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.
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."
"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?"
"So do you hire outside law counsel to do this for you?"
"We have our own and we have outside law counsel. We have tribal lawyers."
"And how's that work divided?"
"Of course the white man is getting more and the tribal member lawyer gets this much..."
"And what do they bill you per hour?"
"Probably $700 and our trial lawyers maybe get $125. What did my sister say? She gets 38 cents per hour."
"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."
"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."
"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."
"Or federal circuit court."
"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?"
"Can you comment a little more on waiving sovereign immunity for economic gains?"
"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."