Robert A. Williams, Jr.

Implications of the Supreme Court's Embrace of Negative Stereotypes

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The issues surrounding Native stereotypes should not be dismissed or diminished as merely "surface" problems. "Indian" stereotypes go to the core of the legal, political and economic struggles that Indigenous peoples confront in their work to preserve and strengthen their respective cultures and identities and create brighter futures for themselves and their children and their children's and so on. 

This talk by renowned Indian law scholar Robert A. Williams Jr. sheds light on just how deeply imbedded these stereotypes truly are in the minds of all of us, focusing specifically on how the United States Supreme Court and its sitting justices' embrace of negative racial stereotypes about Indigenous peoples govern their jurisprudence.

Native Nations
Resource Type
Citation

Williams, Jr. Robert A. "Implications of the Supreme Court's Embrace of Negative Stereotypes." Red Ink: A Native American Student Publication. Vol. 9, No. 2. American Indian Studies Program, The University of Arizona. Tucson, Arizona. 2001: 91-99. Article.

Robert A. Williams, Jr.: Law and Sovereignty: Putting Tribal Powers to Work

Producer
Native Nations Institute
Year

University of Arizona Professor of Law Robert A. Williams, Jr. provides an overview of the U.S. government's centuries-long assault on tribal sovereignty -- in particular the ability of Native nations to make and enforce law -- and stresses the importance of Native nations systematically building their capacity to exercise jurisdiction over their own land and affairs in this nation-building era.

Resource Type
Citation

Williams, Rob. "Law and Sovereignty: Putting Tribal Powers to Work." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 23, 2011. Presentation.

"I'm always humbled when I get to read through the list of folks who attend these events and you're all very busy and you're all doing very important things and good work. And it really is an honor to be able to address you, and that Steve [Cornell] and NNI are kind enough to sort of turn me loose for an hour and to see what damage I can do.

What I want to talk about today is 'Law and Sovereignty: Putting Tribal Powers to Work,' and I particularly want to focus on the role of tribal courts and tribal law making in that equation, those aspects of sovereignty. There's lots of different aspects of tribal sovereignty, self-determination, but this idea of law-making is an important one. Let me just throw a fancy legal word out there to you and you can really impress people back on the rez. It's Latin. It's called 'jurisgenesis.' Juris -- J-U-R-I-S -- is law, juridical, jurisdiction. Jurisgenesis. 'Genesis' -- you don't have to be Latin to know that. That comes from the Bible, the beginning, the beginning of law, the creation of law. Jurisgenesis is the creation of law, that we are law-making communities. Some of the examples are, for example, the Amish make their own law. They always argue to be exempt from Social Security and from sending their children to secular schools. We know that the group, a community of Hasidic Jews in New York, control a very ancient network of diamond trading and they have their own law. They don't use the courts of the United States. They have their own jurisdiction, they assert their own law. They engage in their own creation of law, their own acts of jurisgenesis. And that's what I want to talk about today.

The United States Supreme Court, in the most important case affirming tribal sovereignty over the legal affairs of the reservation, called Williams v. Lee in 1959...my colleague and co-author Charles Wilkinson says that Williams v. Lee really inaugurated the modern era of Indian rights, 1959, before the Supreme Court. And in that case a Navajo had bought goods on credit from the local Indian trader and that Indian trader then tried to sue her for defaulting on the contract for those goods in state courts. And up until 1959 that's what had always happened. In Arizona, in South Dakota, and many of the states you're from, everyone just assumed that if an Indian owed you money you sued them in state court. But in this case the Navajo re-established their own tribal legal system, their own tribal courts, an act of jurisgenesis. And the Supreme Court said that state jurisdiction over this contract, which took place on the reservation, would invade the sovereignty, would violate the sovereignty expressed through that strong, independent tribal judiciary. And really the birth of the modern tribal court system springs from Williams v. Lee and that affirmation of the jurisgenerative power, the law-creating power of Indian communities. And one of the things that Justice Douglas, one of the great justices...I mean when you go to law school, you learn about the all-star Supreme Court justices. Who are the great ones? John Marshall, Earl Warren, Louis Brandeis, William O. Douglas. And Douglas in Williams v. Lee makes one of the most famous pronouncements in all of Indian law. And he said, 'Here's the question of whether Arizona has jurisdiction over the Navajo reservation, absent governing acts of Congress or treaties that took it away.' The question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them; infringed on your sovereign right to make your own laws and be ruled by them. That affirmation of your jurisgenerative capacity to create law from your own customs and traditions is one of the most powerful sources of recognized sovereignty in the United States Constitution, and it's still alive in your own communities today.

So that's what I want to focus on. Before I do that -- because what I'm really talking about is the challenge you face -- how do you take up that challenge of becoming jurisgenerative communities that take responsibility for your own law over every aspect of life on the reservation -- whether it be child welfare, whether it be criminal jurisdiction over Indians and non-Indians, whether it be civil jurisdiction over contract disputes, jurisdiction over employment actions at the reservation -- all the different things you can and will assert jurisdiction over? How do you meet that incredibly important nation-building challenge? Because your ability to build your nations is really going to be directly related to your ability to build strong, independent judiciaries or legal systems or mediation systems. You're going to have to choose the model to recognize and empower your jurisgenerative capacity. It might be a system in which everybody walks in with black robes and bangs a gavel, it might be a system of peace makers, it might be a system of sentence and circles, but one way or another you're going to have to respond to the challenge of becoming jurisgenerative communities, because you're not sovereigns, you're wasting your sovereignty if you don't step up to that challenge. So to understand that challenge, no matter where you're from -- I do a lot of work all over the world with Indigenous communities -- and this desire, this aspiration to engage in law creation, to go back to the old ways and see what might fit to meet the challenges of the new, and a lot does for those communities that have engaged in this jurisgenerative act to recreate, to renew -- the renaissance of tribal law making that's going on around the world -- is what I want to talk about.

But before I can talk about that, I have to set the stage so you understand where you're coming from. Because where you're coming from in many ways informs, shapes, controls, threatens, complicates where you want to get to. We all know that. My tribe's the Lumbees. We have a saying, ‘If it wasn't for family, what else would hold you back?' You don't have that saying? Something like it, right? Something like it. And your history holds us back. We're fighting our history every day. We're colonized people; we're traumatized. We suffer the psychic harms. We have the generational trauma. This stuff has been confirmed by social science that this trauma is handed down generationally. You just don't wake up one day and say, ‘Oh, we've reformed our constitution and got a new one. Now we're just going to forget our history, forget our past.' So I think it's important to understand the history of federal Indian law and policy because we know Indian people, even the stereotypes. We always think ahead seven generations and we're tradition bound, so we always want to know what the elders did and what our traditions tell us to do, and we learn from the wisdom of how our elders responded to crises because we think life is a circle, it's going to come back. And so with that, I think it always helps -- many of you know pieces of this story, some of you may even know the whole story, I doubt it -- but in as short a time as possible, I'm going to try and at least give you an overview of the story of the history of federal Indian law and policy and help you understand some of the characteristics and challenges so you can sort of get a lay of how the land has laid out for your elders before. [Because] if you see the terrain and the paths that they took and the decisions they made -- some bad, some good -- you learn from that. That's what Native knowledge is all about. That's what common law is all about, right? If a decision worked before to facilitate contract exchange, let's keep doing it that way. There is value, there's knowledge in the past, and our job is to sort of pull that stuff into the present to understand how it might or might not apply. Sounds a lot like what we do as lawyers. That's what the challenge is.

So I always like to say before Europeans came here -- the pre-constitutional era, about 1532 to 1789 -- what's going on then is that Europeans are asserting their rights as superiors. Basically the theory comes from the Crusades. So Europe has been fighting tribal peoples and infidels and savages and barbarians ever since the Romans, we know that. The Romans went out and conquered the tribes of Western Europe; the Normans came in and conquered the tribes of England. The West has been -- don't take it personally -- it's not an American thing, it's not a Western hemisphere thing. The West has been persecuting tribes for 3,000 years. They just don't like you guys. In fact, it's so inbred that you can find it in the very first book of The Odyssey and The Iliad by Homer. How many people have heard of Homer fighting the Cyclops, the one-eyed man eating Cyclops? He says, ‘We came to the land of the lawless and inhuman Cyclops who neither plant nor plow but who rely on providence to provide them but their land is goodly abundant with grapes and wild things that grow.' Sound familiar? Uh oh. Boy, that's going to come back to haunt us, isn't it? They've been doing this for 3,000 years. So it's nothing personal. And so in the 15th century Columbus comes over here and he says, ‘You know, these people are just like all the other non-Christian savages and infidels that we claimed total sovereignty and control over in the Middle East or in the Crusades, Charlemagne, the Teutonic Knights.' The Teutonic Knights, they were just Christians empowered by the Pope to get on their horses and terrorize the pagan Lithuanians until they submitted to Catholicism. And of course the Lithuanians say, ‘Oh, yeah, we're Catholic.' And then the Lithuanian knights would leave and they'd go back to their pagan tribal ceremonies and the knights would have to come in again. Sound familiar? So essentially the Europeans are doing what they've always done. Wherever they find dark-skinned, different people who don't believe in God, they claim superior sovereignty over them. And that means everything.

There's this great case in England written by James Coke. And I mention that name because he not only was chief justice of England but he was the lawyer who advised the Jamestown Colony. Yeah, I know, conflict of interest but we didn't have the ABA [American Bar Association] code back then. And he actually drew up the charter, which James signed, authorizing the Virginia Company to go and bring the infidels and heathens living as savages to civility in the Christian gospel. Go conquer. So Coke also issues this case called Calvin's Case. And what he says is that when a Christian king invades the kingdom of an infidel, he doesn't have to pay any attention to their laws [because] they don't follow the Decalogue, the Ten Commandments. And so therefore their oath is no good, they can't swear to God. So therefore they can't have any rights that the king will recognize in an English court. That's the reasoning. ‘You're savages, how can you have rights against white people? How can you have superior rights to your land when you just roam and wander and hunt?' Ever see 'Monty Python'? When you hear people talk about wandering savages, just do the Monty Python routine [because] that's what they think. That's what their ancestors did. How many people honestly, you meet a white person, they say, ‘Okay, do you ride a horse?' Right. Yeah? I've had 60-year-old grandmothers tell me guys walk up in the airport and ask them that question, ‘You riding a horse?' ‘Oh, yeah, sure. I have to.' You know.

So essentially the precedents are all set. You've all been conquered or decimated by disease or lied to or had your land stolen or your women disempowered. Because many of the North American Indian tribes of the east coast, the women controlled the property and they controlled the naming of chiefs, and that was one of the first things that Europeans subverted through bribes and machinations and getting the chiefs to sign the treaties. Now it's amazing when you look at those treaties from the 1660s and 1700 [because] all the chiefs are signing the exact same name. I can't believe thousands of chiefs signing the exact...what's that name that they all sign? X. 'Zorro?' 'No, I'm an Indian, it's 'X.' Have my land, take Manhattan.' All right. So the formative years are when the U.S. comes in and they basically adopt the principles of the English. They assert the rights of discovery that whoever discovers Indians has jurisdiction and sovereignty over them. But they do some other important things that you need to know about.

They enact a constitution, and because their experience had been that the yahoos in the states were the Indians most deadliest enemies that they had to make Indians exclusively federal affairs, because the states were crazy. They would go out and form posses and militias and just engage in massacre. And then what would happen is the Indians would go up in rebellion or the states would totally ignore a treaty that had been negotiated to quiet the Indians down. And so then it would be the Indians go on the warpath and the states, they don't care. And it's the federal government that has to raise the army to go and quiet the frontier. So the [U.S.] Constitution is absolutely clear -- and think about this, I'm going to play a lawyer's trick -- it's absolutely clear that the Constitution comprehensively puts all of Indian affairs into Congress's power. And they do that by one simple statement. So think of the founders. These are the guys drafting the Constitution. And you're really trying to understand, what do they really think about Indians? And I'm not... just think about it. Have you ever wondered what the founders really thought about Indians? Well, I'm going to tell you because it's in their constitution. So what the Supreme Court says is that we know that the founders gave Congress all the power they needed over every aspect of Indian affairs. This power includes the power to take away their criminal jurisdiction, this power includes the power to destroy their religion, this power includes the power to break up their land and distribute it in allotments, this power includes the power to steal their kids out of their homes and send them to Indian boarding schools, this power includes the power to break treaties with them [because] they're savages. Now you would think that the Constitution would really spell that out. You would hope, right? [Because] that's a lot of power that the Court says Congress has under the Constitution. And you know how Congress took care to make sure that they got all that power? They said -- write this down [because] it's very long, I'll go very slow -- ‘Congress has power over Indian commerce.' That's the only time Indians are mentioned. Why? Because -- as I tell you -- you were basically a business proposition to the founders. And that's all they needed over you [because] the only business they cared about was getting your land, and everything else is immaterial. That's your legal status under the Constitution. But remember that. And the Supreme Court has consistently affirmed in the United States v. Kagama that the people of the states where the Indians are found are often their deadliest enemies. So the state has no jurisdiction on your land, over you or your people or your land, never has and continues to be the law of the United States.

We get treaty making. How many of you here come from treaty tribes either in Canada or the U.S.? Incredibly important documents; they're an Indian invention. Wampum belts, you know those things that savages carry around, the beads [because] we like beads. Those wampum, well, they're sacred treaty documents. And the English and the Dutch learned right away if you want to make treaties with an Indian, the 'X' stuff didn't work, when the Indians outnumbered the colonies very early on, that X stuff wasn't going to work. You put it down in a treaty belt [because] that was a sacred text that the sacred keeper of the belts would come out and interpret and remind William Penn and remind the governor of Montreal called Onontio. How many people here are from Canada? Onontio, Governor [Charles de] Montmagny, Onontio. What does Montmagny translate into? Great Mountain. Onontio is the Haudenosaunee word for 'big mountain.' He was adopted into the kinship system. Those treaty, what I call North American Indian diplomacy, those traditions go way back before Europeans. And when Indians were in a position of strength able to assert and exercise their sovereignty, Europeans negotiated according to those protocols and those traditions. And that's why the treaties, particularly the early treaties contained some pretty good language and some pretty good promises. They formed the legal basis of much of your sovereignty, but it's a recognition of what is inherent in you already, for U.S. Indian law recognizes that whatever hasn't been taken away remains. You're sovereigns only if Congress limits it.

Of course what begins to happen is that the United States goes through a Civil War, builds a railroad, acquires essentially what used to be Mexico -- we're standing on Mexican territory, O'odham territory -- the United States acquired this through the Mexican-American War and the Treaty of 1848 and that allowed them to build a railroad connecting the country. And so all those Indians we had put out in Oklahoma and were running around out there on the prairies and plains states that we never thought would be in the way, well, now we kind of need to build a railroad through there. And some of the best routes will be through where the Sioux are and the Cheyenne and the Comanche and the Navajos. So we better make some treaties with them and get those people rounded up and into control and on tighter, confined reservations. And so Congress in 1871 basically [because] the House is PO'd at the Senate for ratifying treaties that contained sweetheart deals for the railroad companies say, ‘You know what, we ain't going to appropriate any more money for your treaties.' What did I tell you? You're just a business proposition. ‘We're not going to appropriate any more money for your treaties and we're only going to break this stalemate if you promise never to make any more treaties with Indians again.' It's the only time -- are you listening to this? It's the only time in the history of the United States that both houses of Congress had voted to divest themselves of the constitutional power. Never happened before, never happened since. There is no other incident in history where Congress has said, ‘Oh, we have a power in the Constitution? No thanks. We don't want it. Okay, we promise never to touch it again.' It's that, Wow, it's mystical. Ooh, the treaty-making power. Put it away in a box. Lock it [because] we can't be doing that any more.' But nonetheless you have those treaties and they're recognized in the United States law -- know where they come from.

And of course what happens is that once the court says that, because you're savages and infidels and under our guardianship, we need to be able to administer your property in a way that you might not appreciate. We're going to pass the Allotment Act over your objections and we're going to allot all your entire reservations. But the problem is you have 144 million acres and we have lots of Irish immigrants and Eastern European immigrants who want to move out there and you've got the lands all tied up. So here's what we'll do, we'll divide up all your reservations into 160 acre allotments and what that'll do is reduce your 144 -- are you writing? -- your 144 million acres of land. If we divide it up into heads of households 160 acres each, that will reduce your 144 million acres of land under the treaties 90 million acres. So you'll get about 48 million acres, much of it marginal, much of it unwatered, much of it dirt and rocks, because the other 90 million acres we're going to give to homesteaders. And what will happen is, because they get all the lands that are around the rivers and the really good lands, you can watch how they grow crops and you can learn how to do it from them. They will civilize you. That was the idea behind the allotment. Courts of Indian Offenses. My god, we've broken up your land holding patterns, we've broken up your family patterns, we're sending your kids to boarding schools, we've divided up your clan and kin just purposely to disaggregate you through allotment. That was a purposeful policy, was disaggregating clan and kinship relations by placing brothers in different corners of the reservations with their individual allotments. And they even know if it was a matriarchal society to move the aunties around. They got really good at these sorts of practices of colonial governmentality.

And so of course what happens is a breakdown of law and order. And we know there's a breakdown of law and order [because] if you look at the Courts of Indian Offenses and their statutory authority, one of the first things they talk about is polygamy. We've got to cut down on polygamy. Well, you're killing off people left and right, you're killing off the men, you've taken away all the food. Have you ever thought about why there might be sisters, cousins, grandmothers, husbands, nephews moving in together into relationships you have no understanding about? But that gives you authority under the Courts of Indian Offenses to go and prosecute those crimes.

Then there's a big depression. It hits Indian Country incredibly hard. If you talk to your grandparents, ask them what it was like before the Wall Street crash. Indian Country was feeling it as were many of the more poor areas of the country. And when the depression hit it just devastated Indian Country. And the [Franklin Delano] Roosevelt administration comes in with a broad mandate to shake things up. And so what he decides to do is, as part of his New Deal, is reorganize Indian tribes and passes the Indian Reorganization Act along with those other famous reorganization acts establishing the Bureau of Irish Affairs, the Bureau of Jewish Affairs, the Bureau of Hispanic Affairs. We all know those great bureaus. You can go to Washington and see the big buildings and the huge bureaucracies built up around those different ethnic groups, who were all reorganized. No, you were the only people that needed to be reorganized [because] they'd screwed you up so much they had to start all over, is what they thought. So we're going to reorganize Indians and we're going to give you written constitutions and we're going to give you tribal councils. And literally, it's -- I'm not going to mention the name of this reservation but it's one I know very well -- when they asked the Indian agent, ‘Well, gosh, we established elective districts, 12 elective districts. And we've got to figure out how to divide that up? We don't gerrymander here.' And they said, ‘Well, do you have a cattle range map?' ‘Yeah.' ‘How many districts does that have?' ‘Twelve.' ‘Use that. That's how you select your political representatives through the way, the pass that the cattle roam.'

I'm going to give you the resume of the guy that Roosevelt picks to head up the Bureau of Indian Affairs: a Communist labor organizer in New York got his head beat in by the Pinkertons; left his wife and children and shacked up with a Broadway actress in a West Virginia river, lived the life of the wilderness; got bored with that, left her, moved to Santa Fe and shacked up with George O'Keefe and D.H. Lawrence and Isadora Duncan. And his first book on Indians, which qualified it [because] he was a born and bred Commie, was called Red Atlantis. John Collier, that was your Bureau of Indian Affairs director during the Roosevelt administration. Oh, I'm not going to tinker with these Indians am I? Gosh, what an interesting sociological experiment I've been given. Let's see what happens.

It starts getting better. Not really, because then Termination comes. Now Termination is like the height of the '50s. And if you read the Argo of -- sort of -- international foreign relations, the only other place you see the word being used is to describe the operations of CIA agents in foreign countries. So we're terminating dictators that we don't like and Indian tribes. And basically it just means end the treaty rights, end the constitutional status of Indian tribes [because] we're tired. And guess where we want to turn you over to? The states. That everybody's in the federal governments for hundreds of years has said [is] our deadliest enemies. Why would you do that? Because we want to promote your civil rights. That's how the Termination Era was used. It was, ‘Oh, blacks want to integrate. We'll try it with you Indians living in a communist society there on the reservation. We're going to turn you on to corporate shareholders and take Menominee's timber mill and turn it into MEI Enterprises; give you punch clocks and consultants and everything else. Then you'll be happy. Look what we did for the Native Alaskans, turned them all into corporations.' It's easy. Snap! Just like that [because] that's the power that Congress has. They can terminate you tomorrow if you piss them off enough. Don't say I didn't warn you. ‘Oh, gosh! Professor Williams told me this might happen. Why weren't you there at that NNI event, at that workshop? He told us. You didn't believe me.'

So Indians really did fight back. That's the birth of the NCAI, people like Vine Deloria. You start getting into the 60s and the Self-Determination Era, 1961. The [John F.] Kennedy administration repudiates Termination. Indians start joining the civil rights movement but they are trying to articulate their own unique voice. We don't want integration; we don't want assimilation. We want our treaties honored; we want the historic relationship between Congress and the tribes, that trust relationship enforced in a meaningful way consistent with emerging international human rights law principles of the state's duty of protection of Indigenous peoples. Isn't that what trust is? It's a duty of protection. And that's exactly what the International Human Rights Covenants say. The state has a duty of protection of all forms of culture, of all languages, of all religions. You can't go exterminating it because it happens to be economically inefficient. You can't go exterminating it because they happen to be a different race who you don't want to disrupt the purity of your own blood as in South Africa. People have fundamental human rights. And Indians start picking up on that discourse and begin to challenge many of the assumptions about what they wanted. And they begin to assert their jurisdiction.

I always love to tell this story cause I...so I was born in 1955. So like I was a teenager when my mother wouldn't let me go out to Alcatraz and join all the other Indians there. I swear since that time, everybody else went [because] everywhere I go there's like a million Indians who were at Alcatraz. ‘Yeah, I was there. Wounded Knee, too!' How many were there? Come on, look at the pictures, it's like eight guys and three women. Y'all hid if you were there. You were there at the BIA takeover? ‘Oh, yeah, I got mimeo copies. Look at that.' That's cred to me. If you've got the mimeo copies from the BIA records then you've got some cred but otherwise...But like Vine Deloria used to tell me, he says, ‘Man, it was great being an Indian leader back in the '60s. We'd go out there with Brando, we'd get shot at and he'd be ducking. We'd be going to fish-ins and we'd be trashing the BIA. Being a tribal leader today sucks. Man, sitting in budget meetings all the time, going to Washington, dealing with lobbyists, having to go in and talk to those idiot Congress people.' At that moment I swear to god, [Supreme Court Justice William] Rehnquist walked by. Rehnquist walked by, [because] we had him as a guest lecturer and Vine -- and he was old -- and Vine said, ‘Who is that, Williams?' I said, ‘Well, that's Chief Justice Rehnquist.' He said, ‘Man, he looks like S.' I remember that story very well.

But it's hard being a tribal chairperson today. It's hard being a tribal councilperson. It's hard running a tribal program. It ain't much fun. How many people had more fun days last week working than not so fun? How many fun days did y'all have? Give me one fun day that you had last week. [Sighs] Well, now you know why I do comedy [because] you guys need it. But I hope you understand there's a serious message here. Creating an independent tribal judiciary is hard work, because my uncle used to just pick up the phone and call the tribal judge when there was a problem. Why can't I do that? Or my aunt used to go attack the tribal budget when her nephew was in jail and she felt he didn't belong there. Or I remember the old council battles where they wouldn't fund the tribal defenders office [because' it just wasn't important enough. ‘Those kids were all guilty. Let them rot in jail without a lawyer.' I won't mention the community but I went up and gave... I used to give real fancy talks as a professor: 'This is why we need a juvenile justice system...' Until one day some of the aunties stand up and say, ‘We ought to go back to custom and tradition.' I go, 'Yeah, that's what I've been saying. Beat the hell out of them, then they're good.' ‘No, that's not the message. That's not what I meant by custom and tradition!' (That's just my first slide. Steve's getting really upset.)

So the good old days are over. It's hard work. You're in what I call the Nation-Building Era. I tell my students the good old days, the Self-Determination Era, in the sense that you all know what the boundaries of your self-determination are [because] you're pushing up against them every day, that's what the -- if you're a tribal leader -- the hard work of being a tribal leader is pushing those boundaries. But you know where they are [because] you get the AG upset or you get some judge sitting in Pima County ticked off or someone calls from the governor's office or something. So you're pushing those boundaries but you know what they are.

We know there hasn't been significant Indian legislation that tribes have aggressively pushed for that really created meaningful reform and recognition of rights since the Indian Child Welfare Act. It was that recognition of fundamental human rights, but we've been able to expand our jurisdiction over other Indians, right? The Duro Fix, the [U.S. v.] Lara case. Tribes were told, ‘We'll let you exercise criminal jurisdiction over other Indians as long as you don't even bring up Oliphant [v. Suquamish Indian Tribe] and the fact that case says you don't have it over non-Indians.' Okay. [Because] we'll get this and we'll prove we can do it and then things will, we'll see how it develops and see if we can mount that next challenge for that tribal [jurisdiction]. That's how we do things. It's hard work. We build step by step. And one of those important steps is putting the pieces in place to meet these challenges. And one of the most vital pieces is a strong tribal court [because] you've got limits on Indian self-determination defined by Congress and the courts, not tribes, the Indian Gaming Regulatory Act. And a lot of you are probably spending money on lobbyists beating back assaults on that.

Now you're dealing with labor unions. Okay, so, labor unions. We all know the stereotypes. I feel sorry, as someone who worries about Indian stereotypes, I feel sorry for people in labor unions and some of the stereotypes they have. But this is not something that you want to deal with. Labor relations are knock down, drag out. They come in, and let me tell you something, my father-in-law is in the labor movement. I have a tremendous respect for what these people do. Their ethic of belief in the labor movement is every bit as strong as your ethic of belief in tribal self-determination. And so if you're confronted, it's really hard work to sit down and work out common ground so that you can work together or maybe not work together. But at least do it in a way that's constructive and doesn't alienate all the employees in your establishment for example. So that's a challenge.

If I had told Billy Frank that you are fighting on the banks of the Columbia River for the right to avoid NLRB [National Labor Relations Board] certification, he wouldn't have believed it. No one knew where the struggle was going to develop. You don't know where it's coming next. You've got an incredibly hostile Supreme Court. Again, I love the people at NARF [Native American Rights Fund]. They're brilliant lawyers there. I've worked with them. And they and a bunch of other Indian lawyers said the best strategy now for Indian tribes before the Supreme Court is don't go, stay away. And it's hard work just to kind of get the cases through the circuit level in a way that the court won't pick them despite your desire not to have them go.

So you've got horrible cases coming out. You've got anti-Indian groups, anti-affirmative action. We just passed a proposition in this state that outlaws affirmative action in financial aid and in admissions. It's going to have a devastating impact, particularly on non-federally enrolled tribal kids. A lot of Indians can be full blood but they're not federally enrolled. And so since they're not federally enrolled, they're really a minority. And so you have these totally arbitrary distinctions where you have 100 percent Navajo and Pueblo kid where you have the flip on the matriarchal/patriarchal membership roll. And they're 100 percent, but they don't belong to the tribe. And under this bill, they're not entitled to affirmative action and financial aid or in admissions. They're in the pool with everybody else.

We've got shrinking federal budgets, rising health costs, No Child Left Behind, rising crime, unemployed youth, gangs, drugs, poor infrastructure. Let's throw some in. This is a cleansing ceremony. Anybody want to throw one in there? Come on, shout one out that I didn't include. Suicide -- oh, my god, yeah, good -- bad, horrible. Good in that, exactly. The voice coming from where it's happening at, you know. Domestic violence -- ah, good. I'm going to add the index of misery, the hard work. If you took one of these issues and made it your life's work and moved the ball ten yards down the field, you'd be Hercules, you'd be the new Amazon woman they're casting. To take all of them on at the same time with the resources you have, it's hard work. And your enterprises are competing inan increasingly multi-cultural, multi-global environment. [So where am I at on time [because] I want to leave time for questions? What time do I have here? Good, I'm going to wrap this up and then I'm going to let you fire away.]

So, here's where I kind of tie-in the nation-building stuff. We know that the real keys are practical self-rule. Well, think of what a tribal court does for you. It takes your tribal law and custom, its traditions, your constitution, the codes, the statues that you enact and apply them every day in a transparent, rational, non-political, non-partisan way so that everybody on the reservation -- Indian and non-Indian -- feels they are treated as equals with equal dignity and respect as human beings according to our tribal customs and traditions. A tribal court keeps you guys honest. You need that oversight, you need that accountability, you need somebody who has the final say on, ‘Just what the hell were you doing with this expense account report?'

Strategic orientation and leadership -- we've been talking about that. But you need something else. You need a legal framework for nation building. Remember your tribal powers. Remember your tribal constitution. Some of them may date back even before the IRA. How suitable are they to your needs today? Think about the way you treat issues of waivers of sovereign immunity. Think about your criminal codes, your juvenile codes. What have you done to make your nation stronger in those areas during your tenure on the council, during your leadership of a tribal program, in the classroom?

I want to kind of give one test to ya'll. I'll leave you with this and then I'll open it up for questions 'cause this'll get you thinking. Hopefully, I've provoked you enough to kind of think about where you're at in meeting this challenge. But this is a university and we like instruments. We've got to have data. So I collect this data, I promise they're writing it down. If you want to be anonymous, okay, but I want you to take this quiz. This is the tribal leader's executive education test for whether your reservation has an independent judiciary. And this'll tell you whether or not you really need an independent judiciary as part of your major nation-building task. On my reservation, the chair is related to the chief justice, yes or no? Just mark it down. On my reservation, the chair is poker buddies with the chief justice? On my reservation, judicial review means the council can review any judge who makes an unpopular decision and fire him, yes or no? On my reservation, checks and balances are something the tribal finance office can't ever seem to keep track of, yes or no? This is serious. You're compromising the integrity of my study by laughing. On my reservation, separation of powers means the council doesn't ask questions about the judiciary's travel expenses and the judiciary doesn't ask questions about the council's? Oh, my god. I've had people pass out. So just let us know, raise your hand if you're feeling...I've given this test [at] hundreds of workshops. These are the oldest jokes in the world. Come on. Okay. On my reservation, the question of whether the tribe should ever waive its sovereign immunity is something that only a fool would bring up in council? Serious question.

Okay, so here's how you judge yourselves. Six to five no's, you have a very independent judiciary. You don't have any work to do in that area. One to two no's, it's kangaroo [court] city baby. So where are you at? Are you hopping up and down trying to figure out where you're out in this nation-building challenge? Are you going to tackle it head on? Well, let's talk about that. We have a few questions. Let's talk about that challenge in some of your questions about this need for an independent judiciary to really recognize all those things we're talking about gelling together, the synchronicity of the nation building model."

Q&A Session

Audience member:

"How do we fight as a collective body and as individual tribes those of us that are fighting that white man's colonial rule? We were in court a couple weeks ago and we're dealing with...we've had contact since 1640 when our tribal system was set up in the 1700s based upon that trusteeship of put three people in a, three men in water, they're going to control everything and we can control them. Give them a bottle, they can sign their X and we get their lands and all. And how we deal with their water rights and their land rights and who can do what on their land and...so you just don't have any rights anymore. How do we fight that, and what is our recourse for those things?"

Robert Williams:

"So do you hire outside law counsel to do this for you?"

Audience member:

"We have our own and we have outside law counsel. We have tribal lawyers."

Robert Williams:

"And how's that work divided?"

Audience member:

"Of course the white man is getting more and the tribal member lawyer gets this much..."

Robert Williams:

"And what do they bill you per hour?"

Audience member:

"Probably $700 and our trial lawyers maybe get $125. What did my sister say? She gets 38 cents per hour."

Robert Williams:

"It's a tribe around here. Because I've been associated with them so long and have been intimately involved with them for so long, some of the details I don't remember. So I'm just going to give you a basic narrative of what happened when I came here in 1987 and was asked to be a judge at the Tohono O'odham tribal court. There's a guy there named Ned Norris...I love Ned as a brother. And we used to sit in the trailer at Tohono O'odham court. I remember going down there -- they asked me to be judge -- and I'm looking for a building and I can't find it. And I call up and Ned says, ‘The trailer, dummy. What'd you think, we had our own building? This is tribal court.' So I go in the trailer. And the library is like 30-year-old volumes given out by the law school that were eaten away and it was just absolutely horrible. And Ned's sitting there thinking, ‘Rob, one day I'm going to run this place.' I go, ‘You can have it, man!' But Ned had vision, you know what I'm saying? Ned had vision.

And you know what I saw over the course of 25 years, I saw people like Ned and chief judges and tribal council members and great tribal leaders who started...They had an attorney general and they had like one lawyer and basically their job was to farm stuff out to the big firms in Phoenix and to Tucson and to New York on their water rights litigation and they were spending hundreds of thousands of dollars. It sort of constrained their ability to assert their sovereignty and it also constrained their ability to pick their battles and to strategize [because] they had this firm doing that and that firm doing this and you had two guys or women in there who just really didn't have control. They weren't having strategic control, they were like insurance adjustors. Don't answer, but if that sounds familiar you see where I'm going. And you can begin to see the lessons, because what I saw happen there was, they said, ‘We need to protect the rights of people here. We've got a crime problem, we're going to invest in our police, we're going to do community policing, we're going to build our own jail, we're going to stop sending our kids to Pima County where they hang themselves and nobody cares. We're going to provide alcohol counseling. We're not going to lock up people as a first resort; we're going to give people a second chance. And that's going to require investing in lawyers and tribal advocates and training and judges and that's going to cost money.'

But guess what? They started training their own lawyers. And some of those lawyers that started out as advocates went to law school and then went into the attorney general's office. Again, this is going to be a really radical proposal, but I bet you all agree. I would rather have a tribal attorney who understands the tribe really well than who understands a technical area of law really well. Sound familiar? These people -- whether they're your own tribe or other Indians or non-Indians -- who come and work in those entry level positions, they learn the community, they learn who to talk to, who not to talk to, keep your head straight, know how the community feels about certain things. They become valuable instruments. And they started moving into the AG's office and instead of paying Phoenix $500 an hour, they were paying those folks a salary of $80,000, but a lot less than $500 an hour -- do the math -- to work on their water rights case. And I've seen that legal department. And again, it's a feeder system. They're developing their own and you've created a legal system. Remember the requirements, the legal infrastructure? You've got a strong AG and they can take on your water rights cases and you've got a strong legislative legal counsel who can help you draft your codes and your ordinances. And what you find on very successful reservations is somebody's resume -- they've done three or four of those jobs -- and the good ones go in, get the office in order and are asked to take on a new challenge. And you're investing in people rather than in some stupid law firm's mahogany desk."

Audience member:

"We're at that point now. We just got our federal recognition after a 32-year fight. We've been a state-recognized tribe, so we have run our own things, but we are in the process of doing tribal courts grant so we can put our law enforcement and our tribal court in place. We are working on constitution, not ratifying what was drafted yet, but trying to look at it. And that's why we're here to help put our governance in place with that and all. But again, it's like we're fighting. You have the state attorney general...now we're in...we went for federal recognition so that the feds would take up our land claim case, which now with Carcieri [v. Salazar] and everything else, the game's changed. The rules changed."

Robert Williams:

"Strategic orientation. That sounds what's key for you guys is to keep your eye on the prize. You're fighting fires every day. Prioritize, strategize, learn, build resources as you go along, and pick your fights well. And you'll find out that one fight well fought teaches them a lesson. Let me tell you something that I learned. I've done some litigation with some very good litigators. And the first thing a good litigator told me was, focus on your opponent's greatest strength and turn it into a weakness. And in this area, I hate to say your law firms are your opponents, but when you look at those monthly billings sometimes, ‘What does this guy got against me?' But their greatest strength is their expertise and knowledge. If you build and invest in that expertise and knowledge as part of your strategic orientation, if you invest in judicial training, think about the cost that you save when you can bring cases in your own tribal courts. Imagine if you have a tribal contract and it gets flipped into state court. Then you don't have anybody who's ready to litigate that case. You're going to be paying $500-600 an hour for state litigation. Whereas if you were confident enough to waive your sovereign immunity into your own tribal courts and you had independent judges who could hear that case and the outside business community knew they would get a fair shake and your guy can walk out that trailer to the court next door and doesn't have to bill you to go into Pima County Courthouse, think of all the money you save."

Audience member:

"Or federal circuit court."

Robert Williams:

"Thank you. Boy. I would. No, I wouldn't want to see your billings but I bet you pay for Kleenex for these guys. If they pack Kleenex in their suitcase, they charge you. Other questions?"

Audience member:

"Can you comment a little more on waiving sovereign immunity for economic gains?"

Robert Williams:

"Yeah. Many tribes, I think, ‘the most successful tribes.' Now, what do I mean by successful tribes? There's lots of ways to measure success, but to me these are tribes that have healthy, vibrant communities. And you go there, you just feel things are moving forward, that people have a vision, that there's a shared sense of responsibility and reward that we're doing things the right way. What I find is those tribes have tackled the issue of their sovereign immunity. Twenty years ago, it was very rare to see tribes willing to address the issue of strategically choosing when to waive sovereign immunity for certain types of businesses and business entities. And there are still tribes and many of the old-line tribal council members who feel that a waiver of tribal sovereign immunity -- no matter how carefully crafted and strategically thought out -- is a surrender of sovereignty. It's not. It's using your sovereignty. It's a tool. It can be a bargaining tool. It can make you stronger. It can make you think about where you need to use it and where you don't. You can think about how it can leverage other investment opportunities.

For example, I've seen this at negotiations and the negotiations get hung up on choice of form. ‘Okay, well, we're going to...we want to put this contract dispute,' it goes into Oklahoma court. And the tribe sits there and says, ‘Well, we're not going to waive our sovereign immunity.' And that's it. The deal goes away. Think about the tribe saying, ‘Uh, we don't have anything in principle about defending our actions. We're entering into this in good faith. We know we're going to honor our obligations but contracts break. Sometimes there's problems, but we'll waive our sovereign immunity but we'll do it in our own courts. And we'll invite you to sit in on our courts and see how they work. And we'll show you, we'll introduce you to our judges and you can look at their resumes and you can see their training. And we can guarantee you a fair hearing and we can point to other litigants in our tribal court -- some of whom have won, some of whom have lost. We can refer you to outside attorneys who've been in our tribal court and you'll see if you're willing.' So at least it gets you to part two of the deal. Instead of the door closing, you've opened up another issue for negotiation and you've kept the deal rolling.

So I think that the tribes that I think have been kind of most thoughtful about how they use this tool and when they use this tool and the power it gives them have been the ones that I think have been able to do things economically. And both in terms of housing, community development -- there's a whole range of issues where tribal sovereignty can stand as a barrier to the hard work that needs to be done. And quite frankly, you can go and insure up to an amount. Again you can limit your liability under an insurance policy. You can make the Republican legislators happy by eliminating punitives in tort cases. They love that. That's what the whole fight over medical malpractice is. Many tribes have eliminated punitive damages in their own courts. And so the only people who are going to end up upset about that are trial lawyers." 

From the Rebuilding Native Nations Course Series: "Justice Systems: Key Assets for Nation Building"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. discusses how an effective, independent justice system can play a pivotal role in a Native nation's efforts to exercise its sovereignty and strengthen its communities.

Native Nations
Citation

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

“And so when you think about the key assets for Native nation building, so that you can have practical self-rule, you think about -- first and foremost -- the constitution. It starts with your constitution. It’s your governing document. And as I went through that history, many of you have inherited constitutions that really weren’t very well-suited to your needs 50 years ago, how well do you think they are suited to your needs today? Ask yourself, ask your grandmothers, ask your grandfathers: ‘Have we grown any better into our constitutions in 50 years?’ And I think every answer, in every instance is, ‘No, it still does not fit. It still doesn’t feel right.’ And the same discomfort that you've had with those constitutional clothes is the same discomfort that your grandparents had -- that prior generation -- and until we learn to throw off those bad-looking, ugly clothes that don’t fit, and figure out what it means to have a tribal constitution, we are never going to be very comfortable in our constitutional skins. So you have to take the process of constitutional reform very [seriously].

What's the second necessary element for practical self-rule? You've got to have laws. And by these I mean all sorts of laws: your own customary laws, customs and tradition, your own statutory laws. Go through your tribal code book and try and figure out where your juvenile code came from, where your criminal code came from. I bet you eight out of 10 times some consultant, or somebody in your tribal attorney’s office went to the state juvenile code, put it up on a word processor, knocked out ‘The State of Arizona’ and put your tribe in there. And sometimes the tribal attorney will say, ‘Well, this way our tribal code on juvenile justice harmonizes with the state code.’ That's a scary thought. But you ask. And so tribal law means that you have taken on the responsibility of passing laws that make sense for you -- just don’t accept anyone else's hand-me-downs that don’t fit very [well].

Are you not only legislating, but are you regulating? I know one reservation I work with has over 40 different agencies generating codes and you can’t find them in one place. So imagine, if you want to do business on that reservation, you have to knock on the door of 40 different regulatory agencies just to get your business started. And foreign laws [are] also a piece of a practical self-rule. The Indian Civil Rights Act, the Indian Reorganization Act -- many areas of foreign law that are a part of the process.

And so when you think about those key elements of practical self-rule, what’s the key institution that makes it all work? Tribal courts. You need an independent judiciary interpreting and enforcing the constitution and tribal law. All of these elements are absolutely crucial, and the only way to make them work is to have an independent judiciary.

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

Producer
Native Nations Institute
Year

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

Native Nations
Citation

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

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

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

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

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

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

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

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

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

From the Rebuilding Native Nations Course Series: "Justice Systems and Cultural Match"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. argues that Native nations can reintegrate their unique cultures and common law into their governance systems, specifically their systems for resolving disputes and providing justice to their citizens and others.

Native Nations
Citation

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

"I have heard many tribes, many tribal members and council members -- when we talk about the need to build tribal courts that are responsive to the community and understand the communities' traditions and culture and language -- and I've heard them say, 'Well, we've lost our traditions, we've lost our culture, we've lost our language,' without really thinking about what it means that you are letting go so easily. There is a rich tradition of tribal law and custom and practice that Indigenous peoples relied upon to survive here for five hundred years, for thousands of years before non-Indians came. Here is the amazing thing: that despite three hundred years of overt colonization and genocide, Indian people have been able to maintain their tribal customs and traditions and still hang around. Federal Indian law is not the reason that Indians are still here. The reason that Indians are still here is because tribal people and tribal leaders clung to their traditions and found ways to perpetuate them -- below ground.

The idea the judge is a sacred position in every tribe. If you study any tribe, if you study your tribe's culture, the people that you would identify in history as most closest to those who are judges, who are peacemakers, always spoke with sacred authority. That was the tribal worldview. And this person had a special knowledge that was respected and revered.

In towns of the Cherokee Confederacy, people gathered annually to hear the tribal orator -- a priest that was sometimes called 'the beloved man' -- recite the common law of the Confederacy. When the orator spoke the law, he was reading the meaning of history and tradition contained in the tribal wampum, and he held the ancient and sacred wampum belts in his hand.*

And so when you say, 'We've lost our traditions, our language and our culture,' you're letting go of something very easily that has great power, and can be found again. There are many tribal courts and tribal nations that are actively involved in the process of rebuilding their tribal law and traditions with very little. You don't need a lot to get the process going. And I think one of these ideas that I really want to plant in our hearts and our minds is that the source of our salvation, the source of our strength to re-build our tribal nations will come from tribal law and traditions. Because that's the knowledge that you grow up with. Nobody tells you, 'Oh, this is how Lumbees act.' Nobody tells you, 'This is how Lakota act.' Or this is how Cree people act. You just grow up in a house and your grandmother slaps you upside your head when you don't act right. And after a while you learn to adapt to your Indian environment, and you act right! And you learn what it means to be an Indian without anyone telling you that. And 200 years of colonialism and residential schools hasn't knocked that out of you. I can close my eyes and go into any community in the United States and I know when I'm in an Indian community, either by the smells, the food, the talk, the silences. We're just different. We have maintained our cultural continuity. There's a reason you're still here. The fact that you're here insisting on your right of self-government isn't something somebody has invented for you. It's something that you have always had, and you've never let go of. So, don't let go of your tribal traditions and your law. Find ways to rebuild that too."

*Quoting Rennard Strickland's Fire of the Spirits: Cherokee Law from Clan to Court (Oklahoma Press, 1982), p. 11.

Native Nation Building TV: "Why the Rule of Law and Tribal Justice Systems Matter"

Producer
Native Nations Institute
Year

Guests Robert A. Williams, Jr. and Robert Yazzie discuss the importance of having sound rules of law and justice systems, and examine their implications for effective governance and sustainable economic development. They explore these issues and their role in creating a productive environment that encourages investment of all types from Native and non-Native citizens.

Native Nations
Citation

Native Nations Institute. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Mark St. Pierre: "Mark St. Pierre. Hello, friends. I'm your host, Mark St. Pierre and welcome to Native Nation Building. Contemporary Native Nations face many challenges including building effective governments, developing strong economies that fit their culture and circumstances, solving difficult social problems and balancing cultural integrity in change. Native Nation Building explores these often complex challenges in the ways Native Nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

[music]

 

Mark St. Pierre: "On today's program, we examine the critical role that tribal justice systems and the rule of law play in providing the necessary foundations for effective governance and sustainable development, and what happens when those systems and rules of law are poorly designed, implemented and understood. Here today to share their thoughts in this important topic are Robert Williams and Robert Yazzie. Mr. Yazzie, a citizen of the Navajo Nation, is the Chief Justice Emeritus of the Navajo Nation Supreme Court. He is also a visiting professor at the University of New Mexico School of Law and has served as a Navajo English interpreter for the U.S. District Court. Mr. Williams, a citizen of the Lumbee Nation, is the E. Thomas Sullivan Professor of Law and American Indian Studies at the University of Arizona's James E. Rogers College of Law. He also serves as the Chief Justice of the Pascua Yaqui Tribal Court of Appeals and the Judge Pro Tem of the Tohono O'odham Nation. Welcome, Mr. Williams and Chief Justice Yazzie. Thanks for joining us."

 

Robert Williams:  "Thank you."

 

Robert Yazzie:  "Thank you."

 

Mark St. Pierre:  "In your opinion, why is the rule of law so critical to Native nations?"

 

Robert Williams: “Well, there's two primary reasons that you want a court system that treats people fairly and issues decisions that people can make their own plans for the future on. The first is the internal aspect. The people of the nation have to have confidence in their court systems, they have to believe that if people are arrested for crimes that they'll be prosecuted, that they'll be treated fairly, that their rights will be recognized and then victims are protected. They have to understand that their contracts will be enforced in their courts. Externally, you also want the outside world to have confidence in the nation's justice system for business relationships, for people that might be invited on to the reservation, for a whole host of reasons -- relationships with governments -- and so those are the reasons that most tribes do invest in court systems and legal systems and tribal courts are working so hard on trying to enforce the rule of law."

 

Mark St. Pierre:  "Robert, at [the] Navajo Nation, your approach is kind of blended with Navajo tradition and common law. How would you respond to that question of why is the rule of law so critical to the Navajo Nation?"

 

Robert Yazzie:  "My experience says that when Navajos go to court, they expect certain things to happen. One is to say shí­ né' en dool jool, mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;color:#222222;
background:white;mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:
AR-SA">  color:#222222;background:white">means my mind will become at ease when this problem that I have is addressed and people look for a satisfied result. So when people feel confident with the court system, especially [the] establishment of relationship with the judge, knowing that the judge's role will be carried out to bring peace to the problems at hand."

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Mark St. Pierre:  "We're all away that politics creep into court systems or tend to creep into court systems in all societies, but what is the impact of politics creeping into tribal court systems?"

 

Robert Williams:  "It can be particularly insidious. One of the big problems today in Indian Country is that tribes are saddled with constitutions and systems of government that really were imposed upon them 60, 70 years ago. Yet, at the same time, when those systems were imposed, many of the checks and balances of these western-style systems of constitutional democracy weren't incorporated. One of the most important is an independent judiciary, and most tribes today do not have an independent judiciary under their constitutions, and so where judges don't have the confidence to make decisions without looking over their shoulder whether a tribal politician might be unhappy, whether they might lose their job, justice suffers in any system, and that's particularly so in Indian Country."

 

Mark St. Pierre: color:#222222;”Robert, what's your take on that?"

 

Robert Yazzie:  "I hear a lot of criticism. I think some of them have merit and some of are just pure assumption, because the outside world really doesn't understand exactly how a tribal court functions. If the outside world could really look at the details of how a tribal court functions, maybe people can appreciate what the tribal courts are going through. I've heard time and time again that there the politicians or the tribal council in any situation make decisions for tribal judges. I don't think that...that may have been true, but certainly today I think the politicians, the tribal politicians have really come to terms with their role. With the Navajo Nation, we had a case involving a pay raise and the public took issue on that and brought action before the court telling the Navajo Nation Council of 88, 'The process you followed to get what you want, to give yourselves a pay raise, is unlawful.' So the court was there to make the correction, and the correction it made is that they affirmed what the public stood for. Today, right now, the Navajo Nation Council have accepted that. I don't think they really liked the decision, but it's a decision that they choose to live with and I think they have taken...they take the courts very seriously. When it makes a decision, they want to give it support, to give it growth."

 

Mark St. Pierre:  "Rob, you've worked with a number of different tribes across the country. Can you give us examples of what a politicized justice system has done to perhaps hamper or derail community development and economic development, nation-building efforts?"

 

Robert Williams:  "Yeah, and I think it's important to recognize in a number of tribes, the Navajo are an excellent example, have moved toward an independent judiciary separating the tribal courts from tribal politics, but there are still a number of tribes out there that it's common practice sometimes for tribal elected leadership -- you may have a situation where the elected leadership changes every two years and then the courts change because people like to bring in folks they're familiar with, and so the expertise and independence that you've built up is lost. There are other situations where the business community both on and off the reservation just doesn't have confidence in the judiciary and doesn't feel that their contracts will be enforced so they'll be treated fairly, and so they may go to the tribal government and say, 'We want to have you waive your sovereign immunity. We won't sign this contract unless it's going to be litigated in state courts.' Then what you begin to get is just a general undermining of the rule of law throughout the entire reservation, and so when tribal governments do think that they can interfere in tribal courts and tribal law, it has this cascading effect, it has implications throughout the entire reservation economy and society."

 

Mark St. Pierre:  "How do you separate, what are good ways to create that true separation of the justice system from the rest of the tribal government?"

 

Robert Yazzie:  "I think in a smaller population-sized tribe it's much harder to deal with the separation of powers issue because everybody is related somehow. It's very hard to separate. But in a much bigger tribe like the Navajos or the Cherokees, I think they've pretty much come to accept what the functions of the different branches [of] government that is in place. The Navajo Nation doesn't have a constitution, so we don't have a constitution that says, there shall be an executive body, judicial body and legislative body. The way the code has been put together just gives that impression there is these separate branches, and I think that even though there are problems -- like in any other government there's problems trying to stay within your bounds and to carry out your functions. But I think the Navajo Nation has really gone through some trying times. As long as people understand that judicial independence means being able to make a decision independent of all forces -- government or political forces -- that is a decision that you can make in good conscience. 'A good decision made so you can sleep at night,' is what our boss used to always tell us when we were on the bench."

 

Robert Williams:  "And following up on that, there are specific steps that tribes can take. For example, I think the Chief Justice makes a great point that in smaller tribes, it's more difficult to achieve separation of powers cause everybody knows everyone and it may be that in that situation lifetime tenure for judges which is usually one of the ways that you achieve judicial independence might not be totally appropriate, but set terms, four years, five years. Make sure they're staggered so they don't necessarily coincide with the tribal government's election cycle. And then you have a really good system of review."

 

Mark St. Pierre:  "So what you're suggesting is that the judges perhaps be elected by the tribal membership?"

 

Robert Williams:  "Or if they're going to be appointed, let's appoint them for set terms instead of oftentimes what happens it's a year-to-year contract, then that can really erode judicial independence. But you also need a system of professional education, you need to make sure your judges are out there getting the latest education they can, that they're getting certified, that you're reviewing. There's a process. The Navajo courts have a great process where judges are regularly reviewed by the chief justice and reports are issued, you can evaluate people fairly and then put them up before the council and see if they merit being reappointed again, and that's a good way to try and get politics separated out of that process."

 

Mark St. Pierre:  "Let's take a look at recall. If, for instance, in a smaller tribe the people themselves are not satisfied with the performance of a judge and the pressure builds up consistently that this judge is not really working well within tribal tradition or within the beliefs or value system of the people, what are systems to recall judges?

 

Robert Yazzie:  "We follow a process that evaluates judges when they complete their two-year probation and at the end of their two-year probation, the probationary judges must go through a judicial performance evaluation where the public have their input or the staff of the judge has their input, where other practitioners who go before that judge has their input. This is a fairly new process, and through that process, some of the judges have been removed by the standing committee based on the process that's now set in place. So we don't really...we haven't had to do any recall. I think the appointment process has enough in it that it takes care of those problems."

 

Robert Williams: “Recall is one of those areas where I think you can really talk meaningfully about the difference between western systems of self-government and many Native systems. In western systems, the recall is a check of the popular democracy. A lot of legal scholars would argue that recall of judges is a bad thing because you want judges to make decisions whether or not they're against the popular will. In tribal systems, it may be a bit different, where you have traditions of consensus and traditions of equality and egalitarianism spread out across all members. So it may well be that recall could function as an effective check on what we might call judicial activism. Because these systems are so new, many times you're applying foreign systems of law and as a judge you might be a member of the tribe, you're trained in a white legal system, but that doesn't necessarily mean you understand what justice means for the people and whether or not it's culturally appropriate. So recall may well be one way that tribal communities can take back control over their legal systems."

 

Mark St. Pierre:  "Could either of you talk for a little bit about what you think the training or education should be of tribal judges. It's obvious that every tribal judge is not going to have the opportunity to go to law school for instance."

 

Robert Williams:  "I think that what's most important is that the tribal judge, particularly at the trial level, understand the community he's working with and understand the norms and values. Native Nations Institute talks about this idea of cultural match that if the rules and the principles and the laws that are being applied on the reservation don't match the cultural expectations and what people in that community think is right, they're not going to be obeyed. And so I think there's a really good argument for making sure your trial judges particularly understand the communities. At the appellate level, there you're starting to get into issues of constitutional interpretation, statutory interpretation. Again, it may not necessarily be that an appellate judge has to be a lawyer, but this has to be a person that receives training in many of the excellent programs that are available in national judicial colleges, at law schools, at universities where tribal judges at the appellate as well as the trial level can go and get educated by professors and experts and understand what the really important issues are to perform that function well."

 

Mark St. Pierre:  "How does Navajo handle the training of judges and people that work in the court system?"

 

Robert Yazzie:  "Earlier you asked a question about what should...that there is a great need for tribal courts to learn the basics of law, rules of law. But we don't stop there. I think what Rob was telling me, he talked about doing things pursuant to the cultural norms. To me what that means is for a judge who is well-trained, like say this is due process and under the constitution, as long as a person...a person gets due process and if the procedural requirements are met, minimal, that's good enough. But in the Navajo way we don't stop there. We take this concept of due process and take it over to the Navajo context and say, 'How meaningful is this due process when we apply it to this situation. What's the end result in applying this concept to this situation?' And that is what the thinking process goes through and that should be the way that judges are trained, is to have command of the western legal concepts. But if we stop there, then we're in big trouble. If we stop there period, then we're not doing anything to foster the growth of tribal courts."

 

Robert Williams:  "We do a lot of advising of tribes at the Indigenous Peoples Law and Policy Program and when they ask, 'Well, what can we do to stimulate economic development?' I tell them, 'Invest in your court systems, invest in the rule of law, invest in tribal judges.' What you'll see is, as the Harvard Project on Indian Economic Development showed, there's a direct correlation between tribes that have strong, effective judiciaries and the economic development environment, employment rates, education rates -- direct correlations. Tribes that invest in their court systems, to do the types of things that Justice Yazzie is talking about, are successful tribes."

 

Mark St. Pierre:  "How would a Navajo citizen who wants to be a judge for instance get that training today?"

 

Robert Yazzie:  "I think right now we are trying to do as much as we can to provide that opportunity. There are Navajo -- the young people are really looking for legal training, and right now I'm teaching for the Crown Point Institute of Technology, teaching the basics of law and an introduction to law, what that means and then how to think like a lawyer, how to make lawyer noise, how to prepare for bar exam and also at the same time bring in the tradition. You have this rule of law under the American Anglo system and here's the result. Then go across the street and see how the Navajos would approach the same problem. This is the process that or emphasis...this should be the emphasis in learning about law in Indian Country."

 

Robert Williams:  "And the Chief Justice is really focused on why I think being a tribal judge is a much harder job than being a regular judge in the Anglo system, and it may well be the hardest job on the reservation because on the one hand, as he explained, your tribal judge has to know the western legal system. They have to know western requirements of due process. Every criminal case in a tribal court can be reviewed on habeas corpus by a federal district judge, so you have them looking down at you. On the other hand, you also have to know Navajo custom and tradition or O'odham custom and tradition, to make that law relevant to the people whose lives it's affecting and it's constraining. And so where do you -- it's easy, you can go to law school, you can go to a judicial training center to learn about western jurisprudence and civil procedure, but where do you go to learn how to be a Navajo, where do you go to learn how to be Lakota. That's a knowledge that has to come from the heart, has to come from tradition, has to come from a community that really works on keeping that knowledge alive and making it work for them, and I think the most successful tribal court systems you see are the ones that do both those tasks, that can run the court system in an efficient effective way so that people appreciate that it's there, it makes the decisions it needs to make, but it's also making culturally appropriate decisions and decisions that are helping to move the community forward, not backward, not getting it entrenched in politics and internecine fighting that we see too oftentimes. And that's why it's such a hard job."

 

Mark St. Pierre:  "Let's take a look at that for a minute. The Navajo court system is well known for its incorporation of Navajo common law in its jurisprudence. How is that common law incorporated at Navajo just so our viewers can understand that alternative system?"

 

Robert Yazzie:  "There's two ways we use the Navajo common law in applying common law to situations. The grassroots people have their own process, the lifeway process, the peacemaking process, and they have their own facilitator who runs the process, and in that process people are able to find the problem at hand and be able to talk things out. Here's a problem and different people can say, 'This is the way I see the problem from my perspective.' And they're able to reach a solution. So in the talking things out is where they begin to talk about values and principles, and those principles and values are the underlying basis for what makes Navajo a common law. More recently there's been a move through our own rule of law to say in every case situation, the Navajo common law shall be the law of preference. So when practitioners come to court and that's what they're told, 'Yes, this may be the Anglo position, but what is the Navajo rule of law as a matter of custom?' So in terms of incorporating there may be an issue, an issue like, for example, a judge may hear a criminal case. There's a recent decision made by the Navajo Nation Supreme Court that dealt with this concept hozho. There was an issue how the police officer handled the defendant. He didn't really...there was a question about his reading of the rights to the defendant wasn't correctly done. So when the Supreme Court looked at those facts and they thought about hozho. color:#222222;background:white">Hozho  means do things cautiously. If you are going to explain, make sure that they understand what the process is about, cautiously and with respect."

 

Mark St. Pierre:  "So it's not a minimal just reading of the rights and as quick as you can read them and then throw the handcuffs on the guy and throw him in the car."

 

Robert Yazzie:  "...And to be honest about what you're trying to accomplish with that defendant."

 

Mark St. Pierre:  "So the defendant is treated with respect as a human being."

 

Robert Yazzie:  "Exactly."

 

Mark St. Pierre:  "you've worked Rob with a wide variety of systems. What are some other examples of positive Native influence on judicial systems, cultural influences, cultural norms that you've experienced that you could share?"

 

Robert Williams:  "Yeah. I teach Indian law and one of the things that we make sure students learn about is the development of what we call tribal common law, the use of tribal customary law, not only by the Navajo but a number of tribes. We're seeing a number of tribal courts recognize the need to incorporate custom and tradition as the common law of the tribe. The Hopi, for example, their Supreme Court recently decided a case on the issue of standing. That's a technical legal term meaning basically who can bring a case, who has a right to sue the government. As we know, in the United States, it's very hard to get standing. Congress can pass a statute and you would like to go to court and sue about it, but it's very difficult, you have to show a real interest. The Hopi considered that issue of standing and who can bring a suit against the Hopi tribal government and they said, 'You know, the western concept is just way too narrow.' We are a people that believe that everyone has a say and that government is accountable. And so you saw the Hopi Supreme Court diverging from western jurisprudence and enacting a broad principle of standing which fits very well. It really is a burgeoning, a growing movement, this use of tribal customary law and it's really improving the administration of justice in Indian Country."

 

Mark St. Pierre:  "Robert, what prompted Navajo to completely revise the way they do their court system and incorporate common law? When and how did that come about?"

 

Robert Yazzie:  "Well, we had so many laws that has been imposed on us since the western court systems came in 1892. But in 1950 the Navajo Nation said, 'Enough is enough. We are not...we're no longer going to put emphasis in applying federal law to solve our cases. We are going to do things the Navajo way.' The Navajo leaders back in 1982 said, 'Well, let's look at how business...law...decision-making was done 100 years ago,' and they found out that relations had a big role, that the idea of having relations in the dispute situation meant something, and also given the relations as we're talking about here, talking things out. Without control, without a judge, without lawyers, let the relations feel that they own the problem. Let them come up with solutions. Never mind how long it will take and how many days it will take. So when people are talking things out, they're able to make some connections. You can have a longstanding dispute like land. Land dispute is the hardest thing to solve in the adversarial system, and some of them never get resolved. But lo and behold, when you give the relations the opportunity to tackle that problem, they do go back in time and say, 'This is where the problem lies and then we need to come back to terms with one another, treat each other like relatives, treat each other with respect.' And treating each other with respect, [having] a system that addresses people as humans is very, very, very important, and I think...and I see that as the future of tribal courts. We've gone too far with the western way and I think the adversarial system had its days and it needs to change and I think, I hope in my lifetime that I will be able to see that this lifeway process merge with the western system and the tribal court center and I think that will show the world that Indian people have something, they have something to contribute to make a difference where people are always fighting one another."

 

Mark St. Pierre:  "Just as kind of a wrap-up question: we've talked about court systems that function properly, when you live in a nation where the court system is working properly, what are the ramifications for the people of that nation in terms of their attitude towards their own nation and their own potential?"

 

Robert Williams:  "There's a sense of law and order, that you have personal security, you have security in your property, you have security in your investments. Indian people are entrepreneurial, too. I think anybody who spent time in an Indian community knows that Indian people have the ability to go out there and invest and work hard and create a life and create for their families. They want the same thing as everyone else does, so there's those positive benefits. There's a sense in which tribal sovereignty is strengthened, because every Indian tribe that can get its act together in this area and have effective legal systems shows the world, and as Justice Yazzie just said, that Indian people have something to contribute. And I think if tribal governments are really going to take their place in 21st-century American society that we need to really work hard in this area of creating effective tribal justice systems that make people feel not only safe and secure but proud of what it is their tribe is doing."

 

Mark St. Pierre:  "We want to give a heartfelt thank you to Robert Williams and Robert Yazzie for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

 

Ralph Lauren's Racist Ads

Year

So Ralph Lauren, the serial cultural appropriator of all things Native American, is in trouble once again. Lauren has given offense to Native Americans before with his inappropriate uses of war bonnets and eagle feathers. There was also that time he appeared on the Oprah Winfrey show, showing off his absurdly fetishized and culturally mangled collection of “Navajo stuff” in the five “hand painted” teepees he maintains as extravagantly outfitted guest quarters on his Colorado ranch...

Resource Type
Citation

Williams, Jr., Robert A. "Ralph Lauren’s 'Racist Ads.'” Moyers & Company. December 29, 2014. Opinion. (http://billmoyers.com/2014/12/29/ralph-lauren-post/#at_pco=cfd-1.0Robert, accessed January 7, 2014)

Tribal Enrollment And Blood Quantum

Producer
Native America Calling
Year

Every tribe has its own rules for membership. Some tribes include lineal descent — proof that you descend from a recognized tribal member — while others have a blood quantum requirement that requires members possess a certain percentage of tribal blood. On White Earth, researchers found that the Nation would see dramatically diminished enrollment numbers in the future if they continued using blood quantum as a requirement for membership. In 2013, White Earth citizens voted to change tribal enrollment from blood quantum to lineal descent. The change hasn’t yet gone into effect, and questions linger about how enrollment will impact the tribe’s connection to the Minnesota Chippewa Tribe, as well as its federal status. What are the benefits and drawbacks of basing tribal enrollment on blood quantum? Would you like to see your tribe change enrollment policy to blood quantum or lineal descent? If your tribe uses blood quantum, do you think your tribe will exist 100 years from now?

Guests:

Robert A. Williams Jr. (Lumbee) — the E. Thomas Sullivan Professor of Law and American Indian Studies and the Faculty Co-chair Indigenous Peoples Law and Policy Program at the University of Arizona Dr.

Jill Doerfler (White Earth) - Associate Professor at the University of Minnesota Duluth

Native Nations
Resource Type
Citation

"Tribal Enrollment And Blood Quantum." Native America Calling. May 6, 2015. Audio. (http://www.nativeamericacalling.com/wednesday-may-6-2015-tribal..., accessed May 11, 2015)

American Indians Confront "Savage Anxieties"

Producer
Public Affairs Television, Inc.
Year

As part of the $585 billion defense bill for 2015, Congress passed a measure that would give lands sacred to American Indians in Arizona to a foreign company. The deal gives the Australian-English mining firm Rio Tinto 2,400 acres of the Tonto National Forest in exchange for several other parcels so it can mine a massive copper deposit. Using this example, University of Arizona law professor Robert A. Williams Jr. discusses how stereotypes about American Indians have been codified into laws and government policies, with devastating consequences.

Native Nations
Resource Type
Citation

Public Affairs Television, Inc. "American Indians Confront 'Savage Anxieties.'" Moyers & Company. New York, New York. 2014. Interview. (http://billmoyers.com/episode/american-indians-confront-racism/, accessed March 1, 2023)

Web Extra: American Indians Confront 'Savage Anxieties'

Producer
Public Affairs Television, Inc.
Year

This week Bill speaks with legal expert Robert A. Williams Jr. about how stereotypes of American Indians have been codified into laws and government policies, with devastating consequences.

In this web extra, Bill speaks with Williams about why none of the Supreme Court justices “wants Indian cases,” Hollywood’s use of “savage” imagery, the Redskins controversy and much more. Williams also talks to Bill about the difference between racist attitudes toward African-Americans and American Indians historically...

Citation

Public Affairs Television, Inc. "Web Extra: American Indians Confront 'Savage Anxieties.'” Moyers & Company. New York, New York. Decemeber 26, 2014. Interview. (http://billmoyers.com/2014/12/26/web-extra-american-indians-confront-sav..., accessed January 7, 2015)