve the famine in a village and in adverse circumstances. And when he brought that game back, if there were 150 people in the village, it was not cut into 150 pieces, it was distributed according to those who were most in need. That tradition hasn't changed. Earlier you mentioned a saying that we have adopted in our tribe about ‘don't eat the seed corn' as being our oldest tradition, and in our gaming establishments the cast iron railings around the balcony and in several other forms of symbolism are corn plants to represent that concept, that if you eat the seed corn you'll get one meal, but the village will starve because we won't have the crops in the future. And I think of all the things...of the two things that probably have led to the economic success and the governmental successes of the tribe has been that I have been empowered by the people of the tribe to take, as a first priority, to return our investment and to perform as a profitable business and an efficient governmental entity and take those returns and provide services. If the objective of our business is to employ unemployed Potawatomis or unemployable Potawatomis, without paying attention to whether or not that is a profitable behavior, what we've effectively done -- since 9,000 of us live in Oklahoma where they could get the jobs and two thirds of the population, another 18,000 live outside the state -- we have deprived the two-thirds of our population of the benefits of our revenues. So we can't make it about the one third who lives in Oklahoma. In order to make an equal distribution, you have to make the businesses operate at a profit, then invest those businesses, invest those monies wisely and then make a distribution according to need of the services. Always in every election, someone runs for office saying, ‘Let's take a portion of the money and hand it out as a per cap.' I mean, we have...I have an opponent in this election who's saying, ‘Set aside a third of the money of the earnings of the tribe and put it in some form of investment.' Well, we're already doing that, but the benefits that the individual tribal members are receiving now are in the form of some 2,000 college scholarships a year...a semester, the distribution of free pharmaceuticals for everyone in the tribe over 62, a burial benefit, health aids benefits, mortgage assistance. All of those things more than exceed what would be our total net profit divided by 27,000. Take any number and divide by 27,000 and then make it taxable -- which distributions are taxable on federal income taxes -- it's not a significant number. So much more can be accomplished by reinvestment, of putting that seed corn back in the ground, than can be in this distribution game because...I made, earlier I made a statement that per capita payments from tribal income are like feeding the bears at Yellowstone. When you run out of cookies, then the bears start to eat the people who are handing out the cookies. They're in the car with you. That's the same thing with per capita payments, it's a slippery slope. When 10 percent's not enough, if the revenues go down, then 12, then 15, then 20 then on up to where the consensus becomes, ‘Let's sell it all and send us a check and be done with it.' It has been a curse around Indian Country what's happened with per capita payments because it has not generated prosperity anywhere that I know of. It's been mostly about creating unemployment and destabilizing families and in many cases keeping people with an incentive to stay poor and stay in dire circumstances. We have become what we have become, because we've come a long way -- starting out in 1973 we had $550 in the bank and we had two-and-a-half acres of land held in common. We basically didn't have anything. We didn't even own the building in which the tribe was meeting. It belonged to the Bureau of Indian Affairs and was an abandoned structure that had belonged to the [Army] Corp of Engineers as a construction shack. We've come from that to the current economic impact of some close to $400 million in the local community, a couple thousand employees, and we've come to that simply by reinvestment and by leveraging the assets that we have into growth. It's certainly not all me. There has been...there have been a great number of contributors in the tribal government and an incredible cadre of loyal employees who have performed well. But the key to this is the tribe's consent to reinvest and if that consent somehow gets overridden by some folks who can't divide by 27,000, it would be a shame."

Ian Record:

"So that credo of reinvestment, is that something that could have ever taken place, taken root with the Bureau of Indian Affairs still in the driver's seat? You made reference to the early years."

John "Rocky" Barrett:

"The Bureau of Indian Affairs, after the trust fund payment was made, the '48 Indian Claims Commission payment was made, they managed our money for about 15 years and had just over a one-and-a-half percent return. I used to be able to pick up the Wall Street Journal and if I read about some financial scandal around the country, I could be absolutely certain that's where the Bureau had invested the Citizen Potawatomi's money. They had a legal obligation to earn at least treasury bill rate and they did not meet that legal obligation. And then Congress passed a law that said we could take those monies away from the Bureau of Indian Affairs, those of us that were part of the Cobell suit, suing the government for mismanaging the money and we did so. Intriguingly, about that piece of federal legislation involved several hundred tribes that are suing the government, only two have taken their money away from these inept investors, which I really don't understand. We put our money into a trust account at the First National Bank and Trust Company, which is the tribe's nationally chartered bank and invested a substantial portion of it in the stock of that bank, which we've had overall more than 20 percent return on that original investment each year for some 20 years or 18 years. Actually it's been more like 15 years because of the period of time that the Bureau had our money. It has been certainly a higher return than the Bureau got. The Bureau of Indian Affairs, as far as the attempts that we've made to get just some very small incremental gains in creating...you always hear the catch phrase, ‘the level playing field,' the criticism that comes from the ultra conservative side of the free enterprise system is that because Indian tribes don't pay taxes, it's not a level playing field. If you were truly going to level the playing field, then Indian tribes should be allowed to leverage their capital expenditures. We are the only corporate entities in the United States who make investments in capital assets: hospitals, office buildings, casinos, grocery stores and those assets can't be used for collateral to borrow money to expand. We're essentially cash operators because the trustees...solely because the trustee, the Bureau of Indian Affairs, will not tell a lender that, ‘We will on your behalf -- in the event of a default -- allow you to operate that business or take control of that piece of property.' And that doesn't require a change in law, it requires a change in policy at the BIA and is not, doesn't seem to be, after some five years of lobbying for it, a policy that is something the Bureau of Indian Affairs intends to change. If the Obama administration did anything else to increase the availability of capital to Indian Country, to increase the availability of collateral to lenders in Indian Country and to help Indian tribes leverage their existing assets, it would be to simply call up the Secretary of the Interior and say, ‘Tell whoever you have this week in charge of the Bureau of Indian Affairs to say to any lender in Indian Country, if the tribe defaults,' and there are appropriate documentation, ‘the tribe defaults, you can come in and run that business until you're paid back.' Simple. You would think it would be easy, but we can't seem to get that done. The other issue is of all the non-profit entities in the United States who...we are a tax-exempt entity. Of all the tax-exempt entities, 501c3 corporations can own Sub S entities [Subchapter S corporations] where the tax liability generated is passed through to the stockholders, except Indian tribes. We need the ability with our tribal corporations to create Sub S entities so that if we do a deal with the city, for instance, in building a sewer line or a water line and we don't want to expose ourselves to the vagaries of the state courts and the state doesn't want to expose themselves to tribal courts -- it's kind of like that Jimmy Buffet song about the ‘down in the Banana Republics,' they know they can't trust us and we know we can't trust them thing. At any rate, if we had this Sub S corporation, then we could consent to state court jurisdiction because we could limit our exposure to that contract with this Sub S entity and you don't have some avaricious lawyer getting through to the tribal treasury because it's...he's a tort claims wizard. The other, the third one is the only government contractors in the United States who do not have the power to use their government contract for collateral for operating funds are Indian tribes. The Assignment of Claims Act is being denied to Indian tribes on the flimsiest of reasons. And those three things would generate more capital than all of this impact money that the administration is putting in Indian Country now, just those three changes and I hope that happens."

Ian Record:

"It essentially sounds to me like it's about taking the shackles off of economic development for tribes."

John "Rocky" Barrett:

"A level playing field, to borrow a phrase."

Ian Record:

"You've been quoted as saying in the past that, ‘if you're not talking constitutional reform, you're not in the economic development ballgame.' Can you explain what you mean by that statement and particularly with respect to the path that your nation took?"

John "Rocky" Barrett:

"The Oklahoma Indian Welfare Act of 1936 gave every tribe in Oklahoma a constitution that described this business committee, which was a governmental entity that was supposed to be a representative body that had a presiding officer called the chairman, vice chairman, secretary, treasurer and two other members. And then over that, it put this thing called the general council, which I assume someone in Washington dreamed up this ideal picture of all of the Potawatomis gathered around the campfire and we'd democratically go from person to person and everyone voices their opinion and then there is this consensus, which is not how organizations work. Pure democracy hasn't functioned since ancient Greece, and the imposition of this thing called the general council on us caused us to reinvent the wheel every 12 months. The quorum for a general council meeting -- at which everything can be decided virtually, elect all officers, all rules, disposition of property, everything that was basically a tribal decision could be decided at this annual meeting -- and it had a quorum of 50 people. Now there were 11,000 of us on the tribal roll at the time that I took office and a quorum of 50, we had difficulty getting a quorum of 50 because the meeting over the years had become...we didn't have much business, we didn't have any money, we didn't have anything else going, but we did manage because of our unique natures to turn that into a six- or seven-hour adversarial conflict. And over the years, it had become so confrontational that the elders quit coming and there were so few people attending that basically 26 could decide for all 11,000. And to borrow a [H.L.] Mencken phrase, ‘It was the circus being run from inside the monkey cage.' It wasn't about government; it wasn't even like government. We didn't have laws, we didn't have a court, we didn't have anything other than this meeting and it was contrary to our culture. Our tribe had governed itself for thousands of years by having the clan heads elected a village chief, the village chiefs all met to elect an overall leader, who was there circumstantially. If we had a war, then the best tactician or the best leader was chosen. If there was a negotiation with a foreign government, the person who spoke that language obviously was one of the higher choices for that circumstantial leader and then those individual leaders went back to their respective villages or jurisdictions. We've always had a tradition of representative government. The imposition of this general council on all of the 39 tribes in Oklahoma led to a constant turnover of government, a constant system of chaos, it held us back for many, many years, and it was tremendously abused and it gave an undue amount of weight to those folks who lived there locally after the Bureau of Indian Affairs and circumstances had provided all these disincentives to leave. The policy of the government to erode our trust land base, in particular, incredibly erode our trust land base, caused most of our people to leave the area or to not participate. And that form of government stayed with us until 1985, and until we made that change in our constitution, we didn't get much accomplished. It was self-defeating and it gave...it also gave people who had another agenda an undue amount of influence within the council. Also the...not having in our constitution independently elected courts and a set of statutes and the ability to enforce the law on this end, and an independently elected executive where the money of the tribe is concentrated in the legislative appropriations process, but the legislative body can't run the day-to-day affairs of the tribe, they control the budget, and then the executive who has the authority to run the day-to-day affairs of the tribe, but have to do it within the confines of that budget. And then over here, the third party is an independently elected judiciary with a set of statutes and the ability to enforce the law. A government without law and the willingness to enforce that law isn't really a government. That's the ultimate act of sovereignty is not only enforcing the law, but be willing as a people to put themselves under the rule of law is the ultimate act of sovereignty. We didn't have any of that in our prior constitutions and I think any tribe that doesn't do that, even though...and I think if they look hard enough, it is within their traditional forum. There has always been some form of law in Indian tribes, in any social structure, but particularly in Indian tribes. Incorporating that traditional law into your statutory law is important, but the absence of law is not more traditional than a set of written statutes by anyone's interpretation."

Ian Record:

"So for your nation it wasn't just about economic development, constitutional reform was about, 'we need to put in place a process and a structure by which we can make effective, efficient decisions that are binding'?"

John "Rocky" Barrett:

"Absolutely, that we assume the responsibilities of sovereignty, that we have uniform commercial code, that we have a full faith and credit agreement with the states in which we do business, that we acknowledge that contractual obligations are enforceable under our law. That's responsible behavior in the community of governments of all kinds, not just Indian tribes. We didn't have any of that in our prior forms of government and the federal government fought us for three years before our first constitutional reform in 1985, particularly the issue of allowing our tribal membership to vote by absentee ballot, which is the worst kind of self-defeating behavior the Bureau could have imposed. And then when we came along and wanted the separation of powers within the tribal government, we wanted this newly formed legislative body. They resisted at almost every point. What a shame that it didn't happen sooner. Of all the things I regret in being in office for many years, in 1985 when we passed the new constitution, we created a separation of powers and it gave the chairman specific authority to run the day to day affairs of the tribe, it gave the legislature the authority to exclusively manage the money and the budget process and created the courts. At the time, I had been in office for quite some time and used to having this five-member body where if you were any good you governed by consensus, you tried to find something on which everyone in that group of five appointed, which they could agree. And so you became accustomed to rather than asserting executive authority to putting the things that were clearly executive decisions in front of this body and depending on your powers of persuasion. In 1985, I should have made a clear-cut definition of, ‘These are executive authorities and they're not subject to review of the legislative body and these are clear cut legislative authorities and they are not subject to the powers of the chairman.' In 1985, the day that passed, I should have made that absolutely clear, but in the interest of not changing the way we had done things for a very long time, I rocked along and didn't do that. And so when the constitutional revision came for the most recent constitutional revision, we weren't prepared for what was the inevitable constitutional confrontation where the majority of the business committee would usurp authorities that were obviously executive powers or attempt to. In this case, they attempted to simply fire me and say, ‘You're still the chairman, but you can't run the tribe. We're going to run the tribe based on the majority of three of us of the five, our majority decisions, we're going to make all the calls, hire someone to function in your place and pay them a salary.' And that was an obvious...there it was, there's the confrontation. So luckily we did have a court system, we did take it to court and what has become the essential decision on how our tribal government functions, our courts ruled on that issue that there is a division of powers, there is a separation of powers, there are separate constitutional authorities and that was the basis for the 2007 constitution, which memorialized or I guess defined the decisions of the 2001 Supreme Court decision of the tribe. But what a wonderful thing that we did that within the processes of the tribe, within our court system rather than the confrontation or the way we used to, the confrontation on the floor of the general council where after the low blood sugar kicks in about 5:00 it comes to blows and you have ensuing chaos. We did it in a lawful manner and that being accomplished, we did it to the successful outcome of the whole distribution of powers within the government and set the stage for what we have now in the 2007 constitution."

Ian Record:

"The Citizen Potawatomi Nation recently developed what has been termed a virtual legislature. Can you explain what that is, how it works, and why your nation developed it, and I guess, we were talking a little bit earlier this morning and you made allusion to some of the challenges that you're facing with that virtual legislature."

John "Rocky" Barrett:

"Which are a part of growth. The challenges that you face in anything new, as long as they don't destroy the essential function, are often healthy. They certainly were with the '85 constitution. The 2007 constitution created a legislative body of 16, eight from inside of Oklahoma where we have approximately 9,500 members, a third of our population, but all of the tribe's territory, all of the tribe's assets, all the tribe's revenues and all of the areas of the territory over which it exerts governmental jurisdiction. And then two-thirds of our population are outside of Oklahoma where we have for a 25-year period had a form of tribal consultation that we have promised would eventually be represented in the tribal legislative body and have some input on funding and how the tribe performs its services. The concern on writing the constitution was how do you balance this territory and assets and jurisdiction with this population issue? The compromise was to put eight in the legislature from Oklahoma, eight in the legislature from outside of Oklahoma and force a deadlock if the two can't come to a meeting of the minds, and that's basically what we have. It is a mandatory compromise between the interest of the larger portion of the population and where the larger portion of the assets and revenues [is]. And that has so far for a year has worked quite well. It's a virtual legislature because we built a closed or internal teleconferencing system, a relatively expensive one, between the eight regional or district offices around the United States where these district offices are located; one in Southern California, one in Northern California, one here in Phoenix or close in Phoenix, one in St. Louis, one in Topeka, one in Arlington, Virginia and one in Houston, I'm sorry, I mean Dallas, Texas, Dallas area. Those cover the whole United States. I'm sorry, one in Oregon, Washington and Oregon. Those eight districts cover all of the 50 states of the Union in their representation and we have a nine-segment screen and I'm the presiding officer as the tribal chairman and I have a touch screen in front of me and there are nine segments of the screen, one large one is whoever has been called on by the speaker or the presiding officer that has the floor and that turns on that person's microphone. The cameras stay on all the time so you can see all eight legislators and the room in Oklahoma at the tribal capitol where all of the Oklahoma legislators sit on the bottom. So this let's each member of the district legislators see and be seen, hear and be heard on a real-time basis in the legislative body. And all of that is simulcast or streamed over the Internet so that all of our membership can watch that, potawatomi.org, for the public to watch as well. What we didn't anticipate would happen is that the live broadcast over the internet of those proceedings in a new legislative body that has not adopted a set of rules under which it governs its behavior, that a member of the legislature would take over the campaign management of his brother to run for chairman and use the auspices of his office and that broadcast to promulgate that candidacy. That's an interesting development. It will certainly lead to the legislature adopting some form of ability on how it regulates its own behavior, what is or isn't allowable behavior as a legislator and within that format. It also goes to the heart of the overlap between executive and legislative powers or authorities, whether you can use the resources of your legislative office in a campaign for tribal chairman. Certainly, the Congress is no example to follow here because every congressman involves himself in the election of the president of the United States in some way and the president goes around and poses with, in a partisan manner, with members of Congress. So the United States Congress certainly has worked that out and every state legislature seems to have that same overlap between the legislative body and the executive office of states. Ours will probably reach that same compromise, there just has to be...the decision has to be made within that body as it develops its body of rules, what resources are allowed to be used within that context. It's healthy in some ways. It's not a disruption of the political process. The only problem is with a nationwide simulcast, what's said is said over the air. So one can, is protected by legislative, under tribal statute what's said in the legislative body is protected. Theoretically, it hasn't happened, but theoretically someone could say, ‘This candidate for office is a murderer' and that goes out over the Internet and there's no one to say, ‘King's X, take that back,' but that behavior, which is clearly libelous or slanderous, is protected. So we have some rule making to do, we have some things to take care of there. The internet...as a virtual legislative body, the internet and its impact on tribal government was something I don't think any tribal leader, even the ones of the folks elected of your generation who are certainly tuned into media and most certainly not of mine, of us baby boomers, we weren't prepared to how dominant that the internet and all of its manifestations would be in tribal politics. We earlier heard an explanation by an elected tribal official how a blog of the tribal council meetings has become the dominant tool in manipulating opinion on the reservation. Isn't that an amazing thing to hear? And speaks volumes as to what's happened within the life on reservations as we become all...we're all into that...virtually, I would assume less than probably five percent of the Potawatomi Tribe, Citizen Potawatomi Nation, probably don't have computers or email addresses. Communication in that medium, campaigning in that medium, and it's something we really ought to be embracing for the way we develop our cultural outreach, the way we spread our culture, the way we engage the elders and the way we engage our young people. If we're not fully aware of and in command of this tool, we are remiss as tribal leaders because it's as important as anything we've ever done because it is the dominant media."

Ian Record:

"So just a follow-up question, the move, the constitutional amendment your nation took in creating this virtual legislature was a concerted effort to reintegrate all of Potawatomi citizens as full citizens in the nation, was it not?"

John "Rocky" Barrett:

"A distribution of power. To my knowledge of any tribal government in the United States that's ever put power back into the hands of the people in a larger way by allowing elected representation for anywhere in the continental United States, it is a passage of distribution of power back to the people in an unprecedented manner. But we'd been 25 years planning it and talking about it. It wasn't a spur of the moment thing and each of those regional council meetings had been going on for 25 years, all had a different nature, they all had a different set of families, they all had a different perspective. South Texas is certainly a lot different than Los Angeles area, different approaches to things, and we knew what we were getting into when we did it and we did it very carefully. It will be interesting to see what it looks like in five years or what it looks like in 10 years. The formal legislative process that we adopted certainly is a big change from what we had under the five member business committee. The whole concept of tribal legislative committees with specialties, the committees meet by Skype and then once a bill has passed out of committee, if it doesn't involve an appropriation, goes straight to the floor of the legislature. If it does involve an appropriation, then it goes to the appropriations subcommittee. Once all that process, formal bill process is really fleshed out, we're like I say one year into it, I think that the legislative process is going to take on a whole new nature. We operated for many, many years, since the '70s, with basically an open agenda that someone was free to introduce a subject from the floor and the chairman could or could not sponsor an ordinance or resolution to that effect and the issue was discussed and then the process of drafting those pieces of legislation that became enactments or pronouncements to the government, pretty informal process. Because we've gotten as large as we have, that has been much more formalized. To see the history of how the State of Arizona from the time of its formation how it got through...how it formed its legislative processes, how a bill goes through the state legislature -- in Oklahoma in particular, because of its unique and often bizarre history of impeaching governors and the legislature meeting outside the state capitol and the governor chasing them around with the state militia, all of those things that are uniquely Oklahoma that formed the legislative processes there, we'd still have that history to go, but I think we're off to a start. We have -- with very few exceptions we have -- the vast majority of the tribal legislative body are educated, they have experience in tribal affairs in business. They are all, with a couple of exceptions, experienced and accomplished business people, all with at least an undergraduate degree. We have one attorney, we have a member of the Oklahoma legislature who also is a member of our legislature, we have government contractors, we have really accomplished people that I'm very proud of this group of folks who are very dedicated to making it work. And the fact that we have this hiccup going on right now is...it's politics."

Ian Record:

"It's a part of growing. We have just a couple minutes left and I have one final question to ask you, which actually picks up on a theme you mentioned in your last question, which is this issue of strategic visioning and planning, essentially that the success your nation is seeing now and has seen over the past several years didn't happen overnight, that it was the result of long-term thinking, a long term focus and planning for that long-term future that the nation as a collective wanted to see for itself. Can you talk about the role that strategic visioning and planning has played, in the couple minutes we have left, in terms of your nation's economic and community development?"

John "Rocky" Barrett:

"Well, the model that's imposed on us by the very structure of Indian tribes functioning within not having a full tax authority and not having any jurisdictional authorities where you have to parallel economic business development and government side by side. The long-range vision that -- I'm certain we didn't have a crystal ball, but economic independence has always been philosophically, for our tribe -- and my deep belief -- that you leverage the resources that you have. We...first time we ever made any money, we sold cigarettes across the counter in the tribal museum because that rule came along that we could buy cigarettes without the tax on them and collect the tax. And the only available counter that we owned was in the tribal museum. So we leveraged our counter into cigarettes as well as the part of the tribal museum furniture and once we got...we had enough money from the sale of those cigarettes, we started a little bingo game in the tribal council room because that was the only room we had large enough. We leveraged that asset into enough money to build a bingo hall, a building and once that bingo hall...high-stakes bingo hall happened and we had ensuing court battles to keep, to get control of it from outside influences, but once we were in command of those revenues, then we bought the bank. We bought a failing bank from the FDIC [Federal Deposit Insurance Corporation] at the worst year in the history of American banking to date in 1989, we bought that with bingo proceeds and we had built a convenience store and we went about the business of saving that bank, of rescuing it from failure and getting in the banking business. And all of that has been leverage on existing assets. We had a piece of swamp land that the highest and best use -- we couldn't build on it -- so the highest and best use for this piece of swamp land was to make a golf course with 15 holes, the water in play, and it has become one of the premier public courses in the state. We basically leveraged assets that we had, but with the idea that each leveraged asset would at some point dovetail into a combined asset on which we leverage, and it's leverage on leverage. We did that with the Community Development Corporation and the bank, we did it with...every business we are in has been as a result of markets where we defined the market and we build that market and then we come up with a product or service to meet that market and then once that market's established, we come up with another product or service that meets that market. It's laddering, it's leveraging, it's not a unique business strategy, but it is something that...that and the idea of the service mentality that everyone who is at the Potawatomi Tribe when you are in front of your customer or constituent, you are the tribe and you should be empowered to satisfy that person. That is something that we go through, even I go through it, everyone at the tribe, all 2,000 employees every six months, go through customer service training, where that's something that we do and believe in, that our job is to represent the nation in making our customers or constituents understand that we're there to make them happy as much as we can. The old saying is first come sales, my training in school and most of my professional training and professional experience has been in marketing or sales and any business's success has to be that and on the other side we have been as a government about keeping good books, about accounting for the money, of having externally auditable transparency in financial management and avoiding personal conflict. That's a simplistic answer and it's a difficult thing to come to, but the closer a tribe gets to that, the closer they'll get to success."

Ian Record:

"Well, Rocky, I could ask you questions for days on end. There's so much more I'd like to learn, but we're out of time unfortunately. I'd like to thank you for taking the time to share your nation's story and your personal experiences with us today."

John "Rocky" Barrett:

"It's an honor. Thank you for inviting me. I appreciate the opportunity."

Ian Record:

"That's it for today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute website at www.nni.arizona.edu. Thank you for joining us. Copyright © 2009. Arizona Board of Regents."

Joseph P. Kalt: The Practical Issues of Business Development - Some Things to Consider: Dealing with Growth

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Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt offers some points that Native nations should consider as they work to manage the growth of their nation-owned enterprises.

Resource Type
Citation

Kalt, Joseph P. "The Practical Issues of Business Development - Some Things to Consider: Dealing with Growth." 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.

"Ian [Record] asked me to talk about how to handle growth and manage growth. And I thought, 'What a cool question?' Actually sit at a conference on economic development in Indian Country and the problem now is growth. How do you handle the problem that everyone's growing so fast? It's a wonderful problem to have. And it's a sign of the times that tribes are now facing the reality of dealing with the fact that their enterprises are stable and sustained and they are growing and so forth. I tried to think about what I see out on the ground in terms of dealing with growth and let me phrase it this way. I think the growth that's being experienced,  as tribes succeed in sustaining enterprises and succeed in building the environment for their own members and their own businesses -- in other words, both private and tribally-owned enterprises -- much of what is going on, and when I see it on the ground, it's like being forced through a transition. There's a little hole and a big something being forced through it and what are the transitions? Many of the transitions of growth that tribes experience in their enterprises is those enterprises really get going are really the transition issues for any business that grows rapidly. How do you keep your management up to speed, how do you keep the enthusiasm among the employees, how do you keep everybody on the same team? And so forth. But let me talk about what I see that seems sort of, if you will, new and special in Indian Country. And these are transitions that I see tribes struggling with and getting, most of them are getting through.

The first is learning what it means to do capital budgeting. For many, many tribes as tribal enterprises get going; they've started with sort of a hope. Wouldn't it be cool if this business actually survived? But the source of survival, in fact as my Hopi friend has taught me, this year's profits are next year's seed corn and the notion of doing capital budgeting for a business as opposed to a tribal program is a new arena for many tribal, the shareholders, the tribal councils, for example. It's a new arena. What does it mean to do capital budgeting? And here, I won't go into detail, but it is developing some of the things that Joan [Timeche] touched on, expecting the board to come in every October 1st or whatever date you want to pick. Here is my capital budgeting plan for the next year or the next three years. 'I need your approval and after I get your approval, you're not going to pull it back for political reasons,' and so forth. So there's a whole transition that goes on as you get particularly tribal leaders to understand that capital budgeting for an enterprise is different than just budgeting for a program. And there's the sense of course in that process in which the notion of the retention or reinvestment of capital becomes a critical aspect. Many tribal governments have run off the tribal programs where the program never makes any money, so there's never any of its own capital to reinvest in next year. But if you have a sustained enterprise, hopefully a substantial portion of the funds that enterprise has generated can in fact serve as the seed corn for going forward in the reinvestment in buying next year's round of equipment or hire the next group of laborers that you need to hire. So this transition to a notion of capital budgeting as opposed to program budgeting is a critical change that I see tribes going through.

Next I wrote down from attorneys to professional management. Many of you are probably attorneys and at least the responsible ones that I meet confess that 'we know we're in trouble when I, the attorney, am running the enterprises.' I see many, many tribes where the attorneys are, some of them don't want to give up the power, but the smart ones say, 'Thank god, we now have professional business managers,' who after their name have words like Joan's MBA as opposed to JD. It's not that attorneys are evil in the world. In fact, at the launching stages, bring an attorney with you. But that transition and getting used to this business enterprise is something we've got to take seriously. It's not just a set of legal fights, but real serious management.

Next in the transition is a transition around the issue of salaries. We deal a lot with former Harvard student Lance Morgan, CEO of Ho-Chunk Industries, which has gotten so famous for its business success. He was lecturing to my class recently and he was telling the story of salaries. When Ho Chunk, Inc. started to take off, they adopted as a board resolution of Ho-Chunk Inc. that there would be no more than a factor of three in their salaries meaning the highest-paid person wouldn't be paid more than three times the lowest-paid person. And what he said is we had to move, now I believe they're at 12-to-1, and there's a tension there and it's a real tension actually for every society. You sort of feel like, gosh, these U.S. CEOs that are making a billion dollars a year doesn't feel right. Tribes struggle with the same thing, and there's a tension there. There's just a balance point that each culture and each society has to find. Once you're running Ho-Chunk Industries from $150 million worth of private businesses essentially, they need very serious managers if they're going to be competitive in the world, both their tribal and non-members. It turns out that it's just reality that that CEO or that senior VP is going to make more money than the person who's restocking the soda machines in the hallways. And it's a tension you wish didn't exist in the world, but it's a reality that many tribes are having to deal with. I found it clever that the way Ho-Chunk handled it wasn't ad hoc. The next time we have to hire a good MBA she comes in and wants 15...they actually tried to set up policies, and they're aware that they have to modify them over time, but at least it made them focus on it as a conscious decision, so that it didn't just become ad hoc, that we're going to pay Joan 15 times more than we pay someone else. So I think the issue on salaries is important. It's just a sign of the times that these businesses are getting more successful, more professional management.

Two more categories real quickly of this transition: a very interesting one and I've seen this now occur at three or four different tribal enterprises that I've been familiar with, working with, and that's the rise of racism. This is an uncomfortable issue. Increasingly, as the tribes have gotten more powerful and successful, a number of these CEOs, tribal members have come and told me privately, 'Joe, we've got a problem with racism.' It's racism of our own tribal members against the non-Indians, and I know at least two tribal corporations that have had to have the kind of retreat and get our heads around this and start talking about the reality that we all need to be able to work together and so forth and so on. And so it's a very interesting time. It's really a sign of this increasing success and sustained professionalism, that you now have these kinds of issues arising. But it's something... and that's only one tip of a very large iceberg, because we're all aware of the racism that historically has gone the other direction. You hire the white senior manager and he doesn't trust the young Indian intern that he's supposed to be training to take his job. We know those stories, but it is a sign that one of the transitions that tribes have to be serious now that they're managing real enterprises. They've got to keep everybody happy and many of them are so large now, and many tribes as you know, all the tribal members have jobs. You have to go outside and hire non-Indians.

Two more transitions: one is the transition -- and Diane Enos said it beautifully today -- the transition to the reality that you're going to have to turn these enterprises loose to manage to one target, which is profits. It's not that profits are the end. My colleague Steve Cornell says a great line. The goal here of economic development really isn't to sort of make everybody filthy rich and drive around in Mercedes. It's actually freedom. It's to generate the revenue so the tribe as an entity has the ability to make its own decisions. We can rebuild that sewer system and not wait for the federal dollars. We can rebuild that high school tutoring system and not wait for the federal dollars. And the way you do it in a very competitive world out there is you manage for profit. That's a tough thing of course because it's very natural to say, 'But wait a minute, why do we have to manage for profit? We have different values.' But more and more tribes are saying to us, 'It's because we have those values, we need this money to get the freedom to pursue our own objectives in this society.'

Last transition and a fascinating one to me: We run -- and Mike Taylor touched on -- as you know, some of you may know we run this program called Honoring Nations recognizing best practices among tribal governments. And I was out this summer at Citizen Potawatomi in Oklahoma. And they're this great success story. In 1976, they had 2.5 acres and $550 and now they basically own Shawnee, Oklahoma. And there's no question about their sovereignty; they run everything. All Potawatomis who want a job have a job. They're hiring thousands of black and white workers from Oklahoma in both private enterprises, tribal enterprises, tribal government. And we were working there with the head of their community development corporation, a very nice blonde, white woman, obviously not Potawatomi. And I listened to her talk and the whole time I'm talking, she's talking about 'us,' and what you're watching is as tribes sustain not only the economic development, the economic development that allows them to rebuild the ball fields, to rebuild the sewer system, to rebuild the schools, you start to change the definition of citizens. And it's an interesting transition that, I see it at Mississippi Choctaw as well, everybody at Mississippi Choctaw and they're not even aware of, the non-Indians are running around with this button that says 'Mississippi Choctaw, Sovereign and Proud of It,' and they're not even aware what they're doing. It's just like, oh, yeah. And if they go to a high school basketball game and it's Mississippi Choctaw High School versus Jackson, Mississippi, all the non-Indians go sit on the Choctaw side and it's because you're watching us as humans redefine what team we're on. And for all of us, no matter what race or ethnicity we're from, somewhere in our histories we sort of got an identity as Hopi or American or Navajo or Apache, whatever it is. And what's interesting, with the growth in Indian Country and the strength is starting to redefine the word 'we,' and I know of a couple tribes now who are beginning to start to think about the reality, problem of growth, we may have to start giving people who are not Indian certain levels of citizenship rights partly because we're a good team, our schools are better than the Shawnee, Oklahoma schools, and now the non-Indian kids of our non-Indian employees want to go to our school instead of the State of Oklahoma school. And so it's a very interesting transition that's tough -- I'm not being a Pollyanna here -- but it's one of the signs of growth that like other successful nations in the world Indian nations are starting to have immigrants, immigrants who want certain rights to citizenship. And it's a sign of success, it's a healthy sign of success that you're building places where people can and want to live." 

John "Rocky" Barrett: A Sovereignty "Audit": A History of Citizen Potawatomi Nation Governance

Producer
Native Nations Institute
Year

Citizen Potawatomi Nation Chairman John "Rocky" Barrett shares the history of the Citizen Potawatomi Nation and discusses its 40-year effort to strengthen its governance system in order to achieve its goals.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "A Sovereignty 'Audit': A History of Citizen Potawatomi Nation Governance." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 11, 2012. Presentation.

"[Potawatomi language]. It's nice to see all of you emerging tribal leaders. That's wonderful. I like to think of myself as emerging, hopefully on a constant basis. I was first elected to office in 1971 as a 26-year-old whatever I was at the time. I was selected as vice chairman. I was named to finish a term and then I was...the two year terms back then. Then I was elected about seven months later for a two-year term as vice chairman. Vice chairman of what was hard to say at that time. My uncle was the chairman. My mother and her eight brothers and sisters were agency kids. We grew up...they grew up on the BIA [Bureau of Indian Affairs] Agency. My grandfather was the BIA marshal then or the tribal...or the BIA police. And so that area...I am one of the eighth generation of my family consecutively to be chairman of the tribe. Back in those days when that vacancy came up, it came up because my uncle had been named chairman because...he was the vice chairman and the chairman had gotten removed from office for carrying around the tribal checkbook in his hip pocket and writing checks to the grocery store for groceries. And we only $550 in the bank and he used about $100 of it to pay his grocery bill and the feds got him. So he was removed from office and my uncle was made chairman, which created a vacancy in the vice chairman spot and so I was named to it.

And we went over to the BIA Superintendent's office. Now you've got to understand my uncle grew up on the Agency and the BIA in 1971 was the law. And he didn't believe you could have an official meeting of the tribal government without the Agency superintendent in the room and that the minutes of our meetings were not official unless they were filed with the BIA. So we went over to see the Agency superintendent and he was going to tell the superintendent that we were going...the tribe was going to appoint me as vice chairman. Now why, I don't know. But we go in and the Agency superintendent starts trying to talk him out of it and he finishes up by saying, ‘Now the last thing I want to do is hurt you guys.' And so as we're going out the door, my uncle turns to me and says, ‘That means it's still on the list,' to hurt us.

So I got the drift about then and, but...became the vice chairman and served two terms then I became director of the inter-tribal group. The State of Oklahoma forced all of the tribes -- the federal government forced all the tribes in the ‘70s to create inter-tribal corporations that were chartered C corporations or non-profit corporations in the State of Oklahoma. The federal government would not give money to an Indian tribe back in the start of the old [President] Lyndon Johnson program days. So you had to be given to a corporate entity that was in the state. And the state even tried to take 10 percent off the top of every federal dollar that came to Oklahoma as a condition. The issue back then was whether or not tribes were responsible enough to manage the money and everyone...I was the youngest person on the business committee. I was the only high school graduate; I was one of the three out of five who could read. All of the people on the business committee were smart but they were not educated people, but they had all grown up...of course, I'm not smart enough to know how to operate this damn thing. There we go. I did a good job of that, didn't I? Side to side or up and down? Ah, okay, that was the problem I went... I killed it. No? Ah.

But the Citizen Potawatomi Nation back then was the Citizen Band of Potawatomi Indians of Oklahoma, was the name of our tribe. The 'Band' was something the BIA stuck on us in 1867, actually 1861 when we separated from the Prairie Band when we were all one tribe. We tried to get Band out of our name for almost 75-80 years after that and finally were successful. We still can't get the BIA to stop calling us that even 20 years later. But we're the Citizen Potawatomi Nation; implication being that 'Band' is not a full-blown tribe.

But what's described as this audit of sovereignty -- we weren't that smart. We didn't just all of a sudden one day decide, ‘Oh, we're going to audit our sovereignty. Where are we sovereign? And where are we not sovereign? And here's what we're going to do about it.' We weren't that smart. We really didn't know what sovereignty meant. Remember, everyone on the committee, and this includes me, we were all children of the ‘50s and the ‘60s. Primarily, except me, were children of the ‘40s and ‘50s. You've got to remember what was going on about then. 1959, Senator Arthur Vivian Watkins of Utah chaired the Interior Committee of the Senate...Interior Committee on Indian Affairs and helped shepherd through House and Senate Concurrent Resolution 108 was provided for termination of tribes. The Secretary of Agriculture, who was also from Utah at the time, in the interest of doing something good for Indians, were tremendous proponents of termination and got it done. The McCarthy hearings were on about then and anybody who held things in communal ownership was probably a communist and that included Indian tribes. Yeah. And if you were an Indian leader and you didn't like the way the federal government treated you, it wasn't that you were saying that you didn't love the government, it's when you discovered that your government didn't love you is when all of a sudden things got rough.

And this was a tough period of time and everyone on the business committee, all five of us, were all a product of when self-governance and self-determination, that was the language of termination. Self-determination and self-governance meant termination. That's what they said they were going to do. And in those days you had to prove that you were going to be too broke and too incompetent to run your own affairs to keep from being terminated. If you had a business and you had money and you were conducting your affairs in some semblance of order, then you were eligible for termination and we were on the list. Why? I don't know because we had neither pot nor window. And it was...it was absurd that all the Potawatomis got thrown in there together 'cause we were down to $550 in the bank and two-and-a-half acres of land held in common, in trust, and about 6,000 in individual allotments. We were down to nothing and they were going to terminate us. And my uncle, listening to the Choctaw chief at that time who -- remember, the Choctaw, Chickasaw, Cherokee, Creek, Seminole chiefs were appointed by the president until some 20 years after that. They were not elected. So the Choctaw chief was a big proponent of termination. He believed that was the right thing to do. My uncle didn't think that we should be terminated but didn't even really know what we were being terminated from 'cause we didn't own the building where we met. It was a trailer that the [Army] Corp of Engineers had abandoned on a piece of land that the BIA had and they were letting us use it. We were pathetic, pitiful people.

And so when they started these hearings on Indian stuff and the outcome of it was Senate Resolution 108 and the Flathead, Klamath, Menominee, Potawatomi, Turtle Mountain Chippewa and all the tribes in the State of California, New York, Florida and Texas were to be terminated. Now 108 didn't terminate them, but it authorized the termination and then the BIA started working up the list. When I said earlier that the BIA superintendent said, ‘The last thing in the world we want to do is hurt you, but it's still on the list.' So, that was the mindset of our business committee and when I took office of our tribal government. Senator Watkins had the support of Senator Robert S. Kerr, the owner of Kerr-McGee Oil Company, to date the richest man who's ever served in the United States Senate and was the most powerful man in the U.S. Senate and coined the phrase what we call a Kerrism and that's still in use in Oklahoma is that, ‘If I ain't in on it, I'm ‘agin it.' And that's how he got in the uranium business. All that saved us was we sued the government in 1948 under the Indian Claims Commission Act and that lawsuit settlement was pending and tied up in the courts and if it hadn't been for that they would have terminated us 'cause you can't terminate someone who's in court suing the government cause it looks like you're trying to get rid of them to get rid of the lawsuit and that's all that saved us.

Very quickly, we came from Newfoundland down the Saint Lawrence River 1100, 1200 mini-Ice Age, ended up in Michigan, split from the other...the Ojibwa, Odawa, Ottawa people. We were all one tribe called Anishinaabe, we came into Michigan and settled. In the war with the Iroquois over the beaver trade they drove us all the way around the lake until the French armed us and then we drove them back to the east coast. We were in refuge in Wisconsin from the Iroquois attacks when the French, John Nicolet showed up with some priests and we helped unify the Tribes of Wisconsin against the Iroquois invasion and that group was able to drive them back once armed with the French connection. The French connection through a series of alliances, primarily inter-marriages and the inter-married French and Potawatomi became the Mission Potawatomi who became the Citizen Potawatomi.

But this area was an area that we controlled quite a large area, though it didn't show up on the slide, but it was a very large area around the bottom of Lake Michigan and then because we sided with the French against the British, with the British against the colonies, we ended up under the Indian Termination or the Indian Relocation rather, Andrew Jackson's Indian Removal Act and we got marched to the Osage River Reservation in a march of death along this route and the ones that didn't die on the walk, another fourth of them died that winter. My family survived it on both sides and in 1861 after the Copperhead [U.S.] President Franklin Pierce allowed settlers to come into Kansas on top of the reservations anyway without a treaty. We were on the Kansas/Missouri border. We were part of the Underground Railroad to help hide runaway slaves and transport them up north. And so we were part of the depredations of the Civil War from Missouri, a slave state, into Kansas.

And so we ended up getting out of there, separated from the Prairie Potawatomi in 1861, sold the reservation to the Atchison-Topeka and the Santa Fe Railroad in 1867, took the cash and bought this reservation for gold south of the Canadian River from the Seminole Reservation line to what's called the Indian Meridian that divides the state in half between the North and South Canadian rivers, became our reservation that we purchased. And we took United States citizenship as a body in 1867 in order to protect the ownership of that property as a deed. We were denied access to the courts in removal from Indiana. We had lawyers hired and people trying to stop the removal from Indiana and we were part of the group that was...the ruling was that because we were not United States citizens we could not plead our case in the United States courts. And hence the name Citizen Potawatomi was to defend the purchase of this property.

We came to a place called Sacred Heart. We had the Catholic Church with us and helped them form the first Catholic university and school, settled in Sacred Heart. We had a division over the Ku Klux Klan. We had a Protestant and Catholic business committee. Of course the Klan was as strong in Oklahoma and Indiana as it was in Mississippi and Alabama and it caused a great deal of trouble. The Shawnee Agency government in Shawnee where the Indian Agency was basically after the tribe was able to heal the split, we didn't have a headquarters after we left Sacred Heart. The trailer that you see on the bottom was a...belonged to the Corp of Engineers and it set on a surplus piece of property. I want to get a little larger version of that picture because it's so much fun. Car and Driver Magazine certified the three worst cars in U.S. history were the Ford Pinto, the AMC Gremlin and the Opel Cadet, and all three of them are parked right there. First thing we did was out of the 550 bucks, we spent $100 of it on that air conditioner 'cause it was too hot to sit in this trailer. The guy who got removed for writing those checks got drunk with his brothers and came to whoop us all at the first meeting and the chairman...I mean the guy who was supposed to succeed, because I got appointed he showed up, is how I got appointed. But he showed up to become the first choice appointee and he kicked a hole in the back of it right here 'cause this was the only door to get away from the impending fist fight. But it was mostly conversation, nothing happened. But that was us in '73 on a gravel road. That was all we had.

In 1982, I had left the inter-tribal group and left tribal office and gone back to the oil field and in 1982 my grandmother whose father and grandfather and great grandfather and great-great grandfather had been chairman and my mother's father and my grandfather also on his side had been and my grandmother called me up and told me that I needed to come back and I said, ‘I've already done my piece, grandma. You've got 26 other first cousins. Why don't you get them to do it?' And I got that silent thing and she scared me to death with that so I went back out there in '82, in 1982 because I'd had the previous history in office and as running the inter-tribal group. Became the tribal administrator in '82. I served until I ran for chairman in 1985.

But in 1984 there was a set of tribal statutes that were being promulgated by a now famous Indian lawyer named Browning Pipestem, the late Browning Pipestem. Browning Pipestem and William Rice, Bill Rice, made a presentation to us. Now I was the tribal administrator. The chairman at the time had a reading disorder so the way that business went of our tribe was he would go out in the hall and his wife would read it to him and he would come back in and reconvene the meeting and we would handle that piece of business. This meeting started about 5:30. It was about 1:00 am when Browning Pipestem and William Rice finally got the opportunity to speak. Browning Pipestem was married to a Citizen Potawatomi. He was Otoe Missouri and he started the meeting off, 'cause he'd been cooling his heals out in the hallway for about five or six hours, by saying, ‘I own more land than the Potawatomi tribe. I have more trust land than you do. My children have more trust land than you do. The area over which you govern, my family owns more than you do.' Well, it was kind of an odd thing to say, but I knew Browning was...he was a riveting speaker, and I knew he was going somewhere with this and he said, ‘You guys are known up north as the shee shee Bannock,' the duck people, because we were so good with canoes. Supposedly Potawatomis invented steam bending the keel of a canoe to avoid knocking a hole in the bough on rocks on rivers. ‘You guys are called the duck people by the other tribes 'cause you got around in so much active in trade and so much commerce and you got around so well on the water.' And he said, ‘Well, here's what sovereignty is. If it walks like a duck and it talks like a duck, it's a duck most likely, and sovereignty is the exercise of sovereignty. It's not something that you get, something that you buy or something that someone gives you. It's like your skin. You had it, you are a sovereign, the United States signed treaties with you, 43 of them, all of them broken, the most of any tribe in the United States, the most treaties of any tribe. And they don't sign treaties with individuals and they don't sign treaties with oil field roughnecks. They sign treaties with other governments. You are a sovereign government with the United States and sovereign means the divine right of kings.' Well, he lost us there and he went on to say that...explaining that ‘unless you take on the vestiges of a sovereign government and exercise the authorities of a sovereign and recognize where you can exercise your sovereignty and where you cannot and what it is, then you're not. But if you do, you are.'

Well, for me the lights went on about then because the Thomas-Rogers Act constitutions in the State of Oklahoma, all the tribes in Oklahoma adopted the Oklahoma Indian Welfare Act Constitution and it basically...that was back in the days when it was the fad, we all had to be corporations. I'm the chairman of the tribe and we have a vice chairman and a secretary/treasurer and we have members of the business committee, like a board of directors of a corporation. And somehow they thought that our way...best way to govern is that we would all get together in this thing called the general council that would be the supreme governing body of the tribe and that we all got together and everyone had an equal voice, the 18-year-old had an equal voice with the 65-year-old and everyone would get together and democratically design the best thing for the tribe, which is utter nonsense. Absolutely utter nonsense. We never governed that way in our history. If you got up in my day as a young person and had something to say in council, your grandpa would and could and should grab hold of your pants and jerk you back down and apologize for the fact that you spoke at all without asking the permission of your elders.

Of course our government, because it was a meeting...now we didn't have anything, we were broke. We didn't have any land, didn't have money, we didn't have anything but we could meet in the one general council that we had annually on the hottest day of the year and the last Saturday in June at our annual general council that convened about 1:00 and we'd keep going ‘til about 7:00 when the low blood sugar kicked in and it would come to blows. And as a result of that, we couldn't get a 50-person quorum. We had an 11,000-member tribe. We couldn't get 50 people to come to council. We used to have to get in our cars and delay the start of the meeting to go around and force your cousins to get in the car so we could get a quorum so we could convene the general council meeting. No one wanted to come and I don't blame them. I didn't want to go either. If I hadn't been in office, I wouldn't have gone. It wasn't government. It turned into a bad family reunion. That's all it turned into. And so the...what happened out of that, calling that government, was the more acrimonious the meeting became, the less people wanted to come, and the less like government it was. And it wasn't a government. We weren't governing, we weren't sovereign, we weren't anything.

So first thing that came to us is, ‘We've got to change this Thomas-Rogers Act thing.' The supreme governing body of the tribe can't be a meeting, and we could call special meetings of general council with a petition and 25 people could call a petition and you could get another meeting and get 50 people there and 26 of them could change everything that the previous one did. So one family could all get together and we could back and forth have these special general councils and we could reverse this and change this and chaos, utter chaos. So we decided to redefine what the general council was, if that was to be the supreme governing body of the tribe, it had to be the electorate, it had to be the people who were eligible to vote, the adults of the tribe. And so that was the first thing we decided to do, but that evening it ended about 2:00 and we all went home.

But the next few days we started talking about, ‘What does a tribal government do? What are we supposed to be doing here? We're getting a few bucks from the government here and there to try to keep the lights on.' We had $75 a month coming in of revenue and it kept the lights on but, ‘What are we?' So we got it down to three things: the land, the law and citizenship. What land do we govern? What's a law? So it was about three years and I got elected chairman in 1985. I came back in '82, I ran for chairman in '85 and have been in office since then. We've amended our constitution five times since then. One really major one and we have been to the United States Supreme Court three times, to the 10th Circuit Court of Appeals seven times. We have been in litigation every year since 1985. We're still in litigation. I'm a lawyer's dream -- not one penny in tribute and millions for defense. That's not my saying.

When we talk about the land, how much land do we govern? Now we had that two-and-a-half acres of land that was held in common, we had about 60 acres that was in fee that was old school land and then we had about 6,000 acres of land that was held in trust that had a whole variety of heirs, very few people living on it. And you could fly over the countryside of Oklahoma on our reservation and here'd be a whole bunch of land that was all in cultivation, people making hay and raising cattle and then there's be an 80-acre piece right in the middle of it that was overgrown with blackjack trees and weeds and trash and no fences and crummy looking un-utilized piece of property and that was a Potawatomi allotment. That's how you could tell because with so many heirs no one actually owned it, no one actually used it. It was in the fourth generation of ownership of a family that was split up to where it wasn't happening. Plus the fact the government at that time, there was a big move that tribes that were allotted tribes that didn't live on Indian Reorganization Act reservations like most of you guys weren't really tribes and really didn't have a definable jurisdiction. That was before the federal definition of Indian Country.

How much land do we govern, what are our boundaries, what authority do we have over our land, can we buy more and will it become subject to the authority of our government and what's the difference between allotted land and tribal trust land? We didn't know that. We didn't know. We didn't know that allotted land was subject to the authority of the tribal government even though the only thing we had were resolutions. We didn't have statutes, we didn't have a code, we didn't have a court, we didn't have police, we didn't have the vestiges of the government, but we had resolutions. That's how we decided what to do and we could do a resolution that would have an impact on tribal trust land if you could survive the political outfall. We didn't know that. We didn't know that our boundaries where we could take land and buy the residual interests in the allotted lands was the original jurisdictional boundary of the reservation, the 900 million acres that we lost. What authority did we have over the land? We didn't know we had authority over anything. Remember, we thought we had to have permission from the Agency to meet. So it was the discovery and the inquiries that we began about what our land base was, what our boundaries were, where could we buy land and get it put into trust; we were told by the Agency superintendent that no individual could put land into trust. And the reason was that you had to be incompetent for them to put individual land into trust. And if you were smart enough to ask to get your land put into trust, you weren't incompetent. Catch 22.

The law. We didn't know we could pass a law. We were passing resolutions; we didn't know they were laws. We have a resolution, ‘We're going to meet next Friday and have a pie supper.' We didn't know that was the law. We didn't know a tribal resolution was law. When we enrolled someone, we didn't know we were behaving lawfully. We knew we had to follow the constitution. We thought the constitution was the only law we had and if it wasn't in there it didn't exist. If it wasn't in the book, in the constitution book, it didn't exist. How we enforced law. We didn't have police. The BIA had police but we didn't have police. We didn't know you could have police. We didn't have a judge for sure. The CFR courts hadn't even been invented.

In CFR, the Court of Federal Regulations, that didn't really start happening until about 1981, '80, in Oklahoma. Can we make white people obey our laws? Can white people come onto our land and shoot game? Can white people lay a pipeline right across our land and not tell us or get permission? Can they run cattle on these allotments which they were doing. Can they produce oil off of those allotments and not pay us? All of those things, we didn't know how to do that. Does the BIA, whose law...do we have any impact on the BIA, do they have to do what we say? Does the State of Oklahoma? And if we have laws is there a Bill of Rights? Can we pass a law that says that my political opponent needs to be put in jail for being a fool and is there an appeal? And worse yet, the big scary one, the word, the 800-pound gorilla in the room, the one word nobody wanted to use was can we levy taxes? Whoo hoo hoo. Taxes.

Citizenship. We knew we could amend our constitution because they told us that the only way we were going to get this payment from the 1948 Indian Claims Commission, the 80 percent of the settlement that had been tied up since 1948, in 1969 is we had to have a tribal roll and the BIA told us that the only way you could be on the tribal roll was to prove that you were 1/8th or more Citizen Potawatomi. Now the blood degrees of the Citizen Potawatomi were derivatives of one guy from the government in a log cabin in Sugar Creek, Kansas in 1861 who was told to do a census of the Potawatomi, the Prairie Potawatomi and the Citizen Potawatomi. And he told everyone that they had to appear. And as they came in the door, he assigned a blood degree based on what color their skin was in his opinion and full brothers and sisters got different blood degrees, children got more blood degree than their parents 'cause they'd been outside that summer and those were the blood degrees of the Citizen Potawatomi. There was a full-time, five-person staff at the central office of the BIA in Washington, DC, who did nothing more than Citizen Potawatomi blood-degree appeals, about 3,000 of the blood-degree appeals when I first took office. When I became chairman, it had grown to 4,000 or 5,000 and I was in the room when a guy named Joe Delaware said, ‘I have a solution to the Potawatomi blood degree problem. We'll resolve all this. The first mention in any document, church, federal government, anywhere, anyhow that mentions this Indian with a non-Potawatomi language name, he's a half.' Well, they were dunking Potawatomis and giving them Christian names in 1702, full-blooded ones. If you were dealing with the white man, you used your white name and if you were dealing with the Indians you used your Indian name, like everybody else was doing. And so it was an absurd solution. I told him, I said, ‘That's nuts. That's just crazy. You're going to get another 5,000 blood-degree appeals over this.' He said, ‘Well, that's the way it's going to be.' Well, that was the impetus for our coming back and establishing, ‘What are the conditions of citizenship?' And we stopped called our folks members like a club. They're citizens. And it finally dawned on us that being a Citizen Potawatomi Indian is not racial. It's legal and political. If they...according to the United States government, if a federally recognized Indian tribe issues you a certificate of citizenship based on rules they make, you are an American Indian, you are a member of that tribe. And you're not part one, not a leg or an ear or your nose but not the rest. You're not part Citizen Potawatomi, you're all Citizen Potawatomi. The business of blood degree was invented so that at some point that the government established tribes would breed themselves out of existence and the government wouldn't be obligated to honor their treaties anymore. That's the whole idea. That's the whole idea of blood degree and we're playing into it all over this country, now over divvying up the gaming money. But I'm not going to get into that. But the business of blood degree, the 10 largest tribes in the United States, nine of them enrolled by descendency and that includes us. We changed it from blood degree to descendency, which was the only reasonable way to do it because we had no way to tell because of this guy in the log cabin in Sugar Creek was what we had. And then we had permutations of that over the next eight generations that became even more absurd and Potawatomis had a propensity...we're only 40 families and all 31,000 of us had a tendency to marry each other. So when one Potawatomi would marry another Potawatomi, I'm not saying brothers and sisters or first cousins but when they'd marry another Potawatomi then you got into who was what and it was... And this business of the certified degree of Indian blood was ruled to be unlawful, to discriminate against American Indians in the provision of federal services based on CDIB. It's supposed to be based on tribal membership, not the BIA issuing you a certified degree of Indian blood card. A full-blooded Indian who is a member of eight different tribes, whose family comes from eight different tribes, not any white blood, would not be eligible to be enrolled in many tribes. They had absolutely no European blood, would not be eligible simply because he was enrolled in multiple tribes.

The other thing about citizenship is ‘where do we vote?' The only way you could vote in an election at Citizen Potawatomi was to show up at that stupid meeting, violent meeting, and the guys that were in office would say, ‘Okay, everybody that's for me stand up.' Well, nobody could count that was on the other side so everybody would kind of creep up a little bit so you could count. Well, they counted you 'cause you creeped up a little bit so you voted against yourself. So the incumbent would say, ‘Okay, everybody that's for this guy stand up. I won.' Well, that's not how to elect people. That's not right. Two-thirds of our population lives outside of Oklahoma, one-third of it lives in Oklahoma. Those people are as entitled to vote as anybody in the tribe, so the extension of the right to vote and how we vote and whom we vote [for] and what the qualifications of those people and the residency requirements of those, that was an issue of citizenship that we needed to determine.

So we went through a series of constitutional amendments. We redefined the general council as everyone in the tribe over 18, is the general council and that is the electorate, that's who decides all issues subject to referendum vote. Everyone in the tribe can vote by absentee ballot if they register to vote in an election. We established tribal courts that are independently elected just like the chairman and vice chairman and the members of the tribal legis...and secretary treasurer and the members of the tribal legislature and that the tribal courts have authority over all issues relating to law enforcement. We adopted a set of tribal statutes and we used the ability under the Indian Reorganization Act that we recede the authorities of the IRA in our new constitution to have a tribal corporation in addition to the tribal government, two separate entities. An incorporated entity and the sovereign entity is the Citizen Potawatomi Nation government. Next amendment was to change the name to the Citizen Potawatomi Nation from the Citizen Band Potawatomi. ‘Cause back then when you had Citizen Band, people would say, ‘What's your handle good buddy? 10-4. What's your 20?' Remember all that stuff that went on back in the day with the Citizen Band radios? Or what instrument do you play in the Citizen Band? That was the other one I used to get all the time. We changed our name and we went to descendency citizenship and we enrolled everyone that needed to be enrolled if they were descendents of the original families, 41 families that made up the tribe in 1861.

I issued an executive order that we would hold council meetings in every area, city or metropolitan area with more than 2,000 members of the tribe. And so we began a series of meetings in 1986 in Houston, Dallas, Washington, D.C., Kansas City or Topeka area, Kansas City/Topeka area, Portland, Oregon, alternating with the Seattle/Tacoma, northern California -- the prune-pricker Potawatomis. We met in Sacramento, in southern California -- the oil field Potawatomis. We met in Los Angeles or somewhere, Bakersfield or somewhere down there. And we met in Phoenix, Arizona, for the rich Potawatomis. But we started having these meetings and we started going to hotel rooms and ballrooms like this one and buying a meal ‘cause we had a little money coming in from bingo and selling cigarettes and we started having these meetings and we found out something, that if you have a meeting and you feed Potawatomis, they won't fight with you. So as soon as I started serving food at the general council back home, never another cross word, never had another fight, never any issues of that.

But the revision of 2007...in 1985 was the big one. I almost...I'm out of time. We separated the branches of government with a true separation. There is an executive branch, a legislative branch and a judicial branch. We now have 16 members of the tribal legislature, eight from Oklahoma and eight from outside of Oklahoma. While it's a one-third/two-thirds population, the way we balanced that is that of the eight from Oklahoma three, the chairman, vice chairman and secretary/treasurer, are elected by everyone in the whole United States. So there is a nod or an impetus or balance given to the population outside. The fact that our jurisdiction, that the area over which we govern, our revenue, is all based in Oklahoma on the reservation is recognized by the fact you have to be from Oklahoma to be chairman or vice chairman or secretary/treasurer. Legislative districts. The whole United States is represented. We eliminated the grievance committee. The grievance committee existed because we didn't have a tribal court and the grievance committee created grievances. We had staggered terms of four office...for four-year terms of office, staggered terms of office. The old two-year terms of office where we turned over the majority of the government every 24 months, crazy. The legislature has total appropriation control of the money. But the legislature can't even answer the phone. It speaks and acts by resolution and ordinance only. They can't run the government ‘cause they can't even answer the phone. The legislature speaks and acts by resolution or ordinance. They appropriate the monies for a specific purpose, but the executive branch spends it and runs the tribe. I have a veto, I have 10 votes out of 16 not counting mine so 10 votes out of 15. And the BIA no longer has to approve our constitutional changes. Each of our constitutional changes took the BIA over four years to consider.

So that's where we are, that's the old bingo hall, that's Firelight Grand Casino. It's $120 million operation, we're doing $150 million addition to it now. Everywhere in our tribe we have these symbols of corn plants. Don't eat the seed corn. We do not make per capita distributions. We fund 2,000 college scholarships a semester, we provide free prescriptions to everyone in the tribe over 62 wherever they live, we do home loans for people, we do all of those things based on need, not actual checks. We believe we're like a family. No one comes homes, sits down at the table, brings the kids and wife and sits there and says, ‘Okay, I'm going to divvy up the paycheck.' They don't do that. They pay the bills first, they address the needs of the family first, and then if there's discretionary income they decide whether to save it, invest it or spend it and that's the way we do ours. But we consider the money from gaming to be found money; it's seed corn.

We bought this bank on a gravel parking lot. It was a prefabricated structure and it was failing. We bought it from the FDIC, the first tribe in the United States to buy an operating national bank. It took the government six months to decide whether to let the bank fail and break all of the depositors or let us put a million dollars in it and save it. They finally decided to do that and now First National Bank is the largest tribally owned bank in the country. We have seven banks, seven branches and it's $250 million back from the original $14 million. If you're going into the bank business, be a little more financial healthy than we were ‘cause if the tribal chairman has to go repo boats and cars at night, that's an ugly business. That's no fun. We had a repo guy named One Punch Willie and boy, he was a tough...he could steal a car in 30 seconds and I went with Willie out...Willie Highshaw, went out on the lake with Willie Highshaw, a great guy. We went out and repoed cars at night when people wouldn't pay us.

These are our businesses. We have a $50 million-a-year grocery business; we have a wholesale grocery business. We have Redi-Mix Concrete. We have a number of enterprises of 2,040 employees. These are our government services. We operate the largest rural water district in the area. We are retrofitting all of our facilities to geothermal, ground source heat pumped geothermal with our own business.

This is my advice: press on. Three steps, two steps back is still one step forward so just stay at it. I've been at it a really long time. I love what I do. I'd do it if they didn't pay me. The first 11 years, by the way, they didn't pay me. But plan. And once you get plans, decide. Even if you decide wrong, it sets in motion the mechanics to get something done. But indecision just locks you up. Fix your constitution. Don't try to patch around it. We did it for years. Fix the constitution. If you have problems with not getting process at your tribe and it's because of the structure or because of something that is happening with the government that isn't fair or right or honest, fix the constitution. If you're not in the constitution-fixing business, you're not in economic development, you're not in self-governance, you're not a sovereign. Thank you."

From the Rebuilding Native Nations Course Series: "The Citizen Potawatomi Nation's Path to Self-Determination"

Producer
Native Nations Institute
Year

Professor Joseph P. Kalt describes the dramatic rebirth of the Citizen Potawatomi Nation, citing its development of capable governance as the key to its economic development success.

Native Nations
Citation

Kalt, Joseph P. "Constitutions: Critical Components of Native Nation Building." Native Nations Institute for Leadership, Management, and Policy. University of Arizona. Tucson, Arizona. 2012. Lecture.

“I’ll tell just one story about constitutional reform. On the left, you see a picture of basically the entirety of the Citizen Potawatomi Nation of Oklahoma in the mid-1970s. This tribe -, well-documented -- in the mid 1970s, this tribe had two-and-a-half acres of land, 550 dollars in the bank, and that house trailer. That’s their tribal headquarters. Some tribal members that have been out there said they remember their parents talking about, ‘The house trailer is the boxing ring,’ because there would be cycles of impeachment where the tribal chairs would be impeached or removed from office. And the new guys coming in would come in and have to physically fight to get the old guys out. And they tell a famous story , they’re proud of this story in a certain way because of what I’ll put up on the right in a second. They tell a famous story, that house trailer, one of the impeached chairs of the tribe, his son is at the front door of the house trailer, ‘Dad! They're coming to kick us out!’ So dad’s afraid of getting beat up, and he kicks the side out of that house trailer and jumps in one of those cars. And Citizen Potawatomi points out that those are the three worst cars ever built. It’s a Ford Pinto, a Gremlin, and a Dodge Dart.

And today, Citizen Potawatomi Nation basically owns Shawnee, Oklahoma. They are not only the economic engine, they are the political engine of their region of Oklahoma. And just recently, in what may be one of the most striking instances of the effective assertion of tribal sovereignty, a local town, non-Indian town has opted into the Citizen Potawatomi Nation’s court system. This is like real sovereignty when somebody says, ‘I want to be under your system of government and your court system.’ Well, this is a fascinating development. And part of story is well, how did it happen? And time and time again where you see these dramatic turnarounds, Citizen Potawatomi on the left mid-1970s, today Citizen Potawatomi Nation, engine of Shawnee, Oklahoma economically, politically, socially. They’ve taken a community -- these are Okies -- in the 1930s, this community was scattered like so many other people in Oklahoma. Consequently, they have Potawatomis all over in places you can associate with the Dust Bowl effects: Bakersfield, California; Fresno, California; Sacramento; Phoenix; other places. They now run tribal council meetings essentially with simultaneous big-screen TVs in multiple communities, and they’re building sub-headquarters, essentially. I think they’re trying to buy land in Phoenix right now to build one. I believe they’ve opened one in Bakersfield or Fresno, Sacramento, something like that. They basically used their development prowess to bring the community back together. How do they do it? Well, it's very interesting. The story they tell, and so many tribes with these dramatic turnarounds tell this story. I can’t tell you how many times , you’ve heard these famous cases of economic development: Mississippi Choctaw, Mescalero Apache, some of these places in the 1980s that started to break the patterns of poverty and dependency. And we go -- twenty years ago when I had more hair, I’d go out and interview some of these tribal chairs. ‘What’d you do to turn things around?' And I’d expect them to tell me stories about business. No. Almost invariably, they tell me a story, ‘We changed our constitution. We changed our constitution.’ There's a link here, a strong link, between economic development and constitutions. Turns out, economic development and the curing of so many of the social ills that come along with poverty, dependency and so forth -- economic development is fundamentally a challenge of governance, not resources. I go out and I go to conferences in Indian Country all the time and I keep hearing, ‘Oh, we need more resources and better training.’ It’s true, resources and training are useful; but if you can’t govern yourselves, everything falls apart."

Stephen Cornell: Getting Practical: Constitutional Issues Facing Native Nations

Producer
Archibald Bush Foundation and the Native Nations Institute
Year

Udall Center for Studies in Public Policy Director Stephen Cornell provides a brief overview of what a constitution fundamentally is, and some of the emerging trends in innovation that Native nations are exhibiting when it comes to constitutional development and reform.

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

Resource Type
Citation

Cornell, Stephen. "Getting Practical: Constitutional Issues Facing Native Nations," 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.

"So I'm just going to start with a couple of quotes that Joe [Kalt] had come up with that I think are worth bearing in mind as you consider governmental reform. This is Albert Hale, former president of the Navajo Nation, making an argument that all the things David [Wilkins] just talked about: tribal innovations in governance -- these are acts of sovereignty. I'll give you a moment just to look at that.

Now one of the issues that has come up -- and I mentioned this earlier when I was introducing Regis Pecos. We talk about constitutions and I think very often people immediately think of a written document. But if you think about a constitution with a small 'c', just what does it mean? It basically means what are the set of rules by which this Nation has decided to govern itself? That's a constitution, whether you've written it down or not, whatever form it takes. When a Nation says, ‘This is how we govern ourselves,' that's a constitution.

And some of you may be interested at some point, there's a First Nation in British Columbia called the Gitanyow people. The Gitanyow are a Gitxsan people in the mountains in central British Columbia. They're very traditional people and they have an interesting form of government. They've got a government on reserve on their reservation that was formed under the Indian Act passed by Canada. But then they have a very substantial traditional area where they retain land use, hunting and fishing rights. And within that area the hereditary chiefs govern and they govern according to the kinds of ancient rules and principles that Regis Pecos talked about this morning. But they found that Canada could not understand how these hereditary chiefs made decisions because in fact, it's a very complex system they have. It's a system of clan control over land use. And within their tradition area the clans, which they call houses, the houses of the Gitanyow people make decisions. If you want to hunt in that particular part of a mountain range, you have to go consult with that house and ask their permission to hunt in the piece of territory for which they carry responsibility. If you want to fish at this place in the river, you have to go to that house and ask their permission. ‘Can I fish in the area for which you're responsible?' And if the house says yes, then you can fish there. And sometimes there are disputes between houses over, ‘Wait a minute, whose territory is this? Who did you get permission from?' Well, the Gitanyow have a traditional mechanism for how they resolve those kinds of disputes. When those disputes come up, this group of houses get together and they deliberate and they decide what the answer is. All of this was simply passed on in the typical way, oral tradition and knowledge, but Canada couldn't figure it out. So the hereditary chiefs said, ‘We're going to have to write a constitution. We're going to have to explain to the Canadian government how we do stuff.' And they wrote a constitution, I've got a draft of it here. The Gitanyow Constitution, Gitanyow Hereditary Chiefs Working Draft Number 12 -- it took a little while to get it right -- 2003. And what's interesting about this is now it's written, but it was a constitution before it was written down. It was the rules they used to survive as a people. And that's what we're talking about here, is the decisions you make about how you're going to govern. What are the principles and the processes you use to make the decisions you need to make to survive as people and create that future that you imagine? Nothing really changed in those rules when the Gitanyow wrote it down, but now they've got a written constitution where before they didn't.

Another couple of quick quotes; this is Rocky Barrett, Chairman of the Citizen Potawatomi Nation: ‘Without good rules, tribal government is just a bad family reunion.' This is one of Darrin's [Old Coyote] countrymen, Richard Real Bird, former Chair at the Crow Tribe. When they were first working on trying to do constitution, that process didn't really work out. Darrin told you about the process that succeeded but when Richard Real Bird was starting that process, he said, ‘This is our strategic plan, a constitution -- how we're going to govern ourselves as a people. It's our strategy for how we deal with the future.' Joe Flies-Away, tribal judge at Hualapai, ‘A Nation's laws are the deepest expression of its culture.' It doesn't matter if they're written down. This is an expression of who we are. So that's what we're talking about when we talk about constitutions. (I'm going to skip a lot of what is in here, we'll be happy to email you these slides at your request if you...we'll just I guess decide we'll email them to all the email addresses we get on that sign in sheet.) But I wanted to touch on a couple of other issues.

This is one point that Joe wanted to make. ‘A lot of Nations today operate under constitutions built on ‘Western' paradigms.' But when we think of constitutions, I've had somebody say to me a constitution is a Western idea. Well, Dave mentioned the Iroquois. Here's a fascinating piece of the Iroquois, in a sense, Constitution of the Confederacy. It's pretty explicit about how we do things. I'll let you read it. I think ‘contumacious' means resistant. If you look at what that says, that's a set of rules about how we choose leaders and how we get rid of leaders who show that they cannot serve the people effectively. And it also tells who gets to do this. Who replaces the leader? The women shall choose the next lord and they'll inform the senior leadership about who they've chosen and then that person will be elected. It's a set of rules, ancient rules about how they choose to govern themselves. (I'm going to skip through some of this. We really covered a lot of this.)

Constitutions and the governments they create are tools; they have multiple purposes. (Again, we'll send some of this to you. I don't want to cut into the time of our presenters later.) Some of the key tasks that most constitutions -- that we see nations working on now -- some of the things they're trying to address: identity and citizenship, powers, rights, responsibilities, structures, etc. (I'm going to cut into a couple of these.) This is just one version of ‘who we are.' The Coquille Tribe of Oregon, the preamble to its constitution. It's making a certain claim about who we are as a people, why we're putting this constitution together. It's a statement.

Citizenship: the one thing I want to touch on here, this is a tough issue that a lot of nations are dealing with. One of the things we're seeing at that top bullet says, ‘From Membership to Citizenship.' Several times I heard Oren Lyons, traditional faith keeper of the Onondaga people, speak and he never used the word members. He always said the citizens of the Onondaga Nation. And one time I was chatting with Oren afterwards and I said, ‘I notice you always say citizens.' He says to me, ‘Are you a member of the State of Arizona, are you a member of the United States?' He says, ‘At Onondaga we're not a club. We're a nation; we have citizens.' It's an interesting take on just the language that we use.

‘Powers, Rights and Responsibilities: What Matters to You?' This is St. Regis Mohawk; they straddle the U.S./Canadian border, the Akwesasne people. These are some of the things, in their governing system, that they say their own citizens have a right to and that their government therefore has to deliver. And it also says, ‘The Constitution of our Nation will be secondary to the Great Law of Peace,' the constitution of the Confederacy.

There's a lot of talk about branches, separations. I want to spend a little bit of time on separations of powers and a couple of other things. What are the roles of the different pieces of government? And I wanted to acknowledge that sometimes people have raised questions about separations of powers. Sounds like a Western idea to me. I'm indebted to Don Wharton actually from NARF [Native American Rights Fund] who at a meeting last summer said, ‘What we're really talking about is allocations of responsibility,' because that's exactly what nations do. They say, ‘These people will be responsible for this. These people will be responsible for that set of issues. When it comes time to resolve disputes, that's taken care of by these people.' They're allocating responsibility for the various things the nation has to do in order to survive. And I think this quote I just showed you, that's really what they were doing. There are particular roles and responsibilities that have to be fulfilled. And part of what you learn to be a functional citizen of our nation is what those roles and responsibilities are. Now some of these things take Western form.

This is Salish and Kootenai Tribes of the Flathead Reservation -- sorry it's a little dark -- but Flathead is three nations with very different traditions, forced together under the Treaty of 1855 to live on a single reservation. And how are they going to govern? And what they come up with, they basically said, ‘How do you want to govern?' And the Kootenai said, ‘We want to govern in a Kootenai way.' And the Salish said, ‘It's got to be Salish.' And Pend d'Orielle said, ‘We want a Pend d'Orielle government.' And they said, ‘Boy, this'll never work. What's everyone's second choice?' Good old U.S. governing institutions. And so what they ended up with was district representation, a parliamentary system where the council chooses the chair. Why did they decide that? Because they said, ‘Look, we've got three different nations here with very different traditions and one is larger than the other two. So if we have a directly elected chief executive, it's always going to be a Salish person. And over time the Kootenai and the Pend d'Orielle are going to say, ‘Eh, we don't like this system.' 'So instead of having a directly elected chair, let's elect a council and then have the council choose the Chair' -- a smart solution for a difficult problem. A very strong, independent court system, because they knew there were going to be disputes and they needed those disputes to be free of politics. So they created a strong court system. They systematically -- this was the first nation basically to assume almost every program you could 638; they took it over. They basically said, ‘We want responsibility for everything that happens on our reserve,' systematically took it over and then made careful choices about how to keep the strategic decisions about where we're going as a nation in the hands of elected leadership but then put implementation of those decisions, that day-to-day management, in the hands of professionals. So that's kind of using Western models that they said, ‘Well, these may not be our traditions, but they work given the situations we're in,' which is kind of what Dave was just talking about.

But then there's -- and I'm building really on what Regis [Pecos] had to say -- the non-Western form and you can use Cochiti as an example but there are others: Jemez, Tesuque. Regis mentioned this, I'm just really giving you a quick summary. The governor has secular responsibilities, the war captain spiritual responsibilities. To the outside world, the governor is who you meet. When we first arrived at Cochiti Pueblo and said, ‘Who can we talk to?' they sent us to the governor's office. You think you're talking to the top guy. Turns out the world doesn't work that way. The governor's job is simply to keep people -- like these nerdy academics coming around asking questions -- keep them at bay and protect that core of what really matters to the people, from the State of New Mexico, the United States, the school system, the county, etc. And then as Regis pointed out of himself, if you ever have served in one of those positions, you're a member of the legislature for life. Think about what that means. It means there's a council at Cochiti and at other pueblos like this where you have an enormous body of experience that a sitting leader can draw on sitting in that council. Every person on that council has carried the ultimate responsibility of ‘I am responsible for the future of the Nation.' What a terrific asset for a sitting leader to draw on all that accumulated experience.

Rule of law: friend, family and foe should be treated equally. We found in our research the number-one predictor of economic and social success: politically independent dispute resolution mechanism. What you've got there -- I know it's a little dark -- but up on top is the Navajo Nation court processing 9,000 cases a year; some in a typical adversarial Western court system, some through traditional Navajo peacemaking that draws on ancient traditions of how we maintain the harmony of the community. Over here the San Carlos [Apache] Elders' Council doing the same thing, Flandreau police, and just as an example the Citizen Potawatomi Nation very successful economically. A powerful independent court system assures everyone, whether you're a citizen or not, you'll be treated fairly, not according to who you voted for, who your relatives are. This court system's a major reason for its success. How do we know the court's independent? Tribal Chairman Rocky Barrett: ‘I've had cases in that court twice and I lost both times.' When your tribal chairman loses in your tribal court, it's a pretty independent court system. I won't spend time on this. This is just a piece from their 2007 Constitution that describes the court system. San Carlos Apaches -- we went over this, but what I just want to come back to is this really is about separations of powers. It says, or as Don suggested, allocations of responsibility. Who chooses future leadership? The female heads of the clans. How do we get rid of a chief? Here's how. Now someone eventually wrote this down, but long before this was written down in the translation that you see here, it existed as a set of rules, it was a constitution. This is really... somebody asked Darrin [Old Coyote] about separations of powers. Well, this is from the 2001 [Crow] constitution. Every one of these branches is directed to respect separations of powers, allocation of responsibility. And finally I just wanted to, I've already given you one of these but run through a few of the things that just strike us as interesting innovations. Your nations are...I loved what Dave had to say of this history of governmental innovation that is this unspoken invisible history of Indian Country that Dave is trying to excavate and make visible to us again. Indian Country is full of innovation about how to deal with new challenges.

So some of the ones that we're seeing: Laguna. Six villages, each has representation on the council, and they describe councilors as elected officials. But when you go and actually find out how these councilors are chosen, there are no elections -- not in the way we understand them. Villages gather and in their wisdom and by processes not identified in a written constitution, they choose who they want to serve. We talked to one young man in his early 30s who'd been chosen to serve on Laguna Pueblo council. He said, ‘Well, the older people in the village came to me and they said, ‘You're the one. You're running for the council.'' 'But,' he said, ‘no one ran against me ‘cause they didn't tell anybody else. So there was an ‘election' and there I am on the council.' And he says, ‘When they showed up and told me this, you get this sinking feeling because you suddenly say, ‘Wait a minute. I'm being told I have to carry this responsibility. They don't give you power. They place this responsibility on you. Now I've got to go carry that responsibility.'' He said, ‘It's a sobering moment. You don't win an election. You get this burden placed on you to act on behalf of the people.'

Gitanyow I already covered. This is the British Columbia Council of Hereditary Chiefs. This is kind of how their government works. There's some overlap there but...the Indian Act is the Canadian equivalent, in a sense, of our Indian Reorganization Act. It specifies how First Nations in Canada should govern themselves. And the big constitutional movement among First Nations in Canada now is to get out of the Indian Act and replace it with their own ideas about how they should govern. And Gitanyow is one of those that has been doing this in part through the hereditary chiefs. And so this is what that system looks like. The elected chief and council run the social programs but when it comes to the things that really matter to the people -- the land, their way of life -- the hereditary chiefs are the authority and they recognize each other -- that division, that distribution of roles, that allocation of responsibilities is clear in the community.

And then Joe found this, the Pueblo Zuni Oath of Office. For 1970, it's a pretty remarkable piece of work. I'll let you read it. Interesting authority there: I don't know if any of your constitutions include this particular way of responding to disrespect, but it's intriguing. And then we thought this was an interesting innovation. This is a relatively small First Nation in British Columbi,a but it went through a long, careful process of constitution making that involved the entire community and when they finished and adopted the constitution, they had every adult citizen of the nation sign it. It was like this statement to Canada. ‘You want to know how we govern, here it is and all of us are part of it. It's our constitution.'

And finally, just a final word -- and this comes really out of some of the discussion this morning. We get talking about codes and various things and pretty soon when you think about creating a governing system, it just becomes a mountain to climb. Think of the constitution as laying the foundation. It's not about the details. ‘It establishes the principles and the processes by which the rest of your governing system can be built.' It's that first step that you then say, ‘Okay. Based on that, based on that articulation of our principles, our core values, of how we make decisions, now we can begin to put in place the other pieces of governance that we need -- those codes, those processes that we need -- in order to do the things we need to get done.'"

Honoring Nations: Kristi Coker-Bias and Allen Pemberton: The Citizen Potawatomi Community Development Corporation and the Red Lake Walleye Recovery Program (Q&A)

Producer
Harvard Project on American Indian Economic Development
Year

Honoring Nations symposium presenters Kristi Coker-Bias and Allen Pemberton field questions from the audience about the Citizen Potawatomi Community Development Corporation and the Red Lake Walleye Recovery Program.

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Coker-Bias, Kristi and Allen Pemberton. "The Citizen Potawatomi Community Development Corporation and the Red Lake Walleye Recovery Program (Q&A)." Harvard Project on American Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 27-28, 2007. Presentation.

Alfreda Mitre:

"The next question is from Ben Nuvamsa, chairman from the Hopi Tribe."

Ben Nuvamsa:

"Thank you. I just wanted to thank you for all the good work that you're doing out there for Indian Country, all of you. I just have a question for Kristi Coker on your program. Most of our reservations are isolated out there and we typically have a difficult time attracting businesses, or at least the financial, the banks and so on, out on our reservations. My question to you is, your population, was that a deterrent in trying to get the banks or that kind of financial [institution]? Maybe you took the matter into your own hands, but it seems like that's something that may be a challenge for most of us. And how did you overcome that obstacle? Because we are faced with that -- we would like to have some banking institution out there, but it's because of our isolation it's often difficult for us to do that. By the way, we're Hopi, we may be short but we walk tall."

Kristi Coker:

"Well, we did take matters into our own hands. In 1994, we bought a struggling bank, a national bank, the tribe did. And why we started the Community Development Corporation in 2003 is that traditional financing, traditional financial institutions, just weren't the answer for the Native American community. It was a great enterprise for the tribe and it's a great financial institution, but so many people just needed the handholding and just were leery of banks still. And so even though we have our own bank there, there was a need for a non-traditional, flexible, self-regulated financial institution that is geared toward your mission, geared toward your market.

There's a lot you can do with a CDFI [Community Development Financial Institution]. You can do a credit union, and a credit union is the answer for a lot of Native communities. Oweesta even has some upcoming training. I'm on the Oweesta board, if you couldn't tell. But Oweesta has some upcoming training on ‘does your native community need a credit union?' And it's actually online and over the phone and so that might be something you want to get involved with. But a CDFI can do a lot, as you see. We're doing financial education, we're doing credit counseling, we're doing commercial lending, micro loans, larger loans. So we're doing loans from $2,000 up to $750,000. So we have a wide range of loans.

And we have had a tremendous amount of interest from private foundations, from the large national banks. They don't understand how to do lending in Indian Country and a lot of them, through the Community Reinvestment Act, have incentives to do this type of work. So one of the things they can do is they can fund CDFIs in Indian Country to do this work for them. If they're not interested in doing that, you could at least engage the local institutions in financial education as trainers and curriculum they may have.

I think what's so neat about the CDFI -- and the Treasury Department has been an amazing department, as far as a partnership with tribes. They have set up very comprehensive, coordinated programs and actually give you the training and technical assistance along with the money. And one of the things about being a CDFI, for those of you that don't know, our incentive, one of our incentives was for every non-federal dollar you can raise, you get that matched dollar for dollar from the Treasury. So a lot of my time goes to fundraising efforts and those sorts of things.

But I think what's so neat is the flexibility of it. It's regulated by the tribe, by the board of directors of your community development financial institution, and that it meets the needs of your people. You design it around your people. It looks many different ways. Some CDFIs are doing housing, some CDFIs are just doing IDAs [Individual Development Account] or just micro loans. You gear it toward your mission and your market, which is kind of driven by a study. It all kind of starts with a market study to determine what the needs are. Is there a housing need? Is there a business loan need? Do we have a gap?

Another thing that we're doing is even helping with gap financing for banks. A lot of the times even existing businesses that have assets, that have collateral, that have financial records, and those types of things, most of the time you can only get 80 percent financing at a bank and they just don't have 20 percent cash to inject at that time. So we're able to come in and it would actually be a bankable project through a bank and we're actually able to come and do the 20 percent.

So I think there's lots of creative things you can do and lots of opportunities and I would recommend exploring developing your private sector."

Mediator:

"Next question is from JoAnn Chase."

JoAnn Chase:

"I have a question for Red Lake. Obviously, so many of the stories that we have heard, they're very moving components to how initiatives and programs came to be. And one of the most moving ones for me, during my involvement with this program, was the fact that your own fishermen chose, they voted actually to vote themselves out of a job in economic situations which were absolutely dire. And so that told me that you obviously spent some significant time with your own community and working with the community. I'm wondering if you might just talk just a little bit more about what went into engaging folks, to the point that they would take a very deeply sacrificial decision in order to replenish the lake, and some of the aspects of the dialogue or the efforts that you, as a program, had to undertake in order to get the community to really buy and support and ultimately make very deeply sacrificial decisions."

Allen Pemberton:

"I wasn't actually at the meeting, but there was a lot of talk. Some people didn't want to do it, but I think the majority of the people seen that they just weren't getting the catches that they were in years past, and if they didn't do something now it would never come back.

I think looking at the records and some of the stuff that happened years before -- like about six years earlier we had a really big year class of female walleyes. And, as we all know, we have to have females to keep moving in this life. And there was -- the fishery guys that I talked to, they did the spawn nets every year and there was like -- they'd get like 100 males in the net and no female. And what happened was that -- If they would have just stopped like five years before, which is pretty hard for them to do because they were really catching the walleyes that year, and if they would have just stopped then, knowing what they know now, maybe we wouldn't have to quit for ten years [because] there was that nucleus of fish out there at that time, but they got hit pretty hard by the nets and stuff. And I think a lot of the people back home now, they're worried about -- that's why they told us to take a cautious look at what we do from now on. We've go to protect that resource.

One of the things the old people, the chiefs, and people called it, that lake was our freezer. As long as you have fish in there we're never going to starve. There are so many things that move to these days. Like my grandpa, he told me, there's another -- I have a hard time talking about him because I loved him. He told me, 'There's another lake under this lake.' That was one of the kind of -- the fish will come back, there's another lake under here. And a lot of people to this day still think that there is one there, but I don't know. It's kind of hard to -- it's in my heart to take care of our land. The fishermen are -- right now, they're looking at a different way of taking fish because a lot this, what happened was -- they all know it. All of them were older guys and now there's ten years of people, almost a generation of people, that didn't go out into the lake and do any fishing.

So the lake, our lake is -- I always remember what Pat Brown said, our fishery biologist, when he first came to Red Lake just before they started the recovery. He came from Wisconsin (another Packer fan), but he says to me, he said, ‘Man, I walked up to...I got to DNR [Department of Natural Resources] and I looked out on that lake and said, ‘Oh, man, how am I ever going to bring this thing back? I can't even see the other side of the lake. It's just monstrous.'' It's the sixth largest fresh water lake in the United States. He just said, ‘Oh, man, are we ever going to be able to bring it back?' It was a big initiative. And actually, the DNR took a big step forward in that. And really, Dave Connors, and there's a lot of people to thank that were non-members, but they were hired by the tribe to help us bring this lake back and it's back bigger than it ever was. The numbers show that there's more fish in our lake than there ever was.

And I think one of the things that happened throughout -- when I first got on the council we went to a game one time. I always like to tell this story. Red Lake was playing in Grand Forks, which is about 90 miles away. Basketball -- it's a big thing on our reservation. So everybody went. And we were coming home, and my wife -- we were riding down the road between Red Lake and Redbye coming home -- and I said, ‘Man, what is that on that truck?' We seen these red lights coming and I said, ‘What is that?' It's almost covering the road. And we got closer and there was a plane, there was a plane on the back of this truck. These non-members came and they flew up and down Redby, which is the district I live in and represent, and they landed on the lake and started fishing, which is -- the fishing, you can come buy a permit on our reservation to fish the small lake but the big lake is only for [band] members; only members fish that lake. So we guard that with our lives. So people are calling the cops. I suppose these guys thought, ‘Oh, these Indian tribes they don't have no game wardens. They ain't going to care if we go fish on their lake.' They knew where they were. And what they did was they landed and started fishing. And game wardens went out and arrested them, took their plane away.

They were coming down -- Then when I come home, it was like my first year on the council and we were getting bombarded, the council was, with ‘What are you going to do with this?' Because we really can't...in our laws -- it's one of the things we've been working on now -- that we can't do anything to non-members. If a non-member comes [and] punches me, we can't take him to court. The federal government would probably slap his hand and, ‘Go ahead. Go ahead and land on the lake some more if you want. It's only Indians that live down there.' But one of the things that I said at that time, I said, 'We should just keep that plane because there's going to be more people coming, thinking that they can trespass on our land.' But we said, ‘Well, we'll be good neighbors and give it back to them.' Like we've been catching heck over that for the last -- I think at the Honoring Nations deal I was telling them, I said, ‘If we would have kept that plane I could have flew out here to Sacramento. I would have been a pilot by now.' One of the things that happened after that, they did get fined a lot. It wasn't the best plane in the world. But you have to, as Indian people, you have to stand up for your rights.

We own that land in Red Lake. It's all owned in common. It's a closed reservation. We own all the land there. We have hunting and fishing rights and we never ceded our lands to the federal government. I'll just let you know that they had a game warden that was for the State of Minnesota, and it seemed like we have a pretty good relationship with them now, but this guy kind of threw like a wrench in it last spring. They didn't care about our lake before, but now that the walleyes are back, ‘Okay,' they said, ‘All right, Red Lake, you don't own that lake. You own the land under the lake.' Uh, okay? Well, they were citing some kind of court case in Montana, but those people in Montana they allotted their land. So it was more of a waterways issue. We talked about it and we said, ‘Well, Red Lake's totally different than that tribe. We own our land. And they said, ‘Well, I'm going to bring a bunch of people over there and we're going to fish on your lake.' I'll tell you, a lot of people at home said, ‘Well, bring it on.' There's going to be -- we're going to fight for our land again. If it comes to that, that's what's going to happen. But it never did. But just that part of it, we have to always be on our toes as Indian people because there's always somebody out there that wants our land. They put us on land that they didn't think anybody wanted. But it's our land and we've got to take care of it.

This guy -- I had an old man call me one time, he was an older fellow, a white gentleman and he said -- I got this call at my office --and he said, ‘Yeah, you know, I don't like that that you guys took this boat away from this guy 'cause he went across the line and then you guys had machine guns in there. The game wardens had machine guns.' And I said, ‘Well, they weren't machine guns. They were issued arms for their work. You guys were a mile onto our land. You knew where the -- we put GPS -- they had GPS ratings with the state and all this stuff. And they knew where they were at, but yet they came on to Red Lake to fish. So our game wardens had time to go all the way to Red Lake, which is about 40 miles away from the Upper Red Lake, get their boat, come back and them guys were still fishing on our side of the lake.' And this old guy tells me, he says, ‘Oh, I don't think -- then that plane. You guys kept that plane.' I said, ‘Well, we didn't keep the plane. We gave the plane back.' I said, ‘I just want to say something to you.' I said -- I was trying to do it in kind of laymen's terms and be nice to him too, but I said, ‘If you owned 100 acres and you had four or five really nice bucks on your land and I knew about it. And just before deer season I came over and shot all four of those deer...' I said, ‘How would you like it?' ‘Well, I wouldn't like it,' he said. ‘Well,' I said, ‘it's the same thing here.' I said, ‘We own this land. It's not owned by the state. It's not owned by the government. It's owned by the Red Lake Band of Chippewa.' I said, ‘We all own it in common.' He said, ‘Well, I kind of understand now.' I said, ‘But one of the things that I think a lot of people don't understand is that they think that no matter what it's everybody's land, but it's not.' That's one of the things that's unique about Red Lake. And like I said, the chiefs for -- they had some real good insight to keep that land for us. And we have to -- we, as a council and people, have to protect that [because] that's our land.

I think one of the things I forgot to say earlier was that the tribe recently served notice to the Secretary of the Interior that they will no longer abide by the federal regulations governing the fishery. We are going forward and determine our own quotas. Every year it'll change depending on how many fish we have in the lake. It'll no longer be -- we won't have to go see Big Brother to say, ‘Hey, is it all right to go and take some of our own fish? Can you guys sign off on this?' I think one of the things I always laugh about, at the DNR when we went Self-Governance, they kept one person there to sign off on things. The guy didn't, the guy really didn't like what I said to him, but I always told him, ‘Oh, yeah, we better get our Indian agent in here so we can make sure that we're doing things the right way.' He didn't like that. That's about all I've got to say. Thanks."

Alfreda Mitre:

"Thanks, Al. One of the recurring themes that you're going to see throughout the symposium here is -- that's going to make this symposium a little bit different is -- the love of the land. We are who we are because of the land. The only thing American about America is us. Everything else was imported into this country and I think that's important. You can see, and you'll probably see throughout the symposium, the love for the land inspires the programs that are put forth to Honoring Nations. No one can tell our story better than we can. When westerners do something in their neighborhood that they don't like, they can move to another city, they can move to another town, they can move to another neighborhood. We are truly connected to the land and therefore no one could love the land or protect it better than we can. So that's going to be a recurring theme, and I want to again thank you all."

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.

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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."

Native Nation Building TV: "Introduction to Nation Building"

Producer
Native Nations Institute
Year

Guests Manley Begay and Stephen Cornell present the key research findings of the Native Nations Institute and the Harvard Project on American Indian Economic Development. They explain the five keys to successful community and economic development for Native nations (sovereignty or practical self-rule, effective institutions of self-governance, cultural match, strategic orientation, and leadership), and provide examples of Native nations that are rebuilding their nations. 

Mary Kim Titla: "Welcome to Native Nation Building. I'm your host Mary Kim Titla. Contemporary Native Nations face many daunting challenges including building effective governments, developing strong economies, solving difficult social problems and balancing cultural integrity and change. Native Nation Building explores these complex challenges and the ways Native nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

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[music]

Mary Kim Titla: "Today's program examines where, how and why nation building is currently taking place in Native communities throughout the United States and beyond, in particular the fundamental issues governing Native nations' efforts to restore their social sovereignty and economic vitality and shape their own futures. Here today to discuss these nation-building issues are Drs. Manley Begay and Stephen Cornell. Dr. Begay, a citizen of the Navajo Nation, is Director of the Native Nations Institute for Leadership, Management and Policy at the Udall Center for Studies in Public Policy at the University of Arizona, where he also serves as Senior Lecturer in the American Indian Studies Programs. Dr. Cornell is the Director of the Udall Center for Studies in Public Policy and a Professor of Sociology and Public Administration and Policy at the University of Arizona. For the past two decades, they both have worked extensively with Native Nations in a major research effort that seeks to identify the keys to solving the challenges to nation building. Welcome, gentleman, nice to have you here today."

Dr. Stephen Cornell: "Thanks for having us."

Mary Kim Titla: "First of all, what is nation building in practical terms?"

Dr. Stephen Cornell: "Nation building is really about how Indigenous nations in the U.S. and elsewhere can put together the tools they need to build the futures that they want. And by the tools they need, we really mean the tools of governance. These are nations in our experience with very ambitious goals, they face daunting challenges, they carry the legacies of colonialism, they are trying to overcome deficits in economic affairs, in health, in all kinds of areas. If they're going to do that, they need the governing tools that are adequate to that task and Nation building is about identifying those tools, putting them in place, being sure that they match Indigenous ideas and culture and putting them to work."

Mary Kim Titla: "Can you talk about some of the tools? Explain that."

Dr. Stephen Cornell: "Yeah. A lot of Indian nations here in the United States have governments that they did not design. That's not true of all of them, but a lot of tribal governments were designed basically by the U.S. Department of the Interior back in the 1930s. They aren't very sophisticated structures of government. Some of them have no provision for adequate court systems or ways to resolve disputes within the nation. Some of them have got unwieldy legislatures. Some of them don't have the kinds of procedures that you need if you're going to move vigorously and effectively to make good decisions, implement them, get things done. So we're talking about rethinking some of the those tools of government. What kinds of tribal courts or other dispute resolution mechanisms will serve Indigenous needs and interests? What kinds of governing structures will people believe in and support within the nation's own community? Are those structures adequate to what the nation is trying to do? So when we talk about tools, we're talking about the practical mechanisms that nation's use to organize how they go about trying to get stuff done."

Mary Kim Titla: "Dr. Begay, would you like to add to that?"

Dr. Manley Begay: "Sure. It seems from the work that we've been doing that nation building or nation rebuilding, as Steve mentioned, really began to occur with most Indian nations around 1975 when the Indian Self-Determination Act was ushered in, and since then a lot of Indian nations have begun to wrestle with rethinking their political systems, rethinking their economies and it's not unlike other nations that have gone through colonization and all of a sudden found themselves in the midst of freedom, if you will, very much like what occurred in Eastern Europe after the Soviet Union fell apart. Poland is wrestling with issues of constitutional reform, you had the European Union there, and Indian nations are in the same boat and a lot of other colonized society are wrestling with Nation building and rebuilding."

Mary Kim Titla: "Let's talk about the research. What prompted the Harvard Project and the Native Nations Institute to embark on the research?"

Dr. Stephen Cornell: "This kind of got us wondering what is it that makes some nations more successful than others, and in fact the data that we first looked at had to do in part with timber and with forestry. A lot of Indian nations have timber resources. Some of them seemed to be doing a better job of managing those resources than others and we got interested in why. And being professors, we thought maybe we knew the answers already -- typical of professors -- and so we thought, well, it'll be educational attainment or it'll be the Nations that have big natural resources will be doing well or the ones that have access to capital will be doing well. But we decided we'd better go look and we got a grant from the Ford Foundation to do some research. We spent a lot of time in the field getting stories of what was working, how did this enterprise succeed, how did this one fail, what else have you tried to do, what seems to be working here, what are the problems you're encountering. And the interesting sort of payoff to the research was it turned out that the critical elements were really political ones, that if you had your political house together, if you had some stability in the government, if you were successful in keeping political considerations out of enterprise management decisions or out of tribal court decisions -- if you could do some of those political things, then these sort of economic assets like good education or good natural resources or being close to a major market -- those would start to pay off. If you couldn't get the government house in order, then those assets tended to be wasted. So the result to the research was really to focus our attention on these political issues and the effect they were having on how these Nations did, whether or not they were able to achieve their goals."

Dr. Manley Begay: "And what was really interesting about the research findings initially was that we knew of no known cases of economic development, successful economic development, occurring without assertions of political sovereignty. And secondly, we also found that capable governing institutional development was a major piece of nation building. And thirdly, those institutions had to be culturally appropriate. And since then we've also found that Indian nations that are planning for the long haul if you will, a hundred years down the road -- what kind of society are we going to build, what do we perceive the society to look like 50 years from now --and those that have done that seem to be faring well or faring better than others that have not. Lastly, leadership is really critical. So these five components and research findings formed the basis for the work that we've been doing all along."

Mary Kim Titla: "Can you give us a snapshot of current Native nation-building efforts among indigenous peoples throughout the U.S. and Canada?"

Dr. Stephen Cornell: "Yeah, in fact there are a number of Nations across the U.S. right now that are engaged in constitutional processes. The Osage Nation in Oklahoma has just launched a major constitutional reform effort. The Crow Tribe of Montana, the Northern Cheyennes are involved in that. The San Carlos Apaches are engaged in governance reform or rethinking how they govern themselves. This is happening a good deal across the U.S. It's also happening in Canada where we see First Nations that are engaged in constitutional processes. Some of them are also engaged, especially in British Columbia, in treaty processes that involved working out new relationships with British Columbia and with Canada and that process also involves rethinking governance. So we see a lot of constitutional stuff happening there. We see some developments in tribal courts. The Mohawk Council of Akwesasne, which straddles the Ontario/New York boundary, are engaged right now in trying to rebuild their justice system. They of course face some interesting justice problems because of that boundary, because they're a nation that operates in two different jurisdictions and then they have their own jurisdiction. It's a complicated situation. They're trying to develop a court and justice system that's adequate to that set of challenges. We see a number of nations like the Ho-Chunk, the Winnebago Tribe of Nebraska, have started a corporation called Ho-Chunk Inc., which has been a very successful enterprise reducing unemployment there. They put a lot of thought into, how do you set up this enterprise so that it has a good chance of succeeding?"

Dr. Manley Begay: "And up in Canada there's the Membertou First Nation on the east side of Canada that's actually wrestled with figuring out how to develop a capable governing institution and they did that through what's called the ISO [International Organization for Standardization], sort of international standards set-up, and then also the Siksika Blackfoot Nation in Alberta have also really moved forward in thinking about nation building and is actually doing relatively well. Lac La Ronge as well. They're finding some success in promoting their wild rice not only in Canada and the United States but also overseas as well. So there are a number of stories of First Nations and bands up in Canada, tribes in the United States that have gone the extra effort to figure out how to build nations that work, and obviously one of the major success stories is the Mississippi Choctaw. And they did that without gaming. Initially they set up good governing institutions, they asserted sovereignty, really thought through how to develop a culturally appropriate political system and actually we refer to them as the Singapore of Indian Country. They did that without gaming. Only later on did they get into gaming and every day you'll see upwards of 7,000 black and white workers going on to Nation land to work. As a result, they've become the major political and economic powerhouse in the southeast and they've done that through nation building."

Mary Kim Titla: "And I've been there to Mississippi Choctaw and I've seen what they've done. It's really great with [Chief] Phillip Martin and other tribal leaders. I imagine that they must face many obstacles and of course those obstacles can get in the way of objectives. Can you talk about some of the obstacles that some of these Nations are facing?"

Dr. Stephen Cornell: "Boy, I think one of the obstacles that -- in fact I was just last week in Canada and talking with a First Nations leader and he said, 'You know, a lot of my people have been, we've learned over time to be dependent on Canada and to be dependent on federal agencies in Canada, and part of the work that we face as First Nations leaders,' he said, 'is trying to change that mind frame, trying to get into a mind frame that says, 'We can change this, we can take responsibility for what happens here.'' There's a -- Manley just mentioned the Siksika Nation of Blackfoot in Alberta. Chief Strater Crow Foot, whose the chief of that nation, he spoke at a session that Manley and I were both at not long ago and he said, 'We're trying to replace the victim attitude with a victor attitude.' He said, 'The victim attitude keeps you sitting still, the victor attitude gets you moving.' And he said, 'In my nation, that's one of our primary tasks as leaders is to change that attitude, a feeling that if we're really going to have an impact we've got to alter the way people look at the world around them, the way they think about what's possible.' So that's certainly one of the obstacles. Another obstacle, and Manley touched on this, is simply that sovereignty obstacle. It's getting the jurisdictional power to make decisions for yourself. That's something which Indian nations in the U.S., they've had a lot of jurisdictional power. It gets chipped away at by the U.S. Supreme Court, it's often under attack in the states and in Congress. Luckily, so far, much of it is surviving. In Canada, First Nations are struggling to achieve the level of sovereignty Indian Nations in the U.S. have, but that's an obstacle. If someone else is making the decisions for you, you're not likely to go much of anywhere. It's their decisions, the program represents their interests. Shifting real decision-making power into Indigenous hands is a critical piece of nation building. These nations have to be rebuilt by Indigenous people, not by decisions made in Washington or Ottawa or someplace like that. So I think the other big obstacle is that sovereignty piece. You've got to have the power to make things happen."

Mary Kim Titla: "We've talked about obstacles. Let's talk about assets. What are some of the greatest nation-building assets?"

Dr. Manley Begay: "Leadership is an asset. However, it's only an asset if you can couple that with developing good capable institutions, and if you set in place the rule of law and policies and codes and constitutions. That goes a long way. You can wait for a good leader to come around, and it takes 20 years to get a good leader, but you can't always be sure that the leader was going to be good. However, if you put in place policy, rules and regulations, you can always trust those rules, and enforcing those rules becomes part of nation building, and it seems to me that that's an asset that we see, the creativeness, the innovativeness of Indian people to really wrestle with figuring out how to do this, and to do it in a culturally appropriate fashion is an asset. And it's not something that's new."

Dr. Stephen Cornell: "The other thing we have to recognize as an asset is Indigenous cultures themselves, and sometimes people who think about how Indigenous culture is an asset think of it mainly in terms of stuff you can sell -- arts and crafts or something like that -- and that's an important way to think about it. We tend to think about it, though, in terms of what can we learn from Indigenous cultures about appropriate organization, so that the government that works at Navajo is not necessarily going to be the same as the government that works at Osage, because they are different nations with different heritages, different cultures, and part of the challenge of nation building is figuring out what set of institutions in fact resonate with what people here believe about how authority should be exercised, about how we should pursue goals. We've worked with some of the Pueblos in New Mexico where you have governing institutions that are very traditional. There are no elections, there are no legal codes, no written constitutions. The governing institutions are deeply rooted either in Pueblo tradition or in several hundred years of working under Pueblo influences, Spanish influences and other things. They've been borne out of Pueblo experience. You go up to the Flatheads in Montana, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, and you'll see a tribal government that looks very different. It looks, as our colleague Joe Kalt likes to say, 'It looks like it came out of my high school civics textbook.' Well, you've got three nations on that reservation and those nations have had to find a way to govern themselves that they all can support so it doesn't look very traditional. There are three traditions there, they might be in conflict with each other. So they've had to find a set of institutions that work for them. But that link to Indigenous cultures, that ability to tap into the fact that these nations long ago solved tough human problems and maybe the ways they solved some of those problems still work today. Let's tap into that. At Navajo, their court system, their justice system today combines western jurisprudence with longstanding Navajo ways of dealing with disharmony or conflict and that makes them an extraordinarily effective court system that no outsider could have invented. It had to be generated by Navajo people."

Mary Kim Titla: "Can we talk about more of the research and the five major keys to successful community and economic development among Nations?"

Dr. Stephen Cornell: "The first finding that came out of this research really was the sovereignty finding, the fact that Indigenous nations themselves have to be in the driver's seat if things are going to happen. So there's a kind of a power issue there. Where is the power? And from a research point of view, it just underlined something that Manley touched on earlier, that we haven't been able to find a case across Indian Country of sustained, self-determined economic development where someone other than the Indigenous nation was calling the shots. So that turns out to be a necessary piece of the puzzle. The second piece that came in on the research findings was that, yeah, but that's not enough in and of itself. You've got to back it up with the kinds of governing institutions that Manley has been talking about. They've got to be capable of dealing with contemporary challenges. They've got to be stable. They've got to control, keep politics in its place. They've got to assure people that if I have a claim, a dispute with the nation, it'll be dealt with fairly. Part of the challenge for Indigenous leaders today is, how do we hang onto our talented, energetic young people with ideas? If I've got a family to support, will I pursue supporting that family at home on the rez or will I move to L.A. or Minneapolis or something like that? For tribal leaders, how do we create an environment that says, 'You can do it right here, we'll make it possible, we'll keep you'? That means a governing situation in which it doesn't matter who my family is, who I voted for, I'll get a fair shake. So that second finding was about capable governing institutions. The third was this thing we've just been talking a bit about of the cultural match piece of making sure those institutions really have the support of the people, that people believe this is our government, not an import from somebody else -- this is ours. And then these last two pieces that Manley talked about, the strategic thinking that gets people to make decisions on what's on our agenda today in terms of what matters in the long run and what does that mean for how we decide this today. And then that piece of leadership."

Dr. Manley Begay: "Yeah, to give you an example, back to Mississippi Choctaw. Initially a big portion of the population of the Choctaws were moved to Indian Territory in Oklahoma on the Trail of Tears, so you essentially had this society that was uprooted back in the 1830s and only small groups stayed in Mississippi. But they held onto the land, they held on to who they were as Choctaws. And as time went on they went through the termination period, they went through...and here comes the Indian Self-Determination Act and they essentially wrestled jurisdiction and power and control from the feds as well as state government and began to pursue a long-term plan, and Chief Phillip Martin was sort of the main impetus for assertions of sovereignty back then. And once they wrestled a significant amount of decision-making power from the federal government and also from the State [of Mississippi], they began to think through, how do we develop a capable governing institution? And they did that basically by necessity because before they could attract manufacturing companies to the nation, they had to think about a commercial code, they had to think about appropriate policy rules and regulations, laws being put in place, a good court system, separating business from politics, and so forth so that the investor could feel safe in investing on nation land. And then the cultural match piece came in. Historically, Mississippi Choctaws really had the strong chief executive-type of political structure, but they also had a strong court system. They had a separation of powers and checks and balances set up, which allowed for them to plan well. So a lot of this was planned out years and years ago. A lot of the success Mississippi Choctaws are having now was planned 50 years ago, and so today you essentially have a zero percent unemployment rate, you have to import labor and so forth, so the strategic thinking piece came into play. And then you have good leadership, you essentially have really good leadership. So all of the ingredients to successful nation building seems to be present at Mississippi Choctaw. But we've seen it at Fort McDowell, we've seen it at Siksika, we've seen it at all of these places that we've mentioned that have built nations that seem to be working well."

Mary Kim Titla: "We do want to talk about more of those positive stories, those models if you want to call them that. I like Mississippi Choctaw, so I'm glad that you touched on that. Are there some other examples out there that you'd like to add?"

Dr. Stephen Cornell: "Well, one that we're particularly fond of is the Citizen Potawatomi story from Oklahoma. The Citizen Potawatomi Nation back in the 1970s -- this today is a very large nation, I think its population is well over 20,000 people -- but in the 1970s they had very little land that they controlled, less than 100 acres, they had hardly any money in the bank, life was tough, [the] situation was grim. Today the Citizen Potawatomi Nation owns the First National Bank of Shawnee, Oklahoma. Today they own the supermarket in Shawnee, where they sell beef grown in their own cattle herd and vegetables grown on their own farm. They've basically got a vertically-integrated food business going. They own some of the media outlets in town. And when you talk to "Rocky" Barrett, who is the current chairman of the Nation, he says, 'Well, you know, it's really an institutions story.' And I remember the first time I heard him tell the story of the Citizen  Potawatomi Nation at a conference in Oklahoma, and afterwards I talked to him and I said, 'You know, you really tell a nation-building story about governing institutions.' And his response was, 'Oh, yeah, if you're not thinking about constitutional reform, you're not in the economic development ballgame, because what you've got to do is get that political house together and then you'll be able to create the kind of economic success.' So we look at Citizen  Potawatomi, a remarkable turnaround from the mid 1970s to the start of the 21st century in that nation's fortunes. Some nations, there are these success stories out there, and some of them are about pieces of nations and we've been fortunate -- in doing this work on nation building -- you come across nations that are doing extraordinary things that you don't hear about. I think often what we hear about are the problems in Indian Country. But some of the...we've talked about the Navajo Nation court system, which is one of these striking successes. The Columbia River Inter-Tribal Fish Commission, another example of nations coming together and solving a difficult problem creatively and effectively. At Fond du Lac, they've got a foster care program that has solved a major problem they had with the placement of tribal kids in non-Native homes. They've come up with a way to deal with that problem. It's effective, it works. These kinds of stories are all over the place out there and in one way or another they are nation-building stories."

Mary Kim Titla: "And then trying to train the young Native leaders, I think the Gila River Indian Community has done an excellent job of that with their youth council and really they're a model for a lot of tribes around the country. Anything you'd like to add?"

Dr. Manley Begay: "The Cochiti Pueblo is another Indian nation that sort of has built these very successful economic ventures. At one point in time, Cochiti, a significant part of Cochiti, was actually under water when a dam was built, and very little seemed to be in the works for how to get out of the situation that they were in. And lo and behold they essentially began to assert a certain amount of jurisdiction and a certain amount of power and authority, and today you find a tremendous amount of success at Cochiti. They've developed one of the top 100 public golf courses in the United States. They have a retirement community where Harry and Martha from Ohio go to retire. And it's a very interesting turnaround. Here a very traditional society is doing relatively well in pursuing certain economic development projects and they've done it with, as we said earlier, first pursuing jurisdiction and decision-making power and authority, and it really resonates to non-Indian society. Often non-Indian society [has] a hard time grasping political sovereignty. The thought is, 'Well, we've got to take political sovereignty away from Indian Country and then we need to tell them what to do essentially.' However, it seems as though that it's in the best interest of non-Indian society to support political sovereignty, because in the long run when economic development takes place in Indian Country, it affects nearby communities, it affects the region and in turn it affects the nation as a whole. So it has this domino effect. So it really is important for non-Indian communities, also governments, to support political sovereignty."

Mary Kim Titla: "Well, I want to thank the both of you. We've talked about a lot of things today, about some of the positive stories that are out there, some of the obstacles that Native tribes are facing and I must say that they've dealt with adversity very well and they have a history of dealing with that. I see a bright future, so thank you for what you're doing. We'd like to thank Dr. Begay and Dr. Cornell for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute's website at nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."