Little Traverse Bay Bands of Odawa Indians

Little Traverse Bay Band of Odawa Constitution

Year

Location: Michigan

Population: 4000

Date of Constitution: 2005

Topics
Citation

Little Traverse Bay Band of Odawa. 2005. "Constitution of the Little Traverse Bay Band of Odawa." Harbor Springs, MI.

Little Traverse Bay Band of Odawa Indians: Governmental Structure Excerpt

Year

ARTICLE VI. ORGANIZATION OF THE GOVERNMENT

A. Purpose, Fundamental Rights. We, the Little Traverse Bay Bands of Odawa Indians, speak through this document to assert that we are a distinct nation of Anishinaabek of North America that possess the right to: self-determination; freely determine our political status; freely pursue our economic, social, religious and cultural development, and determine our membership, without external interference. These same rights and principles the Little Traverse Bay Bands of Odawa Indians acknowledge to be inherent among other peoples, nations and governments throughout the world. We recognize their sovereignty and pledge to maintain relations with those peoples, nations and governments who acknowledge those same fundamental human rights and principles, and who recognize the sovereignty of the Little Traverse Bay Bands of Odawa Indians.

Little Traverse Bay Bands of Odawa Indians: Preamble Excerpt

Year

PREAMBLE

IN THE WAYS OF OUR ANCESTORS, to perpetuate our way of life for future generations, we the Little Traverse Bay Bands of Odawa Indians, called in our own language the WAGANAKISING ODAWAK, a sovereign, self-governing people who follow the Anishinaabe Traditions, Heritage, and Cultural Values, set forth within this Constitution the foundation of our governance. This Constitution is solemnly pledged to respect the individuality of all our members and their spiritual beliefs and practices, while recognizing the importance of preserving a strong, unified Tribal identity in accordance with our Anishinaabe Heritage. We will work together in a constructive, cooperative spirit to preserve and protect our lands, resources and Treaty Rights, and the right to an education and a decent standard of living for all our people. In keeping faith with our Ancestors, we shall preserve our Heritage while adapting to the present world around us.

We have created this document as an act of inherent self-governance pursuant to the government-to-government relationship that was reaffirmed by the United States Congress on September 21, 1994 in Public Law 103-324 “Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians Act.” The nine (9) Bands of Odawak who historically lived within and near Waganakising are hereby included within the term “Little Traverse Bay Bands of Odawa Indians.” The nine Bands are: 1) North Shore (Naubinway west to Escanaba); 2) the Beaver Islands; 3) Cross Village; 4) Burt Lake; 5) Good Heart (Middle Village); 6) Harbor Springs; 7) Petoskey; 8) Bay Shore; and 9) Charlevoix. The Bands are a single governmental body under this one Constitution. This Constitution shall supersede all previous constitutions and bylaws of the Little Traverse Bay Bands of Odawa Indians.

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

Producer
Native Nations Institute
Year

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

People
Resource Type
Citation

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

Ian Record:

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

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Raymond Austin:

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

"Oh, yes."

Ian Record:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Robert Hershey:

"Or a Bivens."

John Petoskey:

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

Ian Record:

"Any other questions for John?"

Raymond Austin:

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

John Petoskey:

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

Robert Hershey:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Thank you." 

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

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

Manley Begay:

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

Ian Record:

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

John Petoskey:

"December 2nd."

Ian Record:

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

John Petoskey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ian Record:

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

Audience member:

"Does Public Law 280 fit?"

John Petoskey:

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

Audience member:

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

John Petoskey:

"Right."

Audience member:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Audience member:

"Statutory laws."

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"It is."

Ian Record:

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

John Petoskey:

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

Akenabah Begay:

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

John Petoskey:

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

Akenabah Begay:

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

John Petoskey:

"Oh, no."

Akenabah Begay:

"Okay."

John Petoskey:

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

Akenabah Begay:

"Okay."

John Petoskey:

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

Akenabah Begay:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Manley Begay:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Audience member:

"So the tribal council appoints the judges?"

John Petoskey:

"Yes."

Audience member:

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

John Petoskey:

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

Ian Record:

"One final question over here."

Audience member:

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

John Petoskey:

"Yes."

Audience member:

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

John Petoskey:

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

Audience member:

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

John Petoskey:

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

Audience member:

"Thank you."

Ian Record:

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

John Petoskey:

"Thank you."

NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

Producer
Native Nations Institute
Year

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

People
Resource Type
Citation

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

Ryan Seelau:

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

John Petoskey:

"Thank you."

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

"Oh, yes."

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

John Petoskey:

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

Ryan Seelau:

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

Frank Ettawageshik: Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians

Producer
Indigenous Peoples' Law and Policy Program
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has systematically built its legal infrastructure in order to fully and capably exercise the nation's sovereignty and achieve its nation-building goals. He discusses some of the specific laws and codes LTBBO developed and why, and he also stresses the importance of Native nations building relationships with other governments on their own terms and in furtherance of their strategic priorities.

Resource Type
Citation

Ettawageshik, Frank. "Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians." Indigenous Peoples' Law and Policy Program, University of Arizona. Tucson, Arizona. April 15, 2010. Presentation.

Frank Ettawageshik:

"It's really nice to be down here enjoying your nice weather and to be down here and to be working with the Native Nations Institute. I've had a lot of years, a lot of times over the years that we've been in touch with each other at different conferences and other places, but never really had a chance to be here and to work on, sort of as Ian said, reflecting and thinking about Native nation building, as we were way too busy doing it and we were working so hard on a lot of different things that it sort of boggles the mind in a way when you think about the full scope of what that means when you say 'nation building.' The first thing that a lot of tribes think about when they think of nation building is they think of economic development and they think of how does that reflect because they think you need...of course you need money for the projects and things that you do and there are some people who focus on the economic development part to a great extent. And to me, economic development is not nation building. Nation building includes a component that's economic development and you need to think of it in that way. And that's really the way that we thought about it.

As the tribal chairman, I was the one whose picture was in the paper and who got quoted all the time and things of this sort, but there was a large group of dedicated people who were of a common mind or at least common direction -- maybe not always agreeing with each other -- who worked towards trying to develop an effective tribal government and to find ways to strengthen our community. And while we were doing that, one of the important things that we think about in that process is that we had to have...we had to keep ourselves rooted in our culture. We needed to have our ceremonies. When we had a community meeting, we always made sure that we had the community eagle staff there in the carrier and we had a drum, we carried a ceremony, a pipe ceremony at the beginning of the meetings and we did things like this that would help use the best of our heritage to help strengthen what we were doing in a way that it helped bring people together of one mind and it helped add a solemn nature, a serious nature and to help use the gifts that we'd been given in our culture, traditional culture, that would help keep us focused. And we did that, that was a big part of what we would do, and of course as years went by in the development of our constitution, we made sure that we supported freedom of religion, which was that we clearly have within our tribal community we have several different methods of expressing our traditional culture with different lodges, a Bedouin lodge, a Wabeno lodge, the independent people of different sorts that are involved in the tradition, but we also have Catholics and Protestant sects of various sorts and the Native American Church, we have some Muslims, we have some atheists and as you look through this, when the government's there, the government represents all of the people. And so we have to find ways that we can honor and respect everyone at the same time, as making sure that we keep the central identity of our nation through our culture and history, keep that as part of what we were looking at.

So what I wanted to talk to you a little about today was how we went about doing that, some of the things that we think are important and ways that...things that helped me as a leader to think through these things and to keep an idea of what's important. And I'll tell you what often happened in my office. Someone would come in and they'd be running and they'd be saying, ‘Oh, my god, BLANK is happening. What are we going to do about it and how can we take care of this?' And it's just the biggest crisis in the world. Well, the way I would deal with that is I'd say, ‘Take a deep breath,' and I'd say, ‘Well, is anybody going to even care about this next week?' ‘Well, maybe next week.' 'All right, now how about if they're going to care about it in six months?' And we'd try to put it in perspective. If it's an earth-shaking thing that really is going to be big, yeah, but most of those day to day emergencies are distractions. They can get taken care of in a fairly comfortable way.

Being in the legal office, the legal office was often the center of much of this activity. As the tribal chairman at our tribe, my office was in the west wing of our tribal administration building and right next to me was the...the office just in the hallway next to me is the general counsel and the vice chair and executive assistant and other staff. But I regularly worked with the attorneys, the tribal attorneys, and I would regularly consult and talk with them, but I never forgot what one of the elders taught me and that is, ‘We don't work for the attorneys, the attorneys work for us.' And in the legal education that people get, they're going to learn a certain perspective and yet, being a member of the bar and being a member of...an officer of the court and these things, you're going to have, say of a state bar, you'll have a certain perspective on the law and there are certain things that you can ethically advise, but being a tribal leader there may be times when that line of thinking doesn't fit with the exercise of our tribal sovereignty. So I've had occasion where our tribal attorney...we were at a meeting, we were talking, the tribal attorney said, ‘Say this,' and I looked at it and thought about it for a minute and I stood up and I said exactly the opposite and then I sat down and I said, ‘Now make that work.' That's the thing that is important for tribes is to help keep that perspective, understand where the center of their reality is and for us.

There's a story that I tell about a tribe that's not in the too-distant past, had opened a casino and it was a small casino and they didn't have a vault. They had a safe that was in the back room and their one tribal police officer was there and this happened to be in a non-280 state, which is another important factor to think about. But the safe got broken into and the casino manager came in the back room and the tribal chairman was there and their one police officer who was the chief of police, he was there, and they were all looking around they were saying, ‘Ah, what are we going to do?' And the police officer said, ‘Gee, somebody better call the cops.' Where is your center of reality? Where do you think this? And in a tribe, that center is within the tribe's nationhood. That's where it needs to be. And it's in the exercise of the tribe's sovereignty. And often our own staff, sometimes their head isn't there, sometimes our own council members have a hard time with that. They'll say, ‘Gee, will they let us do that?' That's a question that I've heard often when talking about something that the Bureau wants to do or something that somebody else wants us...

And what I have focused on throughout my career and as I've come to understand -- bringing all together teachings from various elders and from other people that I've spoken with over the years and other tribal chairman that I learned from over nearly 20 years in office -- the way I've come to understand it is that you're either sovereign or you aren't. You're not three-quarters sovereign or a little bit sovereign. Somebody can't make you a little bit more sovereign or somebody can't make you a little less sovereign; you either are or you aren't. And as a nation, as a tribal nation, expressing that sovereignty and exercising that sovereignty is really what your task is and functionally every sovereign is negotiating the exercise of their sovereignty with the other sovereigns around them. The United States just signed an arms treaty with Russia. It's an exercise on the limits of their sovereignty with each other, just signed. It's got to go before legislative bodies for approval, but that's an exercise of sovereignty. About three years ago, the Sioux St. Marie Tribe of Chippewa Indians, the Bay Mills Indian Community, both on the United States side of the St. Mary's River at Sioux St. Marie, Michigan and Sioux St. Marie, Ontario, and the Batchewana First Nation and the Garden River First Nation that are on the Canadian side of that river, the four of them signed a treaty. Now, the United States does not recognize our authority to sign treaties and yet these tribes have signed a treaty called the St. Mary's River Treaty and they formed the Anishinabek Joint Commission to work on cleaning up the river that they live on that has gotten so polluted that at times they have an advisory against touching the water -- not just not drinking it and not just not swimming in it, but touching it. There were people who were getting sick just having a picnic in their yard next to the river and this was the Native people who used to swim, used to drink the water, felt that it was important to work with each other. They signed a treaty with each other to do this. It's an exercise of sovereignty; it's an exercise of how they're going to be working together on things. So I think that this whole concept of dealing with sovereignty is something that people have a hard time getting their heads around often.

So I ask this question: we get interns that would come to the tribe, we have a couple legal interns every year who would come to the tribe to work, and when they came I'd bring them in my office. They'd be introduced to the chairman and I'd say, ‘I've got a question for you and I want you to think about it and come back and answer me next week.' I'd say, ‘When the Supreme Court of the United States issues a ruling that limits tribal sovereignty, I want you to explain to me how that limits our sovereignty.' Of course the answer is, ‘It doesn't limit our sovereignty in any way at all.' We're either sovereign or we aren't sovereign and the Supreme Court cannot take our sovereignty away like that, but the Supreme Court can make it so that the federal government and all of the political subdivisions of it all the way down to the counties and the townships around us that they have a harder time recognizing our sovereignty and they can make it really difficult for us to exercise our sovereignty. And that is the trick, that's the key thing that we have to think about as tribes is how do we and what do we do that protects the exercise of our sovereignty and that in doing so, how does that actually build our nation?

So we thought about a lot of this and one of the things that we did is we worked on lawmaking as a big central focus. One of the first laws we passed was a legislative procedures statute. We passed that because we wanted to lay out the process under which we would develop laws and it required that we...this required a posting period so that we'd have to post them so we couldn't just move into a meeting, put something on the agenda and pass it and 20 minutes later the whole law of the land, of the nation had changed. We needed some transparency, we needed the population of our tribal nation to have access to the process and to have input and so we wanted to slow things down a little bit. So we passed a legislative procedures statute. We passed a resolutions and regulations procedures statute. We did a number of different things that would help lay out how we would function within the confines of a constitution. We had...in doing this, we also realized that it wasn't just enough for us to be exercising our sovereignty in these ways internally, but we also needed to have ways that we dealt externally with those people around us. We had to deal with counties and townships, had to deal with the local sheriffs, we had to deal with the State of Michigan, we dealt with the...our international policy dealt with all of the tribes around us as well as these other governments and we had to find ways to...in which to sort of regulate or set these things up, how we would work. From the early days, we had a constitution that had been recognized. And I guess I should digress a minute here and let you know that our tribe had not been on the list of federally recognized tribes. We spent about 120 years in a legal battle with the United States over trying to figure out our existence. We felt we existed, they weren't so sure about it, and we spent a lot of time dealing with this. And in 1994, after several legislative attempts and other type court cases and other things, Public Law 103-324 was signed by the President and that reaffirmed our tribe's federal relationship. It didn't grant recognition, which would have implied that we never had it, it didn't restore it, which would have implied that maybe we had it and they took it away, but it's a reaffirmation act. It reaffirmed that we'd always had it, which was our position and that's the way the Congress passed that law.

Two tribes, Little Traverse and the Little River Band of Ottawa Indians just about a couple... about three hours south of us down along the Lake Michigan shoreline, we were both on the same bill. And when that bill passed we had an interim constitution in place. It was not really the regular IRA boilerplate constitution, but it was a constitution that had all of the authority in a single body and that the tribal council, the tribal chairman was a member of the council. The tribal chairman voted on everything that came before the council, as well as chaired the meetings, and between meetings, the tribal chairman was the chief executive officer of the tribe and implemented all the actions of the council. As long as you had a good tribal chairman, there wasn't an issue with that, but if you were to not have that or have somebody who wanted to abuse the authority, that's a lot of authority in one place. And there were no real checks and balances. The chairman controlled the gavel during discussions and could either lengthen or shorten discussion on things, could help set the agenda and so it worked pretty well, but the possibility of problems was great.

And when the bill passed, we had the interim constitution and it called for the creation of a new constitution or for us to have a vote on a constitution. We started a committee. It took us nearly 10 years in the development of a constitution when we adopted [it] and I had printed in this little booklet form. The constitution for the tribe was adopted on February 1st, 2005. And this constitution is a separation of powers constitution: it divides the executive, legislative and judicial into separate branches and talks about how they're going to interact with each other. But right up front in the document is something that makes it, I think, is the thing that really makes it more us as our nation. And that is, it directs the government through opening directives, it says that we are to promote our Indian language and our Indian culture at every...every law we pass is supposed to do that. All the ways that we set up programs and everything, we're supposed to be looking at this, at governance through that lens and that says right in the constitution. The other thing it says is that we recognize that our right of self-governance is inherent in a sovereign people and we also recognize that there are other sovereigns and we pledge to recognize them as they recognize us. It's the essence of a state department or a secretary of state or something that is a way of acknowledging the other sovereigns around us in what we do. And the constitution goes on to spell out a lot of other things, how things work, but it's been a really solid document to help us through, help us in our growth. And my personal belief is that it's a good constitution and that it really moves the concept of nationhood ahead in a very positive way.

There's a website at [www.]ltbbodawa-nsn.gov. It's our tribal website and on there we have a thing called the Odawa Register and in that we have, each branch of government has a section and we have all of our tribal code on there. We have our constitution, we have our regulations, we have pending regulations and pending statutes. All of this stuff is posted for us and our tribal citizens and the rest of the world for that matter to look at and to give input on. And the local newspaper has discovered this site and is now readily making use of it in writing articles about the tribe, which some of the tribal citizens are a little upset about thinking, ‘This is our business, why are they writing about it?' but actually, I welcome it because I think that it...what happens to the tribe is so important to what happens to the community around us that reads this paper that it's important for them to be aware of the proceedings of our meetings; the laws that we're considering, what laws we pass and things of that sort. So that's a little about the constitution and sort of how we brought that into being and the fact that we did things within the constitution; we also lay out a territory.

And our territory, just like us, was not on the list of federally acknowledged territories. In other words, if you go...if you look up reservations, you'll find that we do have a reservation, but it's only about 500 of the acres that we own. We own around...between 700 and 800 acres of a 216,000-acre reservation. This is the tip of the lower peninsula of Michigan here, this little map and this is just on the Lake Michigan side. There's a red line right here that outlines our reservation and this is the blow-up of that. If you notice, this is just like a state map. We got a regular map printed to help show our territory and to talk about the things that were important. And we pass these out to the local police and other people, even though it's not on the list of federally recognized reservations, we have asserted that in our constitution and we assert that in our laws and we believe that eventually this will come to pass, that it will be on the list of federally recognized reservations. It came from the Treaty of 1855, this particular boundary. So we printed something that actually shows where our territory is.

Some of the laws that we've passed are important. We have a criminal code, we have an Indian child welfare code, we have a lot of the things that are the everyday sort of meat of what it takes to be the government in Indian Country, the things that we work on, but we also have a lot of other laws that we've done. One of them is we passed corporation codes for the creation of corporations under tribal law and we have our own department of commerce and within that we have the ability under our corporation codes to create tribally chartered corporations that are owned by the tribe, individual tribal members can create corporations under our law, and we can create non-profit corporations under our law and we've done all three so far. And we have a tribal corporation called Waganakising Odawa Development and I'm the president of that board. And that's a tribally owned corporation that was created under our law. We also have a couple of tribal member corporations, one of which is a dessert business, another one is an IT business. These are individual members who have gotten...have functioning businesses under the tribal law. We also have a non-profit corporation under our law that is the Northern Shores Loan Fund. It's a CDFI, community development financial institution, through a program with the Department of Treasury and it's a revolving loan fund to help people be involved in business. And these are things that we've created. It has a 501(c)3 tax exempt status from the IRS and is set up for working to help people with business plans and do things to help them get into businesses. That's one of the laws that we passed. Of course, when you're doing all of that, you need something else -- this is like a jigsaw puzzle. The next thing we needed was we needed the comprehensive commercial codes and what we needed the most was article IX, Secured Transactions. And with that, we've adopted that. We have plans in the future for others, but we needed to have that as we were getting more and more into business and we've adopted that, but then we also did some other things.

We did...it's my belief that we're the first tribe in the country to have a notary public law. Now you don't need notary publics very often, most people go through their lives and need one...maybe once or twice, tribal government maybe needs it a little more often, a few times a month, where you have something...but people think that it's not something that's really...that is every day for people. But if every time you notarize a tribal document you go and do it under the authority of the state that you're within, through a state-licensed notary, somehow that detracts from the assertion of nationhood and the exercise of sovereignty. And so when you have a right to govern yourself, you also have a responsibility to govern yourself and responsibilities are not always easily met. Sometimes they're difficult. And it took several years to develop this notary public law and it got passed. I had a six-month time period within which to implement the law. So we called up an insurance company and said, ‘We're going to need to get insurance,' the surety bonds for notaries. And they said, ‘No problem, we do that all the time.' And I said, ‘Well, it's the tribe calling.' And they said, ‘Oh, no problem. We can do that.' So we didn't worry about that. Then we started trying to get someone to print our stamps and the embossers for us for doing notary. Well, we went to several companies and once they found out it was the tribe doing it, they couldn't do it. And we went...I spent about two or three months looking for companies. And finally we found one who we talked into doing it and they said, ‘Now how many tribes are there?' We said, ‘There's over 500.' He said, ‘You know, maybe we could do this.' And this was one of the smaller companies that does this and I think they're thinking there's a lot of business out there. And so we got that agreed.

So then we went to get the insurance for the people who'd applied, the surety bonds, and even the large Indian companies couldn't do it because all the product that they had was for state-authorized surety bonds for state-authorized notaries. And we spent months trying to figure this out. And finally we...one of our tribal members is married to a woman who's an insurance agent who specializes in hard-to-insure things and she...took her about 17 hours to come up with somebody who thought they could do it. Ironically, it's a company called First American, it's in Boston and it's not Indian, but they have an Indian in headdress as their logo, but this company had...some of the executives had just been to a seminar somewhere and at that seminar they had talked about tribal sovereignty and they got real interested in that. And then a phone call came and gave them an opportunity to work on it. They were real excited about it. And so we worked out over about another two months, worked out all the forms and all the things that were necessary to create this product. And we now have tribal notaries. We have 10 notaries, I believe, at the tribe. And while we were doing this, we didn't just sneak this in under the radar, we had meetings at the governor's office and with the governor and her deputy legal advisor who is the liaison to Indian Country, we told them what we were doing and said, ‘This is what we're doing, it's what we're working on and we're going to have this in place in a few months.' So we didn't just sort of try to blindside anybody with it and we now have this law. How often is it used? I don't know how often it's used, but I can tell you that this kind of work is not the big, sexy exercising tribal sovereignty kind of things where you're going to the Supreme Court and winning a big case or you're off doing the fishing rights or hunting rights or some big thing with this. This is one of those little grunt-level things that happens that just...it's a part of the everyday exercise of sovereignty that's important in nationhood.

Some of the other things that we have, I have some copies of regulations. These regulations have the force of law under our law and these regulations were promulgated by our natural resource commission and they are hunting and fishing regulations in response to a consent decree that we have in a lawsuit U.S. vs. Michigan hunting and fishing rights case that has been an ongoing case for years. The Great Lakes portion had been settled and there's a limited time consent decree. The first one was 15 years, the next one is 20, in how we exercise our rights. In court, we won the fact that the right existed on the Great Lakes. Then there's a...court has continuing jurisdiction through consent decrees on how we're going to exercise those rights. On the inland portion, that hadn't gone to trial and it started to heat up just a little just a few years ago and we decided that...we were on our way to court, we were doing depositions and everything, but we decided for one last round of negotiations to see if we could settle it. Lo and behold, we actually settled it. In the discussions for this major case, it was one of the major rights cases across the country, we anted up in the discussions by agreeing to not put gill nets in inland lakes and streams and we agreed to not commercialize our inland harvest. We weren't going to shoot deer for sale on the market. The state anted up with a stipulation. They agreed to stipulate that our right existed forever and be a permanent consent decree. So we put that stuff on the table and then we started to talk and we talked for a long time. There was 30, 40 of us in a room at a time and the tribes and plus the...we have a very unique animal in this case that's called litigating amicae. They haven't joined the case, but they have this special status and it's the Michigan United Conservation Clubs and Upper Peninsula White Tails and the various sport groups around the state that had an interest in this, and they had this special status in this case. Well, they had representatives in the room as well and we, at any one time during the long negotiation we had, there were times when one or another party was the one that left the room all red faced and in a huff over something and eventually we just kept talking and we gradually worked it through to where in the end, there were certain things that we had given up. Both the state and the tribe had given things up, but we also each won way more than we would have won if this had gone to court. And the problem with court is you have absolutely no idea how it's going to come out. You make your best case, you do your best shot and you don't know for sure what the judge is going to say or what a jury's going to say, and plus you don't know how it's going to go on appeal because almost every one of these cases that goes to court ends up running up to the Supreme Court and frankly, tribes have not actually had a real good experience in the Supreme Court lately.

So those are some of the things that we worked on. We worked on these regulations, we did all this, we passed laws and we worked on the implementation and enforcement of those laws. Another law we passed was a law against patenting, patents. Let's just say this right, I got my tongue tied here. But against patenting genetic material. Now, why would we do that? Because we heard all these...the various stories that have occurred around with Indigenous people and their genes, personally their own genes as well as the genes from our traditional foods. The wild rice case up in Minnesota was one that just really raised our concern because there had been strains domesticated and were being grown in paddies and those genes were drifting off into the wild and when people were selling wild rice somebody was, they started to want a cut of that sale from the wild rice because it had those genes in it from the patented versions. We felt that this was a danger to our traditional foods and so what we did is we passed this law. Now our jurisdiction is fairly small. In many ways in the grand scheme of things it's more of a show of intent and an exercise of sovereignty than it actually has effect because very few people are going to be patenting genetic material, but it also prohibits our government from cooperating in any venture where there will be a patent issued from our territory and our jurisdiction. So those are...that's another way that we went about working on things with our laws.

One of the more interesting laws that we passed -- this came from one of our council members Fred Harrington who...this was very good and it's called the Application of Foreign Law. Now if you've looked at Indian law and you've looked at various issues and you look at how there's a chart that's published by the Department of Justice that has which law and which person and which jurisdiction and all of these things and it's a great big chart on whose, which law applies to whom and what part of Indian Country and who's got...I mean it's really complicated. And there are clearly times when within our own jurisdiction, for us, there are people who aren't under our jurisdiction and yet we have to deal with them. And we've actually been working on a cross-deputization agreement with the local county, but we wanted our officers to be working under our law not just working with the county law or county authority. And so we passed this law that said, 'Anybody who's physically within our jurisdiction who isn't subject to our law has to follow state and federal law, and therefore our officers can enforce that law following our own law. It's a subtle point, but I think it's really important and that is an example of the kind of things that our government has put forth. We're a...I think about the kind of issues as we work toward things and we're taught to consider the consequences of our actions through a time period long enough to encompass seven generations. Now that's something that...I first started talking with people from the office of the governor and they were talking about things and they talked about a long-term plan that was seven years. And I said, ‘Well, you know, we've got something to tell you. Our long-term plan is generational, multi-generational and we're to think about that and to have that long view.' Well, the other part of that is that each one of us is someone's seventh generation. What did they do that got us, for instance, us in this room? What did they do that got us here? What things...where did they move, what did they study, what kind of things...where's our propensity for understanding things, for higher education, what are the things that got us to this room and what are we doing that seven generations from now will be echoing down through the generations for people at that point? So we're sort of in the middle of this continuum.

We talk in Indian Country a lot about balance. And we have balance in the medicine wheel and the four directions and we try to make sure that we maintain ourselves in balance, balance and harmony. And we try to make sure that a substantial amount of what we do restores harmony, restores that balance. Well, we're also in balance between the past and the future and we need to keep a balance there. If we just look...I was out at Sabino Canyon here last...just last weekend and I got to looking at the mountains and it was just...oh, they were incredible and I tripped on a stone in the path. You've got to be looking ahead of you, but at the same time you've got to be looking up. If you just look ahead of you, you miss everything, all you see is a path. And so we have to be careful how we do these things in terms of how we balance our vision. If we just look to the past and all of our answers and our salvation's in our past, we miss what's happening right in front of us as the world's unfolding and if we just look at what's unfolding without any comprehension of where we've been, we also miss the richness of our own sense of place within that past and future, within the four directions, within our, the growth in our communities and all of those things. So it's very important to have this vision and what I look at is in a vision is that what...the vision for tribes is to be a healthy community with healthy individuals and have healthy institutions and to be at peace and to be at harmony and that's the goal, that's the center, that's where we try to go to and that all of these documents, all of these things I've talked about, the regulations, the constitution, the maps and all these things, these are all tools to help us achieve that, but by themselves they don't achieve it. We have to balance ourselves between these different things that have a tendency to pull us and distract us in different ways.

I've had sort of a general talk here about things and I had one other document I didn't hold up and that's a U.S. Constitution. As a tribal chairman, I virtually always carried one of these because too few people who are in Congress and in other places in government, they've never read it looking at it through, ‘What does this mean to an Indian? What does it mean to the Indian nations?' The Commerce Clause, Article VIII, things that are really fairly, that are fundamental to the U.S. federal Indian law and how it relates to tribes and that relationship. Very few people actually understand that, even ones who you would think would need to. So I carried one of these, I carried our tribal constitution, I carried maps with me, all of these are things that help outwardly show people what it is. When I handed somebody one of these, what did it say to them? It says we're a constitutional government, and that means a lot in terms of people understanding things. So I'll be glad to take questions and discussion here and I'll do my best at what I can answer."

Audience member:

"Do you have any provisions under your corporate codes that allow you to take trust, to take land into trust under a corporate status for the tribe?"

Frank Ettawageshik:

"No, not specifically. We talk about taking land into trust through the constitution and that...we don't take it into trust, but we put land in trust. But we have never...we don't have something that allows the tribe to hold things in trust and that's something that we don't have in there. There's been a lot of talk about land and land reform in Indian Country. The fact...one of our big problems in growth is the lack of inter-generational transfer of wealth, which most often is done through property in non-Indian society and that's something that is a big problem in Indian Country. We're missing that step because we don't have a private sector economy for the most part in Indian Country, but there's a lot of talk about how we might look at that and change that. I talked a lot with a number of individuals over the years and the Indian Land Tenure Foundation has done some work in this regard. I know there's a lot of people thinking about it. Maybe that's something that the folks in this room might work on some day and help us resolve."

Audience Member:

"If you're a federally recognized reservation, are you subject to the Major Crimes Act?"

Frank Ettawageshik:

"Well, our 216,000 acres is not acknowledged as a reservation, but our trust land, which is the smaller ones, are acknowledged as that. So we are subject to the Major Crimes Act when it comes to that, when it comes to the casino, the tribal administration building, tribal housing, the various parcels. We're buying our reservation back one little piece at a time as we work on things, but we are subject to Major Crimes and so...but we have something unique also in our district in that the U.S. Attorney has developed a misdemeanor docket for non-Indian offenders on trust land and this is throughout the whole western district of Michigan, which includes a lot of tribes and our casinos and so we...someone commits a crime that wouldn't have risen to the level of federal prosecution, but it's clearly a crime, urinating in the parking lot for instance at the casino, which is something that people bring up, but all kinds of different things that fall into this. We now have a way to write them a ticket that they can pay a fine through this, as opposed to having to go and appear in federal court for these, if they choose. If they want to fight it, they've got to drive three-and-a-half hours to the closest federal court and go to court. So we have...this is sort of a...not every area has this and our U.S. attorney who is one of the ones that was fired, by the way, of that group that was fired, Margaret Chiara, she really worked hard to put this together. Other questions?"

Audience member:

"You talked about when you tried to develop the notary public and you talked to the governor and they seemed to be pretty receptive to that, but can you talk about some of the strategies you and your government went into when you came up against factions or individuals in state or local government that seemed to be opposed to y'all expanding sovereignty or exercising that sovereignty?"

Frank Ettawageshik:

"We've done some real interesting intergovernmental relations over the years in Michigan, one of which is under the previous governor. This current governor is nearing the end; she's in her last year of two four-year terms. And actually -- Jennifer Granholm's the governor -- she's on that short list of people that is being looked at as a potential Supreme Court Justice, but she's...yeah, which reminds me. I've got a letter here from the Native American Bar Association that was written to the President, this is a copy of it, informing him about the lack of Native people in the federal court system as court clerks in the Supreme Court or as Supreme Court justices and it's very well written and hopefully it will be well received, but I thought it would be good since I was coming here today to pass that out. But some of the things we did is we passed a tribal-state accord with the governor. All the tribes in the state signed this along with the governor and it acknowledged the sovereignty of the tribes pledged to work together and pledged to create a tribal-state forum, which was a monthly staff level phone call at which things could be worked out so that any issue...It's basically a safety valve in case there are any issues.

So anyway, that's the first thing that we did. And then, through those monthly calls, we were able to head off a lot of issues like the ones you're talking about. Probably one of the big issues was that we had game wardens in the state who really didn't like the fact that Indians had ‘special' rights. And so any time they could, they would push the envelope. Well, we'd reached an agreement with the governor's office and through the director for the [Michigan] Department of Natural Resources that, while we were working on the U.S. v. Michigan case, it was a government-to-government issue and they weren't going to pop individuals who were hunting with proper licenses from the tribes. So I got a call. A 14-year-old hunting deer for the first time with his dad got his first deer and the game warden took the deer, took his rifle and they were all upset. Well, I had a phone number. I called it and it was the phone number of the liaison to Indian Country that was through the Department of Natural Resources. He was on his deer blind in his mom's back 40 up in the Upper Peninsula and I called him. I said, ‘Jim, this is what just happened. We've got a problem.' Jim said, ‘Okay, just a sec.' And he got off the phone and he made a couple phone calls and he called me back and said, ‘Don't worry, it's all taken care of.' The guy got his deer back; he got his rifle back. It took a couple days, but they had gutted the deer and they kept it refrigerated, they'd done all the things that they needed to, but we were able to deal with things like that and we built these safety valves in.

There's a liaison to Indian Country in every single department in the state. The list is published, these phone numbers are available to people on the state website. If you go to Michigan.gov and you go to the governments, there's a bunch of different things there, but go to governments and on the state government page there's a link to tribal governments. And as the page opens up, there's a link to all the tribal websites and all of the agreements that we have done with the state are on there, which includes the Tribal-State Accord, a water accord on how we're going to mete [out] unshared water resources, an economic development accord and addendum to the initial economic development accord that was done the next year. Each of these are the results of a summit meeting with the governor that happens annually where we all get together. And as usual in summit meetings, we don't actually do the work at the summit meeting. It's done all year and the summit meeting is, we're all together, the chairman and the governor sign the document and there's photographers and we share pens and all this stuff. It's a photo op and it ices the cake, but the cake's already baked, is basically what we're talking about here. But all of these agreements are there including the most recent one, which is an accord on climate change issues that we signed nearly a year ago now. And this one, they create meetings like with the...the water accord created a meeting that happens twice a year with the tribal...at the staff level between the tribe and the state on how to deal with shared water issues. And we are meeting at the end of this month with the Michigan Economic Development Corporation, as furtherance of the economic development accord that we passed. We've had the director come to speak to the United Tribes of Michigan meetings. We have a variety of things where we're working together and we've just tried to establish how do we do this. And what happens when we have people that don't agree, we try to make a political climate in which it is more difficult to disagree than it is to sit back because they're there still...but they're not the ones that are leading the discussion. And we also do our very best to convert them to the fact that...I say to, and unfortunately, I don't know if anybody here's from Ohio, but I pick on Ohio quite a bit. I say, ‘Poor, Ohio. Every time they have to do anything environmentally and stuff, they've got to go to the EPA all by themselves.' Michigan has 12 federally recognized tribes, so 13 of us go to EPA together to work on the issues. And the tribes have access to resources that the state doesn't and vice versa. Together we can really get a lot of stuff done.

And so actually, this idea has not only taken root within the people that we deal with in our communities, but they actually come to us now. We had a local governmental entity come to us and inquire about us putting a piece of land in trust because they wanted to do something with the land that they couldn't do under their law, but they thought maybe we could. We couldn't do it either, but nevertheless it was such an amazing turn about that I was blown over by that. But those are some interesting things in the working relationship with other governments around us. Other questions?"

Raymond Austin:

"Could you talk a little bit about you as a customary law, customs, traditions and tribal government operations not necessarily in court decision making, but the overall structure of the government itself? That's one. And two, can you say something about attorneys working with Indian tribes? What are their responsibilities, duties and all that to not only the tribal council, but the chairman, the president or whoever and what their roles would be? Sometimes you have general counsels that are overbearing, they come up with policies or they draft laws on their own and then they give it to the tribal council. The tribal council merely rubber-stamps those things, that type of thing. How should attorneys work with tribes in your view?"

Frank Ettawageshik:

"Well, let me answer that last, second question first in that I reiterate what I said initially, is that the attorneys work for us, we don't work for them. And that's a difficult thing for some people to think through, but the other one is that we have to when we're passing laws and you're thinking about sovereignty, the attorneys may be the drafters, but they're not the ones...they make the draft or they find the words to make happen what their bosses, the legislators have said. ‘We want it to say this.' They might not be able to find the right words to say it, but then the attorney's job is to help draft it so it says that. And as you said, there are...we worry about activist judges. Well, there are activist attorneys as well who really work hard at trying to get certain points of view across and at times there are a number of things that you get a tribal council of lay people who sort of get awed by the attorney and say, ‘Well, the attorney said this. It must be true.' Well, attorneys are trained to argue either for or against a particular point and they may or may not believe that point, but the job is to do the best you can with what you've got to win the case whether you agree with it or not. I used to be a debater in high school and we debated on the affirmative for the first half of the year and then we'd switch and we'd be the negative and we'd switch that in the middle of the year because we'd heard all the good arguments from the other side and now we could argue that side pretty well. I learned that.

That's the problem we have a lot of places is we don't, people aren't...what they really don't understand, and this is the thing I think that happens a lot for the tribes is that the elected officials and perhaps the citizenry don't have a really good understanding of how their government works. And one of the projects I've been working on here is developing a good strong outline for civics education for tribes, sort of a subheading of ‘How to Get the Most out of Your Elected Officials,' some way to help people understand what the roles are so that they know better what their powers are and how they can be expected to act. And I think that in the absence of people knowing that, it leaves room for attorneys to actually take those actions as you described and I've seen it happen some places. I've had...I don't, as you might hear or suspect, I really have not had that problem because I wouldn't tolerate it. I knew what we needed, I knew what I would want and I would argue quite strongly for it without letting someone just write something that we rubber stamped. I was sort of dealing with the second question first, but I've forgotten the first one."

Raymond Austin:

"Culture in governance?"

Frank Ettawageshik:

"Oh okay, yes. To me, one of the ways that I deal with culture and how it relates to governance is I've worn a ribbon shirt almost every day of my adult life. I've worn a ribbon shirt when I was the only one and out of a thousand people in the room that was wearing a ribbon shirt. When I mow my lawn, I wear an old ribbon shirt because I've got to wear them out. And the thing is that I've always tried to make sure that I let people know that I was Native and that I was proud of it and that this was an important part of the things that we did. When we meet with the governor, the State of Michigan does not allow prayers before their meetings, but every single meeting that they have with Indian people starts with a prayer. They concede to us to do an opening prayer and we do that because we feel that that's an important part of us all being in the room, we need to come together as a mind. We feed people. This is part of our culture. You get a bunch of us together, we always eat. Well, we make sure that if the state or the other agencies, these people love to come visit us and have the meeting because we feed them. When we go to there, they're so embarrassed that they'll personally go out and buy some donuts and coffee just so they'll have something because the state will not spring for any of those, any refreshments or anything at their meetings. And so we make sure that they understand these elements of our culture and understand these elements of protocol.

I think it's important to sort of let people understand that we try not to make rash decisions, we try not to jump into things real quickly, and it's impolite actually to do so. It sort of implies that we're not actually giving careful consideration to the thoughts of the other side. So sometimes it takes a longer time in dealing with us and we've done some trying to understand that culture, understand how we bring that into our governance. I mentioned that we start our meetings, our community meetings with the drum, with songs, with the eagle staff being brought in, with our tribal flags, with the pipe ceremony and that this is something that we do in those big community meetings. But we also, when I was the chairman, I carried my personal bundle with me into the room even though I didn't open it in the council meeting [on] a regular basis, but I had it with me because to me it was sort of something that helped root me where we were.

We have an opening at the meetings for a smudge. We try to do everything that we can in our, within our community to...let's look at this way: in the architecture of our tribal administration building, we incorporated our culture. And in doing so, what it is, you walk in...even though the driveway comes in from the south and at most big buildings you'd turn the building so that it would face the driveway, we faced the building east because that for us is the direction we need to face with the building. And, there's a big octagon center that's got a big vaulted ceiling in it. And in the center of that is a circular area that has a fire pit in the center that's right on the earth. The architect said, ‘Oh, we'll just build some concrete, we'll fill it with sand.' We said, ‘No, we won't. We're going to have undisturbed earth right there where we can build a fire and that's going to be the center of this building.' And there are no offices in this big center building. It's open. We have a kitchen, we have a receptionist and we have a little meeting room and bathrooms and other facilities and things, but this is a commons area in which we meet, it's the center of the people, it's ceremonial and then off the north facet we have a two-story office building in which there are our tribal police, our environmental services laboratory and offices, the computer lab and the education department, the archives and records and the accounting department and the tribal administrator. All these are in this north wing. In the south wing is the tribal, first of all, the tribal council and tribal court chambers, we share it. And then all the court offices and the probation officer and all that are in that south wing. The west wing of the building built on the west facet of this octagon is on the south side of the building are all the executive offices for our government. The north side are all the legislative offices. And this building, as you walk in it, it's an education in the way our government functions and it's an education in our traditions in that around that fire pit we have tile in the floor that are the four colors for the four directions.

We've had meetings in there where we had a gathering of the eagle staffs from throughout the Great Lakes Basin and there were 17 staffs and 21 pipe bundles that were all in there in that circle as part of the ceremony. We've had the Attorney General of the United States come in and we had a meeting where we hosted him in Indian Country in Michigan. We've had the Governor's Interstate Indian Conference with all the different state governors and their staff of places where they have tribes in their states, they have this organization that they meet, they came and met. We've had the Kiwanis and the Rotary that come and meet from the community in this place, but this building itself lets them understand elements of our culture. Every time they see it, we get a chance to explain it and every time a staff member walks from one wing to the other, they come to the heart of the community on their way through. Other thoughts?"

Stephen Cornell:

"I was just wondering how these assertions of nationhood and of sovereignty have been received at the sort of level of local publics. You're in an area of the country where there at times have been a great deal of tension between local constituencies and you've mentioned the state, but I was wondering what have these, how have these been received by local people, including the people, you're in an area of mixed population. I'm just wondering what impact this has had in your relations?"

Frank Ettawageshik:

"Well, we're in an area where there -- within my lifetime -- there were signs ‘No Indians' in some of the bars and there were places that we really couldn't go. Nobody would have thought that they were being discriminatory, but we certainly have lived within this knowing that there were things that they couldn't do. Early in my tenure, an Indian student came to the school in Petoskey drunk and they pulled all the Indian kids out of class and breathalyzed all of them. So a couple of people and I went into the school to the superintendent and said, ‘Listen, either you and us are going to get to know each other really well as we go to the Supreme Court and we sue you and seize all of your assets or you're never going to do this again,' and they've never done it again. They straightened out and they realized they shouldn't. So we managed to go through that, but we have had those certain kinds of tension.

One of the initial parts of tension in this is I got...early on in our, after the reaffirmation bill was signed in 1994, I'd say about '95, maybe '96 or so, I got a letter from a local prosecutor who said, ‘Dear Frank, this is to inform you that your police officers are impersonating police officers. It's illegal for them to be on the road with lights and with emblems on their car. It's illegal for them to...' Most importantly, he said, ‘It was illegal for them to have the chip in the radio that allowed them to pick up police frequencies.' And so he said, ‘You have 10 days to deliver those to me.' So I wrote him back a letter, ‘Dear Bob, you know where those cars are and you're welcome to come get those chips anytime you want, just be prepared for a visit from the U.S. Attorney as soon as you're done.' And so he called the U.S. Attorney and within several months actually, he had signed off on a limited deputization with our officers, but before long we actually had a full cross-deputization [agreement] where the sheriff and the deputies from two different counties had came before me in our tribal courtroom and took an oath to uphold the tribal constitution and all of our laws, and our officers were sworn in as deputies with the county so that we had seamless law enforcement. So that's one way that things have happened.

We gave people the map and we've showed them the constitution and a lot of them didn't realize that we were a constitutional government. And there are tensions, but we've also done some tremendous things. One of the things that we did that...we are either the only tribe or one of just two or three that got the ‘The Great Read,' ‘The Big Read.' There's a program through the Humanities Councils and the Arts, I forget. It's through the...it was some agency through the National Endowment for the Arts on 'The Big Read' and we got a grant for it. Some of the other recipients were like Maryland Public Radio got one of the grants and things like that. Well, our tribe got one and we worked with the Great Lakes, the Little Traverse Symphony, we worked with the library in town, the college and various other people and we put together this thing where we all read To Kill A Mockingbird. And we had programs throughout every place and the tribe was the lead agency on this working with the others in terms of comparing what our situation was with the situation in To Kill A Mockingbird and the story from that. And these are the kind of things that we've done with the other agencies in town to help people understand where we're at; it helps to get rid of a lot of the tension. And those are things that we've done both in big and small ways that have tried to deal with that tension. It still exists and we have individuals who would be a great detriment to us if they were the one in charge, but nevertheless this thing works quite well. I think my time has arisen; actually the timekeeper has risen from his seat. And so with that I want to thank you all for the opportunity to speak with you today."

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 1)

Producer
Native Nations Institute
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has set a solid foundation upon which to engage in nation rebuilding through its development and ratification of a new constitution and governance system that is culturally appropriate and capable of effectively exercising LTBBO's sovereignty. He also stresses the need for Native nations to develop and institutionalize nation-specific civics education of their people in order to create civic-minded citizens who can contribute to their nation-rebuilding efforts.

Resource Type
Citation

Ettawageshik, Frank. "NNI Indigenous Leadership Fellow (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 6, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Frank Ettawageshik. Frank is a citizen and the former chairman of the Little Traverse Bay Bands of Odawa Indians. He currently serves as the Executive Director for the United Tribes of Michigan, and recently was chosen by the Native Nations Institute to serve as its 2010 Indigenous Leadership Fellow. Frank, welcome to the program."

Frank Ettawageshik:

"Hi."

Ian Record:

"I'd like to start off by asking you a question I ask virtually everyone I sit down with, and that is: what is Native nation building and what does it entail for your nation?"

Frank Ettawageshik:

"Well, it has a lot of different parts to it. Some people think it's the constitution, some people think it's economic development. And those are components of it, clearly, and are very important, and maybe some of the more visible parts, but nation building to me is the, building the capacity of the citizenry of your nation to deal with change and to deal with the issues that come before it, and to do that in a healthy way. To me, you're building...a nation is wealthy, and it has true wealth as opposed to money. And, you know, economic development can bring you a lot of money, but it doesn't necessarily bring you true wealth. And the...you need wisdom to figure out how to take money from economic development, how to use a document that you've created if a constitution, how to actually have the institutions of your society, not just governmental institutions, but you know, institutions of your tribal society, of your nation, have them become strong. And that, to me that's what nation building is."

Ian Record:

"Dr. Stephen Cornell with the Native Nations Institute has framed nation building as in part the challenge of remaking a nation's governance tools. Do you agree with that statement, and why?"

Frank Ettawageshik:

"Well, I think it's important, but you have to...the tribal government is not the tribe. The government serves the tribe. And to the extent that you have...you need proper institutions. And those institutions may be governmental institutions, but they may be institutions of your society. And you need to have them be strong in order to truly do the nation building. So it, you know the implication of the question would be if you do constitutional reform, you got, you're all done. And...but to me, I think that it's a little deeper than that. And so clearly, an inadequate governing document can be a huge hindrance towards the development of good, of proper governance. I mean it can be a real problem, and needs, you do need to have a good constitution for your government. Now that constitution, in some cases it may not be written, and you know, but nevertheless, you need to have a system of governance that's in place that the society understands and that your tribal citizenry understands and is able to use and that they feel comfortable with. Otherwise you, you can impose a system that, that for instance is not, that may be a good idea somewhere, but may not be a good idea in your community. You can't do that. You have to have something that works."

Ian Record:

"Follow-up question to that: you've obviously been central in the nation building efforts of your own nation and have gained deep insights into what a number of other Native nations have been doing over the past 20, 30 years during the course of your career working in a number of different arenas -- how do you see this question of why some Native nations have proven more successful than others in achieving, not just their economic development goals, but their community development goals? These social institution-building efforts, if you will?"

Frank Ettawageshik:

"Part of that is a question of leadership. You need to have the, you need to have the right combination of people together. Some, there's what, the 'Great Man theory': Does history make the great man, or does the great man make history? And I've always been a proponent of the belief that history makes the great man, or the great person, or the great leader in this case as it may be. And that it's not, it's less the force of a single personality, and it's more the outgrowth of the culture. And that when people are at the point that they're ready to do certain things, those people who can accomplish those will become apparent within their communities. And our peoples have suffered immensely. For over 500 years, our wealth has been gradually transmitted away from us, our wealth, not just monetary wealth, but the wealth of our resources, the access to our resources. Even if they're there, we sometimes, the game warden stops us from hunting so that we, for the food that we always hunted. And we have, that this loss, gradually, over the years, has been very difficult for us. We've maintained our elements of culture and items through that. But our, many of our institutions within our tribal societies have suffered at that over the years because of a lot of, just the loss of many people, say through the small pox epidemics and the measles and all the other things. We lost a huge amount of institutional knowledge within our tribal societies. And that that...that made it more difficult for us to grow –- we were in survival mode and we had to try to figure out how to pull things together to survive.

So, different communities and different tribal communities, different tribal nations are at different points in their recovery, because we are recovering. This is the first generation, or maybe the second, in our history that actually has more rather than less in most cases. In fact, in my life I've seen our tribal nation go, really this is the first generation that has had more rather than less when it comes to access to resources. When it comes to this, the community support for strengthening cultural society, strengthening cultural teaching, that we actually have more rather than less now. And that's an unusual situation for us. So in the cases of, in the case of money, we have, there's money from a casino, we have to figure out how to deal with that. How do we deal with money, how do we deal with the problems that come from a market place that moves up and down and back and forth? And how do we deal with that? Whereas before we were always on the low end of everything, we were broke. And so if the market fluctuated, we already were at the bottom, and you know, it didn't really take us much further down. But today, we actually have made advances, and so we can suffer through changes in the national economy for instance. So these are things that are, that you know that I think about that in trying to understand and learn as we look towards the future."

Ian Record:

"Dr. Cornell also...in a related question, Dr. Cornell refers to governing systems as fundamentally tools for creating the future that Native Nations want -- essentially a vehicle for strategic planning and implementation. Is that something you agree with, is that something that you've envisioned your government doing as part of its role, fundamental role?"

Frank Ettawageshik:

"Well, the government clearly has a role for these things. You know, we have a planning department, for instance. And the planning department was really the first independent department that we created that was, that became out of the, when we started doing a modern administrative government as opposed to our traditional government. This was a, and it was important because there's financial planning and we had to learn how to do budget projections and running grants and all the other things. We also had, we had to deal with phone systems and how do you, how do you get it, deal with an expanding phone system from one to two to three to five to twenty-five to fifty to one hundred. You know, how do you deal with all of those systems. So we've had to learn to do all of that as we've had expanded offices, and as we've had expanded resources to run those offices. You know, we had an archives and records department that we had to create within the government because it was no longer possible to store our records in boxes under people's beds and in the hall closet in people's homes. We now started having fairly large collections of data that needed to be stored and taken care of. And then you have financial record keeping data that has to be stored for a long time. So we, these are kind of things we had to, you know, to figure. So yes, to those extent, we do have to, you know, you do have to have these institutions. But at the same time we have to be careful to not expect that our tribal governments do everything for people. That, that there's a, as I said the government serves the tribe, but the government isn't the tribe. And that's a very difficult thing because they, literally, the tribal citizens often actually ask us to do things that, it would probably be better if we didn't. And you know, there's a number of different things that I, that I think about in that regard that are, that I think sort of... One of them I guess I'll talk about is buying the meat for the feast, for instance.

Once we started having some money, people felt that we needed to provide the money to buy the meat for the traditional feast that we were having. And I felt that we'd had these forever, and that we should try to continue to have them in that same way. The government didn't necessarily need to be involved in that to make those things work. But we started providing the funds. And this gradually turned into providing the money to actually cater the entire feast. And we ended up having this where instead of having the women come and help cook and do a lot of the work, we had, you know, the casinos they have from...the catering folks came in and they just took care of everything. And we'd had this, and we were in a northern climate, and then we had a snow day, and very, we ended up having ten people come to this feast and a lot of people got really upset thinking, 'Well, nobody wants their traditions anymore. Nobody wants to attend the feast, nobody wants to do this and...' So it almost died because government, and for me it died I felt because government had gotten involved and started to, you know, question the date that it was held, and start to wonder who could come, and who might not, and started providing the money for this whole thing, as opposed to doing it the way that we had always done it.

So the next year when it came time to do the feast, we -- in a very long meeting at our elders lunch with the, we had just the week before the feast -- we discussed whether we, the people were right that nobody wanted to come to the feast and that we should just do away with it, or what should we do. Well then this long discussion got turned back into a potluck and got turned into everybody was coming and we had the biggest group that had been at this feast in 25 years. And that continues to this day being run that way, where we, everybody pitches in and works together on it. And it's the way it should have been. Well, that's to me a shining example of what government shouldn't do, and then what government should do. They should stay out of it. Government, in this case, got the grants, provided the funds, and built the facility in which we hold the feast. So it's a government hall that the community can use, and then the community comes in and uses it. And not only uses it for this event, but uses it for all types of other events: birthday parties, and for funerals, for state dinners, for all different kinds of things that are used in this facility. But most of the things that happen there are not government functions. Most of things are functions of the community as a whole."

Ian Record:

"So essentially what you're saying is that it's government's role to empower community and not necessarily replace community."

Frank Ettawageshik:

"Yeah. I think that's a good summation of it. And to me this is, we have to really be careful of this. When we look at what we're asked to do as a government, and also what we choose to do. And those things are, and they have to be thought through, you know. This long-term thinking about the implications of what we do have to be thought through."

Ian Record:

"Isn't part of that just the struggle with managing growth? What you're seeing, particularly with the advent of gaming, so many tribes, the amount of resources that they're receiving and then having to figure out what do we do with this? It just grows, has grown astronomically over the past 15-20 years, and it's kind of, it's been a challenge for some tribes to kinda take a step back and consider these very issues that you're talking about."

Frank Ettawageshik:

"Well, the communities have a lot issues. But there are people who are quite critical of how tribes do some of these things and look at them. But I actually think that, you know, we need to look at it like this: we really figured out well how to be poor. We got that figured out really good. We know how to take a chicken and feed 30 people with it, you know. We can, we can figure out things. We got being poor figured out. But when we have money, we have to figure out how to do that. Lots of people with lots of money have a real hard time. Lot of old money families have all kinds of different issues. They're different issues than the ones of not having money. Well, as tribal citizens, tribal communities, having money is something that we have to figure out how to work with, and it's going to take a generation or two or three of four to try to work through those issues. How do we deal with not being the poorest ones on the block? How do we deal with, with not, with actually having resources that we need to allocate as opposed to just barely surviving? And those are different kinds of, different kinds of roles. So it's a natural, it's a natural issue. People who win lotteries --there's been studies done about the people who win lotteries. And most of them, after, oh say ten years, are probably worse off than they were before they won. Every now and then there's an exception, but because they don't know how to deal with the issues of having, of having money, and having access to resources. I look at it -- once again it's like I said earlier -- it's like having money versus having, taking that money and turning it into true wealth. And that's were you need to have, you need to put a lot of you effort into training people how to deal with that."

Ian Record:

"So let's talk a little bit more about that. How would you define true wealth?"

Frank Ettawageshik:

"A safe, peaceful community. Where you have, you know, you have adequate education, you've got healthy people, you have adequate resources. And you can perpetuate and grow your culture. Not just talk about the way things used to be, but actually adapt and grow to the changing times and have your culture be alive, not just static, something that's in a book or something that's been studied and that...you know, so it's...to me true wealth is this. And true wealth sometimes involves having money, resources, and doing things with them. But true wealth can also be merely just good schools and safe homes and jobs. But that's, that's being wealthy, being, having a strong sense of self-worth, a good strong sense of place, not just in, in the physical place, but a place in culture, a place in history, a place in the preservation and continuation of culture and your environment."

Ian Record:

"I'd like to switch gears and turn to a topic that you're well versed in, and that is constitutions. Back in 2005, the Little Traverse Bay Bands of Odawa Indians adopted a new constitution, and I was curious to learn more about what necessitated your nation to undertake that major step, and I guess give us an overview of what that involved."

Frank Ettawageshik:

"Well, in our case, we were not on the list of federally acknowledged tribes. We felt we always had been acknowledged, but we felt that the government had somehow forgotten that; that they had neglected to keep us on the list. And so we spent 120 years in a legal battle with the United States government over this issue. And when Richard Smith went down with his ship in a storm in Saginaw Bay in 1871 in Lake Huron, he took with him the institutional memory as being the scribe at the treaty negotiations, the Treaty of 1855, Treaty of Detroit of 1855 that covered a substantial portion of the lower peninsula of Michigan, and a substantial piece of the upper peninsula of Michigan as well, in which today there are five federally recognized tribes, and a couple of others that are working toward federal recognition. And we had to fight with the U.S. Congress, with the executive branch, within the courts for all of that time. We had people who were involved in lawsuits, people traveling to Washington, all laying the groundwork for eventually us being successful in the passage of Public Law 103-324, the Reaffirmation Act for Little Traverse Bay Band of Odawa Indians and the Little River Band of Ottawa Indians, both in Michigan. And this bill was signed on September 21, 1994.

There had been numerous legislative attempts over the years on things that would have affirmed our status in one way or another. There were a number of different things that happened, and there's a huge long history just behind that treaty, and behind the ramifications of it. But we spent this time working for this bill, which reaffirmed our status -- it didn't grant recognition to us, and it didn't restore recognition to us. It reaffirmed that we'd always had it, which I think is an extremely important, subtle difference. And in that bill it made sure that we be on the list of federally recognized tribes, so we'd be added to that, to the List Act, you know. And then we also were...it called for the development of a tribal role, and there was a certain timetable for that. It called for the development of a tribal constitution that, the one we subsequently developed. But it also recognized as an interim document, the constitution that we were operating under at that time that was our interim constitution, and then we were going to, we had to move forward with a new constitution.

Fortunately for us in this process, we had seen, we could learn from the issues of many neighboring tribes, and other tribes across the country, in the documents they'd had. We had very early on -- when we were trying to figure out how to work on our issues -- we had a grant from the Administration for Native Americans, and in that grant we wanted, we were gonna put on a conference, you know, a meeting for the tribe to discuss constitutions, to discuss the issues of federal acknowledgement. And we -- our attorney and I -- we were talking on the phone, and we wanted the Vine Deloria book, The Nations Within, we were discussing that book and we said, 'Well we need somebody that can really talk about that book, and talk about the issues in it. That's really what we need in the community to help move us along.' And finally one of the other of us, and I don't, never have remembered which one of us said, 'Well, why don't we just invite Vine?' And so we subsequently did invite Vine who came to our, came to the community and he -- along with a number of other people -- through the day gave discussion about constitutions and issues and laid the groundwork for helping us understand the issue of constitutions, and really what was wrong with a lot of the, what's called the boilerplate IRA constitutions that are out there, which, by the way, was pretty much what we were operating under is our interim constitution, was patterned after one of the boilerplate IRA constitutions; all of the powers in the council, and the council creates the court by passing a law, the executive and the legislative are all embodied within one institution, the tribal council. And as long as you have good people in a system like that, it works. But there are no checks and balances really. If the, if somebody, if a tribal member sues the government for something and wins in tribal court, the council can abolish the law that created the court, fire the judge, and then pass a new one and get a new judge and just keep doing that over and over until they get one that finally rules their way. That could happen, and actually things like that have occurred various places around Indian Country -– judges have been fired. So you really need a robust dispute resolution process, or a strong independent tribal court. One, and that's an important part of this. Well we discussed these things with, when Vine was there, and helped us start the process of thinking about this. And at the same time, this was prior to the passage of our reaffirmation act, Vine agreed to testify and came and gave the lead testimony for, at our hearing for, what became Public Law 103-324, when we went to the U.S. House for our first hearing on the bill.

So we had, we created a constitution committee, we worked through the grant, we prepared a draft, an initial draft that was looking at our, sort of looking at us from a theoretical point of view. This is what we'd like to see, as opposed to this is what we actually are. And then we had a committee that worked for number of years putting a draft together. Our constitutional process involved -- the development of the constitution involved -- having a committee that worked on drafts, studying constitutions from other tribes all over the country –- the good ones, the bad ones, the long ones, the short ones, the...and trying to learn from the experience of other people, as well as try to find something that fit our makeup, and our community. So we then did a public hearing, a meeting in all, not just in Northern Michigan right where our people are, but we also have a lot of people who live in the cities who would move there for jobs down in the southern part of the state. So we had meetings not only there, but also in the Upper Peninsula of Michigan. We had a total of eight meetings where the, sometimes we had as few as five people show up, sometimes as many as sixty would show up to these meetings where...and we wrote a transcript of the meetings, and talked about things like: if you're gonna be a judge, can you ever, can you have a felony in your record? Is there a length of time that you could go where we could consider that you might be rehabilitated? OK, if you've lived in the community, if you had a felony when you're 18, and you serve your time, and you're out and then 25 years later when you're, you know, in your 60's and you're being considered after living an exemplary life, would you be eligible to be a judge? Would you be eligible to be on the council, or to be the chairman, or...and we discussed these things with the community, and came up with, for most instances that they would be, there's the ability to be forgiven, and, not in every instance, but in most. And then we talked about what age people would have to be and what the basic criteria would be. We talked about all these things throughout the community in these discussions. And then a draft was prepared. That draft was then sent to all of the membership, one to every member. And then we then asked for written comments. We also had a meeting where you could come and give your, you could bring your written comments, you could mail them in, you could come to the meeting, and you could talk and discuss the things, ask questions, and we had it in an auditorium and had a fairly large turnout for this meeting. Then we took those, the committee took all those comments, and all those thoughts and everything, and took them back and made changes and thought it through and came up with a new draft, which we mailed out to everybody, and then did this whole process again. And we mailed, I think three times, the draft out for comments and had meetings where we put everything together. This took years; this was not something that was a matter of months. This took years to do this. And we finally ended up with a draft that was ready to be submitted to the, that was ready to be submitted to the Department of Interior.

Now the bill that we had, the Public Law 103-324, the Reaffirmation Act, it...when it called for an election for a constitution, it called for a secretarial election. So the fact that there's a secretarial election is really the only tie to this constitution as an IRA constitution, 'cause they required approval. So this was an IRA constitution only to the extent that it was required that that secretarial election. Because it really was not...this constitution that was developed was a separation of powers constitution, far from those boilerplate IRA constitutions. And it has a checks and balances within the different departments, within the different branches of government. And in addition to those checks and balances, there's also an independent prosecutor's office that, to help ensure this. And then there's also, not a branch of government, but a constitutional entity, the election board is also an independent body. And so these were the kinds of checks and balances that we built into this document.

Eventually we -- after considerable negotiation with the Bureau [of Indian Affairs] -- of course we, when we submitted it it was for an informal review. So we get this informal review and it took a long time. They're supposed to, there's timetables built into this stuff, but nobody ever meets those, the feds don't and, you know, the tribe, we didn't either, and so it took a long time to get this process. But eventually we got through that and negotiated through their informal review and then we got a formal document. Then we sent it in for the formal review and then we had to argue about certain points in the constitution about membership and territory and things that we had to sort of go through and deal with. And eventually we got the Assistant Secretary of the Interior to sign off saying that we were ready for a secretarial election – this was in the fall of 2004. And so the Bureau then started out to do the secretarial election, creating an election board that was our election board plus a couple members from the bureau. And they did a registration for that and then from the registered voters who registered for that election, it was about a three-quarters vote in favor of the constitution, which was...the election was certified on February 1, 2005. One of the key points to this, so that was a process of getting that constitution. It was a very long involved process, involving the community..."

Ian Record:

"A very organic process from what you're describing."

Frank Ettawageshik:

"...Yes. The next thing though, there's another important part of this constitution that I think was critical to its success, and I don't want to leave this out in terms of this point, but we...when people do constitutional reform, often the new constitution just goes into effect on that, on a particular day. Well, we were going from the old, pretty much a boilerplate, IRA-type tribal council, all authority being there, to one of different branches of government. And the people elected under an old constitution couldn't serve under this new one adequately, you know, it'd be really confusing. So when we adopted the new constitution, one of the provisions in it, was that it would not go into effect until the people were elected and sworn in to serve who would be implementing the new constitution. So it was September 21th, I mean, it took from February, it took months to have the election, to go through the process, and have people sworn in who then took office, and the new constitution went into effect. And that was a really important thing.

The other thing we did that helped with the transition that I think is...would be helpful to people is that we hired a couple of consultants to come in who had studied constitutions and had worked with tribes. We brought them, we gave them our document, and they had not been part of the drafting of the document, but we gave them our document and we said, 'We don't want to know what's wrong with this. Don't give us a detailed analysis of what's wrong with this. What we want you to do is to help us understand how to implement it. What are the things that we're gonna have to know when it comes to implementing this?' And then we hired them to come and work with the council, the newly elected council. And the day before we were all sworn in, they came in and did this training with the tribal council and with the executive offices, with all of the judges who would be carrying over, the process and...to go through this...and key members of commissions and key staff. So we had a training session on what the constitution meant. What it meant to be on a separation of powers, who was supposed to do what, how you appropriated money for instance, you do, you appropriated money through a process where you authorized the expenditure, then you appropriated the money and then you had to approve the, a budget modification where you put the money. And so those were things that we learned for instance from this, is way to keep adequate track of finances and dealing with that. And, so we went through this and we actually had a fairly smooth transition and went into this process.

So we went six months without...I attended every meeting as the, I was the chief executive elected under that first constitution. I attended every meeting for six months, all of the council meetings. They started to get a little restive about that because I'm a chief executive and I'm not really part of the council, so well, maybe they didn't really want me there. But they really wanted the chief financial officer, the CFO, and they really wanted the tribal attorney. But both of them worked for the executive now, and they, I told them, 'You can't have the CFO and the tribal attorney if you don't have me.' And they really didn't want me, so then they finally agreed, 'Okay, well then we won't have any of the people there, you know, you'll come in periodically.' And so we did, we had a table in the back where we'd come in and visit the meetings and answer questions when they had them and give them information, but we didn't attend every meeting. Well as soon as I wasn't attending every meeting, they started taking actions that didn't have input from the executive, and therefore within three weeks we had our first veto. So you know, things got interesting and we sort of worked that through where the executive exercises his prerogative with veto or with signing a bill, or letting it happen without signature. Those are all provisions of the constitution we put in.

So this is stuff that we did in the transition. And I mention one other thing about constitutions in here I think is important, and that is that a lot of people said, 'Well gee, you know, the separation of powers looks a lot like the U.S. constitution, why are we copying them? You know, we don't need to just copy them, you know we need to do our own thing, you know.' And, you know, I think of a story and I, about a project, a gift that my son gave me that he, he provided this, he went to camp, you know I think he was eight, and he made this thing, and I got it and it, it was wood burned on it, you know, and it said 'To the second greatest dad in the world.' And I went, 'Well gee, what is this? You know?' And he looked at it and he said, 'Well, but dad, you know, this other guy he said, "˜To the best dad in the world' and I couldn't copy him.' So I get a real kick out of that one. But the point is, is that, you know, we need to be careful. If something's good, just because somebody else uses it doesn't mean we shouldn't use it, particularly when they copied us when they prepared these checks and balances within the constitution of the United States. And they were, they took advice from tribes and they, they lived here on this continent and many ideas in there are native to this continent, they grew out of it. Even to the rules, the decorum in Congress and the way things are done. Many of those things came from the observation of tribal councils, of council meetings and different things. And so, you know, we've made a major contribution to the way the U.S. government functions. And if there's something that works, we shouldn't be, shouldn't say, 'Oh well, we can't do it cause they're doing it.' We need to say, 'Does it work and does it fit us?' And if it does, then we, we should be, not feel bad at all about taking that to use and using it to our own benefit."

Ian Record:

"Well yeah, it gets to the point of it, just because they copied us doesn't mean they own it."

Frank Ettawageshik:

"Yes."

Ian Record:

"You know, they're the only one that can use it."

Frank Ettawageshik:

"Yes. And that's...and so those are important things that we need to, that we need to think about when it comes to this. And so the constitution that we developed, that we put in place, I served four years as the first chief executive under that. I left office last August now -- in 2009 -- and it was, you know we're in, so now we're into a new administration and was, as with anything there's gonna be pushes and pulls. There's constantly, there's a, always a tension. With checks and balances, part of what that is is a certain tension between the different departments. And that's really sort of designed that way. And if there's a little bit of tension it's not a bad thing. But you, you know the executive authority for instance, the council, is really nervous about not exerting executive authority often, and really a lot of what they'd like to do is executive, and like the U.S. Congress tries to assert legislative authority, I mean executive authority and there's constant pull between the executive and the legislative, and that same thing is true within this kind of a document. You're gonna have that, and you're gonna have a court that will have to decide if one thing, if you've gone too far or not. But it's really important and what's...

The other thing that's important about a separation of powers constitution for me is that it's cumbersome, it's slower. And because it's slower it gives time for people to watch what's happening, to think about it, and the tribal citizenry can get involved. And if they don't like it they can let you know. You want something that takes, something has to be posted for 30 days before you can act on it for instance. You need things like that in there to give people time. Even if very few of them actually take the time, they need to know that they can, and they need to -- for those people that are interested -- they need to have that opportunity to do that in order to feel comfortable that the government actually is doing what they like and is a reflection of the community. When things can happen overnight without any notice at all, it's bad. And the other thing is you have to be able to notify people what's happened. People need to understand what the law is. A council can sit around passing laws all the time, but if you've got several thousand members, and they can't all attend the meetings, and if they have no way of knowing what the law is, you can't very well pass a law and then go out and arrest somebody for not following the law, unless they've had an opportunity to be involved in that, to understand what it is, unless they truly consent to that.

So if a law gets passed that they don't like, you need a mechanism within that constitution for them to remove it, for them to take it to a referendum. And if you have an inactive government that is not doing what the people like, you need the ability to have initiative, so that they can initiate laws through action that's outside of the council and the chair if they feel that they need to. And so these are kinds of things that, that give people the peace of mind that the government isn't totally out of control, and it's something that they can have access to, and that truly the government serves the people as opposed to the government being the people."

Ian Record:

"I want to follow up on a couple of points you raised during your description of the reform process, or not the reform process, actually the development process involved with the new constitution at Little Traverse Bay Bands of Odawa Indians, and that is this issue of separations of powers. And you described very early on that separation doesn't necessarily mean non-communication between legislative and the executive branches of government, or the executive and legislative functions of government, that you need to have that communication so that each side is making informed decisions, and that separation doesn't necessarily mean there's no interaction between the two."

Frank Ettawageshik:

"Yeah. Yeah that's...you have to have a method for communication, and you need to...I think that it's, one of the things that I advocate for is when there is a law that's going to be held, that's going to be, that's being considered, that the legislative body hold a hearing on it and call in the executive to be witnesses at that hearing to ask questions about how something is working, ask questions about how this new law would work if it were passed, get opinions about whether they think it would work. Because if...it's one thing to out of, out of the air to sort of create a law that you think works, but when you, if it's, when it's implemented through the executive side, you can't have something that won't work that is, you know, you can, you can't sort of force something to work, you need to know if there's some likelihood that it's going to work. And so you may not, you may have executive function, executive people who don't like the law because it may be going to do away with their job, or it may be you're going to create more work for them, or it maybe going to make them do something that they don't like. But that's not enough reason to not pass the law. But if you pass a law that has one part of government doing one thing, and the other part of government undoing it, you need to understand that, you need to know what the implications are from how things are going to work. And so it's a good idea to have public hearings, to have this debate, and to have a longer debate over the legislation so that you have an idea how it's going to function. And plus things take a while to implement.

An example of this: we passed a notary public law, and this particular law was one that took...we built an implementation period into the law and there was a lot of communication back and forth between the executive and the...you know we gave a markup back to the legislature to look at, to think about it, and we went through the different things that would be necessary to consider. And we thought a six-month time period to implement it would be fine. So we set out, once it was passed, to get the surety bonds for notaries, and were assured that that wasn't going to be no problem, a couple of different companies told us there'd be no problem, they did that regularly. And then we had to get embossers and stamps. Well this was a tribal notary law, so when we went to get the companies to do it they said, "˜Yeah, we'll do that send us your stuff.' And we sent the stuff and they said, 'Oh, wait a second, you know, where's your state stuff?' And we said, "˜Well, this is not a state, it's the tribe.' Oh we can't do that. And one after the other, they were falling by the wayside, saying, "˜You know, they couldn't do it.' So we had to actually find a company that...and we found one eventually who said, well see this is a tribal law and this is, you know, we showed them, we talked about the constitutional issues and all this, and they, and they understood, they finally got around to understanding it. So eventually they agreed to pay us $50 for us to license them in order to produce our stamps and embossers. And part of the thing was is they realized, they said, 'Now how many tribes are there?' We said, "˜There's over 500.' They said, "˜Oh, maybe we could do this.' And so we have one company who agreed to do this. We think we're the first tribe in the country to actually have our own notary public law this way, because we couldn't find anybody who would produce the stamps and embossers until we worked with them. Then when we went to get the surety bonds for the notaries, the companies who assured us they could do it suddenly realized they couldn't do it because all of their stuff was for state authorized notaries and they had, they just couldn't figure out how to deal with it. We finally found a company who...it took months. We had to get a six-month extension on our six months to implement the law because this took so long and we finally found a company who, an executive there had just returned from a seminar on insurance and one on dealing with tribal sovereignty issues. And he was really intrigued, and he came back the next day and got this call from us and he said, "˜You know, let's try this.' And so he set out to develop a special form, and all the different things.

So we have, we developed a product, which we think is unique in the insuring for tribal notaries. And there's now ten notaries licensed at Little Traverse, within our tribal jurisdiction, for notarizing documents. The average person needs a notary once or twice in their life. This isn't a big, sexy thing for tribal sovereignty. It's not something you're going to get headlined on a paper and all these other kinds of things, this isn't it, but exercising sovereignty is not just those big things. Exercising sovereignty is all the grunt work. You know it took years to develop the statute to get the council in the right mind to think it would be something that needed to be passed. And then it took some of the tribe people in tribal community said, "˜You're doing what? You know, why would we need to do that?' And you know, but we eventually got people around to the idea that it was as good idea. It's an exercise of sovereignty and it's part of good governance for us to be doing these things. So this took a lot of communication back and forth between the legislature and the executive. And it's an example of a law that worked, and we -- not only did we do this -- but we also notified the governor's office of the state, said we're doing this, and her attorney, and we talked through all of that. You know we have regular meetings with the executive office of the state, annual meetings in Michigan, and we, because we were, we did these things, we didn't surprise anybody with what we were doing, and now that's the way we function, now we got this going. But that, that one law is an example of the utilization of the provisions within the constitution for the passage of a law, and the implementation of it, and how it worked. And I think it's a good example of good communication and, you know, making things, doing some of that grunt work and the assertion of sovereignty."

Ian Record:

"Really what you're talking about, on one level, is education: education of internal to the government then also education of the citizenry. And I wanted to follow up on that point. You know, we've seen...NNI works with a number of Native nations on the issue of constitutional development, constitutional reform, and we often see tribes either fail during the constitutional reform process, never make reform happen, or they encounter a lot of problems after they've ratified a new constitution, or reformed one because of this issue of education. Doesn't the education challenge only begin with the new constitution? Isn't there an ongoing education process that has to take place? Because, you know, it's one thing to change a document on paper, it's another thing to change the political culture, which has been at work in the community often for 60, 70, 80 years.

Frank Ettawageshik:

"Well...there's, you know, we evolve as a society. One of the things I can think of is, when I was young, if someone was drunk, the police officer often would say, "˜Give me your keys. Get in the car.' And he'd drive them home, and leave the car sitting beside the road. And, you know, that was something that was fairly common. Today, that's far from the way things happen, you know. I mean today, we as a society, we have ceased to sort of look the other way at that issue, and have really focused on it as a negative thing within our society, and all the ramifications of driving and drinking. I have, you know, we're doing major educational campaigns on TV, we do this all across the country. And, so as a, the United States as a nation has really, the culture has changed as to how we deal with that. Well, the same thing happens when we're looking at how we deal with our institutions within our government structure, you know. The question that I have is, for people, is how often have they attended a township board meeting, or a county commission meeting, or a city commission meeting, or the state legislature, or the U.S. Congress. The average citizen, there are many, many citizens who never attend any of those meetings, ever. Live their lives and do just fine, they're fine, productive members of society and very successful and whatever, and they've never attended any of those. And yet, when we look at our tribal governments, we often, you know we get so wrapped up in our tribal governments that we start to try to make them into everything. Once again as I say, "˜Not the tribe, the government being the tribe, not the government serving the tribe.' And so citizens of our tribal nations often demand of their elected officials things that they wouldn't demand of elected officials that, from other places that they live, other communities that they interact with. And they, in so doing the, we get very little education about how to function.

What education and the way government works in our schools, usually, is all based on non-Indian governments. I was involved in a project for a textbook printed for the state of Michigan, or I was one of the people interviewed and part of the development of this for fourth grade. And this was the best textbook that we'd ever had up to this point because, and it's a major publisher and it was put together in a way that a number of schools throughout the state are using it now, it's titled "˜Michigan.' But what it did is it, Indians didn't disappear after the first paragraph, or the first chapter like we often do in books on history of the state. But we made it to about the middle of the book in the first edition. Second edition is about to come out and my understanding is we make it clear through the end of the book in this one. But people actually are going to understand when...kids will hear that we have constitutional governments. They'll hear that tribal governments exist today, instead of the question...I used to do a lot of speaking to fourth-grade classes and different places around the state of Michigan. One person said, "˜How long have you been an Indian?', question like that, and uh, 'What do Indians eat and where do you eat it?', and things of this sort. Of course they, there's certain stereotypical answers to those questions that they'd like answers to, but...it's because we need to address those issues, and so that as people become adults they understand that tribal governments are governments. We're not clubs, we're not associations, we're not part of history and long gone -- we actually exist and are around and have a major effect. We are, have far more visibility in the economic world because of the casinos and employing a lot of people these days. But far more than that, we have an effect on the way the environment, environmental issues are dealt with. We have an effect on law enforcement, we have an effect on the various social programs and things that are going on. Tribes have a major effect within their communities for both their citizens and for the non-tribal citizens as well.

And so today, things are much different than they once were, but we're still suffering from this lack of education about who we are. I once got the door-knocker award, which was literally a brass doorknocker still in its package from the Midwest Alliance of Sovereign Tribes for, we have an impact week every year in Washington D.C., and I went to that meeting and we would hold a breakfast where we'd talk and we go out on [Capitol] Hill and do meetings on the Hill, then we'd come back and we'd talk about what we'd done and, the sort of a summary of what we'd done and what things we need to do. I got the award because I'd taken a copy of the U.S. constitution. I had a lot of meetings. I was very energetic. And I took a copy of the U.S. constitution and I went in and I talked to the staff in all the offices I went to and I asked them if they'd ever read the Commerce Clause. Did they understand what, about treaties? It's sort of like 'Indian 101' in a way, the basics of Indian law relative to the constitution. And a huge number of the staff, a college-educated staff in the U.S. Congress, did not, had never read the Commerce Clause, with the idea of looking at tribal sovereignty through it. They didn't understand what it meant. They didn't, they never looked at the thing about treaties being the supreme law of the land, and understanding that meant Indian treaties. Never understood those things. And so this kind of education at that point is necessary. So what do we need in order to make our tribes work? Our own citizens are a product of this same sort of general education system that doesn't teach much about Indian law, Indian societies. And if nothing we're sort of curiosities and different things. Very little is that taught. So not only do our own citizens, as a product of this other education system, but they also need to understand their own government. They need to understand their own constitution. Nowhere are those classes taught. You know, they don't have a, you can't go and just take a class on the tribal constitution, and very few tribes have anything like this. So I've read, and I know other people who have advocated for tribal civics classes. We need to try to make sure that this is done.

One of the things that I feel that helps with this is I proposed a educational standards act for the tribe that would lay out what some basic goals were for different levels of say, elementary education, secondary, post-secondary, adult, you know, adult continuing education. What kind of things should we expect from each of these different age groups, and what...once we set some goals, then how do we achieve those goals? And one of the things that we did at Little Traverse that was done by, funded through the tribal council, but done by a number of different members of the community, is we created a video called "˜Journey to Sovereignty' that talks about the process of getting a reaffirmation bill passed and goes back into time, back into the history of why it became necessary to do it in the first place, and then how we went about doing it, and interviews with people. And it sort of told the story while the people were alive and we've got a record of it. And then we made a copy of that and mailed it to every tribal member, whether they were one month old or eighty, whatever, everybody got one. And then we continually show that at our hotel. We have the Odawa Channel at our hotel, and we show that video, a 'Four Directions' video. We have anther video on the history of the operation and some of the tribe. And we just have these showing in continuous loops so that, as a way to educate those people who are our guests who come to visit the tribe, but also for our own citizens who spend time there. And we periodically show these at other events just as a way to help people understand some of the history. Well it's things like that video, and other types that will be the tools that we need to actually get an educated citizenry about our systems.

So how does our system work? This is a long answer to your question, and I'm eventually getting back to your question here, that we need to have a mechanism for having an educated citizenry so that when we make changes in our governments, they understand what they're doing, they understand, you know, what this is likely to be. Once we made changes, as we implement them, they'll understand what those are. So we need education. It's like bringing in the consultants and helping educate the people who are about to serve under the new constitution. That seminar, that one-day training we had really helped move us through the transition. Now there will be, you know, we since have had others where we've brought people back in and looked at it again. And I'm sure that there will be continual training as we look at the documents and try to help them, and then look at our laws and see what laws we need to pass. We've had similar training when it came to dealing with the issues of Violence Against Women [Act, VAWA], and the personal protection orders and safety, issues of...we needed a victims rights act, we needed a, to strengthen a bunch of different laws. And we had a training where we brought in and talked about what we needed to do to work on this. We've had other trainings when it came to the implementation of, for instance the Adam Walsh Act, which by the way I just heard just recently that there are only three governmental entities that are compliant with the act, and it's overdue: one state and two tribes that have become compliant in the implementations of this federal law in the protection of children. But we're continually trying to do this through education. But as a basic form of this, we need to have this civics education. Each tribal nation needs to have a nation-specific course in how this is taught. We need to have general ones that help educate larger groups of people. We need to make sure like...I think there ought to be one of these in every law school. Every law school ought to have a class on dealing with sovereignty issues and dealing with tribes. Because many of those attorneys are going to end up serving before a tribal court somewhere, having to actually not just be a member of the power of Michigan, in the state of Michigan or in another state, but they're going to have to become members of the bar of different tribes in order to serve before those courts. And they need to understand what that means. So, you know, there's a need for an educated citizenry as a whole, and I think that this kind of training and education needs to not just be at the tribal level for our citizens, but also needs to be in the general public education as well."

Ian Record:

"If you could summarize for us, perhaps the three or four highlights of your new constitution -- the one adopted in 2005 -- in terms of perhaps what are the most important components within the constitution that advance your Nation's nationhood?"

Frank Ettawageshik:

"Well, it would be easy to say, the separation of powers, the branches of governments and things, but I actually think that there are other components that are important here. The first one is a declaration of rights. It's like a bill of rights, but it's actually incorporated into the constitution. That is an important part of this constitution. A second part of the constitution I think that's important is the assertion of the inherent rights, and the fact that we acknowledge that others may have inherent rights, other peoples may have inherent rights. And this document lays out a process, which eventually could result in like a state department, or diplomatic relations with other nations, other nations being other tribal nations, or foreign nations to the United States, or, for instance, relations with the United States itself. You know, they all want to see, check with us to make sure that we're recognized. And when is the last time a tribe asked the federal government to apply for recognition before it's government? And I think that the reciprocal is equally true, and I think that that's something that we should do. We need to realize that that's a two-way street; it isn't just the one-way street. There are tribal organizations who the only way that you can be a member of those organizations is if you're a federally recognized tribe. Well, if you, if you're looking at that, you're basically, the organization is giving up to the federal government the right to decide which among the tribes are going to be able to be members of this tribal organization. As opposed to making that decision asserting their sovereignty and making that decision their own government.

Now it's real easy to say this from a, just a, it's a simple assertion, it's a simple bunch of words. It's a lot of work to actually have to figure out who you're going to have, what other governments you're going to have relations with, and not, and what the criteria is for doing that, and how you choose when you're not choosing just federally recognized tribes. You know, a state-recognized tribe may, and we've had state recognized tribes come to Little Traverse and ask for diplomatic relations, asked us to recognize them. We've had non-recognized, either by federal or state, tribal governments come to us and ask us for acknowledgement. And we have yet to actually work through the mechanisms of that, but one of the important things in this constitution is it lays out the groundwork. It lays out that the basic part of that we will recognize other governments who acknowledge us. And so, I think that's one of the most important parts of this. Because the document, the document itself lays out how we're going to relate to other governments. And I think that's critical. And so those are, those are some of the really important points I see is that there's that, the bill of rights, and then of course the delegation of authority, which in our case is to separation of power branches, different branches. But you could have a constitution that did these previous things, and then set up a different system. This works for us, it doesn't necessarily, wouldn't necessarily work for every tribe. And there may be others that are at different places in their development, different places in their history, that they feel that a different form of government would work. This isn't the only one that works, but this, the document itself, that assertion of inherent sovereignty and the ability to acknowledge other governments, and interact with them, is a fundamental part.

Now the most important part I think in the end of the constitution, that is there, is the statement, the flat assertion of the importance for, that the government is charged with protecting our heritage, our history, and our language -- that these are things that...it's a lens through which we have to look at the rest of the actions and the rest of the constitution. It isn't something that is merely an afterthought or, if you have time do this, or maybe you can do this you know if you get around to it. It's...this is the basic charge to the government so that we have to look at a, when we create a new department, is it furthering these ends? And that's something that, because it's there in the document, it's a tool that our citizenry can measure the effectiveness of their elected leadership as to whether they're doing what they wanted them to do or not."

Ian Record:

"This gets, this is a good segue into another question I wanted to ask, and your statement that you just made merges rather well with the statement I want to share with you that was voiced by a fellow tribal leader who's nation had recently developed a new constitution. He said and I quote, "˜The new constitution is our long-term strategic plan.' So how do you see that statement?"

Frank Ettawageshik:

"Well I think that it, I would look at it that the new constitution, I mean this constitution for us is like the, vision statement and the mission statement. It isn't necessarily the plan. It lays out the fundamentals through which you then would develop your plan. And so to, I would sort of carry that a little further in that, that it clearly sets out, you know, the vision for what the tribe should be, and what the tribe is, and what the people want the tribe to be. And that's the important, an important step. And then, you know, the mission, and it's sort of how you're going to do it is laid there. But the actual specific objectives, you know we were fairly careful to not put specific like objectives and things of that sort into it because those may change over time. We wanted something that would last, not something that every twenty years you'd have to get a new constitution."

Ian Record:

"I wanted to follow up also on this point of culture. Essentially this is, as the culture, the history, the language, the heritage of your people being the lens through which your government would be organized in through, in the lens through which it would decide key matters, and who would decide those key matters. How does you nation's constitution express your people's culture, identity, and goals?"

Frank Ettawageshik:

"Well, it expresses it through a preamble. And I don't have the words memorized, but it lays out the, who we are, it makes a statement of who we are, it makes a statement of what we, what we wish things to be, you know, to perpetuate our culture. And, so we have that section in the preamble, but then it also, there are directives to the government. And not just the preamble that sort of lays out the general tone for the document, but then there's the, this directives to the government and each, that the government's directed to do these things and to perpetuate the language and to protect the youth and protect our elders and to further the safety and to protect the right to work of our members and things of those sort. So we have these things that are built right in, and there's directives to the government. And those things are...we're directed to protect our heritage and culture. And so instead of...heritage and culture and spirituality blend and, but to the extent that we also have freedom of religion within the document so that it's not just, we're not, we promote our heritage and culture, but we tolerate and we're directed that if we have people who are choosing other paths, that we, that they're acknowledged, and their right to do that is acknowledged within our document as well.

So the government has to work on -- like the video that I described earlier -- it helps to protect our, get people understanding what different people in our tribe have done. I mentioned earlier that educational standards act, to me that's an essential part of meeting the constitutional responsibility of protecting our heritage because we want people to know what that is. I ask this question, 'How many of a tribe's citizens can name five chiefs from the 1800s and tell you a little about their lives, what they did? Now how many can name five presidents and tell you a little bit about those presidents?' So, the answer is many more to the second and very few to the first usually. Occasionally there are exceptions, but this is something that we need to try to fix. We need to have people understand who we are because, when I mentioned earlier there's a, we need to have a strong sense of place. And that sense of place is, it's multi-dimensional when you think about a sense of place. A sense of place isn't just the rocks and the trees and the streams and the things, you know. It isn't just that physical place, it isn't your home, or your town. But your sense of place is also your understanding of where you fit into your society. How you fit into your culture. How you fit into the history. And how you fit into your society, and where you fit in your language, where you fit in your, in, how you fit between the past and the future. You know? That interaction between them, that sense of place, that strong, assured sense of place is an attribute of a healthy individual. And as you have healthy individuals, you then have a healthy society. And so we need to try to help do things that foster that strong sense of place. And I believe that this constitution for Little Traverse helps to lay that out. We made every effort we could to make sure that those things would be part of that so that the government would actually; we could measure the success of a government.

When you do, when you work on documents like this, when you work on things like this, you have to prepare for when you're not going to be there. So, you know, you help pass laws so that, if need be, when you're no longer in the, an elected official, you can sue the government if you wanted. You need to make sure that there's, that there's, you know, the ability to do that. You need to make sure that you have the ability to initiative if a government becomes unresponsive and needs to be moved. You need to make sure that you have these things. So you have to build in all these safeguards to make things work well. And so, part of good governance is planning for your own obsolescence."

Ian Record:

"We've heard one leader describe that as, 'Mmy job is to make myself dispensable.'"

Frank Ettawageshik:

"Yeah. I think that's a good way to put it. I like that."

Ian Record:

"I wanted to...you mentioned this early on in the discussion about this interim constitution that you had prior to the passage of the public law that reaffirmed your status in the, at least in the minds of the federal government, as a sovereign nation. And then the new constitution and the difference, inherent between those in terms of dispute resolution, in terms of a, your tribe's, your nation's justice system."

Frank Ettawageshik:

"Right."

Ian Record:

"Can you do a quick compare and contrast between the strength and independence of your court system of your dispute resolution within your nation, within the interim system, versus your current system."

Frank Ettawageshik:

"Well, the first constitution, which was actually was a document that involved, and it initially, in its very early incarnations had some of the very typical language where every action within it required approval from the Bureau [of Indian Affairs], okay. You know, so that was a pretty typical of some of the early ones. And so by the time that we actually had it in place so that we were using it at the time of the passage of the reaffirmation act, so it became our interim document, we'd removed all those sections about approval of the Bureau on our legislation. But some constitutions, every single law, every single action that's passed by the council, had to go to the Bureau for approval. They'd have to analyze it, look at it, and when it came back signed from the Bureau then they'd, then they'd become law. Well, you know, that, we didn't have that. But we did have this thing that, with the judiciary, we passed a law that would create a court under the old constitution. And consequently we hired the judge. And the judge worked under contract through this, the law that we passed and, had we chosen, had we disliked the judge we could have fired the judge. And, or dislike a decision that the judge made we could have. The fact that we didn't meant that we respected the fact that we needed an independent court, and we needed to stay out of the court's affairs. But, you know, had things, you know, we certainly had the ability to do that under that old constitution. And that, you know, that isn't a really strong, it doesn't give...

If you're signing a contract with a company that you want to do business with, and the contract requires that you go to tribal court, and you -- because you want to assert sovereignty -- and there's no guarantee that the court will look like the current court. There's no guarantee what the court will look like at the time that the dispute would be taken to them. Or you could change the appearance and the operation of the court during a dispute, during the resolution of a dispute, it makes it a lot less comfortable for someone to acknowledge the sovereignty of your court, and to want to come to your court. And so they're going to demand that you have a waver of immunity, and that you take everything to federal or state courts because they don't have confidence in the tribal system. Your own citizenry have less confidence in the court itself when the court changes or is subject to change that quickly. So under the old system I, it was fairly weak. And it was judicial reform, I think is critical for government development, and probably is the fundamental reason why many constitutions are looked at in the first place. Even if nothing else is changed in them. To have an independent court is a move in the right direction.

Well, under the new constitution the judges are appointed, they're nominated by the executive, and then the nominee goes to the tribal council who holds hearings and talks to the people and asks them in-depth questions like, you know, what do they believe about different issues of constitutional law and, you know, what are they, you know, they ask them the same kind of tough questions that they get asked at any, you know, cause they realize that they're, if they approve the judge the judge is going to be there for a while and, and will have an effect, those rulings will have an effect on the tribal law.

And so as a chief executive, I have nominated, my nominees sometimes were approved, and my nominees were sometimes rejected, and I'd have to go back to the drawing board, come up with someone else. But once the judges were appointed under the new constitution, once they're appointed, there's a trial judge, an associate trial judge, and then three appellate justices. So the judiciary is five appointees. The judiciary itself, after they're appointed, are the only members who can remove a judge. Now, petitions can be brought from other places, I mean the citizens can bring a petition, the council can petition, the executive can petition for removal of a judge. But once a complaint's made, the other members of the judiciary meet to decide if the complaint has merits, and they've had to develop their rules on how they deal with all of this, but they're the ones who remove a judge. So the judiciary polices itself.

Now they also have terms so that an executive can choose to not re-nominate somebody as their term ends. And even if they were re-nominated, if the, if people brought pressure to bear on the council to say we don't like this person, we don't think he should approve this nomination, they can do that. So that's the mechanism for getting rid of a judge and for dealing with the...dealing with the court. All of those are important parts of the process to, for people to have faith that the court will actually do what you think it's going to do. And our court actually developed to the point where we, we had a youth drug court that was part of the court system. And the process that we did through that was so well accepted that we had local state judges who were assigning people to this from their own jurisdictions, as opposed to just our own. And they would be, attend these programs. And so there's those kind of issues. Because of the strength we've had in terms of developing the judiciary, and because of the strength of the constitution and the things that we've put together, we have cross-deputization agreements with two counties.

Our reservation is, resides, is part of two of the counties in the state of Michigan, and we have cross-deputization agreements with both of those sheriffs. So not only have our officers been sworn in by those sheriffs as deputies, but the sheriff and his deputies came to our courtroom. And when we first did this, I administered an oath to them to uphold our tribal constitution, and our tribal laws. And we had a detailed agreement on how we would exercise that, you know. They couldn't just come in on their own. They would come in, there's a protocol for how they come in when they need to, or when we back each other up. And so we developed seamless law enforcement that was to the betterment of health and public safety for not only our citizens, but for the non-tribal citizens who are a part of the whole region in which we live."

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 2)

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

"Thank you."

Ian Record:

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

From the Rebuilding Native Nations Course Series: "Constitutions: Reflecting and Enacting Culture and Identity"

Producer
Native Nations Institute
Year

Hepsi Barnett, Frank Ettawageshik, Greg Gilham and Donald "Del" Laverdure offer their perspectives on the opportunity that constitutional reform presents Native nations with respect to reintegrating their distinct cultures and identities into their governance systems.

Citation

Barnett, Hepsi. "The Osage Government Reform Initiative." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 17, 2009. Presentation.

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

Gilham, Greg. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2010. Interview.

Laverdure, Donald "Del". Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Frank Ettawageshik:

It’s not only a good idea, but it’s essential that we tie what we do in our reforms of our governments, that we tie that to our traditions, and in some cases it’s tied to a thriving tradition. In some cases, we have traditions that are evolving or traditions that are being resurrected or strengthened again. But we have to keep that as the foremost reason behind us, because it really is what our identity is, it’s where we come from, it’s who we are, and that is essential to our inherent sovereignty.

Greg Gilham:

They want to, they want to add in a cultural aspect into a new constitution. That gives them some legitimacy as a nation by defining who they are. In our previous constitutions, you don’t have that. You don’t have a definition defining who you are. So, is that adding culture into your [constitution]? You bet it is. Anytime you can put together a preamble within a new constitution defining who you are -- whether you do it in your own language, written out -- that’s really important. That’s important to the Indian nations, and certainly important to ours. That’s what we want to do, is build ourselves into a nation of people, that we can certainly look and be proud of the fact that we don’t need the State of Montana or the federal government telling us who we are. Let’s define ourselves and let them know who we are. And I think that plays a key role.

Donald Del Laverdure:

I think the fact that the new constitution expressly cites our treaties of Fort Laramie -- which is really the foundation of the Crow’s relationship to the federal government and then everything else flows from that -- we have an 1851, 1868 cite and do recognize that there is federal law which is debatable on whether it should’ve been in the constitution or not. But nevertheless saying that we’re Apsáalooke people, have our name set and listed in Crow, and that we list all the districts according to how we understand them. For example, Lodge Grass is in Crow [Crow language], which is the word for ‘Valley of the Chiefs.’ Many chiefs were there historically. And having those types of things in there is important to our identity, our culture, and the future aspirations of where we want to be as governing not only Crows, but anyone within the territory and boundaries of the Crow Nation.

Frank Ettawageshik:

In this document however, there’s a very important thing that we kept. And our culture, our heritage, and the spirit of our ancestors, is central to this document. And I felt the best way I could do that is to read just a little bit of the preamble:

IN THE WAYS OF OUR ANCESTORS, to perpetuate our way of life for future generations, we the Little Traverse Bay Bands of Odawa Indians, called in our own language the WAGANAKISING ODAWAK, a sovereign, self-governing people who follow the Anishinaabe Traditions, Heritage, and Cultural Values, set forth within this Constitution the foundation of our governance. This Constitution is solemnly pledged to respect the individuality of all our members and their spiritual beliefs and practices, while recognizing the importance of preserving a strong, unified Tribal identity in accordance with our Anishinaabe Heritage. We will work together in a constructive, cooperative spirit to preserve and protect our lands, resources and Treaty Rights, and the right to an education and a decent standard of living for all our people. In keeping faith with our Ancestors, we shall preserve our Heritage while adapting to the present world around us.

Hepsi Barnett:

In closing, what I’ll do is I’ll read to you the preamble that was developed for Osage Nation Constitution, because I think it really sums up the principles and values that became the bedrock of that reform effort:

We the Wah-zha-zhe, known as the Osage People, having formed as Clans in the far distant past, have been a People and as a People have walked this earth and enjoyed the blessings of Wah-kon-tah for more centuries than we truly know.

Having resolved to live in harmony, we now come together so that we may once more unite as a Nation and as a People, calling upon the fundamental values that we hold sacred: Justice, Fairness, Compassion, Respect for and Protection of Child, Elder, All Fellow Beings, and Self.

Paying homage to generations of Osage leaders of the past and present, we give thanks for their wisdom and courage. Acknowledging our ancient tribal order as the foundation of our present government, first reformed in the 1881 Constitution of the Osage Nation, we continue our legacy by again reorganizing our government.

This Constitution, created by Osage People, hereby grants to every Osage citizen a vote that is equal to all others and forms a government that is accountable to the citizens of the Osage Nation.

We, the Osage People, based on centuries of being a People, now strengthen our government in order to preserve and perpetuate a full and abundant Osage way of life that benefits all Osages, living and as yet unborn. Thank you.