Tohono O'odham Nation

Honoring Nations All-Stars Profile: Tohono O’odham Nursing Care Authority

Year

For many years, due to the Tohono O’odham Nation’s location in the Sonoran Desert of Arizona and the sparse population, Nation members did not have ac-cess to reservation-based long-term or post-hospital care services. This was particularly true for O’odham elders. Elders admitted to the Sells Area Indian Health Service Hospital for acute care who subsequently required follow up long-term skilled nursing care or a place for post-hospital recovery were discharged to nursing home facilities in the Tucson, Arizona area. For most O’odham families, a visit to elder family members required a drive of ninety minutes or more—if trans-portation was available at all. Language and cultural barriers in these urban settings also became a major concern. The facility caregivers could not speak to these residents in the O’odham language, and O’odham residents were not offered traditional foods to eat, could not easily seek the assistance of medicine people, and were not able to spend their remaining days in the desert environment to which they were accustomed. While statistics are not readily available, it is not hard to conclude that placing an ill and frail O’odham elder in a foreign and isolating facility hastens further debilitation and death.Seeking change, the Tohono O’odham community members asked their government to find a way to provide good, culturally appropriate, and local care so that they could bring their elders home

Native Nations
Resource Type
Citation

Stout, Francis and Judith Dworkin. Honoring Nations All-Stars Profile: Tohono O’odham Nursing Care Authority. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2013.

NCAI Forum: Protecting Tribal Lands and Sacred Places: Current Threats Across Indian Country

Year

The latest in NCAI’s ongoing series of virtual events featuring tribal leaders, this forum shares the stories of five tribal nations working to protect their tribal homelands in the face of baseless attacks by the federal government, and discussed how the federal government must recommit to its trust and treaty obligations to all tribal nations in this critical area. Forum panelists included:

  • Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribe
  • Mark Fox, Chairman of the Mandan, Hidatsa and Arikara Nation
  • Harold Frazier, Chairman of the Cheyenne River Sioux Tribe
  • Ned Norris, Jr., Chairman of the Tohono O’odham Nation
  • Terry Rambler, Chairman of the San Carlos Apache Tribe
Resource Type
Citation

National Congress of American Indians. "NCAI Forum: Protecting Tribal Lands and Sacred Places: Current Threats Across Indian Country". NCAI. June 29, 2020. Retreived on July 23, 2020 from: https://www.youtube.com/watch?v=g_DGzzlgkGo

Tohono O'odham Nation: Jurisdiction/Territory Excerpt

Year

ARTICLE I - JURISDICTION

Section 1. The sovereign powers, authority and jurisdiction of the Tohono O'odham Nation and of its government shall extend to all lands within the boundaries of the Tohono O'odham Nation established by Executive Orders: December 12, 1882, modified June 17, 1909 (Gila Bend); July 1, 1874 (San Xavier); February 1, 1917, the Act of February 21, 1931 (Sells); the Act of September 10, 1978, (Florence); and to such other lands as may have been or may hereafter be added thereto by purchase, gift, Act of Congress or otherwise.

Section 2. The sovereign powers, authority and jurisdiction of the Tohono O'odham Nation and its government shall extend to all persons and activities carried on within the boundaries of the Tohono O'odham Nation consistent with federal law.

Section 3. The sovereign powers, authority and jurisdiction of the Tohono O'odham Nation and its goverunent over members of the Tohono O'odham Nation shall extend beyond the geographical boundaries of the Tohono O'odham Nation. 

Walls and Waivers: Expedited Construction of the Southern Border Wall and Collateral Impacts to Communities and the Environment

Year

Joint Oversight Field Hearing before the Subcommittee on National Parks, Forests and Public Lands Joint with the Subcommittee on Fisheries, Wildlife and Oceans of the Committee on Natural Resources U.S. House of Representatives.

Present: Representatives Grijalva, Bordallo, Faleomavaega, Ortiz, and Tancredo

Also present: Representatives Napolitano, Reyes, and Hunter 

Resource Type
Citation

"Walls and Waivers: Expedited Construction of the Southern Border Wall and Collateral Impacts to Communities and the Environment." Joint Oversight Field Hearing before the Subcommittee on National Parks, Forests and Public Lands Joint with the Subcommittee on Fisheries, Wildlife and Oceans of the Committee on Natural Resources U.S. House of Representatives. One Hundred Tenth Congress, Second Session. Brownsville, Texas. April 28, 2008. Testimony.

Archie Hendricks, Sr. Skilled Nursing Facility and Tohono O'odham Hospice

Year

For decades Tohono O’odham elders in need of skilled nursing had to move far away from family and friends to receive care, or stay home and forgo long-term care services. However, with the opening of the Archie Hendricks, Sr. Skilled Nursing Facility, O’odham elders can now remain in the community. Combining today’s latest technologies and world-class clinical care with traditional values, the nursing home has become one of the finest elder care facilities anywhere in the United States.

Native Nations
Resource Type
Citation

"Archie Hendrick, Sr. Skilled Nursing Facility and Tohono O'odham Hospice." Honoring Nations: 2008 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2009. Report.

Permissions

This Honoring Nations report is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development. 

Ned Norris, Jr.: Strengthening Governance at Tohono O'odham

Producer
Native Nations Institute
Year

Tohono O'odham Nation Chairman Ned Norris, Jr. discusses how his nation has systematically worked to strengthen its system of governance, from creating an independent, effective judiciary to developing an innovative, culturally appropriate approach to caring for the nation's elders.

Native Nations
Resource Type
Citation

Norris, Jr., Ned. "Strengthening Governance at Tohono O'odham." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. February 16, 2012. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Ned Norris, Jr. Since 2007, Ned has served as chairman of his nation, the Tohono O’odham Nation, winning re-election to a second four-year term in 2011. He has worked for his nation for the past 35 years, serving in a variety of capacities, from Vice Chairman of his nation to Director of Tribal Governmental Operations to Chief Judge of the Tohono O’odham Judicial Branch. Chairman, welcome, good to have you with us today.”

Ned Norris:

“Thank you very much. It’s good to be here.”

Ian Record:

“I’ve shared a few highlights of your very impressive personal biography, but why don’t you start by telling us a little bit more about yourself?”

Ned Norris:

“Well, I’ve… born and raised here in Tucson, born at San Xavier when it was a hospital in 1955, and pretty much grew up here and spent all of my life here in Tucson, and got married to my wife Janice in 1973. And actually Friday, February 17th will be 39 years that she’s put up with me.”

Ian Record:

“Congratulations.”

Ned Norris:

“So I really appreciate that. We have children, we have grandchildren, and it’s great seeing them, and seeing how our kids have developed over the years and seeing how our grandchildren are coming along.”

Ian Record:

“Well, we’re here today to tap into your knowledge, your wisdom and experience regarding a wide range of critical Native nation building and governance topics and I’d like to start with tribal justice systems. You’ve taken on many different roles in your nation’s justice system including court advocate, child welfare specialist, and judge. And so I’m curious, generally speaking from your experience and your perspective, what role do tribal justice systems play in the exercise of tribal sovereignty?”

Ned Norris:

“As I was thinking about this, I was thinking about where we were as early as the late 1970s. For some people that’s not early, for some people that’s a long time, but when we think about where our tribal system, judicial system has developed since ’79 and forward, we have really come a long way in realizing that the court system itself plays a significant role in ensuring or demonstrating our ability to be a sovereign tribal entity. Obviously the tribal legislature’s going to make the laws and the executive side of the tribal government is going to implement those laws, but the court system really has a key, significant role in determining, in how those laws are going to be interpreted and how those laws are going to be applied. And for me that’s really a significant role in the tribal judicial system ensuring that whatever we’re doing internally with regards to applying the law as it is written by the legislature and implemented by the executive branch that it is ensuring that sovereignty is intact, that it’s ensuring that we have the capabilities of making the decisions that we need to make in order to govern our nation.”

Ian Record:

“A law professor here at the University of Arizona who you know very well, Robert Williams, who serves as a pro tem judge for your nation’s judicial branch describes this systematic effort your nation has engaged in over the past three decades or so to build an effective, efficient, tribal justice system from the ground up. Why has the nation engaged in that effort and why is that important?”

Ned Norris:

“I think that it has a lot to do with the fact that we’ve got tribal legislators over the years that have really began to take a holistic look at the tribal government as a whole and realizing that for the most part as late as the 1970s, early 1970s, our tribal judicial system was really what I would refer to as a BIA [Bureau of Indian Affairs]-type system. Tribal codes were developed, but they were really taken off of boilerplates of BIA codes and so on and so forth. So I think that our leadership, our tribal council began to realize that these laws don’t always have the kind of impact that we would like them to have. And so in order for us to be able to govern ourselves and to determine our own destiny as it relates to [the] tribal court system, we’ve got to begin the process of changing the system and bringing it more up to speed, so to speak.”

Ian Record:

“And part of that I guess, regaining control of the justice function of the nation, things like making sure that you are charge of law and order, that you’re in charge of dispute resolution, that when you have a young person who has a substance abuse problem that they’re being taken care of, that issue is being taken care of internally versus them being shipped off the reservation, making the system more culturally appropriate, where the people in the community feel like this makes sense to us. Can you talk about that dynamic in the work that the nation has been doing in that regard to, I guess, make the justice system their own?”

Ned Norris:

“Well historically, I think it’s unfortunate that back then, and even to some extent even today, tribes do not have the level of resources available to address the more intricate needs of a substance abuser, an alcoholic, whatever the case may be, and so even today there are needs. There is a need to identify resources, whether it’s on or off the reservation to address that, but I think most importantly is the idea that we would be able to create the kinds of services that we’re using off reservation and bringing those services on the reservation where we’re playing a more direct role in that person’s treatment, in their rehabilitation and really looking at it like…from the perspective that this is family, this is part of our family. This individual isn’t just a member or a citizen of our nation, they are a citizen of our nation that we should take more of a responsibility to try and help within the confines of our own tribal nation, our people. And so I think when we think about it from that perspective, we begin to realize that maybe the services that we have are not as adequate or not as resourceful as we would like them to be. So we’ve got to be able to identify that and be able to identify where those voids are and bring those services into that program or create the program that…where those voids exist.”

Ian Record:

“It really boils down to the nation itself best knowing its own needs, its own challenges versus somebody from the outside that is simply just bringing in something from the outside that may not…”

Ned Norris:

“Not only that, Ian, I think that in addition to understanding that we have…we as the nation membership have a good understanding of what those needs are and what those resources are or aren’t, but also really realizing that if we’re going to bring or utilize outside resources to do this, those resources aren’t always going to be there. We’re going to be there, we’re going to continue to be there, our members are going to continue to be there and what makes more sense to us is to be able to take control and bring those services, develop those services where they lack and provide the services more directly by the nation’s leadership itself.”

Ian Record:

“One of the things that Professor Williams points to in this effort that the nation’s been engaged in around the justice system for the past 30 years is how the nation has invested in its own people, how it’s worked to build the capacity, internal capacity of its own people to provide justice to the community. Can you talk a little bit more about that? You’re a byproduct of that effort.”

Ned Norris:

“Well, I think that when we talk about investing in our own people, over the years in a more significant sense we’re…we’ve been able to establish our gaming operation. That operation has played a significant role in our ability to bring the kinds of services that aren’t there, that haven’t been there, or those kinds of services that we would for many years just dream about having and even to the extent that we’re developing our tribal members. I think, just to give you an example, pre-gaming we probably had less than 500, 600 employees that worked with the tribe and now we’ve got well over, I think it’s about 1,400 tribal employees and we’ve got a varied amount of programs that have been developed that are really beginning to address a lot of the needs that we’ve been having over the years. And not even that, the ability to develop our own tribal citizens in providing them an opportunity to train academically, whether it’s a vocational program, whether it’s a two-year or four-year college, whether it’s earning a bachelor’s degrees, master’s degree, doctorate degree, whatever the case may be. We’ve been able to provide that kind of an opportunity for our members to be able to acquire the kinds of skills that they lack academically and bring those skills back to the nation and apply those skills.”

Ian Record:

“Yeah, and I think what you’ve addressed is there’s a major obstacle for many tribes in that they’ll invest in their people, they’ll send them off to get a good education, but then it’s really critical that there’s a welcoming environment for those college graduates to say, ‘We’re sending you off to get a skill to come back and apply that skill here on behalf of the nation.’”

Ned Norris:

“Exactly, and part of our challenge as tribal leaders is making sure that we create the ability for those members to be able to come back. Too many times I’ve shared with different audiences over the years that we’re graduating more O’odham with bachelor's, master's and doctorate degrees than in the history of the whole tribe, however, where we may lack in the ability to create the kinds of jobs that those individuals trained for. And so we need to prepare ourselves to be able to receive those tribal members back and provide them the kinds of job opportunities that they’ve spent four, six year, eight years in college acquiring, but also not only be able to do that, but to be able to pay a comparable salary for the kinds of positions that they’ve trained for.”

Ian Record:

“I’d like you, if you wouldn’t mind, to paint a picture. Before we went on air you were describing a little bit about what the nation’s justice system looked like when you came on board and started working within that system. Can you compare and contrast what the justice system and what the justice function looked like back in the early 1970s or mid 1970s, to what it looks like now?”

Ned Norris:

“Wow. It’s a night-and-day comparison really, because just physically we didn’t have the kinds of facilities necessary to really do… provide the kinds of justice services that our people should be afforded and we…when we talk about facilities, we talk about staffing, we talk about laws in themselves or codes, back in the late ‘70s, the early ‘80s, there was a time there that our law and order code was a boilerplate from the BIA code and I think that it took some years and some education and some effort to begin the process of understanding that this boilerplate code is obsolete in our mind and we need to begin the process of developing our own tribal codes. And so we began that process in writing our own tribal code, our law and order code, our criminal code, our civil codes and other codes and that took a process, but once we’ve done that and the tribal council adopted those codes, we started to apply them in the tribal judicial system. And so I think that when we compare where we were in the late 1970s to where we are now, the only… the concern that I have is, being a former judge -- I spent 14 years as one of our tribal judges and from ’79 to ’93 --and I’ve seen the court system develop over those years and seen how obsolete the laws were back in the late 1970s to where we were able to develop those laws. But also realize that back then in the early 1990s, I began to think about realizing the time that the court system is no longer processing and dealing with human beings, but they’re dealing with numbers. You become a number at some point, a case number or whatever because early on we came into this with the perspective that we’ve got this tribal member that is maybe committing crime, but there are a lot of factors that are contributing to why that tribal member has committed that particular crime and that we, the court system, although it has the law before it and the law may provide a jail sentence and/or a fine, the idea wasn’t always to throw this person in jail because of the crime they did, but to try and dig a little deeper into what’s really going on within that individual’s situation. Is it the home situation? Is it…was the person an abused person over a time of their life, was that person a victim of incest that just was never dealt with? And so we came to this with the perspective that the court system enforces the laws, applies the law and issues sentences, but some of that sentence has to take into consideration how can we help, how can we help this individual, how can we help the family address those issues that are impacting or having an influence in them committing the crimes that they’re committing?”

Ian Record:

“You mentioned that for several years you were a judge and so you’ve seen firsthand how the court system works and you’ve been a part of that court system. There’s an issue…there’s a major infrastructure challenge for a lot of justice systems across Indian Country. Can you talk a bit about what Native nation governments can do to ensure that their justice systems have the support they need to administer justice effectively?”

Ned Norris:

“One is, there was a period of time where the tribal legislature was what I refer to as the supreme authority on the O’odham Nation, at that time the Papago Tribe of Arizona. And as that supreme authority, there was really not a separation of powers between a three-branch system. And so, over the course of those years, early on the tribal supreme authority, the legislative authority really infringed on or encroached on what should have been an independent judicial system. And so I think, in answer to your question, tribal governments, tribal leadership should realize that it is imperative to the success of a tribal governmental entity that an independent system of judicial…a system to dispense justice is not having the kinds of influence by the other two branches of government that would impede its ability to deliver that justice. And I think that once we begin to understand that and realize that and realize that that not only does that involve the legislature not meddling into the judicial process, but it also has to involve an understanding that because in many tribal governmental entities the tribal legislator controls the purse, controls the funding, that they not use that as a basis to not fund the needs of the tribal judiciary. And I think that because the council has the authority to disperse funding resources that the courts still have to go to the council and ask and present their budget and ask for funding for infrastructure, for whatever the case may be. That there still has to be a relationship there, but I think that the tribal legislature needs to understand too that they shouldn’t use their role as a tribal legislator to deny the kinds of resources that the court system needs.”

Ian Record:

“You mentioned this issue of political interference and this is something that comes up in virtually every interview I do with folks on this topic of tribal justice systems and they all…almost all of them mention this issue of funding and how that can be rather than direct interference in a particular court case, but this kind of more subtle, insidious process of denying funding or reducing funding or holding funding hostage to…in exchange for certain considerations -- that that sends real messages and others have talked about how this issue of political interference can be a very slippery slope. That if a chair or a legislator, once they do it once for one person, word’s going to get around that, ‘You just need to go to this council person and they’ll get involved with the court case on your behalf.’ And in many respects doesn’t that distract the executive…the chief executive of the nation, the legislators from focusing on what they really should be focusing on?”

Ned Norris:

“Yeah, if we’re taking so much of our time and energy dealing with a relative’s court case and not allowing the court to apply justice to that situation, then obviously it’s taking us away from our real role, which is to provide the kinds of leadership and direction that we need to provide to run our government. So yeah, political influence, I think early on was an issue. Now, I think it’s rare. I think that we’ve educated our leadership to the extent that they understand the concept of separation of powers, that they understand that they shouldn’t use their position to try and influence a decision that the court is going to make. We’re not 100 percent, but we’re far less than what we were in the late 1970s and I think that that whole process just took a series of education and in fact, in some cases, some case law that’s already been established where the legislative branch was trying to encroach on the powers of the executive branch, we’ve had those cases in our tribal court system and those decisions are the law at this point.”

Ian Record:

“This wasn’t originally in my list of questions, but since you brought it up, I’d like to talk about the role of justice systems and the judicial branch, particularly your nation, in essentially being a fair umpire when there are conflicts between the executive function -- whether it’s a separate branch or not -- but the executive function of the nation and the legislative function. How important is it to have somebody, whether it’s your courts or an elders body or somebody, some entity that can, when there is conflict between those two functions to say, ‘Okay, let’s take a look at this and let’s be the fair arbiter here.’?”

Ned Norris:

“I think that it’s critical. I think it’s critical to be able to understand at some point in that particular dispute process that we’ve got to sit back and we’ve got to realize that as the two branches that are in dispute, is this an issue that we really want the courts to have a major role in deciding or do we want to come to terms or come to some level of understanding, try and resolve the matter before it ends up in court? I think that we should look at those kinds of issues from that perspective because once you get the court involved, the court is going to make its decisions based on the law, and the law is not necessarily always going to be the way to resolve or the way that you may… either side may want this particular issue resolved, and I think for the most part too, the court itself should realize if there’s an opportunity to resolve the dispute outside of the court, laying down the gavel and saying, ‘I hereby order…,’ that giving the parties an opportunity to resolve this dispute, whether it’s an encroachment by either branch, executive to legislative or vice versa, that we always have the opportunity to try and come to terms on resolution even if it means calling, I don’t know, I don’t want…I guess we could call him an arbitrator or mediator or a council of elders, to come in and provide some level of traditional means of resolving the dispute. I think that that’s important, but it’s important for the parties to make that decision. I’m not always open to the idea that court systems will order you to call in a council of elders or a medicine person to come help resolve this issue. I really think that that’s got to be the tribe themselves to make that decision. Over the years, the court has issued those kinds of orders and I think that they’ve worked, but for the most part I think that it’s the parties themselves need to make that determination and that decision.”

Ian Record:

“I would like to jump forward basically because of what we’ve been discussing and talk about the fact that virtually every tribe that I've worked with there’s always going to be some level of friction between the nation’s executive function and the legislative function. It’s just the nature of politics; it’s the nature of governance. And you being in that role of chairman now for multiple terms, I’m sure you know exactly what I’m talking about that despite your best efforts, there are times when you come to an impasse or there’s a conflict that emerges. Can you talk about how do you build constructive working relationships -- as a chair -- with the legislative branch, the legislative function of government to try to make that relationship as productive and as seamless as possible?”

Ned Norris:

“Well, I have to say that I’m proud of what my first four years of leadership has done to do exactly what you’re asking because I felt and I sensed and I heard from many council members that there was really a breakdown in the relationship between the branches. And we knew then, Vice Chairman Isidro Lopez and I, and now even Vice Chairwoman Wavalene Romero and I realize, that it’s got to be a continuous effort to build that relationship, still maintain and understand there are certain constitutional authorities and powers that each individual branch has, that we need to understand what those constitutional powers are and that we don’t encroach our authority and violate what those powers are, because once you start doing that then you begin the resistance between the two and it doesn’t make for a good working relationship. We knew coming into office four years ago, and even continuing in my second term, that we’re going to need to continue to develop that relationship and I’m comfortable that where we’re at some, almost six years, five years later that we’ve been able to have a level of understanding that decisions are going to need to be made, that decisions that even though I have authority to veto decisions of our legislature, it’s been...in four years I think I’ve exercised that power twice and -- actually three times and -- both of those times those issues have been resolved. One issue is still pending in court, but I think that in itself speaks for the fact that we have a very understanding working relationship between the executive branch and the legislature and it’s really a continuous level of communication, it’s a continuous level to understand where they’re coming from on that particular issue, where you think you’re coming from and how do you work together to resolve your differences and how and at what point do you want to compromise in order to be able to accomplish what it is you want to accomplish. I think for the most part all of us want what’s best for the people of our nation. How do we get there from here to there, we may have some differences. And it’s discussing, resolving those differences to hopefully come to a positive outcome for providing the leadership that our people need.”

Ian Record:

“I’d like to switch gears now and talk about tribal bureaucracies. In addition to serving as your nation’s Director of Tribal Governmental Operations -- as I mentioned at the beginning -- you also have served as its Assistant Director of Tribal Social Services and as a former Commissioner for its Tribal Employment Rights Office, its TERO office. What do you feel from your diverse array of experiences, what do you feel tribal bureaucracies need to be effective?”

Ned Norris:

“Well one, I think clearly the individual that has a level of authority in that bureaucracy needs to understand themselves what…where do their powers derive from and to what extent do I have any power at all? And I think the individual then taking that in the whole from let’s say the tribal legislature or… I’m constantly having to make the kinds of decisions, leadership decisions that I need to make, but I’m constantly asking myself in my own mind, ‘Do I have the authority to do this?’ And I think that that’s the kind of understanding in our own minds that we need to continue to ask ourselves, ‘Do we have the authority to do this? What does the constitution say on this particular issue? What have the courts said on this particular issue? What has tradition said on this particular issue?’ And being able to understand that in all those perspectives I think is really where we need to…it’s going to help in the bureaucracy that’s created, because to me 'bureaucracy' isn’t a positive word in my opinion.”

Ian Record:

“Tribal administration.”

Ned Norris:

“Tribal administration, there you go. The Bureau [of Indian Affairs]’s a bureaucracy, but in tribal administration, I think that if we’re going to be able to…the end result is how do we get to be able to provide the kinds of needs that our people deserve and are entitled to? And are we going to create the kinds of roadblocks…and if there are roadblocks, then how do we break down those barriers, how do we break down those roadblocks, how do we begin to sit at the table with each other? I’ll tell you, there was a point in time where -- and I think it’s with any government -- but there’s mistrust, there’s a certain level of mistrust between the tribal branches or the governmental branches and it’s needing to understand that regardless of what I do there’s still going to be some level of trust. I’ve got 22 tribal council members. I still have to accept the fact that I know there’s at least one, maybe more, of those 22 council members that don’t want to see me where I’m at today and accept that. I accept that, but that doesn’t mean that I not continue to do what I think I need to do in working with my supporters and my non-supporters. They’re still a council member, I still have to work with them, I still need a majority of council to get the kinds of approvals or decisions to do things that I need. We need each other. The council needs the executive branch and the executive branch needs the council.”

Ian Record:

“You mentioned at the beginning of your response about the importance of every individual that works within the nation and for the nation understanding what their role is and what their authority is. Isn’t that absolutely critical when you talk about say, for instance, the nation’s elected leadership versus say your department heads, your program managers and things like that? That there’s a common understanding of, ‘Okay, when it comes to the day-to-day management,’ for instance, ‘of this program, that’s not my job as an elected official. That’s the job of the department head and the staff below them.' Because that’s a major issue that we’ve encountered across Indian Country, where there’s this constant overlapping of role boundaries if you will.”

Ned Norris:

“Micromanaging.”

Ian Record:

“Yes, that’s another way of putting it.”

Ned Norris:

“Yeah, micromanagement. I think for the idea or the idea of overstepping one’s authority where it appears, or at least you’re experiencing micromanagement, I think that for some time there was even a certain level of micromanaging that was going on and attempted to be going on from tribal council members or council committees on executive branch programs and we even see a certain level of that even today, this many years later. But I think how we handled those situations really has an impact, because I think for some time, we’ve got to realize that I’m not going to disallow my department directors, my department heads or anybody in those departments to not take a meeting with the tribal council committee if the council committee wants them to be there. That wasn’t always the situation in previous administrations, but for me, the council needs to be as informed on those issues in their role as a tribal council member. I think that when we think about micromanaging, again I think that it’s really a level of communication as to how you’re going to deliver. I’m not going to sit there and say, ‘Council member, you’re micromanaging my programs and that’s…I have an issue with that.’ I think that how we explain to them that we’re going to provide you the kinds of information that you need, but as the Chief Executive Officer under the constitution I have a certain level of responsibility to make sure that these programs are doing what they’re intended to do and I will assume that [responsibility]…I will exercise that responsibility, but we’re going to keep you informed, we’re going to keep…and if it’s personnel issues, that’s a different story. That’s clearly…we’ve got to protect the employee and the employer, but I think that for the most part we…how you communicate -- I’m trying to explain this. I’m not sure I’m doing a good job of it -- but how you explain without offending is critical to the outcome. And I don’t want our council to think that I’m prohibiting our departments to communicate issues with the council, because once we start doing that then you start to create barriers there and I don’t want those barriers, but at the same time the council needs to understand that if it’s an administrative issue that is clearly within my authority as the Chief Executive Officer for my nation. I have directors, I have people that are…that I hold accountable to make sure that those issues are addressed.”

Ian Record:

“You mentioned a term that I think is really interesting, I’d like to get you to talk a bit more about it. You said, ‘It’s critical to explain without offending.’ And we’ve heard other tribal leaders and people that work within tribal government talk about the fact that the impulse to micromanage, the impulse to, for instance, interfere, for an elected official to interfere on behalf of a constituent, for instance -- it’s always going to be there. The question’s how do you explain to that person that wants to interfere, that wants to micromanage, that this is not the way we do things because we have processes in place, we have policies in place that prohibit me from doing that? That’s not to say, as you said, that we can’t have a communication, that you can’t understand what’s going on and why, or why a certain decision’s been made the way it’s been made, but we have processes in place. How critical is that to have that…I guess to have that basis upon which you can explain without offending? That there’s these processes in place that are critical to the nation functioning well?”

Ned Norris:

“Sure. I think that it’s extremely critical to be able to have a level of understanding, but a certain level of trust. I think follow-up is key. I think if you’re going to have a council member or a council committee that is raising issues that are clearly an administrative function of one of my departments, then I’m not going to leave them out of that issue because they have a reason, they have an importance, they have a constituent out there that brought the issue before them. They need to know, they need to understand and so I’m going to make…I’m going to give them the assurance that as the chief administrator, I’m going to make sure that my people are going to follow up on that issue, but I’m also going to make sure you know what we’ve done. Not necessarily what disciplinary actions might have been imposed, but how are we going to address that issue? And make sure that I get back to them and tell them, ‘Here’s where we’re at with this issue, here’s what we’ve done. I want the program director to come and explain to you where we’re at on this as well.’”

Ian Record:

“You mentioned this issue of personnel issues, which are inevitable. They always arise -- whether it’s a hiring and firing dispute, whatever it might be -- and you mentioned it’s a whole different ballgame, that that really is critical that that’s insulated from any sort of political influence whatsoever. And we’ve heard others talk about how important that is to achieving fairness within the tribal administration, achieving fairness within how the nation operates, how it delivers programs and services. Can you talk a little bit about how your nation has addressed this issue of personnel disputes?”

Ned Norris:

“Well, I have to say that I…we have a lot yet to develop. We have a system to grieve, there’s a policy, personnel policies are in place, there’s the policies outline as to how individuals grieve an employee-employer situation. And I’m not…I haven’t always been 100 percent satisfied with the system itself. And so we’re currently going through a rewrite or a restructuring of what that system should be and really all in the interest of facilitating the process in making sure the process is more friendly to both sides, the grievant and the grievee and so on and so forth, because I think that our process involves a panel of individuals that may not necessarily have the level of training or understanding of what their duty and responsibility is as a panel member hearing that grievance. And so we have a panel and an individual or individuals on that panel that may think their authority is much bigger than what is really outlined or that they may need to make decisions that aren’t necessarily related to the grievance itself and those kinds of decisions have come out and our current policy provides that as chair of the nation, the chair has the final decision over a grievance that hasn’t been resolved at any one of the lower levels. And it’s by that experience that I realize we’ve got to change the process; the process needs to be more equitable I think to not only the process, but to the grievant, the person grieving it themselves. So I think that you want to make sure, you’ve got to make sure…you’ve got to ensure to your employees that we have a system to grieve that is fair, that they have confidence in, that they have the comfort that they’re going to…they know that when they get to the process, that that process is going to move along as fast as possible, but that their issue is going to be resolved. And I think too many times we don’t get to that point, but I think it’s the process itself that needs to be looked at, but we need to develop a process that is fair.”

Ian Record:

“I’d like to talk now about a symbol of pride for your nation, and that’s the Archie Hendricks Sr. Skilled Nursing Facility and Tohono O’odham Hospice. What prompted the nation to develop this amazing, what’s turned out to be this amazing success story and what has it meant for the Tohono O’odham people and in particular, its elders?”

Ned Norris:

“Archie Hendricks Nursing Care facility was a dream for many years. I was in tribal social services when, not long after the tribe contracted [Public Law 93-] 638, those social services from the Bureau. And it was really unfortunate that too many times when our elders needed nursing care that those elders were, as a figure of speech, shipped to some nursing facility in Casa Grande, in Phoenix, in other areas of the state and literally taken away from their home, taken away from their family. And too many times, the only time that those elders came back was in a box, when they’d deceased at that facility. And too many times having our elders placed in off-reservation facilities limited or to some…and in some cases prohibited family members to participate in their care in that off-reservation facility. And it just made sense that we begin the process of creating a facility on the nation where our elders can stay home at a location that we think is kind of central to where members, family members can commute, have more easily the ability to commute to that facility and visit. Too many times…a lot of our folks don’t have vehicles. A lot of our folks pay somebody else who has a vehicle to take them to the post office, take them to Basha’s or take them to somewhere, in a lot of cases drive them to Phoenix to visit their elder in the nursing home. And even though that still is the situation today with many of our members, the drive is a lot shorter than it is just to go to the Archie Hendricks facility. But also not only to be able to bring our elders home and have that service here on the nation, but also to…it’s an opportunity to instill tradition and instill who we are as O’odham into the care of our elders and in doing that, also having the opportunity to train tribal members in that particular service. We have a number of tribal members that have gone on to earn academic programs that are now applying those skills in the nursing home. So it had a win-win situation all the way around, not only bringing our elders, but a job opportunity; an opportunity to create a program that wasn’t there.”

Ian Record:

“Obviously that success story has addressed a particular need and as you’ve shared, a very dire need. But I guess on a larger overall level, doesn’t it send a very powerful message to your nation’s citizens that if we have a challenge, if we have a need, we can do this ourselves?”

Ned Norris:

“Oh, I think that’s true. I think that that’s maybe one of the bigger messages that we’re demonstrating because even today we think about…in fact, I had some, a family member come into my office that were concerned about their child or their nephew that was in an off-reservation youth home placement and that individual turned 18 years of age and was released from the facility. Well, the concern was there was really no services that was provided to him while in that facility and so in their own words they says, ‘Why can’t we build the kinds of facilities that we did for our elders for our youth? Why can’t we bring our youth home into a facility that can provide the kinds of services that they need?’ And why can’t we? We should. We should move in that direction. There was a time when the nation operated a couple of youth homes, a girl’s home and a boy’s home. I’m not sure right now what the history is as to why that doesn’t happen anymore, but I think the bureaucracy is what I remember, was the bureaucracy got hold of the situation. It was probably a licensing issue that the Bureau required that we weren’t able to comply with and so on and so forth, but I’m not suggesting we want to run off, run facilities without being accredited in some way or certified or licensed in some way, but I think that we need to understand that if we’re going to move in that direction…and I totally agree that we need to begin developing those kinds of services on the nation, but we also have to realize do we have the capability to do that? Do we have…? We can build a house, we can build the home, we can build the facility, but do we have the resources to run the kinds of programs that it’s going to require, do we have the trained personnel, do we have the…all the requirements that you need in order to run a sound helpful service to these youth -- can we do that? I think we need to do an assessment ourselves and if we feel we’re ready to make that move, then by all means let’s start putting the…making those facilities available.”

Ian Record:

“It’s interesting you mentioned that your citizens are now thinking, ‘Why can’t we?’ and that’s a very important shift in mindset, is it not? To where…from where in many Native communities 20-30 years ago, it was always, ‘Let the Bureau take care of it. We don’t need to deal with it.’ To now, ‘Why can’t we do it ourselves?’ That speaks to this larger shift that we’re talking about, the message that it sends to the people, does it not?”

Ned Norris:

“Well, it’s…I think about former leadership and I think about leaders that have had an impact in my life and I always share this story about…you remember the TV commercial, ‘Be like Mike,’ Jordan’s Shoes, ‘Be like Mike, play the game like Mike’ and all this and that? And I have my own ‘Be like Mike’ people out there myself. I think about the late Josiah Moore, an educator, a leader, a tribal chairman, former tribal chairman of our nation. I think about a Mescalero Apache leader by the name of Wendell Chino and think about other leaders that have gone on, but have demonstrated their leadership over the years. And I think to myself that those are the kinds of leaders that have vision, those are the kinds of leaders that have fought for sovereignty, that have fought for rights of tribal governments and those are the kinds of values as a leader that I think we need to bring to our leadership. Is, how do we protect the sovereignty of our sovereign nations? And it’s really unfortunate because somebody asked me, ‘Well, what is tribal sovereignty?’ And I says, ‘Well, I don’t agree with this, but too many times, tribal sovereignty is what the United States Supreme Court decides it’s going to be in a case or the federal government,’ and we can’t accept that. We shouldn’t accept that. We don’t want to accept that. We may not be a true sovereign, but we have certain sovereign authorities that we need to protect and we need to continuously exercise and whatever rights we have as a people, we need to exercise those rights, we need to understand what those rights are, we need to protect those rights just as well as protecting our tribal sovereignty.”

Ian Record:

“Isn’t part of that process… and you’ve mentioned this term a lot, assessing, assessing, assessing, assessing. Isn’t part of that process assessing where your nation could be exercising sovereignty or where it needs to exercise sovereignty, but currently isn’t and saying, ‘Let’s push the envelope here?’”

Ned Norris:

“Sure. I think that is. I think that…I like to do assessments, I like to do that mainly because you think you might understand what the situation is and you think you might have the right answer as to how you’re going to attack that situation or address that situation, but too many times we go into a situation not realizing what the impacts of your addressing that issue is going to be and so for me, I like to, ‘Okay, I agree with you, let’s address that issue, but let’s make sure we understand what it is we’re dealing with and whether or not we have the ability to address that issue,’ because to me to do something with half of an understanding really creates, to some extent, false hope because people are going to see that you’re moving in that direction. And if you’re not able to fulfill that movement, you’re going to stop and people may have liked to have seen what you were moving on, but don’t understand, ‘Why did you stop? We had hope in that. We thought you were going to address that issue.’ ‘Well, you know what, we didn’t do our homework and we couldn’t move it any further. That’s why.’ I think that we need to be, if we’re going to make a decision as a tribal leader, we need to fully understand the ramifications of what that decision is and to the best of our ability make informed decisions about the decisions we need to make and then move forward.”

Ian Record:

“I’d like to wrap up with…I’d like to wrap up on a final topic of constitutional reform. And as you well know, there’s been a groundswell of constitutional reform activity taking place across Indian Country over the past 30 years, in particular in the wake of the Indian Self-Determination and Education Assistance Act of 1975. And back in the mid-1980s, your nation, the Tohono O’odham Nation, completely overhauled its constitution and system of government. And I’m curious to learn from you, what did the nation change and why and what did it create and why?”

Ned Norris:

“Well, I had the experience of being involved in my tribal government under the old 1937 constitution and then the new 1986 constitution, and although I wasn’t as involved in the development of the 1986 constitution, I understand some of the history and that it took, and as I understand it, that whole process took some 10 years to accomplish, to be able to…there were several drafts of our 1986 constitution. The constitution committee had understandings and misunderstandings and decisions that they couldn’t come to terms on amongst themselves. So it was just a long, drawn-out process, but I think a 10-year process that was well worth it. And I say that mainly because I saw the government under the old constitution and I see it now under the ’86 and realize that even under the ’86 I don’t think that we fulfilled the possibilities under the current 1986 constitution. Going back to what I said earlier about that supreme authority under the old constitution, in many ways the council was the legislature, the executive and the judicial. And for me, you had that supreme authority under the constitution in 22 members of their tribal council. And so there were…because of that I think there were times as tribal judges or as…well, yeah, as tribal judges where we may have sat back and thought to ourselves, ‘Oh, I’ve got council person’s son or daughter in front of me in this courtroom, I better be careful on what I decide here.’ That consciousness or sub-consciousness about the fact that you’ve got a council member’s relative in front of you that you’re either going to throw in jail or you’re not going to throw in jail: ‘If I throw them in jail, then the council member’s going to come after me.’ I think there were those kinds of influences that the old 1937 constitution brought about and in different ways. That was just an example, but in different ways. And so when we…when the development of the 1986 constitution really brought on the whole concept of a government that is separated by three branches and three branches that are equal in power and authority and three branches that are clearly defined as to what that power and authority is in the constitution itself. I support that and I continue to support that. We’re going through a process now because over the last…since ’86 there have been some things that different districts and different and even I think need to be changed in the constitution. Literally, just take a look at our 1986, our current constitution and you’ve got more pages that cover the powers and authorities of the legislature than you do four or five pages under the executive branch. And so even on paper, is that truly a system that affords the level of powers and authorities that should be granted to each branch respectively. And so I think that constitution reform is good. I think that though there are still things in the constitution today that we don’t understand, that may not have been fully implemented or implemented at all, but I think that…and even educating our members on the constitution, I think, hasn’t been as adequate as it should have been. Because you look at the constitution, the constitution, the powers and authorities of the constitution is derived by the people. The people themselves need to understand the enormous power and authority they have under the constitution and they, under that power and authority, need to hold us leaders accountable for ensuring that we’re protecting not only the provisions of the constitution but protecting them as well.”

Ian Record:

“It’s interesting you bring this up. We’ve heard so many other leaders of other nations whose nations have engaged in reform, either successfully or unsuccessfully, and particularly among those who’ve engaged in reform successfully, in that they’ve implemented certain changes, they’ve had the citizen referendum and it’s passed and all that sort of thing, they’ve all discussed this sort of critical moment where you overhaul your constitution, it becomes law and everyone kind of sits back and goes, ‘Whew, that’s done.’ But it’s really not done because you’ve eluded to this challenge of not just changing what’s on paper, but changing the political culture, changing citizen’s expectations of their government, educating the people about, ‘This constitution has a very direct impact on your daily life and here’s how.’ Is that something that… a dynamic that you’ve seen in your nation in terms of the challenge that it continues to face?”

Ned Norris:

“I think that everything that you’ve just mentioned as a leader whether you’re chair, vice chair, council, whatever the case may be, we need to understand that. We need to understand that simply amending, changing, instituting a brand-new constitution on paper doesn’t solve the problem, doesn’t resolve whatever issues. Yes, it may be a better constitution in your opinion or a group of people’s opinion, but how we apply that, how we interpret that, how we educate the authorities to the people that the constitution is going to impact is a whole new process. And it’s a responsibility that we should take on as leaders to make sure that our people are… have at least an understanding of the constitution, but and I think to some extent have a working knowledge of what that constitution has to offer.”

Ian Record:

“You’ve mentioned vision and the importance of leaders having vision and you mentioned Wendell Chino and Josiah Moore. What’s your vision? What’s your personal vision for the future of your nation? And how are you working to make that vision a reality?”

Ned Norris:

“Vision, you’ve got to have visions in all aspects of leadership. What is the vision for the health area? What is your vision for the continuation of your economic development? What is your vision for the services that are delivered or that lack or that you dream about? What is your vision? And I think that one, the vision really has to take into consideration, where do you want to see your people, where are your people at now, where do you want to see your people five years from now, where do you want to see them 10 years from now? And we want to continue to educate, we want to continue to develop, we want to continue to be able to address the kinds of issues that are impacting, whether it’s a positive or negative impact on our people. We want to be able to identify a continuous identification of needs that our people have and how do we begin the process of addressing those issues, those needs, those whatever the case may be. I think that vision involves all of that and it’s not simply saying, ‘Well, my vision is that we’re going to rid the Tohono O’odham Nation of unemployment.’ That is a vision, but how do you get there? What do you…you have to…in order to have vision, you’ve got to be able to understand that there are things that are going on now that are going to impact your ability to apply that vision; and unless you understand what those issues are here, your vision isn’t going to mean anything. And so the vision might be big and it might have a bigger perspective, you want to address the health needs of…our vision is to eliminate diabetes amongst the O’odham. Great! I think all of us that have those kinds of problems on our nation want that as a vision, but how do you get there? What do you have to do now in order to address those issues? I want our kids to be positive, productive citizens of not only themselves and their families and their extended family and their communities and their nation, but I also want…I realize that there are things that are impacting our kids now that are going to have an impact on whether or not they’re going to be a productive individual. Too many times we take, we accept things, we accept things as the norm. Too many times, we accept alcoholism as the norm. Too many times, we accept drug trafficking or human cargo trafficking as the norm. That is not who we are. That is not the norm, and we need to impress on our people that those things are having negative impacts on us as a people as a whole and those things are going to have those negative impacts and are impacting our future, are impacting our ability to be the people who we are. And so the vision is being able to realize and understand those issues and make the kinds of changes in order to have a productive nation.”

Ian Record:

“Well, Chairman Norris, I really appreciate your thoughts and wisdom and sharing that with us. Unfortunately we’re out of time. There’s a lot more I’d like to talk about and I think we’ve just scratched the surface here, but I really appreciate you spending the time with us today.”

Ned Norris:

“I really appreciate the opportunity. Thank you.”

Ian Record:

“Well, that’s all the time we have on today’s program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at www.nni.arizona.edu. Thank you for joining us. Copyright 2012 Arizona Board of Regents.”

Robert Hershey: The Legal Process of Constitutional Reform

Producer
Native Nations Institute
Year

Robert Hershey, Professor of Law and American Indian Studies at the University of Arizona, provides an overview of what Native nations need to consider when it comes to the legal process involved with reforming their constitutions, and dispels some of the misconceptions that people have about the right the federal government has to interfere in what changes Native nations make to their constitutions.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Robert Hershey:

"Let me just introduce myself just a little bit. I'm Robert Hershey; I was born and raised in Hollywood, California, born on Sunset Blvd. in Cedars of Lebanon Hospital to...yes? I went to Hollywood High School for typing in summer school. I went to John Marshall High School, and the reason we had such a lousy football team is because our mascot was the Barristers. So I don't know if I was destined to become an attorney from the start. However, I skateboarded down the Avenue of the Stars before there were Avenue of the Stars. It was still concrete at that time and growing up in Hollywood as a young kid -- and you might think I'm only 39 with prematurely moonstruck hair -- but really I was born in the late '40s. It was a magnificent time to grow up and to be totally involved in a fantasy world that was very, very difficult to have any concept of racial hatred and discrimination, except when the African-American community decided that they certainly were not getting a fair share of things.

The Indians in my world were all portrayed on television and in movies and it's very important to consider the imagery of American Indian policy, how interwoven it is, because the idea of an Indian is a white construct. We use the term 'Indian and non-Indians' all the time, but at the same time it is something that is just made up. You didn't refer to yourself, ‘I'm Indian.' You referred to yourself by your name, you referred to yourself by your kinship, your family relationships, the nation you belonged to, the societies you were part of, but there's this whole fantasy thing that still dictates today American Indian policy and it paints Indian people with one long, broad brush. Every time there's legislation in Congress it's usually, it's a panoramic landscape of which it paints everybody with the same ideas.

So you come from Hollywood, California, and you find yourself going to big movie theaters that are 10 times the size of houses and you get a really different kind of view of where you were going to be. My grandparents had to leave Europe, they were chased out of Europe because they were Jewish. Fortunately it was before the Holocaust. They went to Cleveland, Ohio, then they came out to California. My parents met there and I was raised there. I went to college at the University of California at Irvine. I studied pre-med. Got tired of memorizing molecules and wound up in law school. I came here to the University of Arizona. When I graduated college at the University of Arizona from law school, I got a job on the Navajo Indian Reservation. How many Navajo speakers are here? Uh oh. I'm in trouble. I was hoping there wasn't going to be any, but we can share mutton together. My mutton story is that where I would go eat mutton every day, one day I was backing up to go back to work and I backed my car into a telephone pole and I still have the muscle spasm from that and that's from 40 years ago. That's my second mutton story. I worked for Diné be'iiná NáhiiÅ‚na be Agha'diit'ahii. So-so? How did I do? I did all right. Thank you. D.N.A. Legal Services, so I was a legal aid attorney there.

And my first experience, and I'd never been on a reservation before, but my first experience, because I was a part of the outdoor life my whole life, and my first experience on the reservation was I rented a house, actually rented a cabin. It was a one-room cabin -- no water, no electricity -- way back in a canyon off the road and the mud chinking was missing. When the wind blew my curtains on the inside of the cabin would blow. I had a two-burner wood stove. I'd fire that thing up, get that stove pipe going red hot, open the front door to a snow storm and I was absolutely in heaven. But when I first went there, my Navajo landlady, my landlord Bertha Harvey, she was about 70 years old, still riding her horses, still chopping her wood and she asked me one day, she said, ‘Robert' -- because she lived much closer to the highway and I lived about a mile and a half back in the canyon -- and she said, ‘Robert, would you...' She called me 'Shinaaí­' and, ‘would you mind taking my goats back to the pen that's next to your place?' Being from Hollywood, what am I going to say, I'm going to say I don't know how to do goats. I didn't know how to do goats, but anyway I said, ‘Sure, I'll do that.' And this one black goat who was the leader of the pack, his name was Skunk and he wore this big bill on him and he took off, he took the whole flock up into the hills and I chased after them and chased after them and chased after them and finally I couldn't get them to come back with me. So I slowly slinked back down the hill after about two hours and I told [her], I said, ‘Bertha, I am so sorry. I lost your goats.' And all she did was start laughing at me. And she says, ‘They know where to go!' So I go back to my house, walk back another mile and a half back and they're in the pen where they're supposed to be. I'm supposed to talk to you today about legal process. My first question, was that legal what she did to me? Then when I worked with the Apaches, they're real good jokesters and they do these joking imitations of the white man. Oh, when I left the Navajo Indian Reservation one of my Navajo friends, she put a thunderbird around my neck, a beaded thunderbird and she said, ‘This will bring you luck in your whole, white life.' And I said, ‘Okay, I got that.'

So I have been very fortunate and I'm absolutely amazed and in wonderment and as I said yesterday, I said, I'm so honored to be with people that care so much and it's been a 40-year commitment on my part to work with and be honored by and in this situation and watch the success of Native peoples. You may get discouraged at times, but look around you, look at the success of Native nations. I am astounded and so happy to be part of that and have based my career on being a participant in that. So thank you very, very much for allowing me that opportunity. So what's legal? Give me a concept. What is legal? Go ahead. I need a mic to give to this young man here. Yes, sir. What's legal?"

Audience member:

"It would be an activity permissible or sanctioned by the people."

Robert Hershey:

"Okay. Who else has an idea about legality? What's legal? Because we talk about legal process, we know...we heard so much about law, but I want to know what's legal. You basically said, ‘It's sanctioned by the community.' It's an agreement. It's an agreement. Who else has an idea of what's legal? Go ahead."

Audience member:

"Like a binding contract between two people."

Robert Hershey:

"A binding contract between...again, an agreement. Right? In reality, [it's] an agreement. Yes, sir."

Audience member:

"A treaty."

Robert Hershey:

"A treaty. A binding contract between two people. Anybody else? You've been talking about reformation of constitutions. You've been learning a lot about constitutions. This is something that you heard before; I'll reiterate. This is nothing that gets fixed in stone. This process of amendments you hear and you hear about, ‘Can we amend our constitution, can we keep it moving forward, can we start a constitution?' It just keeps rolling forward. It's as dynamic as your culture and as your culture rolls and rolls and rolls into contemporary societies that you've created, the constitution supports that and it gives you a greater understanding. Later on I'm going to tell you what I consider also different conceptions of what a constitution might look like. There was one comment that was made to me yesterday by a man who said that, ‘The treaty gave us rights,' and, ‘What about our treaty rights?' Let me tell you, I view things a little differently. Native peoples enjoy all the inherent attributes of sovereignty. Think of it as a big pie. You are inherently sovereign. You inherently control your own destiny. Treaties took away parts of that right. Court decisions take away those rights. Congressional statutes take away those rights. What's left is your inherent ability in addition to your traditionally inherent and aboriginal abilities to govern yourself. That's what's left.

When you hear the word 'sovereign', 'You're sovereign. You have rights of sovereignty,' do you know where that comes from? This is not going to be a federal Indian law lecture, but very, very briefly, in the early 1800s there was a series of three cases. The first case legitimized the Doctrine of Discovery. It basically says that the colonizing power of the United States could go ahead and be unapologetic about subjecting you into their dominion and control. They had plenary authority. The second case basically called you dependent...domestic dependent sovereigns. That's where that term 'sovereignty' came from, which over the years has also been my coin of the turn domestic dependent abuse at times or domestic dependent violence, but that's where that word sovereignty comes from. The third case involves, ‘Well, wait a second, if you are domestic dependent sovereign, then we must have some sort of a guardian/ward relation over you, therefore we have the trust responsibility.'

So since the 1800s, the early 1800s, that kind of relationship has been established and the United States then has taken away lands, it's allotted your lands to take away more lands and then, by the 1930s, that's when it passed the Indian Reorganization Act and those are the types of constitutions that we're talking about now. In addition to the Indian Reorganization Act, there's the Oklahoma tribes' organizing documents, there's other specific statutes for tribes that have organized in constitutional format. Is it all voluntary? And why isn't it voluntary? Because there was not equal bargaining power, there was a conquest, there was a power here and there was subterfuge and there was deceitfulness and dishonesty and saddled you with certain systems of government that you're still fighting against or rallying against today.

Now let me ask you this, and this is something that I would like some participation in, when we talk about the Secretary [of Interior] approving constitutions and having that kind of authority over you, there are a great deal of pressures that the Secretary of the Interior and the BIA [Bureau of Indian Affairs] and through the superintendents in the different agencies they exert over you. I would like you to share some of those stories before I go into what the secretarial process is all about. There have been cases where the Secretary, the agency personnel, they basically say, ‘If you want to go ahead and change your constitution to remove the authority of the Secretary to approve your actions, then you will either lose federal recognition or you will no longer be a participant to the benefits and advantages of the Indian Reorganization Act governments. You will lose that government-to-government relationship,' those kind of threats. In addition, financial pressures, can you say no to them? Are you strong enough economically to say no to them and carry on by yourself? I would like to hear some of you talk about the things that the BIA and the Secretary and the agencies have disclosed to you or have said to you when you've discussed with them the remodeling or the amendment or the reformation of your constitutions. Can somebody tell me some of the stories? Red Lake has its own history. Red Lake was not an IRA tribe. Navajos have no constitution. They've tried. Yes, please. Because I think it's important for us to share at this time the experiences that everyone's had with the Bureau before I get into the scope of what I think their powers are. Thank you."

Audience member:

"In the 1980s when I was tribal chairman, one of the things we became very much aware of was how ineffective and how not responsive to our needs the BIA was. We discovered some of the same things that Elouise Cobell wrote about and we made the BIA rectify those. When we saw how they were dealing with our land and how the land transactions weren't being carried out to the full extent that they are supposed to be, we decided to do something about it. And we didn't follow the same process you're talking about here today. We didn't follow like this very highly democratic process, but what the tribal council did was identify what we needed to do and that was to take away the authorities that the BIA had over us and take over the governance of the tribe ourselves because we knew that we had people who were much more capable than the individuals who were working for the BIA. We came up with the ideas or with the reforms that we needed, and one of the things that we figured we needed to do was to claim jurisdiction over all people in all lands within the exterior boundaries of the Fort Berthold Indian Reservation. And then we gave the authority to carry out those jurisdictions to the tribal business council. And we also went for a name change because the Three Affiliated Tribes was what we called...colonial appellation; it was given to us by the BIA. So we wanted to use our own tribal name. We wanted to call ourselves the Mandan, Hidatsa and Arikara Nation. After they drafted... after the legal department drafted those up for us, we went to every community, every district and showed it to them, we explained it to them. And I know you kind of poo-pooed that idea a little while ago, but it worked for us."

Robert Hershey:

"What was that?"

Audience member:

"Where we wrote out what we wanted, we took it to the community, they gave us our... to the communities, they gave us our blessing. They gave us their blessing and...we answered all their questions, we were honest with them and to me, I think the whole issue at hand was one of trust. Did our people trust us enough to let us do this reform? And by being open with them and honest with them and letting them know what we were doing and why we were doing it, when it came time to vote, they voted overwhelmingly for the changes. And that has helped us immensely down the road. After that we took over all the services that the BIA had. We took over the realty department because they were not doing a good job with realty and we knew that. It worked. These amendments worked out very well for us. I was wondering this morning when you were talking about that Violence Against Women Act and you were saying people need to change their tribal constitutions. Is there something within that Act that says we have to proceed in a certain way or if we already claim jurisdiction over all people and all lands are we okay with that already? That's just kind of an aside I was wondering about. But anyway, when it came down to actually running that Secretarial election, there were other things we wanted to do at the time, but the BIA told us that the people in Washington did not want us to have more than three amendments presented to our people because they thought it might confuse them. So we went along with that and later on we did another secretarial election to get other things done that we wanted to do."

Robert Hershey:

"And is your constitution still, the amendment process still subject to the approval of the Secretary of the Interior? If you wanted to amend your constitution again, do you have to have another..."

Audience member:

"We still have to have the Secretarial election. We were encouraged to leave that in there. One of the things I just want to mention that we found later on is that our...a number of our people, if things didn't go just the way they wanted them to, they kind of longed for the BIA again. And we found that kind of interesting because if they couldn't get their way with the tribe they thought maybe the BIA, if they still had control of the tribe maybe they would have let them have this, that or whatever."

Robert Hershey:

"Thank you for sharing that 'cause I do want to talk a little..."

Audience member:

"I have one other thing I want to say, too. If you're going to do this, you have...the tribe has to be the one to push on these. The BIA is very lax. They don't...they're not going to push things forward for you. We had a young man who was one of our tribal members, Ray Cross, and we had another legal counsel, Kip Quail. But Ray Cross, one of our own tribal members was very, very aggressive and he just...he pushed everything. It was always, ‘Okay, when is our next meeting? All right, when are we going to meet next?' And he was telling the BIA not...he was telling the BIA what to do. We didn't let them tell us what to do."

Robert Hershey:

"Absolutely. Thank you. You brought up a question that many of you might be thinking about. The Tribal Law and Order Act of 2010 and also the Violence Against Women Act. They require certain constitutional rights, United States constitutional rights like the presence of a counsel, in order to go ahead and have increased sentencing authority or to assume jurisdiction over non-Indians in domestic violence cases on the reservation they have to be afforded United State constitutional rights, not just Indian Civil Rights Act cases. So if your constitutions have a provision in there where you have adopted the Indian Civil Rights Act and made that part of your constitution and that has old sentencing authority in it, it does not provide...it may be a limitation and that may be something you have to amend to go ahead to keep in pace with the jurisdictional advantage and the punishment that can be meted out under these two new acts, so that may be something. Yes. Thank you."

Audience member:

"Thank you."

Robert Hershey:

"Anybody else? How about somebody who has a good story about the BIA? Raise your hands. There's a young man over there who's got a good story about the BIA."

Audience member:

"I am not a young man, but thank you. We had trouble in our reservation and some buildings burned and tribal council moved their meetings off the reservation under the Roger Jourdain regime. And I had a friend that worked for the BIA in Minneapolis and she called me and told me to come down. And so I went down to the BIA in Minneapolis and she showed me an order from the Bureau of Indian Affairs. At the time, there was a lot of mineral concerns that are still going on right now, but this was like in the 1970s, late 1970s and the directive from the Bureau of Indian Affairs was to allow oil companies and people that...companies that were looking for minerals to allow them to do that without informing the tribal council that the Bureau, local bureaus on each reservation throughout the United States, giving them the authority to go ahead and allow illegal coring and other matters that was going on. And it did happen in many Midwestern states. So I took that directive and I took it to Roger. Roger got mad at me. He said, ‘Where the hell did you get this?' I said, ‘Well, it doesn't matter where I got this. What matters is the directive from the Bureau of Indian Affairs.' I said, ‘This is what I'm giving you.' And it wasn't too long after that the superintendent of Bureau of Indian Affairs on the Red Lake Nation was booted out and Roger informed other tribal councils about that directive from the Bureau undermining tribal governments. And so that's a story I have about them."

Robert Hershey:

"Okay. Thank you. Someone back here too. Because what I'm getting at here is that there are some sentiments on the reservations that the BIA there is to protect some people from actions of tribal councils and they do appreciate that oversight, as much as they do interfere with the tribes exercising their own self-determination. So there is that kind of split...

...Not only is there dependence on this bureaucracy, but some people are advantaged because of this bureaucracy. And so when you adopt the BIA constitutions, how many people are living today that have not been a part of a BIA constitution from a government, especially if your nation was there from the 1930s and adopted that constitution? So these are very powerful institutions, so that your leaders that are part of the IRA government, tribal council, they wear the clothes of power by virtue of these forms of government. So you're trying to change that, too. Now I've worked with a number of nations in constitutional reformation. One tribe has been trying to amend its constitution since 1975 and they've appointed a committee, a constitutional committee, but we heard yesterday too there's some fatigue that sets in and that fatigue...and so you have attrition, you have people falling out. And I've been at council meetings where there's been a call to the audience, ‘Who wants to be on the constitutional committee now? Who wants to be there?' And maybe one person might step up and give it a go. But we've advised these constitutional committees and some of these constitutional committees think that they are in effect a shadow government. I don't know if that's been an experience there where they think that they should have the power. They say, ‘The council's not doing this, this, this so we're going to change the constitution to make sure that they don't do this, this and this.' There [are] other people that I've worked with that have been trying to amend their constitution since 1990. This is a long, arduous process. Please don't feel that you have to get this done within any quick period of time. Before I continue...Yes, councilman.

Audience member:

"Just kind of a question, if you can discuss or point out the state of the organizations for example like the BIA and their role is changing, but they have some changes that are going on like some generational differences that are being felt and also I've heard that -- Ben pointed out at the legislative level -- where younger leadership is coming in and they're met with these older...at the state level it's become evident as well. There's just a generational gap in the organizations. And how is that changing and where do we see that going because I...one of the things, the good things I was going to say about the BIA is that they just got emails maybe about five years ago, which I thought was remarkable. They've come a long way."

Robert Hershey:

"I talked to some of my students...I've had two students that got a job a year-and-a-half ago at the solicitor's office. They were...I'm very proud of them. They were chosen out of about 1,000 people, there were four jobs open, two of our students from the Indigenous Peoples Law and Policy got jobs in the solicitors and I called them to ask them these types of things. There's still a climate of kind of hush-hush. There's still the politics going on there. Most of your experiences with the BIA are going to be at the agency level and so those experiences are not necessarily resonate all the way up to the central powers in Washington where you're going to get like a consultation policy from the Secretary of the Interior. Well, it looks really nice. They've done a fairly good job, but like all consultation policies, they're usually adopted before they consult with the tribes as to what a consultation policy should look like. And I'm going to come back to that in a little bit, but there may be a generational issue. But being youthful does not guarantee that you're going to have dramatic success. The youthful people on the Navajo Reservation in the 1920s are the ones that wanted to go ahead and start this process of exploration of shale oil development. But again, it's going to be your own individual experiences. Usually it's the agency superintendent levels that are going to determine...and those relationships I've seen have changed a bit to where they've been more supportive. But let me go on and talk about still how they make their determinations. Go ahead."

Audience member:

"[Unintelligible]."

Robert Hershey:

"We can't retire. I'm sorry. We can't. You would all have that experience. One second, sir. I want to get to one other thing. They've given me a sign there and I've got about six hours of material to get through. How many people do not have an IRA constitution here? Navajo, Red Lake does not. Sorry?"

Audience Member:

"[Unintelligible]."

Robert Hershey:

"It looks like it, but it's not under the IRA, am I correct?"

Audience member:

"[Unintelligible]."

Robert Hershey:

"So you still went ahead and had the Secretarial approval. So there are those kinds of constitutions that have not been adopted under 25 USC Section 460, which is the Indian Reorganization Act, but you've put the Secretarial approval language in your constitution, so you're still bound by the Secretarial approval. Yes?"

Audience member:

"With our committee here one of the things we were looking at is to...striking that out of our new constitution and..."

Robert Hershey:

"You want to know the consequences."

Audience member:

"Under the law, and maybe international law, would it still be recognized in international law because it was signed off, our original one was signed off by the government."

Robert Hershey:

"Okay. I'm going to get to that in a minute, the consequences of removing the approval process by the Secretary of the Interior."

Audience member:

"Does that include Red Lake's unique status?"

Robert Hershey:

"That would include Red Lake's unique status as well because it basically...excuse me. Was it by statute or was it by just an inclusion that you put in there?"

Audience member:

"Inclusion."

Robert Hershey:

"Inclusion. You may get some backlash from the Secretary on that; however, you can get it done. There's been some threats that I've been made aware of where the Secretary would basically say, ‘Well, you're no longer going to be federally recognized.' Those of you that have succumbed to those kind of threats, that is not true. You cannot lose your federal recognition under the acknowledgement process by virtue of removing the Secretarial language. What will happen is if you remove the Secretarial approval language, like I said yesterday, in one sense, in one sense that you could remove the language that's filtered through all the language of the constitution that they have approval: attorneys, they have to approve mining, they have to approve leases, things...you can get rid of all that language. It's only when you go ahead and try to remove the Secretarial approval clause, ‘amending the constitution,' if you already have it in the constitution, that then you would no longer become an IRA tribe. It does not mean you lose your federal recognition. Yes, ma'am."

Audience member:

"[Unintelligible]."

Robert Hershey:

"Well, it is related to the trust responsibility and here's how, and that's a reason why some of the BIAs, how they view whether you can go ahead and amend their constitution or not. They're basically saying, ‘We have to support our trust responsibility to you, therefore we have to have oversight.'

Now, for the Secretary to...first of all, in the materials you have are the statutes, the Code of Federal Regulations that talk about the process of what you have to do to go ahead and have an amendment. How many people have...if you've had no constitution whatsoever and you want to become an IRA constitutional tribe, then you have to have 60 percent of the members that are on your reservation petition the Secretary of the Interior to have an election. If you already have, then you get together the people that want to go ahead and have an amendment to the constitution or a revocation of the constitution and then you have to go through a process where you tell the Secretary, the Secretary has 90 days to go ahead and look at your amendments, give you suggestions and advice under the trust responsibility, approve or disprove and then you have to...if they disprove, then you have to decide whether you're going to go ahead with the election or not; I'll tell you the grounds in just a minute. And then, once the election is had, 30 percent of your voting, the eligible voters must show up at the election, a majority of which then determines whether those amendments pass. The Secretary then, if they pass, the Secretary then has 45 days within which to approve or disprove of those amendments. If they don't make a decision within 45 days, they automatically become an amendment to the constitution.

Now here's where the trust responsibility comes in, because prior to 1988 when the Indian Reorganization Act was amended, the Secretary was insinuating itself in all manner of decisions as to whether or not it could approve or disprove your constitutional amendment provisions. And they...basically for any reason whatsoever, and the tribes were really getting hung up. As a result of the 1988 amendments, the Secretary only has the authority to disprove your...if your proposed amendments are in violation of federal laws, congressional statutes, court cases. What the Secretary is also doing is they say that they have the authority to insinuate themselves into the approval process if your proposed amendments violate federal policy. And this is where that trust responsibility comes in because there's no standards that talk about the violation of what the policies are. They can bring anything up. Now this is especially acute in membership issues, when you're trying to amend the constitution in terms of...the regulations are given in your materials under one of the numbers. You can read through that. So it is still unclear and it is not demarcated exactly what the authority is. The BIA Handbook of 1987 is still in use. There are working drafts of later, of 2009 handbooks, copies that I've seen and they're really hard to find, this handbook how the BIA determines whether or not it's going to go ahead and rule whether or not something is approved or not. For the most part the BIA has been approving. The consequences of not being an IRA tribe; if you remove that language, what are those? What else do you have in place at that time? There are communities that want that certitude, that they have the United States government exercising its trust responsibility through the Secretary of the Interior and steadfastly saying that, ‘We have the supremacy of the United States government behind us because they approve what we do.' The Secretary has no authority to approve your ordinances or resolutions, statutes, providing you have not given them that authority in your constitution. It's only in terms of the amendment process.

Now I want to move on because I have a few things to show you here. Somebody asked about the United States, the Declaration of the Rights of Indigenous Peoples, some of the international law documents. I'm not going to run through all of it here but please, all of you should have a copy of the United Nations Declaration of the Rights of Indigenous Peoples in your council rooms, in your attorney's offices because these laws are binding. Now there's no real teeth in them, it's not that if the United States Office of the Solicitor or the United States government in itself violates any of these principles, that you can then sue them, take them to task, but you can incorporate these principles within your constitution should you choose to do so -- I'm sorry these are not well written. I'm going to buzz through these because they're different -- but you have the right to determine your own members, you have the right to control your own lands, you have the right to make decisions about just about anything and no state government, United States -- and when I say state governments, nation states -- can go ahead and interfere with those rights as long as you continue to assert them through this process.

Now, the Advisory Council for Historic Preservation; if some of you are involved in sacred sites litigation, holy place litigation, the Advisory Council for Historic Preservation -- I'm sorry you can't see these -- just put a clause in there, it just came out last month that they're supporting the United Nations Declaration on the Rights of Indigenous Peoples within their advisory council materials. This is an EPA [Environmental Protection Agency] policy. This is just for draft. It says, ‘Do not cite or quote.' Too bad. There's another provision in the EPA draft that basically says, ‘that we support the United Nations Declaration of the Rights of Indigenous Peoples.' This is the Indigenous and Tribal Peoples Rights; this is the Inter-American Commission on Human Rights, one of the international law documents, the International Labor Organization Convention 169. Your attorney should be well versed in this. In fact, on April 19th at ASU, the Special Rapporteur for Indigenous Peoples Human Rights is part of a symposium at Arizona State University on incorporating these Indigenous international law principles into the domestic discourse. Native peoples, Native societies and nations in this country have been reluctant to embrace this because they've held so fast to the trust responsibility. This is the frontier. This is the inclusion of the Indigenous Peoples Rights in the new constitution of Nepal. You will see this. And in Bolivia you will see this. This is the National Congress of American Indians. They have a draft.

Now, I want to think about something other than what you've been talking about, these kind of documents that you try to embrace within a written, English language written structure and whether or not there are other concepts of how you formulate government. How many people have conversations about plants, about place names, about a certain site, about a mountain? What's the story there, how does that envision, how does that help you then translate into what's appropriate to be written rules of conduct? The O'odham here, they basically teach their children, or at least traditionally, they taught their children, they waited until bedtime and when the child was just about ready to go to sleep they would tell them in their dream so they could dream about what was appropriate behavior or when they would wake up.

There's different ways of expressing what a constitution may be -- a land management plan. This is the Poplar River First Nation in Manitoba and what they have done is that they've organized together, they've mapped out their lands, they have a vision statement, which you might consider like a preamble to the constitution. One of the speakers just before me was talking about land management, comprehensive land management. The constitution reformation does not have to come before a comprehensive land management [plan]. One may inform the other. And in the process of developing comprehensive land management strategies, I suggest that you map your intergenerational memories. You probably already have done that. You've taken the statements of your elders. You've archived them. You've protected privileged knowledge. You've put them in your archives, you've created maps, you've created place names, you've gathered stories. These are important not just for whether or not you're going to go into aboriginal title litigation or whether you're going to design a constitution, but whether there's preservation of language because all those stories inform custom and tradition that can be used by your tribal courts in establishing common law.

So what they've done here is they have the vision statement, they spent 10 years working on this comprehensive land use plan. As a consequence, shortly after this they worked in concert with the government of Manitoba. The government of Manitoba passed Bill 6 and Bill 6 basically set aside most of the eastern shore of Lake Winnipeg in Manitoba as conservation area joining the traditional lands of the Poplar River First Nation. You can get there. Go on their website and download this plan. It's magnificent. This is the constitution, according to my colleague Ray Austin, Professor Ray Austin, former Navajo Supreme Court Justice. He's one of our professors. He's a distinguished juris in residence at our college in our program. This is his constitution of the Navajo Nation. ‘Mother Earth and Father Sky and the rights and responsibilities and the protections afford each.' He says he can go ahead and talk about the whole Navajo system of government through this. He incorporates the terms hozho, hozho k'e, nayee, other concepts here.

Emory Sekaquaptewa, magnificent Hopi elder, Chief Judge of the Hopi Court of Appeals, one of my most significant mentors, wrote about Hopi songs and ritual dances as being constitutions, as being the stories. So when we think of a written constitution, we ask our self, ‘Who's it for or to? Is it to show to the external world? Is it for our selves internally? Are there other ways that we can go ahead and express ourselves by virtue of mapping, by singing?' These are all constitutions. These are all rules of conduct. The Maya Atlas, the Toledo Mayo in Belize put together an atlas. I would have you look at their...this is something called 'Dreaming New Mexico' and it's not a very good rendition. A project in New Mexico that got together all the stakeholders, the Native peoples, the Pueblo peoples, the food peoples, the people that were bringing food in, the energy inputs, the ranchers, the farmers, people...all your community, all your neighbors and they visualized and mapped something different because we're all talking about ecological sustainability here in addition to the promotion of self-determination and sustainability of Native identity within your community. So you have neighbors out there as well. I'd like to hear if any of you have any other questions that I might be able to answer or comments. I would love to hear from you please. Kevin? No. Yes, sir."

Audience member:

"This has to do with citizenship. If you were born on a reservation, your allegiance is to that piece of land where you were born, correct?"

Robert Hershey:

"I would hope so."

Audience member:

"And so if you were born off the reservation then your allegiance is to the United States? Is that part of..."

Robert Hershey:

"Me?"

Audience member:

"Yes."

Robert Hershey:

"Am I allegiance to the United States?"

Audience member:

"Yeah. Do you have allegiance...? When you're born in Hollywood...?"

Robert Hershey:

"That gets...that's a political thing. I don't want to go ahead and cast a disparaging comment about the United States government in front of this illustrious audience, but I will if you want me to. I'm much more comfortable with Native politicians than I am with Anglo politicians. That might answer your question there. I've had many more positive experiences on reservations and working with Native peoples. It's been my whole career except for surfing and skateboarding. Thanks. Anybody else before...yes, I knew you'd come back here, Kevin. Give that man a microphone, please."

Kevin:

"One of the questions I have is all the IRA governments, when you get sworn into office, you have an oath to the United States government...when you swear into office, does anybody swear an oath to the United States government? That's one of the issues with the IRA for some of us. So when we swear an oath, even though I was elected in with my own people, I swear an oath to the Constitution of the United States because it's part of our constitution. That, in turn, we become a body politic of the United States government in one form or another. I want to talk about an issue with White Earth, but it involves the Minnesota Chippewa Tribe about the issue with the BIA or Secretary Interior. In our constitution, if we wanted to remove somebody from office, we have a process called Article X. And if Article X isn't heard by or acted upon by the reservation business committee, our tribal council or the tribal executive committee, then it in turn goes to the Secretary of the Interior for review. For the last 22 years, the four petitions that went to the Secretary of the Interior have all came back and said, ‘It's an intratribal matter, deal with it yourself.' In the issue that happened with White Earth years ago on a removal process, the BIA stepped in and let a person sit office early at the tribal executive committee with only two members to run a reservation. So the BIA stepped in and told that person they were able to do that by violating the tribal executive committee and everything that existed under the constitution. So I don't know if that...everybody else in here has to deal with them kind of issues, but we as the Minnesota Chippewa Tribe, that's what we have to deal with. By the BIA stepping in sometimes and setting precedence or telling us, ‘No, we're not going to deal with it even though trust responsibility is ours, we're not going to deal with it, you deal with it.'"

Robert Hershey:

"Some of the things that they say they have authority to do is stepping on electoral matters."

Kevin:

"Exactly."

Robert Hershey:

"They do and they still...and I've seen cases of that right now. And they're very reluctant to do [it] in membership issues, which is striking because the Pala Band of Mission Indians, this case that just came out, it's a horrible, horrible case of disenrollment and the Federal District Court dismissed the lawsuit and basically said the tribe is sovereign, too. They had a sovereign immunity clause there. One other thing, if you go to the BIA website right now and you scroll down in their general thing and they have a pattern constitution you can click onto, just about the same as it ever was. So I suggest that all of you take over the BIA, start writing new constitutions and let's do it right. So thank you very much. I appreciate your time."

Jill Doerfler and Carole Goldberg: Key Things a Constitution Should Address: Who Are We and How Do We Know? (Q&A)

Producer
Native Nations Institute
Year

Presenters Jill Doerfler and Carole Goldberg field questions from seminar participants about the various criteria that Native Nations are using to define citizenship, and some of the implications that specific criteria present.

Resource Type
Citation

Doerfler, Jill and Carole Goldberg. "Key Things a Constitution Should Address: Who Are We and How Do We Know?" Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Mike Burgess:

Mike Burgess from Pawnee Nation College. My question is to both either yourself Jill [Doerfler] or Dr. [Carole] Goldberg. In your research and findings, had there been any discussion on consolidation of tribal blood quantum and make it all one tribe?"

Carole Goldberg:

"By consolidation, you mean looking at people who have blood quantum from a variety of different tribes?"

Mike Burgess:

"If a member is not enough of your blood quantum, but they have more than enough to be a quarter blood, half-blood, even full-blood Indian, which is happening to a lot of our children in Oklahoma, they're full-blood Indian, but can't get on any roll."

Carole Goldberg:

"Right."

Mike Burgess:

"So if you're consolidating that and you recognize them as a member of your tribe and make them full-bloods or half-bloods, just your tribe only. Have any tribes approached that?"

Carole Goldberg:

"Not only have tribes proposed that, but I have actually seen it in some of the constitutions in California tribes where it may well be, for example, there are so many Pomo tribes in northern California. And you may not have descendance from this particular Pomo tribe, but in times past there was all kinds of intermarriage and kinship relations. And so the view of some of these tribes is as long as you're hypothetically one-fourth is from some Pomo tribe, they'll make you a member of this particular tribe so long as you don't also try to become a member of some other tribe. It's definitely being done. I wouldn't say it's widespread, but it's definitely being done."

Mike Burgess:

"Thank you."

Robert Hershey (moderator):

"It is. It is in a number of constitutions and membership ordinances that if you are a member of another tribe you cannot be a member of this particular tribe that you're trying to be included in. So that is something you'd have to look at either through your constitution or your membership ordinance and to change if that's the result you wanted. Yes, sir."

Ray Louden:

"Hi. I'm Ray Louden with Red Lake. This is for White Earth. How is the new constitution with White Earth going to affect the constitution with the Minnesota Chippewa Tribe, and then is the ultimate goal then for the White Earth Nation to be removed from...?"

Jill Doerfler:

"The White Earth Nation has tried for many, many years to engage the Minnesota Chippewa Tribe in constitutional reform at the level of the Minnesota Chippewa Tribe and those efforts have not been fruitful. As I said, we've had efforts at White Earth for 30 years and we've tried to engage the Minnesota Chippewa Tribe throughout that time. Minnesota Chippewa Tribe has always -- well, I don't...not always -- they've had for a long, long time had a standing committee on constitutional reform. No actual action has come out of that committee for many years, and so ultimately White Earth citizens felt that we need to move on our own. It's unclear what will happen with regard to the Minnesota Chippewa Tribe, whether White Earth will still participate or how the Minnesota Chippewa Tribe will react to us having our own constitution."

Robert Hershey:

"Thank you. You're Red Lake, yes? Yeah. We have time for two more questions right now, the speakers at the microphones then we'll break for lunch. I want to make an announcement about lunch in just a minute. Yes."

Stephanie Cobenais:

"My name's Stephanie Cobenais from Red Lake. What are you deciding on how...what's going to be a descendant on your referendum stuff? What is it?"

Jill Doerfler:

"We haven't identified a base roll yet, which needs to happen. We sort of worked under the presumption that we'd use our current roll, but that isn't 100 percent clear. So a descendant would be somebody descended from a roll that will need to be identified."

Robert Hershey:

"Thank you. Yes, sir."

Audience member:

"How many tribal members do you have enrolled in your tribe?"

Jill Doerfler:

"Excuse me?"

Audience member:

"How many tribal members do you have on your rolls?"

Jill Doerfler:

"We have about 20,000 citizens right now."

Audience member:

"Wow, that's quite a bit. Yeah, we have 900 enrolled tribal members in our tribe but due to our blood quantum it doesn't allow...a lot of our tribal member...a lot of family members to be enrolled. I have a granddaughter that's six tribes. She has six tribal...she's six tribes anyway right now and she couldn't get enrolled with my tribe so she went to one of the other tribes that she represents and then she got enrolled there. But it was kind of a sad deal. But I liked your presentation and I like the way that you guys dealt with the lineal part and I think we got a lot of good ideas out of that and it made me think a lot, too, about our lineal part because here in Arizona...I know tribes here in Arizona it's a lot different here. I have family members from a lot of different tribes here from Arizona that...even some of these guys like, I'm Tonto Apache, I'm related to these guys over here. I'm related to a lot of people in the San Carlos Apache Tribe. And we have other tribes too like Yavapai, other Yavapais up north. My father is a northern Yavapai and his clan still exists. It's still up there. And then I'm also half, I'm a southern Yavapai too. So there's a lot of this stuff going on here in Arizona, it's like a big melting pot. I see a lot of that, but I saw a lot of good ideas in your presentation that really stood out to me and I think we're going to probably take some of that home to our tribe and just try to present it to our people and see what they think about it. I just want to thank you for your presentation."

Jill Doerfler:

"Well, [Anishinaabe language] thank you to you. That's wonderful to hear. I didn't have time...I'll just make one brief comment. I am not a demographer, I'm more the historian/literature-type person, but the tribe did hire a demographer to do a population study and even though...sometimes it sounds like 20,000 is a lot of people, but we are going to soon be reaching a stage where we just have an aging population at White Earth. Our death rate is going to be outpacing our birth rate and we're going to be moving towards declining numbers and so that's also motivating factor. Even though it seems like we're big, we're still really feeling a lot of impacts of blood quantum."

Robert Hershey:

"Thank you. Carole."

Carole Goldberg:

"There's just one brief observation that I wanted to make. For a very good reason we don't have members of the outside press here but if they were, I think they might be very interested in the fact that the word gaming actually has not appeared in any of these presentations about enrollment because there is such a misconception out there that is driving all of this discussion and it's really not, as I think we've seen..."

Robert Hershey:

"Can you share some of the experiences in your community of what you're dealing with regarding identity, membership, citizenship? Why do we have this distinction between "˜membership' and "˜citizenship'? What does "˜membership' mean to you? What does "˜citizenship' mean to you? These are some of the questions you're going to be dealing with when you...I could call on my students. Can I call on a member of the Pascua Yaqui Nation's council to...sorry, Robert, because you brought it up at lunchtime. There's an issue within your constitution that is kind of contrary to the membership rules that you've set out. Is this something that you feel like that you're going to have to attend to? Is the Pascua Yaqui Council going to have to attend to dealing with some of the divergent issues or the irreconcilable positions within a constitution?"

Robert Valencia:

"There's two things that affect our tribe and our current constitution. One is our tribe was very instrumental in the Law and Order Act, getting that together, but our constitution still is what it is and we...that gives us a one-year limitation on the sentencing and I think it was $5,000 on fines and such, and the other is the Membership Act. Our tribe has been...was recognized in 1978, recognized again in 1994, and with this membership bill it's something that in order to do what we want to because it's in the constitution, it was in the Act, we would have to change that. So those are the two pressing issues that we have, among others."

Robert Hershey:

"Thank you very much. But the reason I asked you to speak to this was because there was a contradiction in the constitution as to what the nation wanted to do with regard to its membership. It went to Congress. Now some of you may have, not the IRA [Indian Reorganization Act] tribes here, but you may have also some other federal act that has designated you into the federal recognition and the acknowledgement process, too. So those types of things are unique where you can get congressional acts to go ahead instead of going through the whole formal process amending the constitution and the Pascua Yaqui Nation has been successful in that regard."

Robert Valencia:

"That's right. Initially the Act establishing the tribe did say that we had to have a constitution and initially it was supposed to be in 1980. We didn't have one until about 1988 and we haven't changed it or modified it since that time."

Robert Hershey:

"Thank you very much. Kevin, we've been looking for you."

Kevin Dupuis:

"I have a question for White Earth and as being a former tribal executive committee member I can understand what you're saying and as a reservation business committee member now, the question I have, if the constitution is done with White Earth, is there a point where the tribal executive committee of the Minnesota Chippewa Tribe has to approve or disapprove that constitution? And the concern I have is this -- that if an individual reservation in the consolidation of the Minnesota Chippewa Tribe writes their own constitution, do they become separated from the Minnesota Chippewa Tribe because the question I would have to that, if they have their own constitution they could not represent the membership of the Minnesota Chippewa Tribe [as] their tribal executive committee member. Because our constitution that exists now, whether it be right, wrong, indifferent, it's the only document we have, and the concern with is if it can't be followed now, how is this going to go with the constitution coming from White Earth?"

Jill Doerfler:

"Right. We're definitely in new legal territory when it comes to the White Earth constitution and the Minnesota Chippewa Tribe constitution and these are questions that we'll have to be exploring, especially this summer in consultation both with MCT staff attorneys as well as TEC members, White Earth attorneys and White Earth tribal council and exploring how can the MCT accommodate in some way. Can White Earth have its own constitution and can other MCT nations have their own constitution and still participate in the MCT in some way. Is that possible? These are sort of questions that we need to be working on answers to."

Kevin Dupuis:

"I understand it and I agree with you, just simple principle of federalism. It was discussed years ago in 2004 and I think all the way to 2006 that the tribe already has its own constitution, can we delegate that authority to the individual reservations to write their own constitution and be under the umbrella of the Minnesota Chippewa Tribe? My concern is this, if you follow a constitution that you write under White Earth and White Earth adopts that, even through the principal referendum I need to ask myself as a tribal member, because I'm not enrolled in Fond du Lac. We're all enrolled in the Minnesota Chippewa Tribe. Our enrollment papers go to the Minnesota Chippewa Tribe, not the individual reservations."

Jill Doerfler:

"Correct."

Kevin Dupuis:

"So an action like this, I'm asking at that point, you finish your constitution, it goes through a referendum vote with your people on White Earth. Is there a separation from White Earth from the Minnesota Chippewa Tribe, because I can't see White Earth representing members of the tribe anymore if they have their own constitution."

Jill Doerfler:

"It will depend on what actions MCT wants to take. If MCT does nothing, that may be your question. If MCT does nothing, does White Earth essentially then separate? I would say the answer to that is most likely yes, but I'm not an attorney and I'm not here to give legal comment on that. These are issues that we're working on exploring."

Kevin Dupuis:

"Okay. Thank you."

Robert Hershey:

"If I may add something too. It implicates some other issues as well. One of the issues is, what is the Minnesota Chippewa constitution, the nations that are involved in it, is it a Secretarial approval constitution, to do amendments?"

Jill Doerfler:

"Yeah."

Robert Hershey:

"So even though there's a referendum, it doesn't automatically result in a new constitution if the new constitution and the...then you have to call for a Secretarial election, and so then there's a whole process that has to be put to the voters. Then that's also going to go ahead and implicate. Whether or not this becomes an example to the other nations or not as to whether they want to go ahead and adopt a new form of constitution, it could be very exemplary in that regard. And there are situations where in constitutions...the Tohono O'odham Nation for one, Hopi Tribe for another, that they have separate and distinct powers that like the districts here on the O'odham Reservation have their own sense. The Hopi constitution allows for the villages to establish their own constitutions as well. So this could be a number of ways to go ahead and satisfy some of the concerns that you were raising there and at the same time allow for that kind of semi-independence or quasi-independence and it could be a united affiliation of nations with separate and distinct constitutions. It could be an example to go ahead and formulate one type of a constitution if that's the way the people go. But it still is going to require after a referendum, it still is going to require a petition to the Secretary of the Interior to go ahead and have a Secretarial election."

Jill Doerfler:

"I should maybe clarify that our referendum, the plan is to proceed with that referendum via a Secretarial election."

Robert Hershey:

"Yes, please."

Pamela Mott:

"My name is Pamela Mott and I'm from the Fort McDowell Yavapai Nation. At lunchtime we sat with Navajo and the other Yavapai tribe and to our question who we are and how do we know, it all came down to a Creation story, "˜cause we all know people sitting here where we come from, how we were taught. The time I grew up, I grew up with a bunch of elders so everybody that I came with, we know who we are and where we're from, but when federal government came and gave us those IRA constitutions that we have today, we have to start changing and identifying ourselves. And I think one of the things at our table that we kind of agree with and I brought up was that when you brought up maximizing your numbers and talking about political, it had a concern to me as a Native American woman "˜cause we're raised like family and we take care of one another. I was wondering, it's so hard for me to understand why other tribes would make one tribal member less important than another one when you said you put restrictions on somebody living off the rez versus someone living on, because a lot of times we don't have the wherewithal to have jobs for educated tribal members and they have to go somewhere else to work or they have to go out of state to work. I have to use my family as an example. I have a nephew that's a doctor in mechanical engineering. There's no job for him on my little reservation, so he has to go. What makes him less of an important tribal member than somebody back home that doesn't have an education but is there working? And I think when you guys teach, as professors when you teach this to people or other Native students that are in your classes, every tribe is different, we're all different, so some of those things I think need to be brought out because I'm a leader for my tribe and when I have to go to [Washington] D.C. and fight for Native American rights or fight for...big one is gaming and you said gaming didn't come up. It is coming up because that's what we're fighting against now but a lot of the things stem...why would you want to make one person less than another when the way we were brought up we had to take care of everybody within the community? And there were adoptions. I know Navajo had talked about some adoptions they had and it depended on your history. If you took slaves in...we weren't mean people. We took care of those people, unlike when they brought the slaves. I understood back east the slaves were more happy to live with the Indians than they were with the non-Indians because they were treated better, they were incorporated as families and that's how we're brought up. So that was one of the things I think our table agreed with, it was kind of hard for me to understand why if there were tribes out there, why would you make somebody different than another based on whether you live within the reservation, whether you don't live in the reservation, because we get a lot of feedback from the people that don't live within my community because they're educated and they tell us, "˜This is what we're doing out here. How can you incorporate with the businesses on the reservation to help us be successful?' And those are some of the things I think that was brought up at our table and I wanted to share that. So I think when you guys are teaching you need to know that. A lot of it comes from our heart and family. We're not like the regular outside non-Indians because a lot of them, they just move. It's easy for them to get up and move one state to another and not have contact with their family members. It's not like that for us. We're always contacting somebody. My sister...I may not...she lives on the same reservation and she lives a hop, skip and a jump from me, but I call her every day or I go see her every other day or something and my children live...I have a son in Oklahoma and he calls me every single day just to let me know how he's doing, how we're talking. So a lot of times you guys don't incorporate that in your teaching, and I think...coming from us now maybe you guys need to start doing that or understanding the tribes."

Carole Goldberg:

"Thank you very much. Actually, I live in Los Angeles. My husband's tribe is in North Dakota, so I'm actually very familiar with the situation of living far away from one's home community. There are places where issues arise involving resource extraction. So there are places where there is a lot of potential money to be made by things like strip mining or various other forms of resource extraction. It has in some places created some tensions, not that people don't care about folks who live far away, not that people don't want to take care of them or stay in touch with them, but just plain old worries that the temptation to do things in the territory might be too great if you don't live there and so that's the source of the tensions that I was referring to over what do you do about folks who live in a place and want to make sure that it's not ruined by various forms of environmental strains and people who live far away and may not experience that. And that...but the variation is tremendous and there are places where that is not an issue and where there are not concerns about treating folks differently. What I was trying to do was give you some sense of the tremendous variety of issues that exist out there and only you can know whether those matter to your own community."

Robert Hershey:

"I'm going to add one thing here, too, just before and this was brought up at our lunch table with my students and they're very passionate about this as well. And if I may just digress just briefly into a little history lesson. Back in Jamestown Colonies with...we hear about Pocahontas, but we don't hear much about her father, which is Powhatan, who was the leader of a number of tidewater tribes in that region. During the treaty ceremonies that would go back and forth whether or not the attempted colonists would be allowed to stay there, there was a ceremony where the English wanted to put a crown on his head and they wanted him just to bend down a little bit so they could put the crown on his head. So the English were taking that as that he was declaring fealty to the crown of England. Now he wasn't thinking that. He was thinking that he was extending his empire. And what I heard from the woman that just spoke, and I thank you for those comments very, very much, is that those educated, those people that are off the reservation, they're contributing and they're bringing things back to your community. So it's very, very interesting how you can extend your empire out there and it doesn't just have to be that people living within a particular area, that's determinative, but it's about those relationships and those contributions that can be far and wide. So that was just something, so I appreciate those comments of what you said. Thank you. Sorry for the history lesson, it's just law professors."

Steve Cornell:

"Steve Cornell from the University of Arizona. For Carole Goldberg, Carole I was just wondering if you had any experience with tribes that are dealing with citizens who live outside U.S. borders with nations that were split by the border. Obviously it's a huge issue right here in southern Arizona with the Tohono O'odham people. There are Yaqui people south in Mexico, but it's also an issue for Mohawks, for some of the Blackfeet Confederacy and others, and have you seen any constitutions that directly try to address the citizenship of people who through no fault of their own are living on the other side of the U.S. border?"

Carole Goldberg:

"I actually have, because one of the communities that I've worked with is the Houlton Band of Maliseet Indians in northeastern Maine and a number of the people from the Houlton community, the Maliseet people are actually living in Canada and it is interesting to note that over time the international border has had the impact on communities or it can have the impact of creating a sense of division that would not have existed had that international border not been introduced. And this is a topic that required a lot of internal dialogue within this community. Are they really a part of us? Even though the kinship relations were pretty obvious, the language, the cultural tradition were common but there was this bit of unease about whether...first of all whether there was something that would be viewed wrong by outsiders of including these "˜foreigners,' I use that in quotes, as part of our tribe and there was also again this sense that there had been some separation over the years. And there was at the end of the day I think more receptivity to saying, "˜These are part of our families, these are part of our culture and community and we shouldn't arbitrarily say that they're outside because they're in another country'. But it was a very hard discussion."

Joan Timeche: The Practical Issues of Business Development - Some Things to Consider: Governing Body

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Native Nations Institute
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Native Nations Institute Executive Director Joan Timeche shares her experiences as a board member on two tribal economic development corporations, and identifies some key things that Native nations need to consider as they work to craft effective approaches to corporate governance.

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Citation

Timeche, Joan. "The Practical Issues of Business Development - Some Things to Consider: Governing Body." Building and Sustaining Tribal Enterprises seminar. Native Nations Institute for Leadership, Management, and Policy, Udall Center for Studies in Public Policy, University of Arizona. Tucson, Arizona. March 29, 2007. Presentation.

"I serve on two tribal corporations. One of them is a Section 17. It's the Hopi Tribe's Economic Development Corporation and we were much like Joe [Kalt] described. We went out and we bought businesses and started businesses and then had them running. They were the council-run model and then they established a new corporation, which they transferred all of those businesses over to us. So it's been a very challenging task for us. And then the other board that I sit on is with the Tohono O'odham Nation, which is just adjacent, an hour to the west of Tucson here. And they were structured very much like the Ho-Chunk, Inc. model that we put on your CD where they are a separated model. They got a large dollar, $10 million to start up their corporation, but all of their control is at the local level in their districts, political districts. So despite the fact that they have millions of acres of land for development, it's very difficult and we have yet to secure any land at all for our corporation development. So we also have many of these challenges.

I'm going to talk about these governing bodies because they are a very important key to moving forward. Basically when you look in terms of governing bodies, what we're looking at is whatever is specified in your charter. And today we heard many models of those. They're in a board of directors, but that board of directors may be the tribal council as we heard. They could be the business committee. And all of their duties and powers are defined in those charters. And you'll see some examples on that CD of the several that we gathered. They range the whole gamut from where you have minimal kinds of powers to ones where you end up having to have thresholds where at certain levels -- maybe it's purchases, maybe it's land, or whether the case may be -- it has to go back to council. So that can be all specified in there. But their whole job, this governing body -- whether it's a separate board, whether it's the business committee of the council, whatever it may be -- are responsible for the overall management of these businesses and the activities of them.

So let's talk a little bit about this board and how it should be organized. And some of the things you have to take, and these are all no-brainer stuff, I'm just going to cover examples of them. The composition: how many directors do we have? And of course you know that everyone tells you, you need to have an odd number. Five, seven, nine -- those seem to be common numbers. I sit on one that's seven but I prefer a five-member board because when you get down to the real logistics of trying to get to meetings and quorums, there's real practicality in getting, it's much easier to get three members together rather than five for a quorum.

Length, terms -- these are again all specified. One of the things that we would encourage you to do is when you're setting up these corporate terms that they not coincide with council election terms, because then it's seen that all you're doing is it's a political appointment and political elections. So you want to make sure that they're off, the terms are different than council's terms whether they're two-, three-year or four-. And just as we found in council terms, our research has indicated that the longer the terms are the more consistent stability, consistency you have and there's a more stable environment there too so we encourage you consider moving towards a longer term.

Qualifications: you heard [Salt River Pima Maricopa Indian Community] President [Diane] Enos talk this morning about the composition of her boards and you heard that from some of our panelists this morning about having the expertise of the people. And President Enos, she indicated that they always have somebody from the industry that sits on these boards. And this is something that we're seeing is increasingly common with some of the corporations that we work with. Where it's not just tribal citizens that are composing the board. It is combinations where you have some citizens -- and they might constitute the majority of those members or they can constitute a minority of it -- but you have to have these qualifications. In both the Hopi and the Tohono O'odham corporation charters, they require that all, well, Hopi requires that all of its members have successful business experience; that's the minimum criteria for that position. In the Tohono O'odham [charter], it specifies a certain number of people that have to be from a business field, who have had business experience or either have a profession in that area. So you can set up those criteria to meet the needs that you might have.

And again, back to this, I started talking about this, about the independent members. On the Tohono O'odham Nation for example, they have a seven-member board. Five of those members have to be citizens of that nation and they have two that can be non-tribal citizen members. I happen to be in one of those seats that is a non-tribal member sitting on that board. And one of the things that I have been able to find, just from my own personal experience, has been that I can say a lot of things that perhaps they can't say because I'm looking at them from the outside in. Sometimes because they know each other politically, it's a little bit more difficult for them to be realistic and to say what they might be thinking, but I can say those kinds of things from the outside. So that's one of the benefits to it. Sometimes they don't always like me saying what I do say, but I try to say it in a way that benefits the corporation overall.

The other question that also gets raised all the time is, ‘Can employees be eligible for these board seats?' And I'm talking about tribal government employees. Should they be eligible or not? This is a decision that you will end up having to make. Can an elected official be on this board? Some tribes will define elected official very broadly so that, I even know of one tribe where even if you sit on the school board, the public school board where you've been elected to a seat, you're defined as a public official so you cannot be a member on that board. So those are all considerations you have to take into place.

Then comes the big question -- council members. Can a council member sit on the board or not? When you open up Ho-Chunk, Inc.'s charter, you're going to find that it states that two members of their board should be from the governing body, the tribal council. There's pros and cons to it. We can argue about this all day but basically, I believe, I think it was [Meadow Lake Tribal Council] Chief [Helen] Ben who mentioned earlier about the competing interest that you have. If the chief is sitting on the board, are they wearing their chief hat? Are they wearing their employee hat? Or are they wearing their citizen hat? Are they wearing another hat of some sort? And it gets... there's a real fine line there, so it gets really difficult. But basically we found that it's just really difficult to keep those political considerations out of any kind of enterprise decision.

The other considerations that you need to make sure you have are sections that define how individual board members can be removed. Is this something that, do they serve at the pleasure of the council? Does the chief executive, the chairman, the president, the chief have the authority to remove these individuals? What is the process for removing them? Because this becomes very, a big issue as well as you move forward. Resignations, how do you fill vacancies? Does it have to go back to the council? Can the board itself then be able to fill these slots in the interim until the next council, maybe perhaps until the term expires? These are all things that need to be spelled out in procedures to move forward here.

Vacancies: one of the things that can be done is sometimes vacancies can be that blessing in disguise because it allows the board to take a look at themselves and determine, ‘Okay, who's sitting on our board? What skills, what talents, what areas are represented? Maybe we need to have...' I'll just take Hopi's development corporation. We have two vacancies. One of our vacancies was a person who knew the hotel and restaurant industries. Well, we have two hotels and two restaurants to run. Now we're lacking that kind of knowledge base on our board, and for us it's critical to find someone in there. We have three huge ranches. We don't have anybody with a ranching background. So for us that kind of a person is critical for us to find to fill that kind of a seat because the rest of us may know business in general because three of us have MBAs, but we know business concepts in general but we don't know the industry specifically.

So those are things that you can take a look at and you'll see some of the ideas up there that have worked for other entities. They're all ones that you can take a look at. The following slide is just basically a matrix that you can utilize to do this analysis of what is your board [consist of]? Each individual member: now this is all...one of the things I always encourage people to do is each individual member of the board fill this out for themselves and how they view each other and then hopefully the relationships within the board is one where they can be open and frank and honest with each other and that they don't take any of these -- if there was a negative answer on there -- that they would not take it personally because it's all being done in a constructive manner to be able to improve the board.

In terms of who selects or appoints the board, the shareholder has generally all of those responsibilities. I've seen... I don't know of any right off the top of my head where it's delegated to another entity. And the shareholder in many cases is the governing body of the nation who is the tribal council in many options. And sometimes the shareholder may decide, 'Okay, we're going to start on this new enterprise and we're going to appoint you, you and you to be on this board.' It can be done and I've seen it done that way. Or they can say, 'We're going to go through a formal nomination process,' and they advertise, they put it out and so on. And there's processes to follow, which I'll cover in the next slide. Or there can be an application process where it's much like a job. Whatever the case may be, you're going to want to make sure that you do have the information that you need on each of these potential board members because you're entrusting them with major responsibilities and sometimes just like a council they are making multi-million dollar decisions, the kinds of decisions that end up having to have long-term impact on not just the nation but its future as a whole. So these are very important.

The next slide just gives you some examples, and some of the ones that are real common or what I call standard. Most people will advertise, they ask for a letter of interest and a resume. Sometimes they'll do a reference chart, sometimes they won't. Hopi, look at Hopi's example here. This is what's happening now, but when we got acquainted we were under that first one, the first initial board of directors, we were just asked to submit a letter of interest and nobody even interviewed us and it wasn't until quite some time afterward that we were required to undergo an extensive background check. I think that background checks are going to be very critical, because again financial institutions are going to look at the composition of the board, can these people make sound decisions, these people have been running businesses but they've bankrupted each time, these are all very important kinds of things to take a look at. The Tohono O'odham Nation probably has one of the most comprehensive processes for recruiting or filling these four vacancies and I included a sample of their last announcement on that CD. I had to go through three interviews, two of them at the legislative committee level, and I first saw my first background check. I couldn't believe how extensive it was. It was just totally unbelievable. I passed. I had to go to a formal interview for the council. It was very much like a job. I was basically applying for the job of being on this board. I was asked business questions. Do I know what a business plan consists of? It was very much like a job and they screened them very well and I thought that that was one of the things that has helped me contribute to make the board much more powerful and helping us to be on the same page as we move forward in making some of these decisions.

Just a couple of other slides -- that you're making sure that you have these people and sometimes you can get these people to join your board: the banker, maybe a professor, you think of marketing people, maybe a business person, somebody out in the community who has been working, has been a friend of the tribe for years, someone like that, those are all valuable assets for you. And just some last suggestions, that you want to make sure that your enterprise board has this clear definition of its role in relationship to the council. You heard that over and over again from all of these enterprises that spoke this morning. And that also needs to go down to the CEO level as well and does it schedule reports to council. You heard this over and over again, communication, communication, communication, not just with the shareholder but with the citizens of the nation, because they're the ones as we've heard that are going to have those questions about 'where is all of that money going that you guys are earning? You guys just go and travel and do whatever,' and they're the ones that need to know what's being done and it needs to be stated to them very simply. These are all...Hopi's coming up to their first shareholder meeting next...the fifth of April, so it's going to be an historic moment for us because it's the first time that the Hopi people have ever heard about all of its five enterprises that have been existence for years, so this is going to be very historic.

Have conflict of interest rules spelled out and one of the things that's very common is to have members, board members sign a code of ethics or a code of standard that they would agree as being on the board. Have clear compensation rules, again because this is another big area that often gets raised over and over and over again. And then of course making sure that the board's chair, because they're going to be the ones out being the front face for you, and your CEO is going to be insulated from the council by the board. You have to make sure you act as one as you move forward."