Laws and Codes

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

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

Native Nations
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Citation

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

“Congratulations.”

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

“Tribal administration.”

Ned Norris:

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

Ian Record:

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

Ned Norris:

“Micromanaging.”

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

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

Ian Record:

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

Ned Norris:

“I really appreciate the opportunity. Thank you.”

Ian Record:

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

John McCoy: The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth

Producer
Native Nations Institute
Year

Former Manager of Quil Ceda Village John McCoy discusses how the Tulalip Tribes have systematically strengthened their governance capacity and rule of law in order to foster economic diversification and growth. He also stresses the importance of Native nations building relationships with other governments and non-governmental partners in order to achieve their strategic goals.

People
Native Nations
Resource Type
Citation

McCoy, John. "The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 18, 2009. Interview.

Ian Record:

“Well I’m here with John McCoy who is the general manager of Quil Ceda Village, which is an economic development entity of the Tulalip Tribes in Washington, and he also serves as representative for District 38 in the State of Washington legislature. I’d like to thank you for being with us today.”

John McCoy:

“I’m very happy to be here.”

Ian Record:

“I’d like to start by asking you a question that I ask of virtually everyone I sit down and chat with and that is, how would you define Native nation building and what does it specifically involve for your nation?”

John McCoy:

“Native nation building is providing whatever particular tribe it is the tools in order for them to govern themselves and provide tools like economic development for self-sufficiency.”

Ian Record:

“How about for Tulalip, what does that involve for you, that process that you just described?”

John McCoy:

“Well, at Tulalip we began a number of years ago. In the ‘80s our chairman at the time, Stan Jones, was very instrumental in getting the Indian Gaming Regulatory Act passed in 1988. And so with that act then, tribes started to move to build these casinos so that they can get resources to do economic development. So at Tulalip, we opened our first casino in ‘92, but we had a bingo operation that opened in ‘82, then a casino that opened in ‘92 and we began the process of diversification. And so consequently, through that diversification, we created Quil Ceda Village, which is a federal city that we created with the help of the federal government. And so that established our economic base and the need to start diversifying, because gaming could go away at the stroke of a pen on any day, any time, so we needed to diversify. So we’ve been on a quest, if you will, of diversifying our economic base. Right now, the base is primarily retail and gaming, but we need to do other things, technical, biomed, biotech, anything along those lines. And so I am working to attract those type businesses to Tulalip. So this is a long-term process, that is our vision and our goal and every now and then we’ll meet to adjust the goal. We don’t change the goal, we adjust it, and then figure out what we need to do for the next five years to get to that goal.”

Ian Record:

“So you mentioned that Quil Ceda Village, which has become the economic engine along with gaming for the Tulalip Tribes and specifically moved it down this path of economic diversification, which as you mentioned is critical to sustainability because you don’t want to be in the situation where you have that one economy or that one industry that you’re relying solely on. How did Tulalip Tribes come to the point where it said, ‘Federally chartered city, this is the way to go,’ because as far as I know, you’re the only tribe that has a federally chartered city?”

John McCoy:

“Yes, we do. In fact, there are only two federal cities in the United States: Quil Ceda Village and Washington, D.C. We’re the only two. Back in ‘94, summer of ‘94, we had a general council meeting and out of that general council meeting they told the business manager, who was me, that I was not to do any development on the interior of the reservation, I could only do development in the northeast corner of the reservation along I-5. So with that in mind, I started looking around at the properties up there in the northeast corner of the reservation. Well, at the time, a very large chunk of it was taken up by Boeing. Boeing had their test facility out there where they tested engines, where they did the shooting the chicken into the windshield, testing the covers off missile silos; they did all kinds of interesting things out there. Well, that lease was to lapse in 2001, but they had the option, their option, to extend it out to 2011. So looking at everything that had been done, and I talked with the council and they basically told me, ‘Politely ask Boeing to leave, that we need that property for our economic development.’ So I began the discussion with Boeing and they agreed that they would leave in 2001. We actually...they started their cleanup and dismantling their facilities out there and they discovered that they actually could leave by 1999. So they actually left, but they still paid us for the two years left remaining on the lease, which was nice of them. And then we proceeded about the development of Quil Ceda Village. Well, a reservation attorney and I had been having numerous conversations about, ‘How should we structure this? What would be the most advantageous to the tribe?’ And our reservation attorney, a lot of folks know Mike Taylor, he’s quite an innovative guy. And so he came and he said, ‘Well, this has never been done before and I’ve done a lot of these business deals and structures and everything.’ He said, ‘Let’s try a federal city.’ And I had to think about that, right, because no other tribe had done it. The Navajo had done one, but it was purely within their own bounds and for their own reasons; ours was to attract off-reservation businesses on to the reservation. So our structure was totally different than the Navajo model. So we created this federal city. We had to get approval of the IRS [Internal Revenue Service], Department of Justice, and Department of Interior, and that’s a very long story, but anyway, we got it done. And so we created the city and we did that for a couple reasons: to position ourselves to be able to employ our own taxes -- and a lot of folks just don’t understand tribal governments. You say 'tribal government' and their eyes roll back in their heads. They just don’t get it. They don’t...whereas almost every tribal government in the United States is structured like a state government, everybody understands state government, but for some reason when you say tribal government, they just lose it. So we created the Consolidated Borough of Quil Ceda Village and called it a municipality. Then everybody was okay with that, they understood that. And so we created a charter, we created ordinances, and we put them all online. So anybody can go to the Quil Ceda Village website and see all our ordinances and our charter and our leasing procedures. Our leasing procedures were very important because then potential tenants could go online and see what the process was, have their attorneys look at it, and then we could work on a deal. So we had something that they could see and that it was a process and they understood the process. So there was no mystery there. The only hang up that we get is that we have a very aggressive -- progressive, not aggressive -- progressive court system and so any disputes we have in the contracts they’ll be done in tribal court. Well, a lot of them balk at that. We’ve had some tenants that we really wanted, wouldn’t come in just because of that fact, but I also reminded them that their court system was hostile to me. So it’s not a good environment. I said, ‘Our court system is very progressive.’ And in fact, in ‘94 I went to West Law and asked them if they would post tribal ordinances and opinions and court decisions and all that; [they] didn’t want to talk to me. Three years ago, they come to the door, ‘Would you join us?’ And I said, 'Naturally, we’ll join you.’ And so now our opinions, ordinances and decisions are posted on West Law so that everybody can see our track record. And a number of other tribes are doing that also, which is very good for Indian Country because now everyone can see how the courts are functioning and they can have a degree of basically a predictable outcome and that way tribes will then get full faith and credit. So that’s the big deal, full faith and credit.”

Ian Record:

“So you made reference to the charters, the codes, the ordinances, the procedures that you guys had to put in place to make this very innovative approach to economic development work. Can you speak to perhaps some of the other legal infrastructures, the other political infrastructures and perhaps the capacities that you guys had to put in place to really pull this thing off?”

John McCoy:

“It was very deliberative because we had to plan everything and put it in sequence. We had to come up with a ‘governmental structure’ for the Quil Ceda Village. And so what we did is that Quil Ceda Village is a political subdivision of the Tulalip Tribes, but it has three council members. Those three council members govern what goes on in Quil Ceda Village. And so once we established that, then we got our charter done and then we started employing our ordinances. Now we employed ordinances as we need them because me as a state legislator understand that too many ordinances become an encumbrance. And so I’m trying to address some of those issues in the state government. But in Quil Ceda Village, because I have some control over it, we only issue ordinances as we run into problems or if we anticipate a problem, we see something coming down and then we’ll create an ordinance and then we’ll post it. And it’s done...that process is just like any other municipality. They have to have two open meetings and then...before the passage of the ordinance. They are public meetings. All our meetings are posted online. So we put all those in place and we’re functioning like a government. We do everything else that any other municipality does. We take care of roads, traffic lights, street lights, water lines, sewer lines and we also have a state-of-the-art sewer plant.”

Ian Record:

“You mentioned your tribal court system and how progressive it is. We’ve had occasion to bring one of your judges, Theresa Pouley, down to some of our seminars with tribal leaders and she takes them through a very powerful overview of the incredible work that they’re doing there in the court system. Can you talk about that court system and specifically what prompted Tulalip to essentially reclaim the function of justice, providing justice to the tribes? Because previous to the establishment of the current court system that was something that the State of Washington largely had control of.”

John McCoy:

“Right. For a tribal government to operate effectively, they need all the tools in the tool bag in order to be effective in the protection of their sovereignty, the treaty protections and those issues. So in ‘94, Mike Taylor again, he said, ‘John, we need to get the state to retrocede.' So I took that up and I went to Olympia and created legislation. It took me a couple years to get it passed, but they finally passed it. I kept reminding them while I was lobbying them saying, ‘There’s seven other tribes that already retroceded so you’re just adding us.’ But there were some tense moments of some very conservative-viewed people that didn’t like that idea that law enforcement, tribal law enforcement could arrest somebody. So that happened on both sides of the aisles, it just wasn’t any one party. So that took a little bit of work on my part, but we got it done. So then that allowed us to open up and create our own law enforcement department. Well, when you’re going to be doing things in law enforcement, you need a court system. So we started building the court system along with the law enforcement. We built them together. And so our court system has gotten quite progressively, like I’ve said. They do the standard court proceedings, but we also do the one step further in bringing in our culture. We have an elders' panel that reviews and works with first time offenders. So these are non-violent crimes; violent crimes have got to do the normal process, but the non-violent crimes, the elder panel will do an intervention and they will work with them and hopefully help them to see the error of their ways and that they start making the appropriate decisions. So that’s actually been quite effective and so we’re quite proud of it. And so because of the notoriety we got from our court system being honored by the Honoring [Nations] Program, we’ve had tribes from around the nation come in to see our courts and we’ve also had Afghan come to our court to view it. And one of their...the professor that...the UW professor that brought them up, through his wife, who is a state legislator, had informed me that after the visit to our court system the Afghan judge said, ‘Well, your western law’s okay, but we like that tribal court better.’ So that was quite a feather in the hat.”

Ian Record:

“And your court system over the past several years has really begun to produce some pretty dramatic results in terms of its ability to combat crime through the alternative methods, through the restorative justice approach than the predecessor did it, and it’s the kind of standard western punitive approach to justice.”

John McCoy:

“Right.”

Ian Record:

“Isn’t that right?”

John McCoy:

“Yes. So that’s why I, down in the state legislature I talk about those things down there. Why, these first-time offenders, why do we got to throw them in jail? Why don’t we have an intervention program? So the state had been doing drug courts, which were good. Unfortunately, this last session there were some budget cuts and a few of the drug courts got cut. But we need to do more of that. Tribes know how to do it. They’ve been doing them for millenniums and that’s how they...that’s what their court system was, intervention and trying to show them the error of their ways and start making more appropriate decisions. So there’s...I say that our non-Indian friends, I tell them, I said, ‘Don’t you get a little envious that you don’t have any culture? You have none. Whereas we have some culture, we have some history that for millennium and we did things like that.’ So to me it’s the right approach. That’s how it should be done. Just take the first-time offender. Most of the time it’s a young person, young people they think they’re indestructible. The world is their playpen and basically they do the right things and then for maybe 30 seconds out of their life they did something wrong. If it’s non-violent, we should intervene and help them work through that, not throw them in jail because if you incarcerate them, where are they going? They’re going in with a bunch of other bad people that really do bad things and they give their stories to this person and they pick up some more bad things to do. So let’s keep them out, let’s intervene first. If it doesn’t work, then you do the other methods.”

Ian Record:

“So just how critical are tribal justice systems overall, which include the court, law enforcement, etc., just how critical a role do they play in rebuilding Native nations?”

John McCoy:

“That is all part of the structure. That is how you...how you use and deploy, implement your sovereignty. Those are tools. This is how it leads to self-sufficiency. You have control of your destiny. You are making tribal governments make the rules. They just need a court system to help them follow the rules that they wrote, which is only appropriate because that’s what everybody else does, so why not us? So law enforcement and court systems, health systems, family services, those are all integral parts of a tribal government in order to be self-sustaining and self-governing.”

Ian Record:

“A follow-up question to that about justice systems: what role do they play in terms of supporting a Native nation’s efforts to create a strong economy, a strong sustainable economy?”

John McCoy:

“Law enforcement gives your customer base a sense of safety, that there’s somebody here to protect me when I’m there. At Quil Ceda Village during the normal week, we get over 30,000 visitors a day. During the weekend, it’s over 50,000 a day. So the mere presence of the law enforcement vehicle cruising the parking lots and the streets and everything gives everybody a sense of safety, that they’re protected and that they can come here and enjoy whatever the amenities are and not have to worry about being harmed.”

Ian Record:

“The research of the Native Nations Institute and the Harvard Project has found that in fact, justice systems are a critical pivotal factor in whether a Native nation can create a strong economy, one that can stand the test of time and I’m curious to know, the Tulalip Tribes are one of those regarded as having a very strong, a very independent, empowered court system. And so from that experience, I was wondering if you could speak to what you feel are the requirements of a strong, independent court system. What does it look like, what does it require? Granted it may, because of cultural reasons, it may look a little bit different from place to place, it may employ different methods, but in terms of organizationally, functionally, institutionally, what does a strong independent court system require?”

John McCoy:

“Again, you hear me say tools a lot. This is a tool. Naturally you need your judges, experienced trained judges. You need your court clerks and that they know how to run the court so that the judges can do what they do and don’t have to worry about the administration; so you need a good strong administrative section. You also need public defenders because not everybody can afford an attorney; so you need public defenders. And then, we like to think all judges judge and sentence the same way. Well, they’re human beings and on occasion they make a mistake and so consequently you need an appeal system. So you have to have an appeal system in place so that something could be appealed. Now after that appeal, if you still don’t like it, well, then that’s when you move to the federal courts. So there is redress, you have protections of public defenders, you have your prosecutor and then they all are independent. They make their decisions, then you have the judge making their decision or the jury, yes, we have juries and we have an appeal system. So that’s what really makes it strong. You have all the elements, everybody knows what their job is and they just implement.”

Ian Record:

“And doesn’t that then require tribal leadership, particularly legislators who are setting a budget, to treat and fund those justice systems as a full arm of the government and not necessarily as a program? We often hear tribal judges for instance lament the fact that ‘Where I work, they treat us as just another program,’ versus something larger and something more encompassing.”

John McCoy:

“Right. They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip the court system comes in, here’s the budget. So normally, without hesitation they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it, they just give them the money and then they...the court administration then takes care of the budget. So you have to give them that autonomy. Same with law enforcement, you’ve got to do the same with law enforcement. ‘Here’s your money, now you go do your job.’”

Ian Record:

“And I would assume that holds true for not just the justice systems, but the other critical functions of tribal government...”

John McCoy:

“Yes.”

Ian Record:

“...where leadership has to, at some point, say, ‘I’m going to delegate this authority to you to carry out the long-term goals of the nation.’”

John McCoy:

“Right. So that’s where the leadership, the elected leadership, their role is set policy, their role is not day-to-day administration. They set policy, then let their organizations function. Trust them, they’ll do the right thing.”

Ian Record:

“I want to turn back to economic development for a bit. And the NNI and Harvard Project research over the past few decades has clearly shown that rules are more important than resources when it comes to building strong economies. So for instance, you can be a nation with tremendous resources, perhaps natural resources, human resources, financial resources, but if you have a lousy set of institutions or rules, you’re going to be hampered in your ability to move your nation forward. Whereas, on the flip side, you may be a nation that has limited resources, but if you put in place a really good environment of rules you can really leverage those limited resources and begin to grow your nation and move it forward. Is that something you see and perhaps one of the reasons why Tulalip has paid such great attention to this issue of rules?”

John McCoy:

“That is correct. When I first came home in ‘94, I had gone off in the Air Force for 20 years and then I worked for a large computer firm for another 12 and then I came home. The rules and regulations and policies that were in place at the time were for a government of maybe 75 people or less. But when I came home in ‘94, we were up to just a little over 200 and so...and then policies, procedures and ordinances hadn’t been updated and so they were unwieldy, they were difficult to use for a larger organization. So we set about changing those. The first one we had to do, which was the most glaring, was a new human resources ordinance. That had to be done, it was accomplished, had input from lots of folks, and so it’s a good ordinance. The only issue that I might have with it, its management is guilty until proven innocent. Everything is on the employee. So anyway, it causes the managers to be really on their toes making sure that they’re doing things right. So in that process there’s also an employee grievance system, you need that. So you need some sort of dispute resolution in there so we have a very good dispute resolution process. So the rules are published and they’re out there for everybody to follow. When someone new comes onboard, they’re given a copy. ‘Here’s your copy of the human resources ordinance,’ and we make them sign a receipt for it so they acknowledge that they got it. Now we can’t make them read it, but it’s there for them. So then there was other ordinance, the ordinance of setting up the courts, the ordinance setting up the law enforcement, those had to be accomplished and then those things that they needed to make them function. So setting up strong policies is a necessity because you need predictability. Back running...when tribes were very small, employees of two, three, 10, 20, 30 people, well, you can run it like a mom-and-pop grocery store. Well, now, tribal governments are big business. They can’t be run like a mom-and-pop grocery store. You need processes in place to remove as much of the political atmosphere as possible so that they can function with reliability and respectability.”

Ian Record:

“So from what you’re saying, those are essentially vital to the efforts of the Tulalip Tribes and other Native nations across Indian Country to move from the days when they largely relied on a dependent economy, if you will, where they’re heavily reliant on outsiders for instance for federal appropriations and transfers to get by to essentially a situation where Native nations themselves are in the driver’s seat of economic development. So it’s those codes, it’s those institutions that you talked about. Are there any other vital pieces to that puzzle of moving from that dependent economy to a productive self-sufficient economy that you can share with us?”

John McCoy:

“Sure and it’s quite simple, it’s education. One of the things that I helped Dr. Alan Parker set up, and there are a number of [them] like at the University of Arizona, that you have these classes where you put in tribal government like the Master's of Political or Public Administration. At Evergreen State there’s, I think it’s two weeks of total immersion into tribal government as part of public administration. So that way when a tribal member gets an MPA, not only do they get exposed to the non-Indian type processes, but they get exposed to good practices in Indian Country so that they understand what their role is. So education is extremely important. At Tulalip, any tribal member that wants to go onto continuing education, whether it’s into the trades, community college, four-year university, graduate school, we pay for it.”

Ian Record:

“I want to start off with a general question, which is how does collaboration or building those relationships that I just mentioned empower Native nations to advance their strategic priorities?”

John McCoy:

“Okay, as you remember your history, we’ve been here for millennia. So we’ve always been here and we’re not going anywhere. Well, they’re not going anywhere either. So we have to learn to work and play together and you do that through collaboration, by working with the surrounding communities in solving the common problems. And we do, we have common problems. So for it to be a successful endeavor, then we need these collaborations not, like I said, we’ve got our own law enforcement, we have our own courts, but we still because we interact with non-Indians, we still need their law enforcement and their court system because when we catch a bad guy on the reservation who’s non-Indian, well, we’ve got to turn them over to the state court. So we have an MOU in place between our law enforcement and the Snohomish County Sheriffs that says, if we apprehend a non-Indian, we turn them over and they have the full faith and credit of the law officer that did the apprehension that his testimony in court will be valid. So in that process if we have to put an Indian in jail, well, we don’t have our own jail so we need an agreement with the county to incarcerate our person their jail and pay for it. So court system, same thing, working with cities on water agreements, sewer agreements. So we have a lot of common issues that we need to address and being able to work so that we build a trustful relationship because if everybody around us hates us, then it’s going to be difficult for your economic engine to work. So you have to work hard. It’s okay to say, ‘I’m Indian and this is my land,’ but we need your help and support. So you have to educate them about yourself so they know who they’re working with and then you can build these collaborative relationships.”

Ian Record:

“We see the sentiment out there in Indian Country and I think we’re seeing it less and less, but that tribal sovereignty means you need to insulate yourself and you need to kind of be those islands within surrounding hostility and therefore if you enter into some of these MOUs for instance with the state jurisdiction or local municipality you’re somehow relinquishing your sovereignty by doing that or by compromising your ideal solution if you will. But aren’t in fact those sorts of initiatives that Tulalip Tribes and many other tribes are taking more and more, aren’t those in fact an expression of sovereignty because you as a tribal government, as a nation are making that sovereign choice to say, ‘Hey, we’re going to engage this group. We’re going to engage this group, we’re going to develop this relationship in order to advance our strategic priorities’?”

John McCoy:

“That’s correct. At Tulalip, we view these collaboration efforts as strengthening our sovereignty. We’re not creating... Yes, in essence we’ve created an island, but it’s a seamless border because we’ve cross-deputized our officers; they can go on and off the reservation. In fact, yesterday the Washington State Supreme Court, even without an agreement, a tribal law enforcement [officer] can continue a fresh pursuit off reservation and that was a decision yesterday by the Washington State Supreme Court. So yes, in essence, if you want to look at a political boundaries and things, yes, it’s an island, but it’s how you employ it by collaborations, agreements, then those are just lines that can be crossed easily back and forth. And in Tulalip’s opinion, it strengthens our sovereignty because we’re getting recognition of our borders, of our jurisdiction.”

Ian Record:

“And it’s ultimately about solving problems. And I know from my research on Tulalip that you’re undertaking these sorts of efforts not just with other jurisdictions, but with other parties in order to solve problems, other private interests and a great example of that is the anaerobic digester plant. I hope I pronounced that correctly. This project that you developed working with some traditional adversaries, the local dairy farmers, who you, previous to this project, had battled for years on the issue of water and water quality. Can you talk a little bit about that project and how it came about and how it’s serving the interests of the nation?”

John McCoy:

“Okay, well, the dairymen actually came to us through our Natural Resources Department and they came to us and to me and we began the discussion. And we put it together because it was the right thing to do. We didn’t want any more animal waste going into rivers and streams. Well, how do you do that? Well, your farm’s got to be big enough to where you put it out on the fields and plow it under and enrich the earth, but they had more dairy product than they had land. So what do we do with this? Well, so we decided to work with the dairymen on this project. So as what I had to do, we had to find some land near the dairymen. Well, out there near the dairymen is the Monroe State Penitentiary. Well, they had what they called an honor farm, which was the dairy farm that provided milk for the prison. Well, that turned out to be not as cost effective and so the Monroe honor farm was decommissioned. So what are we going to do with the land? Well, we went to the state and said, ‘The tribe...’ -- now this was before I was elected -- and asked, ‘Can we have the land because you’re getting ready to declare it excess and in the rules, state and federal, tribes are at the top of the list to get excess property and we would like to use it to build an anaerobic digester on it.’ So we take the cow manure out of the system and we create methane gas, which we’ll filter, which will drive a turbine engine to generate electricity.’ So we started that process. Then I got elected and helped pass the bill to make it happen. So as long as that property is used for alternative energy, we can have the land, but if we do something else with it then it reverts back to the state. And it just so happens, I was approached by students from Seattle University that want to go out and do some algae experiments, which is alternative energy. They don’t want to do the traditional turning algae into a bio diesel; they want to look at other processes for algae. That’s a great idea so I said, ‘Yeah, we’ll do that.’ So we’re setting that process up in place right now. But the anaerobic digester is up and running. I had to change map metering law that allows for a generation facility that’s not on the dairy farm, but the dairy farms still get credit for the electricity that’s generated and so we got that law changed. Naturally, it was for the entire state not just for Tulalip, it’s the entire state. So a number of jurisdictions have enjoyed that map metering process and they’re quite happy with it. So the dairymen reduced their electrical cost because they’re generating electricity, then we’re also creating from the solids that are left, we take out, mix it with a little dirt, bag it up and sell it as fertilizer. So it all gets used.”

Ian Record:

“And the revenue from that is, from my understanding, being plowed back into some of your natural resource restoration programs.”

John McCoy:

“Yes.”

Ian Record:

“Because the ultimate goal, from what I understand, is that you want to improve the water quality of the local watersheds in order to bring the salmon back or at least have them come back at a much greater rate.”

John McCoy:

“Right. We’re doing a number of infrastructure projects for salmon enhancement like the membrane sewer plant that we installed. We just had a study done that gave us a draft of it from the University of Washington and Western Washington University that the output does remove pharmaceuticals including disruptors, birth control pills. And so with these reports done, now we should be able, be permitted to discharge straight into streams and rivers because the output exceeds federal drinking water standards. It’s actually too warm for salmon and it’s actually too clean for salmon, so we’re going to put it into a wetland to cool down and get a little nutrients and then let it flow into streams and rivers. And because of that plant that we put in, we convinced the city of Seattle to change their Bright Water Project over to a membrane technology. And other jurisdictions around us have come and visited and looked at it and said, ‘This is great, we’re going to go this direction.’”

Ian Record:

“So you’re becoming a model not just for other tribes, but other governments everywhere.”

John McCoy:

“Yes.”

Ian Record:

“That’s fantastic. I wanted to finish up with a short discussion on your experiences, trials and travails, as a state legislator. Being a Native American and a state legislator you’re in a very small group, but a growing group.”

John McCoy:

“Yes.”

Ian Record:

“And I was curious to know, get your advice perhaps, on what Native nations and leaders can do to advance their priorities through the state legislative arena. You have experience on both ends of the spectrum, both as a tribal leader and as a state legislator. What advice can you give them in terms of perhaps advancing more effectively their priorities in that arena?”

John McCoy:

“Well, my advice to them all is to create a governmental affairs office to where these folks just work on policy, that they work with legislatures, with county governments, with other city governments because you need to touch them all because they pass laws that infringe on the tribal sovereignty. So you need to be there to educate them so that they modify their law to where it does no harm to the tribal sovereignty. They’re not doing, my personal opinion, 99 percent of them are these laws that infringe on tribal sovereignty is done out of ignorance, not maliciousness. It’s out of ignorance. Once you inform them, educate them on the issue, then they adjust their language to where they do no harm. So they need to be at the city level, the county level, the state level and we’ve always done the federal level. So we need to get down into the state level. This last year, New Mexico passed, codified their agreement between the governor and the tribes on how they’re to interface with one another, they codified it. And I was still in session and I got the email saying they codified it. I said, ‘Why didn’t I think of that because we’ve got the same thing.’ So this year I am going to try to move legislation to codify Washington State’s Centennial Accord, which is our version of the framework on how the governor and the tribes interface with one another. So I want to codify that. The only thing different that I’m going to do in my bill is that I’m going to add a legislative interface. New Mexico didn’t and I’ve talked to their New Mexico legislators and they say, ‘Yeah, on second thought maybe we should have added that,’ so they may add that at a later date. But I’m going to start off with the legislative interface and I want to set up a committee that meets during the interim, not during session, during interim on the tribal issues and what pieces of legislation they may see. Now this committee that I want to set up is only made up of chairs of committees because they control what legislation goes through. So if you get them indoctrinated, educated on what the tribal issues are and what legislation they’re going to move, then they’ll have the background on it, why it’s needed and so it should help move these things through. When I first went to the legislature and I went through freshmen orientation, it was five days long and at the end of it I raised my hand and I said, ‘Where’s your Indian Law 101? You’ve got 29 tribes in the State of Washington and you did not have one word about Indian Law 101.’ So, I convinced the chief clerk, ‘You need Indian Law 101 in your freshman orientation,’ and now it’s part of the freshmen orientation. It’s not on the Senate side. I’m still working on them, but I’ve got to get that one done over there, too.”

Ian Record:

“This sounds really fascinating what you’re talking about with this education of the decision makers, the outside decision-makers that make decisions that influence tribes in a variety of ways. Would you recommend as well though that Native nations begin to think more aggressively when it comes to cultivating members of their own nations to actually pursue the sorts of positions that you currently hold in the state legislature? Isn’t there a direct role that they can play as well?”

John McCoy:

“Oh, yes. Whenever I’m at NCAI [National Congress of American Indians], NIGA [National Indian Gaming Association], NIEA [National Indian Education Association], I’m talking to everybody. ‘You need to run for office. You need to get more people in the state legislature, on county commissions, need them there.’ So in Washington State in Whatcom County, there’s a Native American on that. There’s three of us in the state legislature. There’s one running for city council in Pierce County. So they’re starting to run, it’s coming up. When I got elected in 2002, there were only 23 of us nationwide. Today, there’s almost 80 of us. And I happen to be chair of the National Caucus of Native American State Legislators. So I am proud to see it grow. About 25 to 30 are very active in the caucus. This is a non-partisan caucus, so we have both parties are in there and we just talk about tribal issues and how do we work with our counterparts on getting legislation passed. And I think we’re becoming very effective at doing that. So we continue to grow. The organization also includes Native Hawaiians because they have the same issues that we do, but they don’t have their sovereignty yet. That’s being worked on. But anyway, so we’re interfacing, we’re helping each other with legislation and I personally believe it’s a valuable tool now and we need more.”

Ian Record:

“Well, John, I really appreciate your time. This has been quite an education and thank you for sharing your experience and your wisdom and your perspectives with us.”

John McCoy:

“Yes, thank you. I really enjoyed it and everything connected with your organization, NNI and Honoring [Nations] Program. Great programs, I love them and I can’t speak high enough of them. You guys are doing a great job, too.”

Ian Record:

“Well, thank you.”

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

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Indigenous Peoples' Law and Policy Program
Year

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

Resource Type
Citation

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

Frank Ettawageshik:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

Frank Ettawageshik:

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

Audience Member:

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

Frank Ettawageshik:

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

Audience member:

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

Frank Ettawageshik:

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

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

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

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

Raymond Austin:

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

Frank Ettawageshik:

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

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

Raymond Austin:

"Culture in governance?"

Frank Ettawageshik:

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

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

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

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

Stephen Cornell:

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

Frank Ettawageshik:

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

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

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

Rae Nell Vaughn: Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System

Producer
Indigenous Peoples' Law and Policy Program
Year

Former Chief Justice of the Mississippi Choctaw Supreme Court Rae Nell Vaughn provides a detailed overview of the growth and evolution of the Mississippi Choctaw's governance system and specifically its justice system, stressing the importance of Native nations providing a fair, effective, culturally relevant forum for enforcing tribal laws and resolving disputes.

Resource Type
Citation

Vaughn, Rae Nell. "Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System." Indigenous Peoples' Law and Policy Program, College of Law, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

"Thank you for taking time out today to come and meet me and listen to what I have to share: my experiences and expertise in tribal court systems. Our topic will be the "˜Tribal Court Systems in the 21st Century' and my point of reference, of course, will be Mississippi Choctaw. How many of you have ever heard of Mississippi Choctaw, the Mississippi Band of Choctaw Indians? A lot of people at home in Mississippi, when you say that, the first thing that they equate it to is gaming, casinos, Silver Star, Golden Moon, the bells and whistles of gaming, and they tend to forget there are people and there is a government, a society there. As Ryan [Seelau] said, I served as Chief Justice for the Supreme Court for the tribe. I worked with the judiciary for 11 years. I served for the tribe...I worked with the tribe for a total of 23 years in a wide variety of areas -- in health, education, in culture -- and so I'm kind of like the full-package deal. And so having the opportunity to serve the people as a judge was the most humbling invitation for me to have been offered and to have accepted and it was such a traumatic experience for me. I'm a tribal member. I'm a member of the tribe. I lived there for the majority of my life. I was a bit of an Air Force brat for just a short period of time, lived in Massachusetts. My father was stationed at Otis Air Force Base. Came back home to Mississippi and then we went off to Kansas for a bit and then came back and been there ever since. Where's the southern accent, you may ask? It's there, it'll creep out sometimes when I start really rolling along and you might hear a "˜y'all' after a while, so just be looking for it.

What I want to begin talking about is the history of the tribe. As you know, with all tribes across Indian Country, there were a lot of treaties and agreements that tribes went into. Well, our tribe went through such a process as well, and in 1832 we signed our final treaty. We signed. It wasn't like we wanted to sign, it was more or less, "˜You are signing. Here's the pen and here's the line. Sign on the dotted line,' of giving or seceding all our lands to the government. That was the final secession of our lands. However, we did have a number of people who refused to move, to remove and go on the Trail of Tears and we are the descendents of those tribal members who refused to go. Early in the 19th century, the tribe was hit with an influenza epidemic and our membership, our people got down to under 1,000 in the early 1900s. We had no support from the state. We were living in very terrible conditions, working as sharecroppers in the cotton fields, losing a lot of who we are or who our identity was, living in very poor conditions and again, with no help from the state or from anyone. Yet in 1945, applications were made to become federally recognized and we were successful. And in 1945 that happened, we became recognized as the Mississippi Band of Choctaw Indians. However, in my language the name of our people is 'Chahta,' and that is the name of Choctaw and of course, with the non-Indians translating it to 'Choctaw' is how that came to be.

And so with the establishment and recognition as a federally recognized tribe comes what? The development of a government, the establishment of a government, and one of the very first things you have to do in establishing a government is looking at your laws, your foundational laws. And what's that? That's the constitution. And of course, this is not to say that our own tribal structures were not good, but we were being forced to look at models or not to look at it, we were told to. Okay, let's just put it out there. We were told to do it, that's what it is. It is what it is. And so we adopted an IRA constitution and once that happened, then began the function of the government. Now this government is a two-[branch] government, an executive branch and a legislative branch. They went through a lot of challenges because of course, as you know, you've got the BIA [Bureau of Indian Affairs] agent there assigned to you and he pretty much was trying to run the show, basically trying to tell the government what to do.

I don't know if you are, and you probably are...for those of you who are familiar with Mississippi Choctaw, Chief Phillip Martin, who has for the past 40 years led the tribe. And I had the opportunity to read his book because one of the things...and he is my role model, he has been my mentor; he's known me all my life. It took him forever to finally call me -- once I got married -- call me by my married name. It was always, 'Rae Nell Hockett,' 'Rae Nell Hockett.' I'm like, "˜Chief, I'm Rae Nell Vaughn now. I'm grown up.' It's not that snotty-nosed little kid runny down the dirt road. So anyway, I had the opportunity to talk with him, to read the book, and it gave me so much insight about who he was and how he came to be as a leader, and how important all the experience he had led him up to how he was going to lead. Of course he had the boarding school experience, he had the World War II experience having gone to Germany -- all these different experiences molded him into who he ultimately became to be. And so during this period of time, once the tribe began its structure of government and getting government rolling, Chief Martin then became involved in government. I promise you, this is not going to turn into a Chief Martin story, but he's so interwoven into the tribe I would be remiss not to talk about him. So of course, there's this constant butting of heads in regards to what the people want and what BIA wants or they don't want to give you. And so Chief Martin and the other members of the government began taking control, began pushing back, began looking at the things that they needed to do to help the people and to help the people prosper. Like I said, it was a very tough time.

Ryan and Ian [Record] and I were talking a couple of days ago, and in my memories I have flashes of what I remember. I'm 45 years old, so a lot of what has happened has happened during my lifetime and the things I remember, I do remember being in the cotton fields with my grandparents and family, I do remember lining up to go to the outhouse and that was the last time at night, if you didn't catch it then you were on your own, of living in a home with no heat, no running water. Now think about the time frame I'm talking about here: no transportation, no employment, nothing, very rural, very isolated area, very spread out. Communities were very far apart from one another. It was a very challenging time. A friend of mine said, "˜But you know what, Rae, you never really know how poor you are until someone tells you you're poor.' And I can remember during that period of time growing up and being around my grandparents and my great-grandparents. I had the good fortune of having my great grandmother still with me -- who is a renowned basket weaver and has her pieces out in the Smithsonian -- but having that family network, that family connection was so very, very important and you'll see how it's interwoven in what I'm talking about, the close knit-ness.

So his charge, Chief Martin's charge as a member of the community was to get the government up and going and they began doing that. They began making their way to [Washington] D.C., trying to get additional dollars, trying to get assistance. Now let me tell you, the BIA agent did not like this at all. He's like, "˜I'm the big dog here. I should be the one going up there. If anybody's going to go up there, that should be me.' And so there again was that butting of the heads, of people stepping up and taking leadership. Now you know as well as I do that there are ramifications. There could be ramifications for that, and also think about where we are -- rural Mississippi -- at a time where there's a lot of racial tensions and issues and problems going on. And here we are, this small group of Native Americans, the only group of Native Americans that are recognized in the State of Mississippi and yet we're just an afterthought for anyone. They began strengthening the government. The government then [was] able to receive federal dollars from a program called CAP, and what the acronym stands for fails me at the moment, but it was a very important stepping stone for the tribe to begin laying foundations for infrastructure in the sense of services to the people. I promise, we are going to talk about justice systems but I really want you to understand where we were to where we are now.

So, in the midst of that, people are getting enrolled with the tribe. No one's rushing to do that. So you had maybe by the "˜70s maybe a membership of 2,500 to 3,000 people enrolled. And of course our enrollments were skewed like everyone else. There are some people that are enrolled that are blonde-haired and blue-eyed, but knew the agent and got enrolled. So they're tribal members. We do have a group of people down on the Gulf Coast who are mixed but are questionable, but it is what it is. So as the government began to exercise governing, the population is growing. Then came the need of law enforcement, of services, and then ultimately of courts. In the early "˜70s, we had the establishment of the CFR courts, which fell under the regulations of the BIA. Now this was more of a misdemeanor court, is a misdemeanor court; it was handled by one tribal member judge and one clerk. That was it. One clerk, if you could get a clerk, if you could find a clerk. Temporary housing all over the place, just wherever you could find a spot and it could be shared facilities. They barely had actual physical buildings in the governmental area, but it's just wherever you could find a spot. And so that's how they operated court and that's how they enforced law enforcement. Now let's back up with law enforcement. You had only maybe two officers having to patrol large areas and I know that there are some tribes even today that continue to struggle with law enforcement issues. And so we had this structure set up in the early "˜70s and technically it worked, but it didn't work as well as it could. Of course we were reliant on funds from BIA, so we did the best we could do.

Then, under the leadership of Chief Martin, moving from a member of the council, which he was -- and I failed to state that -- then, ultimately becoming identified as the chairman. At that time, through the governmental process of the council, council members were elected in. Then the council itself voted amongst themselves, identifying who the chairman would be. So Phillip Martin then was voted in as the chairman. And so under his leadership, they began looking at industry once they laid down this foundation of infrastructure. It was a long road, a very long road. There were moments of prosperity early on in the mid...late "˜70s with the establishment of Chahta Enterprise. One of the very first companies that they developed was the construction company Chahta Development, which was the flagship, which was what brought revenue in, which is what supplemented the tribal government. And then as that company took off, they began going into other ventures. In the early "˜80s, we then went into the automotive industry. Under Chahta Enterprise, we did work with Ford, NavaStar -- and I'm talking about companies, I know Ford -- but they did a lot of wire harnessing-type assembly, blue collar work, but it was work. However, in the mid "˜80s, as some of you may know from history, we had issues, we had problems with the economy; even then the automotive industry was up and down. And so the tribe was riding on this wave of prosperity and then the wave would dip, but money was coming in. And so then, as more money began coming in for the tribe, and also you have the [Indian] Self-Determination Act, which also kicked in as well and kicked in additional resources, the tribe then took on managing its own services, managing itself under Public Law 638. One of the very first areas that we were able to manage were the courts, law enforcement, and detention. Now mind you, it was a phased-in process because ultimately you have to find personnel, space, operations, and management. And it was during this period of time that we had a lot of exterior things going on that the tribe was dealing with, for example, in regards to the court. In regards to the court, you had the [Mississippi Band of Choctaw Indians v.] Holyfield case, which I'm sure some of you may be familiar with. This is the adoption case of the tribal, two small tribal children who were adopted off reservation, and this case was the test for ICWA [Indian Child Welfare Act]. And then came 1994, when the Mississippi Band of Choctaw Indians opened its doors to gaming: Silver Star. Just to give you a sense of how successful it was at the beginning, we paid out our loan in six months, of the money that we borrowed to build this facility -- six months. And let me tell you what I heard Chief Martin had said: "˜Well, you know what, if this doesn't work...,' because really we were looking at, "˜Well, is this going to be a bingo hall? What is this going to be? Is this really going to go?' He said, "˜You know what, if it doesn't take off, we'll turn it into a manufacturing plant.' Well, it didn't happen. Silver Star expanded maybe three or four more times after that and they thought, "˜Well, why do we need to expand? Why don't we built another piece of property across the street?' And in early 2000 I think it was, we then opened the doors to the Golden Moon.

And so in the midst of all of this, you had not only your population increasing of your tribal membership, but you also had an influx of people, non-Indians coming through the reservation, vendors, customers. You had a major highway that ran right through the tribal lands, Highway 16. And so in 1997, the tribe then reorganized again and restructured the tribal court system. And I'll get to the specifics of that a little further into the slide, but one of the other things that happened in 1997 was an accord that was signed between the State of Mississippi and the Mississippi Band of Choctaw Indians. And this is very historical and it's very important because this accord recognized each party as a sovereign to say, "˜I recognize you, Mississippi Band of Choctaw Indians. You are a sovereign government and we need to work in partnership.' Some might say, "˜Well, this is just the olive branch, this is just the PR,' but it's significant because once this accord was signed, it opened doors, it began opening doors, doors that we weren't able to open. And I've always said, when we've had positive impact, positive experiences, when the tribe has had the opportunity to see progress, it's always been about who the players are and the timing. And it's key; it's key. And so this was an accord that was signed between the late Gov. Kirk Fordice and of course, Chief Phillip Martin. And it was, it was very historical and we have several historical moments throughout the history of our tribe.

I talked about the organization and structure of the previous court, and I think it's important because one thing that you will learn as practitioners is the importance of support of your court and the makeup of your court. The CFR court structure, as I said, was one tribal judge and one clerk, and then of course in the "˜80s and mid "˜90s, you had a tribal court judge, a member, a tribal member who served on the bench. And then you had a special judge who came in to deal with more of the complex cases that would come before the court and he was a law-trained individual -- I know him -- Judge Vernon Cotton, who's now on the circuit court with the state. Two clerks, a probation officer, and then you had tribal member associate judges who kind of came and went. We never really had a lot of consistency and we'll talk more about that as we go on.

This is the current overall organization of the tribal court system and you'll find that in your handouts. As I shared with you earlier, tribal Choctaw government is set up as two branches and the tribal court is a statutory court, which falls under the umbrella of the Judicial Affairs Committee, which is the oversight committee. They do not participate in the day-to-day operations of the system. We work with them in regards to issues such as budget and code development. They also are the ones who, when there are issues of violations of canons of ethics, things of that sort, they are somewhat of an ad hoc committee on discipline as well. You have the chief justice, who is also the principal judicial officer for the system and is the administrative liaison between the two branches. One of the distinctions of this court or the uniqueness is that we have the ability to create individual divisions of court. So you had a criminal court, you had a civil court, you have your youth and family court and you had -- which we'd never had before -- our traditional form of court, which is the peacemaker court, Ittikana Ikbi. "˜To make new again' is what that translates into. Prior to the Supreme Court, establishment of the Supreme Court, you had what was called the 'Court of Appeals,' which was made up of course of the judges who did not preside over that court, so you had a three-panel court of appeals. But because of the increase of cases that were coming to the court, there was a need to have and develop a separate tier. And so, as Ryan said, that court was established in early 2000.

The Supreme Court consists of course of the chief justice, two associates justices. During my tenure, I had the great fortune of having sitting with me on the bench Frank Pommersheim, Professor Pommersheim as most of you know, and also Carey Vicenti. You don't know the wealth of information those two men bring to the bench: the analysis, the logic, everything. I was just very fortunate to have had the experience of working with those two gentlemen and think very highly of them as well. We also had a pro tem justice who is a tribal member; her name is Judge Roseanna Thompson. She's a linguist, graduated from Penn State and wore two hats: she ran her language program, but she also worked with us in the court. A wealth of experience and knowledge as well; love her to death. Aside from the judiciary, the bench itself, you have the administration of court. Once, of course, you issue a ruling, what happens with all of that and who are all the players that are involved? And this was an expansion of the system itself because we saw more of a need, that the court needed to be more involved and it needed to be more defined and more developed.

And so we established a Department of Court Services and within that service we have a director, school attendance officer, adult and juvenile probation officer, diversion coordinator. The diversion coordinator's responsibility was the development of teen court, which some of you may or may not be familiar with. That's more of a sentencing court for juvenile delinquents. Once they went through formal court and were adjudicated as a delinquent, if the judge felt like the offense wasn't as severe and this young person might be just right at the line of either he's going to go down that road or maybe we can correct it and get him back on the right path. We sent him to teen court. Our very first experience with teen court was amazing. Of course, as you know, with teen court it's made up of their peers, young people who are sitting in different capacities as prosecution, as defense, sitting as a juror, sitting as a bailiff. The only adult in that courtroom was the judge, which could be a member of the community, which could be one of the practitioners of the bar or one of the other judges. I've sat several times in teen court. And so we had our first case and it was a breaking-and-entering case. And it's just like what you may have heard time and time again. They were ready to give this guy a big sign saying that he was guilty of his offense. They wanted to put him out on the road and let everyone see what he was guilty of. They wanted to give him beaucoups of community service hours. And so we had to kind of reel them back in just a little bit, but we had told them and talked with them about how important it is for the juvenile delinquent to understand the offenses that they're committing. That it's not so much against you as a community member, but it's against the tribe, and in essence it's against yourself. And so you have to make this right with the tribe. It's been a very successful program. And that's one of the things with this system that we're looking at is looking at other alternatives to provide justice for our communities in Indian Country.

We also have a youth court counselor who works with juvenile delinquents once they get into the system. We had a receptionist, administrative assistant, custodian, of course, your clerks; we had seven clerks and a file clerk and they are the heartbeat of your system. They are the ones who make the system run. Yeah, the judge can sit up there and drop the hammer, the attorneys come, they argue and there we go, but it's those clerks who make the system run and who cannot allow the system to run. So as practitioners, I strongly suggest you get to know your clerks. You just wait, for those of you who probably are already out there practicing, you know what I'm talking about because you piss a clerk off and you're not getting anything timely, if at all. I assure you. I have seen it. I have received complaints on clerks. So I know. And then again, and I'm not going to belabor the point, but this is the overall structure of the tribe and the court falls here as an independent agency with the tribe. However, yet it continues to be under the executive branch and I want to talk a little bit about that as well.

'Independent agency' -- words are sometimes more cosmetic. A lot of courts in Indian Country are set up the way we are. They're statutory courts, and sometimes aren't given the respect that they should be given. Let me assure you: tribal court is not a program; it is not a social program. It is a form that is established to protect the people and enforce the law. But for whatever reason -- and there are many I'm sure -- there continues to be this tendency of a perception that these are just programs. "˜Tribal court is nothing more than a program like social services, like legal aid, it's just a program.' And until we can, as practitioners, begin changing that mindset...and we have to. We really have to. I'm not quite sure the audience I'm talking to, I know you all are students, the majority of you are and maybe end up working for your tribe or if not for another tribe or for a sovereign nation -- whether it be here or abroad -- but one of the things that, one of the messages I hope to get out and that I hope you take with you is that there needs to be respect for that institution, that it is not a program. And it gets lost in translation in the big scheme of things with tribal government. Tribal governments struggle. You have some governments that are running well, you have others that have a lot of strife going on, but having the ability to exercise your sovereignty by operating a court and providing law and order and justice is one of the very key elements for government. And you, as a practitioner, possibly as an attorney general for your tribe or as just general counsel, you need to keep that in mind, and also protecting your tribe, protecting that sovereign. And it is. It's a term that's used in many senses and much sense abused. We've had that discussion about pulling the sword of sovereignty and wanting to use both sides of it, using it all the time. And I've always told...like I tell my children, "˜You need to pick your battles. You can't fight every one of them. You'll never win the war.' Everybody's heard this but, of course, I'm not going to belabor this. You guys are law students, you know what this is all about, what sovereignty is. If we can go on to the next because I know my time is going here.

And it does, sovereignty begins at home. Again, talking about the exercise of it. And it is truly in a fragile state for Native people. Socially, we have a lot of issues that a lot of these tribes are dealing with and the majority of the time this ends up in the well of the court. That's where a lot of these things are handled. And again, stability and consistency of a good court system is key. You have a high dropout rate of students, high suicide, you have increase in violence -- and this is just speaking in generalities -- you have poor health conditions at times, high poverty rates. They're also factors that we must remedy. And that again goes back to that close knit-ness of the community, of how we can create a more healthy and stable community for all our communities in Indian Country.

Again, exercising the sovereignty and it does, it belongs to the people just like as American citizens it belongs to us. How do we exercise those rights? Vote. I used it. It worked. I'm happy. At the tribal level, tribal members delegate those powers to tribal councils through voting and with electing a chief, which in 1977 the tribe amended its tribal constitution to elect the chief. Chief Martin ran for the very first election of chief and guess what? He lost; he lost. That was during the [gerald] Ford administration, I remember because right after the Nixon administration Ford had a hard time getting things going again and so did this, the first chief, the first identified chief had a difficult time. And then after his four-year term was up, Chief Martin then ran and was successful and was elected the second chief of the tribe. The tribal council then delegated and established the tribal court, as we talked about earlier within the issue of the reorganizational slide that I showed you.

Principles of the expression of sovereignty: the fundamental expression is the formation of tribal government and the determination of tribal membership, which continues to be a pressing issue for all tribes. We've seen it in California of where people get disenrolled. We've seen it in various tribes, even within my own tribe. There have been informal discussions about dropping the blood quantum. Our constitution says a half or more and they'd like to see it drop down to a fourth. Will that happen? I don't know, but it is a strong discussion that's taking place right now. And membership is key. Membership: I have a really big issue with membership because membership, as defined by the federal government, is based on blood quantum. Well, if I'm a full-blooded Choctaw, my family relocated to Chicago, grew up there, never came back to the reservation, don't know the language, don't know the ceremonies, but I'm full blood based on what my papers tell me, aAnd then you have a child who is a quarter Choctaw, family lives on the reservation, family's very well known in the community, they participate with the tribe, they know the language, they speak the language, they're fluent, they're involved in ceremonies. So why is it that we look at a document that tells me that this person isn't qualified to be a Choctaw? What kind of weight does that have? As far as I'm concerned, it doesn't. It holds no weight, because it's who you are as a Choctaw person, who you are as a Navajo, who you are as Eastern Band of Cherokee. It's who you are. There are big conversations, like I said, concerning membership that [are] taking place and it's a hard call, it really is. It's a very hard call.

And then you have the legislative expressions, adopting tribal ordinances and laws, which they do. The tribe meets four times a year, holds their regular business meetings as well as special called meetings. Throughout my tenure with the court, we've developed new codes in regards to domestic violence, having a code that addresses that specifically, and even within that code there were issues concerning who we are as Choctaw people and having to look at these models that we were given and 'Choctaw-izing' it because some of the things that -- which you may or may not agree with --hindered or conflicted with culture. And that's not to say that I'm sitting here a proponent of domestic violence, that's not it, but it's trying to get this message out that when an offense is committed, for example, concerning firearms, because that was the issue at hand, as a tribal man you went out hunting. And so if I am found guilty of domestic violence, I can no longer have a firearm, which interfered with their hunting which is a part of the culture. And it was a really big issue, that code was tabled so many times because it went back and forth, but it finally was passed. They made amendments to it. Instead of not ever allowing them to have a firearm, they penalized them for five years. I, for one, did not agree with that and wanted to stick with what we had laid out at the beginning, but I knew it was a cultural question. And these are hard things, these are hard things and this is just an example of what councils have to deal with. That's just one part of it, that's not even the business aspects of it. And then of course you have your administrative portion of it where your tribal leadership has an administration, which basically deals with the day-to-day operations and execution of social programs and services. And then you have the judiciary, which is the tribal courts, the enforcements of unwritten law and written law.

Well, what is tribal law? For us, in our general provisions, we have our customary law, we also have the tribal code and then when the code is silent we go to federal and state law as well. And if I'm blocking anybody please tell me, I will move myself because I know I can be a big gray blip on the screen. We also have -- as I stated earlier -- a peacemaking code. And I'll tell you, it wasn't very well embraced at the beginning because at that time people...and people in general, in general society, they want their time in court. They want to be before that judge and they want to tell you why that person is guilty, but what does it really solve? Does it really solve the issue at hand? Because sometimes the issue that's brought before the court is just the very tip of the iceberg, you're not really getting the full story. When we began looking at the development of this division of court, we had the opportunity to go down to Navajo Nation and to visit with their peacemaking court and the communities knew this and we brought that information back. And so then we began operating the court. And there was a lot of comment, "˜Well, this is just Navajo court. You're trying to operate Navajo court.' But it wasn't because, as we know historically, living in a society, living in a community, you had rules, you had laws. It may not have been written, but there were laws and rules of your society that you knew. For tribes, it was oral; you knew it, it wasn't written down anywhere, they told you, they talked with you, you listened. And so we got this peacemaker division going.

You'd think we would have had the opportunity to have a case that was just minimal, just real basic. Nope, not the case. There's a family in one of our outlying communities, major issues, very dysfunctional family. The father was a very aggressive...he was a bully, he was a community bully and also an alcoholic, which doesn't mix well either. And he was stirring up issues and for people to tell you that they're afraid to be at their home, that they didn't feel safe in their community is hard to imagine, but you had people feeling like that. He was having issues with another family, the Hatfields and McCoys almost, and it was getting to that point. What ended up tipping this entire issue and bringing it to court was that these young boys from this particular family, the bully's family, went into the home of an elderly person, an elderly woman, hurt her, stole from her and vandalized her home. Well, let me tell you, the charges started flying. We had cases being filed, counter filed, it was just loading us up, and it got to a point where we had to sit down and talk with the community because we weren't going to be able to get down and resolve the root of the problem. And so it took some time -- it took six months. It took a long time to finally get a lot of the people in. There was about a total of 35 people were involved in this entire issue and I applauded the peacemaker. He was very diligent and he got...he made it happen. And I think one of the other things that helped him was that he was a minister. But it happened and they sat down and they talked.

As much as people said, "˜Well, this is Navajo court,' and it wasn't. And I respect Navajo court, don't get me wrong and I'm not putting Navajo court in a poor light or anything, but we Choctaw-ized this process and it was a process we already had, but it was a more structured process. We were able to bring in people who would also help facilitate this issue. Six months of going back and forth, of talking, letting people vent, and it does escape me at the moment, but whatever the issue was, it was minimal, it was so minimal, but it grew arms and legs and it took off. And I know how some people can be, they don't forget. They don't forget in the sense of they're angry and upset with you, but they can't remember what it was they were angry and upset about and because my grandma was, I am too. I don't know why she was, but I am too. And so it was getting down to those root issues. And that's how it was very therapeutic, very therapeutic for the community. Another side note to this though: the bully continued. So, unfortunately, we ended up excluding him from the tribe, but we had the support of the community and that's a hard thing to do. You certainly don't want to be excluded from your community, but if you're a detriment and creating an unsafe community, there are no alternatives and that is a part of our code as well, which makes our code unique as it does with other tribes as well.

Of course we have the written laws, constitution, our ordinances, codes, we have opinions and decisions that we have for our tribal courts and is available for review. And then of course the additional laws, written laws that we have are peacemaker resolution orders, which in this instance they do hold the strength and power of an order of court, of formal court, which is a very unique thing. Okay, if we can go on. I want us to have time to talk so you have the handout. These are pretty basic pieces of information that you're very well aware of and I'm not going to go over those things, but these are the types of cases that Choctaw court deals with: of course child adoptions, protection and custody issues, alcohol-related crimes and other social crimes, domestic violence, commercial cases. We have a very strong civil court, which deals with a lot of the cases because of the economic development that the tribe is involved in. One of the first things -- and as practitioners you need to know -- one of the first things that lender is going to ask the tribe is, "˜Well, if there's a dispute, where is it going to be heard? Where is it going to be heard?' And time and time again they say, "˜It will be heard in tribal court. It will be heard in Choctaw tribal court.' Now, if you don't have a stable and consistent court system, and let me tell you, you know as well as I do, our legal community is small. Information goes from one end of the coast to the other. Information goes faster now with internet. If you don't have a stable system, they're not going to do business with you. They just won't do it. We also have, of course, repossession, which falls under civil, you have youth court issues, traffic, and of course our peacemaker issues.

So what's on the horizon? What's on the horizon for courts and for governments? We must be aware of the upcoming policy changes. We know that there can be negative impacts on governments, specifically on courts. We struggle yearly as to the types of funding, well, what are we going to get? As a system, how much money will we get from the federal government? How is this particular act going to affect us? There was the issue of the Tribal Justice Act back in the "˜90s. Sure, you put an act together, but you didn't give us any money and it had a lot of good pieces in it, of strengthening tribal justice systems, but when you don't fund it, it's only as good as whatever the ink you used to sign the thing with. And as we know, federal policy has been characterized by dramatic shifts and you have these here. And of course the Self-Determination Act, which followed after termination. So I say all that to say this: it is critical that you're aware as practitioners of what's happening out there in the landscape because what affects one will ultimately affect us all. And so you must always look at any type of policy development with the backdrop of the tribe, of tribal sovereignty, of the federal trust responsibility, of the government-to-government relationships that have to occur, and that have to be cultivated and have to be perpetuated and continued. And that laws and policies have to be unique and specific for Native Americans. I say specifically for Choctaw because that's the tribe I'm representing.

So, in closing, we must continue this pursuit of self-determination. We have to encourage this with our governments, with our people, with the courts and the protection of our sovereignty not only within our courts, but also outside of our courts is very important. Again, building collaborative relationships within tribal, state and federal governments, through inter-government agreements such as the accord that I talked about and then here on the federal level with the ICWA.

A story I'd like to share with you. When I first came on the bench for the Supreme Court, I sat down with one of my mentors and I said, "˜I want to make a difference here. I want us to take this system to a level of respect because we, like everybody else, got beat up. "˜Kangaroo court! They don't know what they're doing! We need new people!' What is it that we can do?' And we had a really good brainstorming session in talking about the things that I wanted to do. Now, let me again remind you, I live in the State of Mississippi, and we've never had a strong and positive rapport with state government. One of the things I had wanted to do was to open a door and to have dialogue with our counterparts, which had never ever happened. And in early 2000, the chief justice of the Supreme Court for the State of Mississippi came down to Choctaw with his associate justice and we sat down not so much as judges, but as people and talked about a lot of issues. That one conversation sparked a lot of other activity. We began having these exchanges, having the opportunity to go and speak to the judges of the state, having their justices come down and talk to our bar and talk to our government. And it's those types of relationships that many tribes don't have the opportunity to develop for whatever reason.

Also, we worked very diligently with our U.S. District Attorney. Now as some of you may recognize, those are very difficult relationships to have and sometimes you may have a U.S. District Attorney who just doesn't give a crap, isn't going to work with you, who could care less. But we had the good fortune of having a U.S. District Attorney by the name of Jack Lacy who was phenomenal. He retired recently, but he left such a great legacy in the sense of working with this tribe and we were able to have many cases that may have been...that may not have ever been brought before the federal court happen and go through and it was because of his own diligence as well. But it was having that relationship, cultivating that relationship, and that is very important for those of you who may end up working with tribes. It's very key.

And then lastly but not leastly, learning from other tribes and sharing successes and challenges. As you can tell, I love to talk and I love sharing this story and I love sharing other stories, but we learn so much more from these exchanges that we have. And sometimes we're all on the same page, we all have the same passion for the people and for working for the people because these investments that we make, and it may sound like a cliché, is for our future generations to come and it's laying these strong foundations for them. But it's also cultivating this generation that's to come to lead us and they need to have the proper tools, they need to know that there is a strong government, they need to know that there is a strong form of court, they need to understand what it means to vote, what it means to stand up for what's right, and it's having that ability to share these types of things with other tribes, what their successes, what their challenges are and working together because what we fix or are able to do for one has far reaching effects for all of us across Indian Country and it's important. It's important.

So with that, I leave you with this. It's always been my philosophy, the tribal courts are guardians, we are the guardians, we are the gatekeepers, the protectors of the sovereignty, of our children, of our families, of our communities, of our tribe. The strength, respect that you give this system speaks volumes, it creates an atmosphere of trust for the people that it serves and also the respect of those from the outside as well. But more so, it's for the people to feel that when they walk through the door of that justice complex, they know that they have a fair forum that they're going to."

Honoring Nations: Darrell Hillaire and Sharon Kinley: Semiahmoo Project

Producer
Harvard Project on American Indian Economic Development
Year

Darrell Hillaire and Sharon Kinley from the Lummi Nation and its Semiahmoo Project discuss the unfortunate circumstances that prompted the creation of the project, and how the Lummi are using the project as an opportunity to re-engage their culture, elders, core values, and language. 

Native Nations
Resource Type
Citation

Hillaire, Darrell and Sharon Kinley. "Semiahmoo Project." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 10, 2004. Presentation.

Darrell Hillaire:

"We at Lummi, we feel quite honored to be here today. I also have Leonard Dickson here with us today and Greg Amahli, that are here representing Lummi. And it's, this is a place that we think carries a lot of prestige, but that isn't why we're here. We also recognize the agenda and recognize a lot of names of great leaders that are in attendance here, and we get kind of excited here about coming here to share some time with them. But I think, most importantly, we come here because we've established some pretty good friendships over the years. Joe Kalt, and we take his advice in the things that we try to do with our businesses and we're thankful to him for that. Andrew Lee, who's taken the time to come spend some time with us at Lummi and learn about us a little bit more, and it gives the program that we're working on together more meaning, and we thank Andrew for doing that. And of course our elder, Oren Lyons, who's been a friend of previous leadership at Lummi and continues to be our friend today and someone that we look up to with a great deal of respect. And that's the most important reason why we come here, to share some of our ideas with you and ask for help in some of the things that we're doing because we know that as we continue to grow, we're going to be making mistakes, and maybe you've seen something that we haven't seen.

We probably have a lot of things that we can talk about today. You know, we have the infrastructure issues that we work on, our water, our roads that requires partnerships not only within the Lummi government, but also other governments, state and local governments. We probably could talk about our casino and how we've set up the distribution of funds from our casino to the different programs, most importantly, education and to our members. But I think today we're going to talk about using financial and human resources wisely as it relates to a specific incident. That sometimes we talk about as a project and sometimes we talk about it as a program, but really, what it is, it's about the recovery of our ancestors. And what had happened four years ago is that, within our homeland, at a place called Semiahmoo, over 65 of our ancestors were disturbed, and removed, and disrespected, and located in other cities and in other homes. And it was very tragic for us to learn and understand what had happened and we had to respond with a sense of urgency to this crisis. After we got over the hurt, after we got over the anger, there was a lot of work to be done, and that work continues today. And this work is simple when we as a people follow the protocols of the old people, the work becomes simple, but it's hard when we come up against inevitable development, and talk about money and talk about politics and talk about political decisions, you know? And I think we're doing that because I think it goes right to the heart of who we are as people. When you think about it that way, when you think about standing up and fighting for the integrity of your nation and your people, then this work has to be done and those bridges have to be crossed, and we have to learn about that because at the end of the day it defines who you are. So that's why we felt that we needed to talk about Semiahmoo today as a project, but it's much much more than that.

So with that, I'd like to introduce Sharon Kinley. She's the dean for the Coast Salish Institute at Northwest Indian College, which is located on our reservation. She's also my relative, and she's also been with Semiahmoo from the beginning, for four years. We've been through three chairmen since this has occurred, and Sharon and ten other people have been there from the beginning and they're still there. And I sense that they'll be there until the work is completed. So with that, I'd like to introduce Sharon Kinley. Thank you."

Sharon Kinley:

"Good morning. My name is Sharon Kinley, I'm from the Lummi Nation. I am the director of the Coast Salish Institute, which is an institute that our new president, Cheryl Crazy Bull, has introduced to the college for the preservation and the revitalization of the Coast Salish cultures in our area that we serve. Last week -- I've done this presentation hundreds of times, but it never gets easy -- last week, I saw Darrell in the hallway and he said, ‘Gee, I'm going to Harvard to do this presentation and I decided that you should come and share what we've been doing at Semiahmoo because it really fits into the way that they lay out the honoring of nations.' And so I said, ‘Yeah sure, okay. I'll come.' And when I read the agenda on the plane over here and when I listened to you talk this morning, now I know why I'm here.

At Lummi, we have a very long history in Puget Sound, and the Georgia Basin, what is now called the Georgia Basin Watershed. We have for hundreds and hundreds of years, our old people, our [Lummi language] have fished and lived, raised their children, buried their dead, and all the areas that surround the Lummi Nation and all our neighboring tribes. And what we know about all these old villages and these old people is that where they lived, they buried their dead. One of the things that we're particularly interested in at Lummi at the college, is being able to reconstruct and to write about the history of reef netting, which is a technology that exists amongst the Coast Salish people, especially in our area, which extends across the Canadian border, and doesn't exist really, in any other culture in the world.

As many of you know, in 1855, the Lummi Nation, amongst others, entered into a treaty with, what is called the Point Elliott Treaty with the United States. As many of our elders have told us over the years that after those promises were made in the Point Elliott Treaty, the late Pateus used to say to us, '...and then they said,' to us, ‘go this is our land now.' In 1973, when I was a lot younger, the City of Blaine decided to construct a sewer plant -- not a wastewater treatment plant, but a sewer plant. And in that, the rules of development were very different, and 1973 was before a lot of the laws that have been established to protect cultural resources wherever written or certainly, ever followed. In 1997, as a result of the treatment plant, of the sewer plant, being constructed, Western Washington University, in conjunction with the University of Washington, had to come into the area and do what anthropology, what archaeology calls salvage archaeology, which is archaeology that you do ahead of the bulldozer. You're just going in to collect what you can in a very short period of time. And that report, when we read it all these years later, by Dr. Grabert, what we know is that what he collected there, he could determine was at least 3,000 years old. This site -- as it's located on the boundary exactly between the United States and Canada, in Puget Sound -- is probably the most well documented site in all of Puget Sound.

It was only in 1980, after all those years of trying to get their ancestors repatriated without any of the NAGPRA [Native American Graves Protection and Repatriation Act] laws, the Lummi were successful in doing that, brought the ancestors that were collected in the salvage archaeology home and reburied them at the Lummi cemetery. There was a lot of talk in the community by the elders at that time, because our belief is that the most important thing to do in these situations is to rebury our dead where they were originally dug up. In this case, the elders in their wisdom decided that we would rebury them at the Lummi cemetery because they just didn't think to rebury them at Semiahmoo would protect them. And they were right.

Probably over the course of this project, I personally and a lot of our staff has learned more about engineering studies, more about the permitting process in Washington State, more about NAGPRA, Section 106, and all the historic preservation laws. And what we know is that consultation with tribes takes place at the end of the permitting process, at least in Washington State. I don't know about Massachusetts, but in Washington State there's a whole phase of development that takes place that's called pre-permitting, where people, if it's your development, have spent a lot of money. They spend a lot of money on engineering studies and all kinds of things, and then they enter into the permitting process. And in that very long, complex permitting process, tribes are at the end, in consultation. By the time the developer and the city council make consultation and contact with the tribe, they'd already made up their mind that they were going to continue this project.

And in August 1999, through a very long story, we arrived out at the treatment plant only to find that what was supposed to be an expansion to the sewer facility actually was an acre excavation site that was 18 to 20 feet deep. And as you see, in the excavation site here, it was solid shell midden from the top to the bottom, which is thousands of years of habitation. It was solid shell midden from the top to the bottom. And we said that day, one of our cultural directors said that day to the people, to the construction people who were working there because they had come across a burial. And he said to them, ‘I'm so glad that I happened to show up today to be here while this burial was being disturbed.' And the guy who was kind of running the machine said to him, kind of offhandedly, ‘Oh well, that's nothing, you should have seen the 26 that we took out yesterday.' And we just froze. And so, it took us a day of people's attorneys calling other people's attorneys, our attorneys calling the sheriff, to get a stop work order in place. And as we were doing that, they continued to dig.

This is just a shot of the excavation site itself, where over 400 truckloads of fill were taken offsite to a local landfill site and deposited there. And this local landfill site, the gray area that you see, is the shell midden that came from this ancient cemetery. This is private property, probably about seven miles away from the treatment facility, and as we arrived there that day and walked that site, there were ancestral remains that were physically on the ground everywhere. And so, at that point in time, we had ourselves, the Lummi Nation, as a jurisdiction, the private property owner, the City of Blaine, the county, the developer, and USDA and Rural Development. We have multi-jurisdictions standing there looking at each other, wondering what they were going to do. And we knew right from the very beginning that we had many obstacles. Certainly externally: permitting processes, jurisdiction, unrelationships. And certainly, in those very first days, how we felt and, for the most part, when I stand here, I can still feel how we felt that day. We couldn't talk. We couldn't even talk to each other. And, internally, amongst ourselves, over many years of being affected by residential school and other federal policies, we did not agree in how to handle it. We did not agree what was the best method, what was the best road to take, in all of our diversity. And we knew we had no money. We didn't have money for cultural resource, or NAGPRA, or repatriation, or any of those things.

After long discussion with the tribal council, with our elders, with many community people, with our youth, the tribal council issued a resolution immediately that year to the city, the county, to the [unintelligible] office. And they said, 'We will recover our ancestors. We will take care of the gravediggers, our own people who are going to go out there and recover our ancestors. We will protect this site from further desecration, and we will make sure that this never happens again to anybody, not just here.' We decided, we made a conscious decision, and not all projects do, but we made a conscious decision that this was going to be a culturally driven project. And we went to the couple that you see here on the right, and we said to them, 'What's the first thing that we should do?' And they sent my daughter to Vancouver Island, in B.C., to a little tiny island off the coast, you have to take two ferries to get there, and we went to this elder that you see on your left, the late Rose James because she, at that time, was the oldest ritualist in this part of the country that has the responsibility for caring for the dead. And we went and got her and we asked her to help us, and she came, and she lived in my house for four years. And she got up every morning and she went with all the young people that we had taught to screen this material, the 400 truckloads of fill. This old woman, over 80 years old, got up every morning, faced the daylight and said prayers for us and our ancestors.

So we used to go out to this site and we used to work until noon, these old people, and after three or four months of my not being a morning person and being tired, doing this work and then going to my job, we would look at her and she just, she never faltered. And we thought, ‘Gee, if she can do this stuff, so can we.' And she used to say to us every single morning, ‘You can do this. You can do this.' And we used to look at 400 truckloads of fill and think, 'How are we ever going to do this?'

This is just a shot of some of the artifacts that we have recovered to date. We have artifacts, we have more artifacts in our possession presently than the university. We have artifacts in our collection that the archeologists in our area have never seen. The other thing that we knew that we had to do was, because this is a culturally driven project, we decided that the people that were going to do the work, was us. We were going to do the work. And after that, we went to the university and asked Dr. Campbell, who is the lead archeologist there, to send us two of her best graduate students. They had to be technically sound in archaeology, they had to have real good writing skills so that we could work out all this, all this permitting process, all the reporting that we had to do to the state because remember, Semiahmoo was not, was no longer our property. It belonged to the city and the county. And so in order to even work there we had to apply for a permit to the state to collect ancestral remains. And we told her, 'Send us your best graduate students and they're of no use to us unless they can teach. Unless they can teach us, they're no good to us.' And so we had 20 young Lummis and our elders, and these graduate students came and Dr. Campbell, and we started. And our elder used to say, ' You just get up every morning and you put one foot in front of the other.' And every morning she got up. She was over 80 when she first came. So I thought, I even thought we could do this.

The other thing that we did after a couple of years of screening material, and we are probably, in four years, we are probably not halfway done. In four years. And the other thing that we did is we decided that we had to look at this whole permitting process, we had to engage it, we had to become the most knowledgeable at it, we had to be able to interact with the county, the state, and all the other jurisdictions, and all our other neighboring tribes in a very different way than what we were used to. We created our own [unintelligible] office, we created a contract service office, which is archaeologists and our tribal people and we said to all the largest development people in the area, 'When you are going to develop within our Aboriginal territory, you come and ask us to do the survey and site work. You come and ask us first.' And we also have set up in, recently, the Repatriation Office, which is not just to respond to NAGPRA, but it's to respond to all the inadvertent discoveries that happened all the time in our territory. Last week, we handled five inadvertent discoveries in three separate counties, all affected by human remains, all cemetery or burial ground disturbances. And we developed Title 40, a code of law that we developed within the Lummi Nation that not only helps people who have been working in the surrounding counties and jurisdictions know how to work with us in these situations, but it also helped our own planning department. It helped us interact with our own land use plan, so that we could know when we were putting in a road, where not to build it.

We decided too, that -- I don't know how well you know us, because I don't travel a lot -- but we, we know how to be Lummi aggressive. What we decided was that we had to learn more about being proactive and assertive in a very different way. We realized that we had to build relationships and so we set out to do it very deliberately. We met, and we worked with the Watcomb County planning office, with the Watcomb County Council. We meet regularly and work closely with the State [unintelligible] Office. We work with San Juan County, Skagit County agencies, private industry in our local area. We also learned real quickly that we had to develop relationships with the media. We had to meet with editorial boards. We had to educate them about who we are. At Northwest Indian College, when we set out to expand our college and to build new buildings, we went out and hired a firm who went out and interviewed the county. And she came back and she met with the president and the faculty and she said, ‘Nobody knows who you are. Nobody even knows you're here.' And so, very deliberately, we then felt that we had to educate not only ourselves internally and be able to work together, but the surrounding our neighbors, and our neighbors' children.

The other thing that the tribal council did a lot anyway, but did a lot for us, was begin to work on very deliberate relationship building and agreements with all of the agencies that are doing and are affecting development in our area. USDA and rural development, we're the funders of this treatment plant. In the beginning, they had already put a couple of million dollars into this project when we said, ‘Stop.' We've also very deliberately over...yesterday, my husband met and worked on an inadvertent discovery with the Nooksack Nation in a burial disturbance that took place right on what we call the traditional boundary of both of our reserves, and so we work a lot with the neighboring tribes, both in our area, and in British Columbia.

We have learned about how to align our resources, how to use education as a tool to educate our people in archeological methods, hopefully to get them to think about going on to four-year universities, at least get them into Northwest Indian College, where we can give them basic skills and a really good two-year degree. And we have learned, I have personally learned more about the legislative process than I ever thought I would have to know. We knew every senator, every chief of staff, every secretary, we knew everybody. And we knew when to call them. We also knew that it costs a lot of money, and in the beginning we didn't have any, and so the tribal council made a very, a very difficult decision. It put $200,000 into this project in the very beginning. It was a very difficult decision, internally because one of our core values is to protect the graves of our ancestors, but we also need money for youth treatment and intervention, for the education of our children, for health care, and they were very difficult decisions that the tribal council had to make.

The last thing that we're going to show you that we worked on is...one of the things that we've done at Northwest Indian College, well two of the things that we're doing, is that we are utilizing the technology of GIS mapping, where we are actually teaching our young children the technology of GIS mapping. And I can't even articulate it to you because I don't understand it. And all of my kids are computer literate, but we are teaching them to actually map in the cultural resources. We've had long conversations internally about this, because the elders are very uncomfortable with it. And at this point, we're actually doing the work, but we haven't made those decisions about who we share it with other than ourselves. The other thing that we did was that we set up a whole program at the college where we would train our young people how to collect and learn their own history. And to collect the oral histories, to record the language because our elder, the late Rose, said to us the very first day that she came, 'Language is the most important thing. You have to turn to your culture for the answers.' And that's what we did. You have to turn to your culture for the strength, and that's what we did. And so we took all of these young people and we trained them in the technology of oral history, in video production...this is actually, looks like a laptop, it's actually a very expensive editing machine. And they go out and they interview the elders, they create biographical sketches that we then are turning into material for our curriculum that we are writing, on history, and at the same time, they are building relationships with their own grandparents, the people that they go and interview."

Darrell Hillaire:

"And where we go from here, well, we just settled with the archaeologist Gold and Associates. We had to take them to court via a class action suit, which meant we had to bring together the people to sign on to...would be very complicated for them to understand in legal terms, but they did it. And, as a result of that settlement, we were able to realize about $4.2 million that's going to help us continue the work. And this compensation that we receive for the people is not payment, but it's a thank you for having them standing with us; for those who are leaders in a traditional way and also for those such as myself who represent the government. We all stood together, and it's important for us to note that, if we stay true to ourselves these things can happen. And as the judge said, he said, ‘The court has never lost track of the fact that the money is the most inconsequential aspect of what we're dealing with here. This was a tragic event. It was something that never should have happened. The court recognized the fabulous job that the Lummi and its attorneys played to get recognition and acknowledgment to provide a solution to the tragedy.' He stated he believed that he hoped this work would 'prevent anything like this from happening in the future, for all tribes, not just in western Washington, but throughout the country, and even into Canada, where this case has resonated.' He commented that he hopes the Lummi feel that the American system of justice, which has let them down so many times in the past, didn't let them down this time. He stated that this result made him feel very, very good.

And I think as we went through this, I really can't even describe it as a process, but we had to have our time with a number of people, not only Gold and Associates, but the City of Blaine, the Department of Agriculture, the state historic preservation office -- all these people we had our time with -- and at the end of that time I think we had some things resolved and we came away with some friendship. And today, with the City of Blaine, their city manager, whom we fought hard with four years ago, today he was an auctioneer at an event we had for raising money for the Freedom and Liberty Bowl. He auctioned off some of our arts and crafts to the people. So that's how far we've come in this relationship, and we need to continue that. But today, you know, as Sharon said, we need to get involved with the permitting process. But I think, more importantly, we need to get involved with the planning process. And share our vision for our homeland. At Lummi, we've been invited by the City of Bellingham to join in the planning for the development of 139 acres right on the waterfront in Bellingham. To them, they'd like to see a replica of a traditional longhouse built right on that waterfront, and to us, that represents where my great grandfather lived. So some of these things can happen, but it means we have to get involved in the front end, so that's where we have to go from here. So, [Lummi language]."

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 1)

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

Ian Record:

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

Frank Ettawageshik:

"Hi."

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

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

Ian Record:

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

Frank Ettawageshik:

"Yes."

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

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

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

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

Ian Record:

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

Frank Ettawageshik:

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

Ian Record:

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

Frank Ettawageshik:

"Right."

Ian Record:

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

Frank Ettawageshik:

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

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

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

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

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

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

NNI Indigenous Leadership Fellow: Rae Nell Vaughn (Part 1)

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, discusses the critical role that justice systems play in the rebuilding of Native nations and shares how the Mississippi Band of Choctaw Indians has worked to develop its justice system to reflect and promote its culture and meeting the evolving challenges that it faces.

Resource Type
Citation

Vaughn, Rae Nell. "NNI Indigenous Leadership Fellow (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Ian Record:

"What role do tribal justice systems play in rebuilding Native nations?"

Rae Nell Vaughn:

"It's been my experience that it plays a significant role in regards to tribal government. One thing that I have found within the 11 years of my judicial experience is the fact that tribal governments as a whole have had to play a role of catch-up, fast tracked. In regards to Mississippi Choctaw, we established our constitution in 1945 at a point in time where we were living in very oppressed conditions. Of course, as you know, historically the tribe was removed to Oklahoma and we're the descendants of the members that chose to stay. No federal or state recognition at that point up until the time of recognition and the development of our constitution, and it was a building process. You had a number of leaders who would step up and were wanting to form a strong government. Of course, the justice system itself came in years later, but overall they've had to try to fast track a government in order to provide the people with services, and it was a struggle, it was a definite struggle. And of course ultimately, a justice system was developed under the BIA [Bureau of Indian Affairs], a court of regulations, a CFR [Code of Federal Regulations] court, and that had its challenges all on its own because you have the mechanisms but not the resources to provide law and order. And your reliance was on the BIA and it was a definite struggle during the early years of this system. You had a membership maybe at that time of close to 3,000 possibly.

Now going back historically, the membership dwindled down in the early 1900s to less than 1,000 because of the influenza epidemic and here we are in 2009 and have a membership of 10,000. And you talk about a flourishing economy at some point with the successes of this tribe, but you also talk about the population growth and with it coming the social ills and influences that impact a community. And so I've seen this system evolve, even prior to my interaction with it, becoming a judge. It's grown by leaps and bounds. They started off with a staff of maybe three: a tribal member judge -- when it was under the control of BIA -- and maybe one or two folks that also participated. And to this point, once...during my tenure as a judge, we were up to 32 employees. You had 11 members on the judiciary, which is so unheard of, but for me it was a signal from the government [that], 'This is important. A justice system for this government is important and we are investing in our government and in our people to provide them a fair form of justice.' Knowing where we're at, we're located in Mississippi, and the struggles that minorities have faced, Native people have faced, has always been there, an underlying issue. And so being able to have our people be in a forum that's fair for them, being judged by their peers was the most important thing. But also it was the fundamental exercise of sovereignty, operating a system, a judicial system, which not many tribes have had the ability to do and maybe not to the degree that we've been able to do it. That's not to say that there haven't been any challenges. There are, just like there are with any system, whether it's a tribal system or non-Native system, but it's a work in progress. Codes are forever changing and you have to keep your hand on...keep on the pulse of what's happening nationally because what happens nationally will ultimately affect you locally.

And so cases such as Nevada v. Hicks, issues of jurisdiction, those have far-reaching ramifications. So having a stable, consistent, and well-educated and well-trained judiciary is very important, and those are the things that I think tribal governments really have to take a look at and recognize the investment that you're making."

Ian Record:

"And I would assume that in that understanding of what's going on nationally, it's not just the judiciary that has to understand, it's elected leadership and particularly the legislators, the ones that are making those laws to say, "˜We've got to be out front on these issues so we're not stuck in a corner one day in the near future having to react defensively to something we're not prepared for.'"

Rae Nell Vaughn:

"Exactly. We have to be proactive. It hits every area of government: economic development, education, healthcare. We have to be very diligent and we have to go the extra mile in making sure that we're protecting our sovereignty and at the same time being aware of what the landscape is looking like politically. There have been times in previous [U.S. presidential] administrations where they haven't been quite so favorable to Native Americans. And we may be here at a time of renaissance where there's going to be more participation, more of us as Native people at the table speaking on our behalves, on our own behalf. As a Native person, this is where I've been, this is what we've gone through and this is what we can do and this is what we want to provide for the people, because at times Native people get lost in the shuffle of all the social programs and issues that the federal government itself is dealing with. There are some tribes that are very fortunate to have the additional revenues to provide for their tribes and some aren't. How do we all work together to make sure that each of these tribes are able to have the type of support to be able to function and exercise as a government?"

Ian Record:

"Mississippi Choctaw's court system was recognized by the Honoring Nations program at the Harvard Project in American Indian Economic Development just a few years ago. And in large part it was recognized because of its ability to exercise or to be a vehicle for sovereignty for the nation. Based on your experience in that system, in that court system, I was wondering if you could speak to this issue of strong independent court systems and what those look like, what do those systems require to be effective?"

Rae Nell Vaughn:

"That's a very good question, because it's a challenge that all tribal court systems face. And let me say that the Honoring Nations program was such an excellent exercise for us, because as a system you're in the trenches every day and you don't realize the things that you're doing have such far-reaching impact. And so when we began this process of going through the rigors of the Honoring Nations project program, I was just so amazed. "˜We're doing so much here, we're looking at alternative resources and programs, we're trying to look at things more holistically versus using the American jurisprudence of dropping the gavel and that's it,' because we recognize that within Native communities we're going to be among one another. I'm not moving anywhere, you're not moving anywhere, we're staying in this community, and it's trying to ensure that we have healthy communities and using the justice system and possibly not just going before formal court, using our peacemaker court, using teen court, using our healing-to-wellness court, are other alternatives that are available to the membership and it goes back to our own Native teaching of who we are. We were never a people -- as with other tribes -- that all we wanted to do was fight amongst one another, but of course all of this takes place based on social influences and evolution of things and prosperity. And so going back to your question, it requires due diligence among both sides of the aisle, the legislative body, the executive as well as the judiciary. And it's a really hard balance because I'm a member of the community, I have children who attend the schools, I'm a voting member, I see people at the post office or at the grocery store, I attend ceremonies, I'm involved just as all the other judges are; simply because we put on a robe during the day doesn't mean that that robe ever really comes off, but we also have to be able to be participatory in our communities. And it is, it's a hard balance, even with your legislative body because we all know each other, we've all grown up with one another possibly or they've seen you grow up and know your mother and there's this tendency of picking up the phone and saying, "˜Hey, what's going on and do you know da da da da da?' And it is, it's a really hard balance because of the close ties and the close knitness of the community and it's that community mentality that you have. But we work diligently to ensure that the people recognize that this is a very independent justice system. Now granted, in the case of Mississippi Choctaw, we're a two-branch government. The court system is developed by statute and is controlled, maybe that's not a good word, but is under the oversight of the tribal council as well as the executive. There've been times where it's been challenging because you wear two hats. Not only are you a member of the judiciary, but you have to be an advocate for the system, and so there's that give and take, development of codes. How can I not be somewhat participatory in the development when I'm the one who uses that code in order to...we're creating law basically, and there are several instances where it's almost a gray area that you enter, but knowing what the spirit of the law is and where we are as a judiciary and what we're trying to accomplish I think speaks volumes because the people see the separation. And it's something that you have to work at every day. You just, you have to."

Ian Record:

"So in your role as advocate for the system in strengthening the system, do you find yourself compelled at certain points to say to the legislature, "˜Look, there's...I'm dealing with these...this area of jurisprudence, these types of cases are becoming more prevalent. There's nothing on the books that tells me how to interpret these cases. It's up to you to get out in front of this,' as you mentioned, "˜and develop law that I can then enforce in the court system?'"

Rae Nell Vaughn:

"Exactly. One case in point is the Tribal Notice Act and that's very important, especially if you have two parties coming in and there's an issue that could possibly have a detrimental impact on the tribe, maybe possibly in regards to jurisdiction. And the tribe needs to know; the tribe needs to be noticed. And so we worked towards getting that on the books and we were successful. And it's a mechanism or a code that's been used a number of times. And so things of that sort, because you recognize or the people recognize the legislative body and executive body, they're dealing with so many different issues from economic development, healthcare, education, housing. There's not one person or one area that they're focusing in on. So I would not be doing my duty if I didn't bring things to their attention that I think could provide betterment for the system and also protecting the people as well."

Ian Record:

"So you're also, in addition to your experience, your 11 years as you mention serving on the Choctaw judiciary, you've since...you left that, your tenure with the judiciary, and you've been working to evaluate other tribal court systems. And I was wondering if you could speak to this issue. We discussed this recently about some tribes, some tribal leadership not really treating the judicial function of their nation as an independent...as an independent function, as a true arm of the government, whether you want to call it a 'branch' or what have you, but rather treating it as a program. And we hear this a lot from particularly tribal judges who lament that fact that, "˜We're just considered another program.' I was wondering if you could speak to that issue and what you're seeing on the ground."

Rae Nell Vaughn:

"Oh, yeah. And it's not so much with the work that I'm doing, but additionally with my participation with the national organization, the judges association, as well as my own experiences with Mississippi Choctaw. There's the thinking that tribal court systems are more situated or in the organizational things as a program, and either we fund you or we don't or...there's not that understanding of the importance of justice systems and how in regards to economic development, justice systems are key. And a lot...I've heard so many war stories about how we are treated as -- I hate to use the term -- as stepchildren. We get the hand-me-down equipment, we get the little bits of whatever is additional that we can get in our budget, but what I found throughout my work and my experiences with the judiciary is the fact that there are so many good people out there in Indian Country, members of their own tribe who want to provide a forum, a fair forum for their people and they work diligently with what resources they have. Now if it was a perfect world and we were able to get all that we want, that would be ideal, but it's not and a number of tribes who don't have the additional resources struggle, and for some of these tribes it's a really challenging thing because you're also not only at the mercy of the government, but at the community as well and there...if you don't feel that support from your government, then obviously the community's not going to support you as well and those are some key things that have to happen is to have that support. 'Now you and I may argue here, but when we step out as a judiciary and as a government, we need to be unified, because each of us as a legislative body and as an executive body and whether we're a judicial branch or a statutory court, we still have to work and maintain as a stable government,' because if your leadership is bad mouthing your judicial system, what does that say of the leadership?"

Ian Record:

"What does that say to the outside world?"

Rae Nell Vaughn:

"Exactly."

Ian Record:

"So this issue of treatment by the leadership, by the community of the justice system as a program versus something more, among those tribes that tend to treat them as the latter -- just as a program -- aren't they missing the boat essentially on the importance of justice systems as a vehicle for not only advancing sovereignty, but also creating viable economies on the reservations and pretty much all around?"

Rae Nell Vaughn:

"Exactly, because a lender who is thinking about doing business with the tribe is going to ask, "˜I need to know about your court system. I need to know where litigation is going to take place,' and if they can't see a system that is stable and consistent, you're possibly missing an opportunity to bring strong economic development to your area and that's key. I think a lot that has to happen is education. Now again, I go back -- I recognize there's so much that tribal government has to do. They're overloaded, they're understaffed in some instances, and they're trying to do the best they can do, but at the end of the day it's important to make sure that each of your areas of government are strong and are working together and that's where your checks and balances are. It's basic civics."

Ian Record:

"One other issue we discussed recently was this issue of...this treatment of tribal justice systems as nothing more than programs may emanate in part from this sense of, "˜Well, that's where the bad things happen.'"

Rae Nell Vaughn:

"Oh, yes."

Ian Record:

"...That's where, kind of the social ills bubble up, that's where the kind of the underbelly of the community, the negative parts. "˜We don't want to deal with that. It's too painful,' or 'We don't...we're at a loss as to how to resolve these issues.' How do you get beyond that mentality? How do you get to a point where -- as you've told me -- where the people, the community, that the leadership will treat the justice system as a vehicle for not only restoring, as you say restoring health to the community, but also as a way to, for instance, teach the values of the people to say, "˜This is how we operate, this is how we resolve disputes.'"

Rae Nell Vaughn:

"One of the bad things or the negative side of the judicial system is the fact that a lot of things happen in the well of that court and at the end of it all, "˜It's the court,' "˜It's the court's fault,' or whatever it may be because it's surfaced, it has bubbled up as you said, it's surfaced and there it is black and white, right there in the well of that court. And ultimately it's the judge and their discretion as how they rule or decide or what it is that they end up doing for that particular case, whether it be a habitual offender, whether it be a family in need, a juvenile delinquent, a vulnerable adult. All of the social ills of your community hits right there and it is challenging more so again for your legislative body and your executive because what do they do, what can they do? We've developed so many different social programs, but we're not going to cure every ill, and unfortunately a lot of those things surface through court. And as I shared with you earlier, that's why we were looking at, in regards to Mississippi Choctaw, of other alternatives. We recognize these are social illnesses. This is not working, going through formal court. Something has to happen and it also has to happen not only with the individual, but with the family: accountability, responsibility, bringing in the people who matter the most to you and who you value, who are your mentors or your grandparents, your minister, your family to sit down and talk with you, help you in a peacemaking-type situation, a circle of sorts. Healing to Wellness [Court] is set up in that very same way, that we have there at Choctaw where the offender comes in, meets with a group of multi-disciplinary team and there's a check, there's this constant check, and we've had so many success stories come through there. Is it 100 percent? No, it's not, and it probably will never be, but there is an alternative, and with the one case that you have a success in, [it] ripples out to the family, to the community, to the nation in regards to the offenses, health issues that may have come from it, all the different things. And that success just can only breed more success because if you have this individual whose gone through this process, you see the community, see that individual being successful and others who are coming before the court say, "˜I want to try that because I'm ready to make that change,' then there's that vehicle."

Ian Record:

"So I would assume under the CFR system, there's no way that you guys could have developed these restorative functions."

Rae Nell Vaughn:

"There is no way, no."

Ian Record:

"So essentially by developing your own court system, by taking ownership of that critical function, you provided yourself the freedom to say, "˜What's going to benefit our community in the long run? What's the best way of doing things, because the status quo is simply not working.'"

Rae Nell Vaughn:

"No, it's not working and it doesn't work in Indian Country. And what may work for Choctaw, what may work for the tribes in the east may not work for tribes in the southwest or in the west or in the northwest or in the midwest or northeast. It works for us and looking at the different models you can see things that will work. There's this term I use, "˜Choctaw-izing it' -- making it your own, bringing in Choctaw values, culture, customary law into this model and it works, and it works, and the people understand it. That's the thing, the people say, "˜Hmmmm, yes, I know what you're talking about.'"

Ian Record:

"So can you give me just a...you mentioned this term 'Choctaw-izing' it. Can you give me one example, maybe one case of how the court system applied a core value of the Choctaw people to essentially try to bring that restoration to the community?"

Rae Nell Vaughn:

"As I shared with you earlier, we have a teen court process and in that process the individual, the juvenile delinquent goes through the formal youth court system. Teen court is more of a sentencing type court, but the uniqueness of it is they are judged, are sentenced by their peers, other teenagers in the community. We had a particular instance where there was this child who of course offended, committed a crime against the tribe, was found delinquent. The case wasn't or the offense wasn't to the level of the judge issuing the sentence so he transferred it to teen court and it went through the process, but the uniqueness is -- and this is where the cultural aspect came in -- is we had the judge bring the mother and the grandmother and auntie because we are a matrilineal society. And before the sentence was rendered by the peers, by the jury, the women stood up and they talked and they talked with both sides of the parties who were there -- because this was a boyfriend-girlfriend, teenager-type thing -- and how it was important to respect your family, respect your parents, to listen, and if that wasn't the most empowering thing along with their peers giving them the sentencing, I don't know what would be. It was so powerful and moving. And let me tell you, people sat up and took notice and you gave respect, you listened. And that's one instance where that...we were able to have that and that was just such a learning tool for our young people to sit there and go through that and to listen. Even though they weren't the offenders, but they knew exactly, they knew exactly. It was almost like a reawakening. "˜I know this, but we don't do it all the time,' and like, "˜Whoa!'"

Ian Record:

"So in that instance, the court was not even an intermediary between the community, the culture, and the issue at hand. They were actually just a mechanism for connecting those two."

Rae Nell Vaughn:

"Facilitating just basically, just putting those people and things together. And it's...one thing of...and when I first entered the court system I served as a youth court judge. And the one thing I would tell our kids, when they'd come before the bench and with that attitude, being rebellious, and "˜You can't tell me what to do,' is, "˜The offense you've committed, you think maybe committed against this particular individual or this particular family or to the school, vandalism, whatever.' I said, "˜But you're not hurting those particular individuals, you're hurting the tribe, and in essence you're hurting yourself. So what has to happen here is you have to make this right and you're making it right at the end of the day for yourself.' And for some kids it didn't click, of course being rebellious and angry and everything, but for some it did. They understood. And again, you never really had a lot of successes. You had some successes and statistically Native American Country and as well as in dominant society you knew that there were higher chances of your young people moving into the adult system, but we tried very hard and that's why we were looking at all these other alternatives. Many Native communities have such small memberships, and so when you have a lot of delinquency going on, number-wise it may not appear to be a lot, but there on the ground it's epidemic and that's one of the things governments need to recognize and why it's such an important thing to make sure that you're supporting and investing in all of these types of things that keep your system, your justice system strong, consistent and stable."

Ian Record:

"So what do you see as the major challenges facing tribal jurisdiction today?"

Rae Nell Vaughn:

"Oh, my goodness. That's something that tribes are facing all the time and it's amazing to me how we do have the jurisdiction that we do have. There have been challenges locally, and as I'm trying to think back here, we've had a number of cases that we've dealt with ourselves at Mississippi Choctaw where you have a civil matter that came before the court and they were running concurrently with the circuit court, the federal court. And it was an issue concerning a, it wasn't a loan company, a bank, it was a bank and a big problem with a salesperson going into the community and of the lender reneging of sorts -- just a really basic background of that case. And tribal members who had signed up for this service, which I believe was a satellite case, then did a class action against the lender. The party then went to the federal court, the federal court in turn sent the case back telling the parties that, "˜You have to exhaust tribal jurisdiction before you can even attempt to make it here,' which I think said a lot for not only our tribe, but for tribes in Indian Country to have a federal court say, "˜You have to exhaust all remedies before you even make it here.' Now you and I both know that that's not commonplace and I think that sent a very, very big message. Why would that have ever been decided? I think a lot of it had to do with the court itself because it was a functional court, it is a functional court, renders opinions, clear decisions and it's consistent. And I think that had a lot to do with why we were able or the federal court made the decision it made.

Now Indian Country, tribes in Indian Country are constantly faced with issues of jurisdictions and I can't speak so much for these other tribes, but just from the readings I've seen and in the issues that I've heard about, it's constant. For example, I know that there was a tribe in California that had the state come in wanting to look at employment records. If that wasn't a clear crossing of the line, a failure of respect of another sovereign, I don't know what is and that's clearly overstepping jurisdictional lines. But those types of things happen and that's where you really have to, as a government, make sure that you have the type of legal representation for yourself to protect you as a tribe because you have it coming from every angle, from every area of wanting to chip away at what jurisdiction you do have. It's bad enough that we don't have criminal jurisdiction over non-Indians and as a gaming tribe there's a lot of issues that we have to deal with and we're at the mercy of the county or we're at the mercy of the federal government and its system. It makes no sense to me. Logically, we know when, I know when I cross the boundary and I go into Philadelphia, if I commit a crime, I'm going to be dealt with in Philadelphia court. It's a no-brainer. And this is an issue that's been talked about time and time again. I know I'm not going to change it, but I'm going to give you my two cents. It sucks, it's not productive and there are people who agree. There are people on the outside who do agree that you should have the ability to incarcerate, to judge any individual who commits a crime, an offense against the tribe or this jurisdiction. And we don't have that ability. And then you have the civil jurisdiction, which is always being tested and it's just so important that when we have issues that come up through tribal court systems that as a judiciary you're giving well-thought-out opinions and it's iron-clad so that you can't...it won't be unraveled and then there you go, you've lost more jurisdiction."

Ian Record:

"And it's not just making the decisions, it's actually documenting those decisions and having those ready in an accessible fashion, and that's where it's important to build the system of justice not just have judges making decisions."

Rae Nell Vaughn:

"Yes, exactly. You're exactly right because you have a lot of these systems that are in varying degrees of development and I am a big believer of having tribal members sitting on the court. Unfortunately, you don't have enough people who come to the court, come to the bench with a legal background. I'm not law trained. And so it's challenging and it's a struggle. Fortunately, our tribe made investments of having individuals on the bench with the juris doctorate providing us with legal technical consultation so that we're not standing there twisting in the wind, "˜Well, what do we do?' And so we're able to have this body of law, opinions that come from this court, that are guiding tools for not only us as a tribe, but also for other tribes should they wish to use it. I know that there are different companies or organizations who collect all of these opinions across Indian Country, which is good so that there is a body of law for other tribes to go in and take a look at and look at precedent and things of that sort. And we need more of that, but what we also need to do is be able to reach out and get this information to people. As I said earlier, you have a number of people whose systems are at varying degrees, tribes whose systems are at varying degrees and there are times where I think we do a disservice. Again, I am a big proponent for having tribal members on the bench, but you also have to be able to have someone there who is knowledgeable and can understand law, the analysis, the logic and to be able to generate really good opinions and good decisions. Are we right all the time? No, not necessarily, even those who have the jurisprudence isn't right all the time, but it's based on interpretation."

Ian Record:

"So it's really important then for tribes to invest in capacity in not only of people...tribal members who eventually will be judges, but also those clerks and other people in law enforcement."

Rae Nell Vaughn:

"Because let me tell you, those clerks are down on the ground doing all the work and there have been instances where I have seen they have ultimately become judges and they come in with all the knowledge of working every facet of that system in the sense of dealing with attorneys, looking at orders. It's amazing to me. Some of these clerks that I've talked with in my travels would say, "˜Yeah, I knew that wasn't what needed to happen.' It's just amazing the knowledge, the experience they gain and I have seen many instances where some of these clerks did step up or were appointed to serve as a judge and made excellent judges because they had the hands-on training and going through the process of the documentation, the order development and things of that sort. So it's key, it's very key in regards to having strong judges training and education."

Ian Record:

"So backing up a bit to what you were discussing a few minutes ago and this issue of...essentially, what you were talking about was transparency and jurisprudence, that it's not enough just to make decisions. You have to make sure that those decisions are clear, that they're open to not only the citizens of the nation, but to the outside world and that they're understandable and that they're accessible. Is that what Mississippi Choctaw has done? Is that what you're seeing other tribes starting to do? Are more nations really beginning to understand the importance of transparency in jurisprudence?"

Rae Nell Vaughn:

"For Mississippi Choctaw, yes, it's something that we strive for; it's not cloak and dagger, it's no big secret. Whatever decision is rendered and the opinion is generated, we had a procedure where we informed all arms of government, especially if it was something that was very critical, maybe a jurisdictional issue, something that would affect the tribe. They received notice, they received a copy of the opinion, and then in general opinions that were generated from the Supreme Court, that's 101. You need to get them to see this and also there may be messages in these opinions that say, "˜Look, this is how we ruled, but if we don't make changes to the body of the law that we have, we're going to hit this time and time again. You might want to think about it, but we're not telling you...we're not changing the law, we're not going to change this piece of legislation, but we want you to think about it.' And so it is, transparency is important. Again, going back to the issue of where tribal courts are and the varying degrees they are, those more established courts such as Navajo Nation have a large body of opinions and a body of law there that you can...I tap into it. I've tapped into that as well as Eastern Band of Cherokee -- your bigger, more established systems. And so you have that transparency there, but again it goes back to where the systems are in development."

Ian Record:

"I want to switch gears a little bit and talk about an ever-present dynamic in tribal jurisprudence and that is tribal politics and there's a reason why you're laughing. I assume you know exactly what I'm talking about."

Rae Nell Vaughn:

"It's the bullseye right there."

Ian Record:

"But I wanted to get your sense of what you've seen in terms of the impacts of political interference in tribal jurisprudence and dispute resolution and essentially how far-reaching those things can be."

Rae Nell Vaughn:

"There are many tribes that face this very question of political interference. And it's a hard line to walk, it really is. I think a lot of it has to do with who you are as a person and your integrity and what you yourself are willing to allow and not allow. And at the end of the day, just like I tell my children, "˜If it's an issue that you're really passionate about and you know this is what you need to do, sometimes you're standing by yourself,' and as judges that's ultimately what we end up doing is end up there standing by ourselves and telling whomever it may be, "˜No, you cannot cross this line.' Are there ramifications for those choices? Yes, in some instances there are. And that's unfortunate because of the messages that it sends not only to your community, but -- again as we talked about earlier -- to the outside world. If an individual makes a decision and in the eyes of the government it's perceived as a bad decision and it possibly wasn't in favor of what they wanted and they make sweeping change, who is going to want to step up and serve if there's the possibility of failing to comply or abide by what they're wanting. When you step up and become a judge, all of what you may have supported or your political views all fall by the wayside. Your primary concern is the interpretation of law, dealing with that case that's before you, that's it -- not what the politics are because they cannot be influential, they cannot be influential to what you're doing because if that's the case, then why have a court? Why not let the tribal council run the court? They want to, I know they do, but it's again checks and balances and the maintaining of independence. And I see it time and time again. I've heard so many war stories."

Ian Record:

"Yeah, we see some tribes that still have, particularly with those tribes that have Indian Reorganization Act systems of government where the standard constitution said, "˜The council can create a court system as it sees fit,' essentially and..."

Rae Nell Vaughn:

"Oh, in our code it does state that. It says, "˜If funds are available,' and I thought, "˜Well, what does this mean?' But for the time that that code was developed, that's again going back to, "˜Well, is this is a system or is this a program?' It's clear even in our general provisions, "˜If funds are available, we will operate this court.'"

Ian Record:

"Yeah, some of those IRA [Indian Reorganization Act] systems you still see to this day where the root of appeal of a tribal court decision is back to the council."

Rae Nell Vaughn:

"And we do have that in Choctaw in some instances. Example, if there's an election challenge the court has no...there's no venue in our area. It goes directly to the tribal council once it goes through the election committee. And there is a valid challenge then it's ultimately the tribal council which makes the decision whether to say, "˜Yes, this is a void election or no, it's not.'"

Ian Record:

"You mentioned a few minutes back the messages that are...the very clear messages that are sent when there is political interference and tribal jurisprudence and I was wondering if you'd maybe perhaps talk about that a little bit more specifically because you mentioned messages not only to the community but to the outside world. What kind of messages do those send when you do see that political interference? And perhaps how does that impact the tribe in the long run?"

Rae Nell Vaughn:

"Oh, yes. It does not put tribal government in a very good light when you have that type of interference. Sometimes it comes across as being more of a dictatorship versus a democracy. It really makes greater society doubt in the ability of that government of being able to provide for the people true leadership. And I know as a sovereign nation there have been other tribes and this is just from my travels and visiting with other jurisdictions and sharing war stories. We are under such a microscope, not only the judicial system, but the overall tribal government in Indian Country. We are constantly being held at an even higher standard. Yes, we need to be at a high standard, yes, but it appears when there's just a small hiccup or a small misstep it's magnified 100 times. "˜Well, you see, that's why we don't deal with that tribe,' for whatever reason it may be and it could be miniscule, but for the outside world it's like waiting. They're lying in wait for you to trip and fall. Choctaw itself has had its ups and downs. There's not a tribe that hasn't. We've seen successes, we've seen challenges, but we continue to persevere because of our membership. We're not going anywhere. At one point we were the third top employer of the State of Mississippi providing economic development, providing income for this state and that speaks volumes. Now we're dealing with the issues of the economy, the national economy and the effects that it's having on our tribe and we're having to act and react to those things and it's not been favorable, but we also have to be sustainable for our people and there are hard decisions that we have to make and we've made those decisions, rightly or wrongly, whatever may be perceived on the outside world, as a sovereign we have to maintain for the people."

Ian Record:

"You mentioned this issue of outsiders are looking very closely at what tribes do and in many respects they're waiting for tribes to mess up and using it as an excuse to say, "˜Okay, either we don't want to deal with them or they shouldn't have sovereignty,' whatever it might be. And I think that's really where court systems are critical because in many respects they're the most tangible connection, the most visible reflection of what tribes are doing and what tribe's abilities are, what their capacity is, how they make decisions. Is that something you've experienced at Choctaw?"

Rae Nell Vaughn:

"Yes, very much so, very much so. We've been fortunate. Legal communities -- whether it's on the reservation or off reservation -- are small and word of mouth is very powerful. People know what's going on, whether they're on the reservation or not, they know what's going on and it's really key on how you bring these people in and how you...and also educating, educating them about what we are and who we are as a sovereign nation. One of the things that we provide as a system is a form of a bar meeting and providing them training, bringing to them things that are happening on the national level, educating them, and that's key -- going out and educating. And that's a lot of what I did as well during my time with the court. I've gone to Harvard, to Southern, to University of Southern Mississippi, to the University of Mississippi Law School, to Mississippi State [University], to a lot of the local universities within the state to talk about this very system. And they're so amazed at one, we're not just this casino that they see talked about on TV. Secondly, that there is a functional government, but what they're also very surprised at going back to what we've talked about earlier is the fact that there is no jurisdiction over non-Indians and that's always been the big, "˜Ah ha. Are you kidding me? How can that be if we're in this country of the land of the free and our constitution, our U.S. Constitution,' but that's what the cards we're dealt with. And that's how fragile these systems and governments are because I'm sure if the federal government wants to, and again looking at how governments are exercising their sovereignty or lack there of, they would be more than willing to come in there. It just says that we have to provide you with health and education, but it doesn't really say to what degree so I can...you'll take what I give you and that's where as sovereign nations we really have to be diligent about our exercise of government and of our sovereignty. We have to be. I know I sound like this...I sound like this caped crusader, "˜We've got to be. Somebody has to be at the gate and it's going to be me,' but there needs...there really needs to be more development of people who understand public service of giving back to the people and we've got to cultivate that."

Ian Record:

"So you've made references to the incredible growth of the Mississippi Choctaw's economy over the past several decades and I'll ask you a very blunt question. Could Mississippi Choctaw when it comes to economic development be where it is today if they, for instance had what's often referred to as a 'kangaroo court'?"

Rae Nell Vaughn:

"The short answer, no, I don't believe they could be. This system was and is, continues to be an evolving system and I think with the right leadership it was determined that there are certain things we're going to have to put in place in order to be successful and strengthening the court system was one of them. This system was taken into management of the tribe in 1985 and was operating with a very skeletal group of people and then they expanded the service. And then in 1997 there was another reorganization where they developed very distinct divisions of court. This would give the system the capacity to handle all civil matters. We had well over 1,000 people working for the tribe in the hospitality portion of it and of the industrial arm of it. The majority of these people were non-Indian. Where are civil actions going to take place? In our court if they're working for this tribe. You also had, once gaming came into play and tribal members were receiving per capita, a rush of people wanting to enroll and so our enrollment jumped by leaps and bounds from 3,000 to 4,000 to almost 10,000. And so you had to have the ability to handle all the issues that come with the economic growth and the court system and law enforcement are the people that deal with a lot of the day to day issues that come with that prosperity."

Ian Record:

"So in many ways the court system is the primary vehicle for managing growth for tribes."

Rae Nell Vaughn:

"I would say so. People may disagree but I would say so."

Ian Record:

"So I wanted to ask you a bit more about this issue of justice systems and how they maintain stability in law and order and how does that... how does the justice system at Choctaw provide that for the people?"

Rae Nell Vaughn:

"Well, we've been fortunate that the tribe has taken over, like I said earlier, management of the law enforcement division. It's now the Department of Public Services, as well as the court system itself. The tribe itself has also contributed to our legal community and I include law enforcement in that and detention as well by providing legal counsel for the tribe. We have an attorney general's office that's set up as well as a legal defense, which is the equivalent of legal aid for individual tribal members and so we have a pretty diverse legal community there. This provides for the community, for the people the ability to be represented within our system, but not only within our system, should there be issues that occur off reservation they have the ability to use legal defense to represent them as well in issues such as maybe child support type issues if it's a non-Indian and Choctaw union and the marriage dissolved and there are challenges and things may end up taking place off reservation for whatever reason. Also, the ability if they need counsel in federal cases as well because you know as well as I do that there's always challenges there where the level of adequacy of representation at the federal level. We've seen time and time again where Native people have just not had proper representation, which also dovetails into the additional work that I do as a commissioner for the Mississippi Access for Justice, ensuring that all people have the ability to have legal representation for their issues. But for the people, just knowing that there's law enforcement, there's a police officer there who is not out there on his own. There's a strong department and when I call I know they'll be here not in three hours, maybe within 30 minutes or 15 minutes depending on the location because we are managing our own law enforcement. What does that say for the greater communities? We're able to assist them as cross-deputized officers, peace officers, to assist them with whatever issues may be taking place. Again, going back to jurisdictional issues, there's always, "˜Well, where are we? Are we on Choctaw land or are we on county land? Where are we?' And so it's a tough call at times. Sometimes somebody has to pull the map out and say, "˜Yeah, well, here's the line.' And so it speaks volumes as to partnerships that have to be developed and strengthened to show stability, for them to see the stability of this system. And it spills over even into the court. We had an instance where there was an issue off reservation with two tribal members being dealt with in the county court and the court was familiar with our peacemaking, Itti Kana Ikbi, court, our traditional form of court. And he called up our peacemaker and said, "˜Look, I have this issue here. I think that it should be better resolved...it could be better resolved with you and peacemaking.' That is unheard of for a county court to turn its jurisdiction over to a tribal court. Even I was taken aback. But societies are changing and there are times of tension in race relations, yes, we recognize that. And to see something like that happen only proves more to me that we as a people, not only tribal members, but as people are changing and recognizing that we are just as capable as our counterparts are and that also signals stability."

Ian Record:

"I think in that particular instance, part of to me is them probably saying, that county court judge saying, "˜Hey, those guys do things, they do it right, they... yes, they have their own systems, their own principles that they administer justice on, but they do it consistently, they do it fairly and I have confidence in turning this over knowing that they'll resolve this dispute in a good way.'"

Rae Nell Vaughn:

"That's exactly right. That's exactly right. And so that generated even more conversation and we have a very good rapport with the county courts and so there have been times where other issues, other instances have taken place, but that was just the turning point. And to be quite honest, I never would have thought I would have seen things like that happen in my lifetime. There's always been this sense of separation and I'm sure it is with other Indian tribes. "˜You're the Indian tribe, you're over there. Here we are metropolitan society. You do your own thing and we'll do our own,' but we're all members of the community, of our communities, and it's being able to interact with one another and working for the greater good of the entire people because don't forget, it's the people who are living outside that are probably working for the tribes on the reservation. So there has to be, whether they like it or not, there has to be a relationship."

Ian Record:

"Yeah, we hear this more and more often, this refrain from tribal leaders of, Native nations aren't islands and they can't act like there are. They can't exercise their sovereignty in isolation, that for them to advance their strategic priorities they're going to have to, of their own volition, build these working relationships with other sovereigns, with other jurisdictions, with other governments, with other municipalities in order to advance their priorities and create a better community."

Rae Nell Vaughn:

"Exactly, and I think that's what has been the successes of what has created an environment of success for our tribe, for Mississippi Choctaw, has been those relationships whether it's local, state or federal, having those relationships not only within your executive branches and legislative branches, but also within your judiciary. Maybe I was in the judiciary the fifth year of my tenure and I had the opportunity, and it was such a very moving moment, when I had the Chief Justice of the State of Mississippi and his associate justice come down. He came down to Choctaw and sat down and had a conversation with me, the Chief Justice of Choctaw Supreme Court, his counterpart to talk about, "˜How can we help one another?' And that's something that is...I couldn't even imagine that happening. And I shared with him... and we got to know one another and we've become good friends and I said, "˜It had to do with the people and the timing.' Everything just came and lined up and it worked. And so we were able...and we have and we've continued that relationship even with the new Chief Justice, that there continues to be and as well as my new counterpart, there continues to be this continuation of the relationship and it has to be. And it's good that it's now recognized."

Ian Record:

"A couple more questions here. This issue of...getting back to the issue of when you have a justice system creating this environment of stability, of law and order, of certainty, of essentially offering a fair forum for the resolution of disputes where people feel that, "˜If I need to go have a case heard, whether I'm an offender or the one that's the victim in this case, that it will be resolved or adjudicated based on the merits of that case.' Doesn't that send a pretty powerful message to not just those outside investors, but also to your own people that, "˜Hey, this is a place where I can come or I can remain and invest my time, invest my resources, invest my skills, my ideas and the future of the nation.'"

Rae Nell Vaughn:

"One thing that I know people struggle with is understanding the system and once you enter in and begin going through all the different processes, they then realize how difficult it is to go through the court system per se. And it may have been designed specifically for that, because you certainly don't want frivolous actions coming before the court. You certainly don't want a manipulation of the system and so it's holding all parties accountable. And the messages that it sends to the people, I would hope, and that was always our hope, was that, "˜You will receive fairness here when you walk through these doors. You will see an individual there who is going to render justice, whether it's on your behalf or not, whether it's for you or it's not.' Of course when the person fails to get the decision they want, you have that as well. But I know that in my dealings with the legislative body, they recognize it as well and at times you have to let the community member vent. They're also your constituents and so you've got to let them vent, but also talking them through, "˜Well, this is what it is but you also have the ability to appeal,' which is the beauty of it all. There is still another forum to go to if you're dissatisfied and if it's a true error of law, then you do have another venue to go to. In some instances, most tribes don't have that luxury."

Ian Record:

"Several years ago we were talking with Norma Gourneau, she was...at the time she was the vice chair at Northern Cheyenne, and they were dealing with this issue of...the court judges were just getting steamrolled by councilors every time...they were having a big issue for instance with automobile repossessions by off reservation dealerships and these off reservation dealerships would get a default on a car loan, they'd come on the reservation to get the repo order enforced so they could actually come on the reservation and pick up the car. The tribal member who was in default would go to a council member and say, "˜Oh, I need my car.' The council member would lean on the judge, the judge would rule on the tribe's behalf. Before long nobody's selling cars to tribal members. And so what she said was they put a fix in there. They did a constitutional reform, they insulated the court from political interference and she said, "˜What I found was I had a lot more...I found myself empowered because I wasn't dealing with those issues anymore. I could now...I wasn't putting out those fires of having to interfere in the court system so now I could focus on what was really important for the tribe, which was where are we headed, where are we going and how do we get there?' Is that...do you see that as an important dynamic to have when the court system is insulated from that essentially liberates elected leaders to focus on those things?"

Rae Nell Vaughn:

"I wish there was more of a way to make that happen for all of us because we all deal with those...again, it goes back to what we talked about earlier -- political interference -- and again it's up to you as an individual of your integrity whether you allow it or not. Yes, they can be pretty quick to apply pressure on you. Yes, we've dealt with those types of things. It was always astonishing to me when a vendor would call and say, "˜Well, this is happening and I'm not getting service, I'm not getting the court system to react quickly enough.' And our council would be so quick to step up for those vendors and I'm like, "˜You have to allow the process to take its paces. It has to go through its paces. You can't speed anything up for anyone in particular. It doesn't matter, it just does not matter.' But yes, we have experienced in the past where because you had a number of tribal members defaulting on a lot of things, businesses begin then questioning, "˜Well, do I really want to do business with a Choctaw?' Not so much about the judicial process itself, but if I'm not going to be getting my money back or if I'm not going to get paid for whatever service I render, is it worth my time? Which is a much bigger question, but going back to insulating yourself, we as a judiciary, as many judiciaries, have canons of ethics and it depends on what those things mean to you. The legislative body as well as the executive body, unfortunately in our instance, don't have canons of ethics and...but those are to me things that are internal. You should have those types of ethics. You should know that it's not proper to go to the judge to say, "˜Change your decision.' It's not proper. You would feel...if there were clear lines of language that said, "˜No, you cannot approach the court,' then the atmosphere would be different. The atmosphere would be very different. Yes, there are tensions, there are questions, "˜Well, what's going to happen with the impact of this decision I've made? How is that going to affect possibly my appointment? Will I still be here in four years?' But if there were that...if there was the ability to have that happen where language could be developed and there were clear separations, you would be able to be in a position to judge more effectively without the fear of repercussion. You would. It's bad enough you have a lot of other things that you have weighing on you as a judge, to have that extra layer put on you and the sad thing is it's your own people, these legislative members are also your members, members of your community and of your tribe. I've heard one councilman tell me...he told me once, there was a case that was being dealt with and he was insistent on trying to get involved, to come in. And I said, "˜It's clear in the code, you can't stand as an advocate. It's clear in the code that you cannot post bond for this...bail for this individual.' And he would tell me real quick, "˜Well, out in this county I'm able to call the judge and da da da da da.' And I said, "˜Well, you know what, that's that court system, not here.' Needless to say, he wasn't my friend anymore, but that's the whole point of it. It's where your integrity lies and you have to. But again, it's also educating, educating the legislative body because of the evolution, the changes of a justice system, what justice systems mean, fairness and that, "˜No, you can't go and ex parte the judge.' It's about fairness and not so much about control. And that's the problem, it is an issue of control."

Ian Record:

"So the tribal code for Choctaw prohibits elected officials from, I guess, involving themselves in court cases in certain respects."

Rae Nell Vaughn:

"Yes, that's correct. If I as a tribal member would ask a councilman to come in to serve as an advocate or a speaker on their behalf of sorts, it's not allowed. They're not allowed to post bail or bond for anyone. It's right there in black and white, but they still continue to try to do that. I've always told my staff, the judges, when we look at the canons of ethics, "˜It's there to protect you so use it,' tell them that this is what the canons of ethics tell us in regards to appearance of impropriety, of political influence and things of that sort. That's what it's there for. And it's a struggle, it is a struggle and this is something that I know a lot of tribes face, a lot of judges face. It's a hard...it's a hard line to walk because again you are a member of the community, you do not have the ability to blend in with the general populace. It just doesn't happen. Like I said, for our tribe, we're a membership of almost 10,000. We have on the reservation over 6,500 people."

Ian Record:

"Do you think part of it, when elected leaders feel that impulse to interfere on behalf of a constituent, that they maybe haven't gone through the paces perhaps as you've termed it to think, "˜What's the long-term implication of my action here? Because I might be helping,' because that's their feeling, "˜I'm helping this person. I'm helping this person, but am I really helping the nation in the long run because this is going to be the ramifications of this. There's a ripple effect to what I'm doing.'"

Rae Nell Vaughn:

"Yes, and you're exactly right. I know in some instances their intentions are good, their intentions are good, they do want to help their constituent. They feel that someone needs to step up for them, someone needs to represent them, and maybe for whatever reason the different programs may not be able to help that particular individual, for instance, a vulnerable adult, an elderly person who may be being taken advantage of with his grandchildren taking the monthly check. And so I can see that, but when you don't allow the process to happen and if you don't follow the letter of the law, then the messages that it sends out is that, "˜Well, you can change the rules whenever you want,' and you can't do that. The rules are the rules for everyone, whether you're the community member, whether you're a member of the council, whether you're the chief, the rules are the rules. And although some people may think they might be able to change those rules; that's where the strength of your judiciary is the test not to allow those things to happen. I know within...in Indian Country those things happen where they're tested all the time. Like we talked earlier about jurisdictional issues, everyone is coming at you from different angles and let me tell you, being...living the life of a judge is not an easy thing. It's rewarding at times because you're providing a service to the people, the successes that you see make it worth all that you have to go through, but the political side of it can be at times very disheartening, very discouraging because you're having to deal with this mountain of things that are coming at you and you're trying to do the best you can do for your system. And sometimes people just don't see it the way you see it and it's trying to reach consensus with people, to get them on your side, get them to understand. Education, it's...it always goes back to education, teaching the membership, teaching the legislative body what these systems are all about and how important it is because at the end of the day that's going to be what makes you successful as a people, as a community. For me, it's always been my philosophy that tribal courts are the guardians of sovereignty. It's our job to make sure that we protect this sovereign through the well of the court, through this legal system and it's something that when you take on this judgeship, it's not about the notoriety, it's about what you provide, what you bring to the bench and the protection of the sovereign. That's the bottom line of all of this." 

Melissa Tatum: Striking a Balance on What to Include in Your Constitution (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Key Things a Constitution Should Address: 'How Do We Resolve Disputes?'," legal scholar Melissa Tatum discusses the importance of a Native nation striking a balance between what to include in its constitution and what not to include in its constitution so that it retains the ability to respond in a timely fashion to changing circumstances.

Citation

Tatum, Melissa. "Striking a Balance on What to Include in Your Constitution (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation highlight.

"To what extent are you going to recognize -- this is an odd question, so let me take just a second to explain the background of this one. To what extent are you going to recognize or corporate external limitations on the tribal authority in the constitution? This has become a big deal as of the last two years and particularly the last two weeks in the United States. The federal government through the 1968 Indian Civil Rights Act put limitations on tribal governments, imposed certain individual rights and also put sentencing limitations. Some tribes have incorporated those procedures in their constitution, some of them just have a general reference that says, "˜All powers not forbidden by the U.S. Federal Government,' some just don't mention external limitations at all. But some tribes that have specifically listed limitations such as sentencing limitations are now facing the fact that, if they want to take advantage of the extra sentencing authority finally restored in 2010 by the Tribal Law and Order Act, they have to amend their constitution, which is not an easy thing to do. Some of the tribes explicitly put in their constitution that they don't have jurisdiction over non-citizens.

Now, in light of the VAWA [Violence Against Women Act] reauthorization two or three weeks ago, if they want to exercise criminal jurisdiction over non-Indians who commit domestic violence and sexual assault on the reservation, they have to amend their constitution. So, as was mentioned yesterday, there's a balance between what to put in the constitution, because that makes it difficult to change, and what to keep to court to statutes and rules and regulations that are easier to change. Some things you want to be difficult to change, some things you don't want to be difficult to change, and the balance is different for each tribe and each First Nation. So that's something you have to think about, but be careful about putting in explicit external limitations, because if the external body changes those limitations, you now have to amend your constitution if you want to exercise those additional powers." 

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

Scholar Carole Goldberg shares what she's learned about citizenship criteria from her extensive work with Native nations across the country, and sets forth the internal and external considerations that Native nations need to wrestle with in determining what their citizenship criteria should be.

Resource Type
Citation

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

"Thank you very much for that introduction. I've already extended my thanks to the Native Nations Institute for inviting me here. I also want to extend my thanks to the Pascua Yaqui people for hosting this very informative event.

I'm going to be talking about tribal 'citizenship' -- that already raises questions about terminology. You've often seen the word 'membership' used in lieu of 'citizenship.' The term 'membership' harkens back to something that Chairman Rocky Barrett of Citizen Potawatomi said in one of the earlier presentations you saw here today. There was in the development of tribal constitutions through the Indian Reorganization Act of 1934 a view of tribes as, in some respects, corporate entities that would have boards and members. There was also a view of tribes as something akin to private associations or even clubs that would have members. The terminology of 'citizenship' evokes sovereignty and nationhood. I think it's become more common for Native nations to use the terminology of 'citizenship,' but any constitution has to have, as you heard earlier, the legitimacy and acceptance of the people whose government it is and the terminology will have to fit comfortably for whatever community that is.

I want to make one other preliminary point and that is about citizenship and constitutions, because many nations that don't even have constitutions will have citizenship or enrollment provisions in their tribal laws. So what difference does it make to have it in a constitution as opposed to having it in a code or an ordinance? We've heard constitutions described as fundamental law, which they surely are. One of the characteristics of fundamental law in general is that it is more difficult to change. So if you want to have the citizenship or membership provisions for your government to be more stable, less subject to change with political variation over time, then you will want to have it locked into your constitution.

Now there are many different ways your constitution can specify how difficult or easy it is to change the constitution. I come from California, where it is actually really easy to change our state constitution. As a consequence of that, we've had some fairly zany provisions in our constitution, but I will also say that I do not think we would have tribal gaming today in California were it not for the fact that it is relatively easy to modify the constitution of the State of California. By contrast, the constitution of the United States is really, really difficult to change and we've been stuck as the United States nation with some very old -- and, I would argue, antiquated -- provisions in our constitution precisely because it's so difficult to change.

So when you think about putting a citizenship provision in your constitution, also be thinking about how easy or difficult it is to change your constitution. You might want to allocate some of the authority over citizenship to your lawmaking process apart from your constitution precisely because that may be easier to change over time. So that's just kind of preliminary and a more global set of considerations to think about.

So you've heard already about the considerable variety of tribal constitutions both in times past and in the present day, notwithstanding the unifying force of the Indian Reorganization Act. There's still quite a bit of variation and that variation can be seen in the range of citizenship provisions that exist in tribal constitutions. I have given you a list of some of the more typical forms of citizenship provisions that you can see with examples afterwards of Native nations where those kinds of provisions can be found. So you can find citizenship provisions that rely on lineal descendants from a base roll or list. So anyone who can trace ancestry to a person who is on that list would be someone who could qualify for tribal citizenship. And the Cherokee Nation of Oklahoma is a good example of that. As you know, there is quite a bit of legal controversy over which lists, but the descendants from lists is the foundation for citizenship there.

There is also quite a bit of tribal constitution making that includes what I'm calling here minimum percent of tribal or Indian descendance, often referred to as blood quantum. And the percentage can vary from very high to very minimal, but some percentage would be specified and in some citizenship provisions the percentage of descendance can actually vary depending on the person's other descendants. So there are actually tribal constitutions in California that say that the minimum descendance requirement from that particular tribe is less if the remainder of your descendance is from another California tribe or in some instances from another federally recognized tribe. And that is a recognition of the fact that there are sometimes rather arbitrary divisions that the United States imposed when treaties were made or reservations were established and they wound up breaking up communities that had previously been unified. And so sometimes the constitution provisions say that if you come from one of our sibling or related tribal communities, you don't have to have as much descendance from our tribe, but if you're a total outsider then you must have the higher minimum descendance. So that's another array of possibilities.

There are yet other Native nations that specify that in addition to descendance, whether it's lineal or percentage, that you must also have your descendants be through your father's or your mother's line and we've got examples on both sides because there are matrilineal and patrilineal traditions in many Native nations and I've given examples of Santa Clara Pueblo in New Mexico where it is patrilineal and the Seneca Nation of Indians in New York where it is actually through your mother's line.

Still another form of citizenship provision focuses not just on descendance, but where your parents were living at the time you were born, and this has to do in many instances with places like California where reservations were assemblages of peoples from that general area who had been scattered even though they weren't all part of a single community, but they were gathered together on a single reservation. So the place mattered a lot. So in order to be a member for example of the Tule River Indian Tribe in California, you must be born to parents who are living on the reservation. As you can imagine, this creates a huge premium on being able to live there and when your population grows and you don't have more places for people to live, it puts a lot of pressure on your citizenship rule. This by the way was a type of provision that was favored by the Bureau of Indian Affairs at the time of the Indian Reorganization Act in the 1930s.

And the last example I'll give in this list -- and I'm confident that I'm not exhaustive and there may be other examples you can all point me to -- but are provisions for citizenship by adoption or in the international sense we would call it naturalization. How do you become a citizen when you were not born as one? And here the variations are very great. So there are places like Nez Perce in Idaho where anyone can be adopted or naturalized as a citizen of the tribe. You don't have to have any other prerequisites other than the tribe is willing to have you. But there are other places where naturalization is limited, maybe limited to people who are not eligible for citizenship because they don't have a sufficient percentage of descendance or blood quantum or you might have to be a member of some other federally recognized tribe and give up that other citizenship in order to be adopted. Or you might have to be related to an existing citizen of the tribe. There are many variations that one can have and again, the process for adoption or naturalization is going to matter a lot if you have one of these provisions, because the process can make it extremely difficult or it can facilitate the adoption or naturalization of people into the tribe.

So there are all these choices out there. That doesn't mean that you can just put them all in a hat and pick one and say, ‘Okay, this one's ours,' or just deliberate for a little while and say, ‘Oh, this one sounds right.' There are a lot of important considerations that are going to go into thinking about which kind of citizenship provision matters and you're going to get a very specific case of those deliberations, but let me try in a more abstract way or general fashion to suggest what some of these considerations might be. So I'm going to divide them into external and internal. And by the way, I think the internal are more important, but the external are not irrelevant.

So do you have to worry about direct federal controls? My answer here is no. The federal government through the United States Supreme Court decisions through the pronouncement of the Bureau of Indian Affairs says, ‘We're totally hands off.' Now, does that mean they're totally hands off? No, it does not. They find ways to insinuate themselves. In the past, it was because if you had an Indian Reorganization Act constitution, the Secretary of the Interior had to approve the constitution. So they used that leverage to strongly recommend, if I may say as an understatement, that certain kinds of provisions be in there, and that's how places like Tule River were strongly encouraged to include these requirements that the parents be living there at the time the child is born. And the BIA's interest was in keeping tribal citizenship numbers low because the BIA was concerned about the burden on the federal government because certain financial benefits were to be distributed to tribal members. The federal government also gets involved in situations where there are contests over whether a particular tribal government should be recognized for dealing on a government-to-government basis and this is how the federal government has become embroiled in all the controversies at the Cherokee Nation of Oklahoma. But in general, this is your decision. The federal government should not be dictating and if they try they should be resisted.

There are however, some indirect ways in which the federal government has some influence on the choices you make. So to the extent that federal benefits and the applicability of federal laws turn on tribal citizenship, it will matter greatly how you define that citizenship. The federal government has increasingly made its laws turn on citizenship rather than on your descendants as a Native person and the reason they've done that is because they are fearful that they will be carrying out racially discriminatory legislation if they do otherwise. I would argue that they're not, but that's another story. My point is that for things like applicability of the Indian Child Welfare Act, can you have control over your children? Your citizenship provisions are going to make a huge difference because the law only applies to children who are members or eligible for membership. And there are many other benefits -- employment with the preferences within the Bureau of Indian Affairs, federal benefits for scholarships and other forms of federal disbursements that will turn on citizenship.

A second area where it can matter a lot is in the authority of a government to carry out its powers, so for purposes of criminal jurisdiction not only by the tribe, but by the federal government it will matter whether someone is enrolled. Now for federal criminal jurisdiction purposes, there's actually a little bit more leeway even if you're not formally enrolled. If you're recognized by the community as belonging there, the federal government rather than the state may have authority if some wrongful act is committed, but that's a very fuzzy area and it's a whole lot more secure to get out from under the authority of the state if a person is a tribal citizen. And these days, now the recent reauthorization of the VAWA act may make it less relevant for some purposes, but still for quite a few purposes, if the tribe wants to exercise its authority, both criminal and civil, it's going to be a lot easier to defend that in outside courts if someone is a tribal member. So there are other ways in which the federal government does this indirectly, but I'm going to move onto the more internal matters because I think these are the ones that deserve the most attention. So what are some of the things to think about from within your own community?

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

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

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

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

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

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

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

So one of the ways you could do it is you could say, ‘Fine, everybody who's a citizen can vote, but you must be living in the tribal community in order to have voting privileges.' In other words, anybody is entitled to come and live there so anybody who makes that choice can be a voting member. That way you can be ensured that those who actually make the decisions are the ones who are invested in that community. Or you could simply say, ‘No absentee voting,' meaning that you have to really care about this community in order to vote and make the journey. 'Come on voting day, but we will not let you sit in the comfort of your home in Anchorage and vote for what's going to happen in Citizen Potawatomi.' Or what you could do is what Citizen Potawatomi and Cherokee Nation have done, both of them places with large off reservation populations, and in the case of Cherokee Nation even contested whether there is a reservation, and what they've said is, ‘We are going to structure our voting by districts. There will be districts within our territory and then we will construct districts outside our territory that will not have an equal voice, but they will have a voice.' So the Cherokee Nation actually created a bunch of districts within their territory and then they said, ‘There is a separate voting district that will elect a representative for the off-reservation Cherokees.' And that way they are not excluded, but they are not given overwhelming influence.

Two other suggestions for design that can help you start to accommodate some of these considerations. One is the idea of the right of return and this idea is the idea that anyone who is a lineal descendant would have special privileges to become a citizen if they so chose. So they would have to make an active effort. They would not automatically as a lineal descendent be a citizen, but they would have to make the affirmative effort to affiliate and if they did they would be allowed to do so. It's not that they would have to be subject to someone else's decision about it, but they would still have to make the active choice. That way you can ensure that there is some real connection that that person has to the community.

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

What I want to emphasize is that there are a lot of choices available, in theory. That doesn't mean that all of these choices are available just because they sound intriguing. You have the hard work, the hard work of political process and I've worked with communities that have tried to develop consensus on what should be the criteria for belonging. It's not easy. They did everything from holding coloring contests for the preschoolers in order to get the parents involved, to surveying the elders, to holding meeting after meeting after meeting. There was somebody on that screen who said, ‘This is not a three year maybe not even a six year process.' It takes time and commitment, but the possibilities are there. Thank you.

NNI Indigenous Leadership Fellow: Jamie Fullmer (Part 2)

Producer
Native Nations Institute
Year

Jamie Fullmer, former chairman of the Yavapai-Apache Nation, shares what he wished he knew before he first took office, and offers some advice to up-and-coming leaders on how to prepare to tackle their leadership roles. He also discusses what he sees as some keys to Native nations developing diversified, self-sufficient economies that can be sustained over time.  

Ian Record:

"So, Jamie, you served two terms as chairman of your nation. I was wondering if you could share with us what you wish that you knew before you took office that first time."

Jamie Fullmer:

"That's a great question. There's a lot of things I wished I knew before I took office, but when it gets right down to it I think that politics is a unique and challenging role, because in essence you're a public servant to the community, but you also have responsibilities as a public figure. And so I think one of the initial challenges was not recognizing how much of both of those things took of my time and my life and so had I known that before I would have been able to prepare for it before getting into office. But it consumes you rather quickly and your time becomes very precious because you have few moments of time to yourself and you have few moments of time when you're not expected to be in the public setting. And so with that said, I think that's the first thing I wish I had known before taking office. I think the other thing is, having never been involved in politics, not really knowing the process of any of the formal processes of running government, and so it was kind of a 'learn and lead at the same time' process, and if I would have been able to know initially what kind of steps I could have taken I might have been able to do some homework and really have a good feel of how to move the legislative process forward, how to take advantage of team building opportunities early on, and then also I think learn more about how to better enhance the institutional framework of information sharing. Not only being able to have access to it, but having everybody else have access to it so that we were on the same page when we were dealing with political issues or community issues or economic development issues in that sense."

Ian Record:

"So you mentioned time management and we've heard this from other tribal leaders that that's one thing that you just...you can't anticipate in many respects coming into the job. I remember Peterson Zah, former chairman and president of the Navajo Nation, said once that that really puts the onus on you as the tribal leader to first prioritize your work and then in those places where you can, delegate your work to those people that are within the administration of government who've been hired to do those sorts of things."

Jamie Fullmer:

"Sure. The delegation issue is sometimes challenging, because even in the delegation process you have to meet and learn and get to know the staff and they may not be staff that you've chosen. And some political systems have a system where a new leader comes in and they're able to choose their executive team. Our system wasn't like that. The executive team that's in place is what you work with and it's really a council decision to choose those folks. Of course the chairman has a say, but if there are people already in existing positions you'd like to hope...especially in my case, I believed that the chairman before me had good sense of who they wanted. And so if they felt it was good for the nation, I respected that I could keep that same frame of thought. That challenging part though is getting to know who has the skill sets in different areas. They might have a certain title, but they might have skill sets in other areas that are a good fit for delegation of duties. And I think the other process in that is that there's the time management issue, it's also important to have good support staff to help manage the front end, the telephones, the documentation that comes in in stacks daily, and kind of arranging a schedule that helps you to meet not only your daily priorities, but also to address any of the community issues that come up where members want to have some time with the chairman in the office, and then arranging that with the travel that's necessary to do business on behalf of the tribe. So you live in a suitcase part of the time and then when you're home, you're really relying on others to keep you on track and on task."

Ian Record:

"What advice would you give them? It's somebody that's never served in an elected office before -- what advice would you give them as somebody who's either considering running for office or say they do get elected and are getting set to take office, what advice would you provide?"

Jamie Fullmer:

"I think the best advice I would give in starting out is [to] remember the promises that you make you have a responsibility to keep. And so I believe that part of the political process is one of the challenges we face, because there's so many promises made in the pursuit of getting elected -- both in Indian Country and we've seen a lot of promises going on right now during the election season at large -- but when you get into office you are only a part of something that's much bigger than one individual and you can play an important part and you can play a very important role in the advancement of your nation, but the advice I would give them is, "˜Be aware and take the time to learn what the struggles are, take the time to learn what the system needs to help it move forward, and before you make any promises to the community, take the time to learn if those promises can be met.' And I think that's an ongoing challenge, so that I thin, that's an important part. It's also valuable and what I would tell the person is, be ready to commit your time. You're raising your hand and swearing an oath to your people, to your nation, and to God that you're going to follow through to the best of your abilities and it's a challenge to give the best of your abilities all the time. And so I think you need to figure out at the front end how you deal with your down time and how you deal with your low moments so that you can keep a good presence about you as a leader."

Ian Record:

"You mentioned the fact that keeping promises is really important once you take office, the promises that you make maybe on a campaign trail or as part of your platform to get elected, and you began to touch on this. Doesn't that make it your job to be very careful about what promises you make and really think strategically about the promises in terms of are they promises to maybe just a certain portion of the citizenry or are they promises to the entire nation, because as an elected official are you not representing the entire nation?"

Jamie Fullmer:

"That's a challenging question, because I think that obviously you serve your entire nation, but many tribes are organized where there are clans and there are familial priorities that take place, there might be village priorities, and so you may be really wanting to get in to address those issues. And depending on if it's a council position, that might be your role as a district councilor or as a village councilor, and so you do go in on those points that you're prioritizing. So with that said, I think the way that I reached out to the community was through goals. I had set goals based on what I had heard that the community wanted and that I felt like could be achieved in the period of time of the term in office or at least get some headway on historical processes that had gone on that hadn't been completed. And so there were some things that were challenges that I felt that I had the skills to help address and to put closure to that other leaders and other councils long before me had established and put into place and then there were other issues that had been initiated over time that I felt like needed to be at least started to being addressed. And so, rather than making promises because it's too difficult to make a promise, it was goals that I had set for myself and for our nation that if I were elected I would work on those goals."

Ian Record:

"And those two different terms send very different messages to your citizens, to your constituents don't they?"

Jamie Fullmer:

"I believe so because the goal is something you work toward, a promise is something that you try and keep."

Ian Record:

"Yeah. And you also mentioned this approach that you took when you took office which was continuing the priorities and the initiatives of previous administrations and that's not an approach that every tribal elected official takes. In fact, we've seen many that take the exact opposite approach. And I was wondering if you could talk about the difficulties you ran into with that or if it made your job easier, the fact that you were building on the momentum that had been generated before you came along."

Jamie Fullmer:

"I think there's a point that's important. Really for me it wasn't about having the credit for getting anything, it was having our nation have the credit. And so my role was as the chairman, in my opinion, was to go in and assess our government, assess our enterprises, assess our community, assess our programming and look for areas that I could help strengthen it. And it didn't matter whether I was to start it or if it had been started by somebody else. It was obviously a priority to the community if it was already in place. And so maybe those needed to be updated or changed or some of the structures needed to be adjusted, but the idea wasn't to do any of that with the intent of getting credit for it. It was doing that because it needed to be done and accepting on the challenges that the community had set upon me about getting...there were certain priorities that they wanted addressed and so I felt it important to address those that I could."

Ian Record:

"You've been working with a number of tribes across the country, particularly in the Southwest and Pacific regions, on diversifying their economies. In that capacity -- in working with other tribes and also based on your experience with your own nation -- I was wondering if you could paint a picture for us of what you believe a full-fledged Native nation economy looks like."

Jamie Fullmer:

"Sure. One of the challenges, the initial challenge that I see is that people have a different viewpoint of what 'economy' means. There's a lot of different arenas that are placed around the idea of an economy, but from a governmental perspective and from a societal perspective, that economy is a tumbling effect whereby, when revenues come into the system, those revenues advance themselves throughout the system. And I'll give an example: money generated from gaming comes to run the government. There should be something...then the government pays its employees and then those employees use that money to buy goods and services or pay bills. And so from an economic point of view, your ambition is to keep the money that's generated in a nation in that nation as long as possible. And so from that point of view, the economies are built to create more opportunity and generate more cash flow and protect the money that has come into the nation and keep it there for awhile. With that said, economic development is the process by which tribes create those kinds of business enterprises that will generate that opportunity.

And a lot of times, what gets confused there is the idea of economy has taken on, at times, the viewpoint of small business development. And I am definitely for small business development, I think it's a central part of an economy, but there are also other ways that generate economy, like creating infrastructure creates a baseline to build small businesses on, building housing creates opportunities for people to stay in the community so that they can pay and live in the community, which creates another set of economic values. You also bring in your, you keep your talent pool localized when you have job and work opportunities for those folks; they don't have to move away to go get a decent job. And so there are a lot of things tied to economy but I think the...my idea as a strategist and what I do with my company is we really focus on where the tribe's at and its structure, because economies are really tied to strong structures and institutionalized systems. They're really planned out and thought because there's a lot of money at stake in any type of venture -- business venture, enterprise development venture, acquiring businesses -- and so government is usually a reactive type of system, most bureaucracies are reactive in nature because they're political and business is more proactive in nature because it's usually driven by goals and end-production processes. You want to reach a certain budget, you want to reach a certain level of profit, you want to reach a certain level of job creation. And so with that said, there's more planning that takes place at the front end.

So from a tribal perspective and looking at tribes as nations, as sovereigns with the ability to create whatever they'd like, economic development to me takes on a number of scenarios. One is developing a strong government of laws, which include economic development, commercial laws, corporate laws, zoning laws, taxing laws, any other kind of law that can benefit the nation as a government. With that said, then you also have to have the legal system that can enforce those laws. A solid legal system is another key component to a strong economy. Another piece to that as well as that is the ability to create opportunities for individual members within the tribe to build business and so creating programming that will raise the initiative to have small business and entrepreneurship in the community. Those are other opportunities. And the government itself being proactive in supporting and promoting business within the community really takes on another level of public relations and commitment to helping to share information about the tribe and the tribe's capabilities and abilities, because many times when tribes are trying to develop an economy they want income and finances from other places to come in to generate more income locally. And so if you're looking for investors or partners or joint venture opportunities, it's very important for a tribe to recognize that they're going to be scrutinized by outsiders if they choose to take that path."

Ian Record:

"So really what you're...within this discussion of laws and institutions and structures and infrastructure, you're really describing essentially an environment-based approach to economic development and not just a venture-based approach to economic development, where you as a tribal council are trying to figure out, "˜Well, what business are we going to get into?' But really what you're saying is that tribal leaders need to be focusing on, "˜Let's create this environment for economic opportunity, whatever that opportunity might encompass.'"

Jamie Fullmer:

"You are exactly right with that point of view, because the environment is where the government has the most control, creating the laws, creating the systems, creating the policies that guide the direction. With that proper environment, the tribe or its members or private investors who come in to do business in the tribe have an opportunity to actually be successful because the environment is an environment of success. And so with that thoughtful planning at that -- in the environmental process -- it allows your economic development arm or your planning arm or whatever a tribe calls it, some call them 'authorities' and some call them 'enterprises' or 'boards,' it allows that arm to really do a good and effective job, because first of all they have something that they can go and promote and secondly, it challenges them to stay strategic in their thinking. If you have a specific zone where commerce can happen, you know the limits and the boundaries of where to do the commerce. It's just one example."

Ian Record:

"I also wanted to follow up on another point from what you were just talking about and that is you were describing this tumbling effect that you should be building towards in terms of how you structure your economy and you mentioned this point where the tribal government, for instance, or the nation raises revenues through gaming or whatever other enterprises it may have. It may, for instance, collect taxes on sales by citizen-owned businesses, whatever the form of revenue might be, comes in the tribal government, it funds that government, it pays the salaries to those tribal employees and then you mentioned those employees go out and buy goods and services. And this is where the research shows, this is where that tumbling effect tends to stop in so many nations because there aren't places on reservation to spend money on goods and services. Isn't that really one of the biggest challenges that Native nations face is creating those on-reservation outlets for consumer spending?"

Jamie Fullmer:

"There is that challenge, but I think in that challenge there's also a broader challenge that we many times in Indian Country all over America don't view the value of us buying from each other, doing business with one another, purchasing goods and services from tribal members or Indian-owned businesses, because that's part of a larger economy, the Indian Country economy. And I believe that when Indian Country comes to terms with adding that type of value and seeing the value in really committing to ourselves and our own success that we will have the ability to create a very powerful economy, sub-economy in the United States. But breaking that down to the individual level and the individual tribe, if the money that is made from whatever enterprise the tribe has only comes in and it goes directly out, it only benefits the tribe in that one sense. If that money were to come in, for example...an example that's challenging, but that some tribes have done would be a valuable one is a bank where people, where the money's made and then they store their money in the tribal bank. Well, now the tribe has access to use that money to do other kinds of investment and lending and create another revenue stream. A mall that has groceries and services that the community and the employees of the tribe would use is another way because you create...the money stays in the community, people spend it there, and you create more jobs with the same original money that was brought in, but it has now doubled its value. And so the ambition of a tribe should always be to see how they can vertically integrate the economy so that it will...there's an opportunity for it to stay there and it can be broken down in a number of arenas. Tribes buy all kinds of different products and goods and services. It would seem reasonable that they are able to create business opportunities for themselves as a tribal government owning enterprises or for membership and buying and selling those goods and services from individual Indian tribal members or other tribal enterprises or their own tribal enterprise."

Ian Record:

"You're working with the American Indian Business Network, which is an initiative of the National Indian Gaming Association on this issue of Native nations and Native citizens 'buying Native,' and really on a more macro level where you're talking about an Indian country-wide proposition, where it's not just Native nations and people buying internally within their own nation but actually buying from other nations. So I was wondering if you would talk a little bit about the motivation behind that project and how it's taking shape so far."

Jamie Fullmer:

"Sure. I'm real proud of National Indian Gaming Association's commitment to developing the American Indian Business Network firstly because they are very close to a very powerful economic tool for Indian Country -- which is gaming -- and they see the value in tribes diversifying their economies. With that said, the American Indian Business Network was created by NIGA as a separate entity owned and operated by NIGA to develop a network whereby tribes could partner and do business with one another, that they could promote and establish a way to sell their own products and services of their tribal-owned businesses that they have and then also to look at partnering with other Indian businesses and also really for the small business owner or the entrepreneur that tribes would consider purchasing goods and services from those Indian-owned businesses. And with that said, with all of those levels of involvement and investment, we're really ultimately helping Indian Country, all of Indian Country by doing that because all along that chain, that food chain, Indian households and Native American families are being fed. And so we're really being more self-serving and self-sufficient, but not only that, we're also able to help the non-Indian economy because many of our employees are non-Indians, many of the businesses that we have are in partnership with non-Indians, there's a lot of non-Indian investment in Indian Country, and so the idea is not to exclude people or to make it exclusive, but to make it inclusive where Indian tribes, their enterprises, their buying power and their selling power gives a value to sharing resources across the country in one form or another, which could lead to a number of different opportunities. But just the concept is a very powerful one where we're not just looking, we're not just saying, "˜I want to take care of my tribe.' We're saying, "˜We want to take care of all tribes,' not by saying we're going to have to spend all of our money on other tribes, but by saying that we're willing to commit to buying Indian goods and services when they're at the same quality and level of the non-Indian goods and services."

Ian Record:

"So it sounds like a rather immense, untapped economic opportunity that will have kind of transcendent benefits not just for Native nations, but for the larger economy."

Jamie Fullmer:

"I believe so, yes."

Ian Record:

"I would like to talk about another topic, broach another topic that's rather sensitive in a lot of Native communities, particularly among those who have experienced this newfound wealth and prosperity through gaming, and that's the issue of per capita distributions of tribal revenues. Yavapai-Apache Nation has a per capita distribution policy where it distributes a certain portion of its revenues to individual citizens, I believe on an annual basis, is that right?"

Jamie Fullmer:

"Yeah, that's correct."

Ian Record:

"On an annual basis. And I was wondering if you could talk about how Yavapai-Apache Nation went about developing the policy, what it took into account when developing that policy, and how the policy and how the process of distribution actually takes place."

Jamie Fullmer:

"Sure. The per capita distribution and obviously the tribe's process of distribution was created for the membership -- and I won't get into any details to that because it's not my place or my authority -- but the distribution process was established because the community itself, as shareholders of the casino enterprise, felt as though there should be some distributions of that wealth. And the leaders over time had made commitments to doing that. When I got into office, it was very apparent that that was one of the things that was a priority to the people to get done. And so I made it one of my top and I think it was my first major initiative to move forward in office. The idea behind it was is that if we viewed the tribal membership as owners or shareholders of a corporation or a major enterprise -- which they are -- we viewed it much like a stock program in a private corporation whereby every year when business enterprises do well they might give their shareholders a revenue, a dividend, where they're sharing the dividend and that's how we really viewed it, that there's a percentage taken from the casino revenues and distributed to members each year at the end of the year based on the profit. And so with that said, I think the challenges; there were a number of challenges.

The first one is that when we put it together, there's the challenge of going through the process with BIA, and the Bureau of Indian Affairs takes its time in approving these kind of things, and so that was a challenge. And then internally the debate was, "˜How do we treat the dollars with respect to the individuals? Do we just give it to the adult members, do we give it to all members, is there any parameters that we want to put around the money?' Because it's not a lot of money. The council members at the time said, "˜We'd like to get the program started and we'd like for it to be shared and provided to all members.' With that said, we had to create a minors' trust program and so in that trust, there's an accountability of the money that comes in each year and how it's preserved for the individuals until they turn 18, which is the age that we gave and those dollars are accounted for by a separate accounting system. And I think the protections that we put into place or the monies don't come in through the tribal government, they go directly from the casino to the per capita account and then the money is distributed from there. And so that is helpful, too, to protect the integrity of the separation because it was approved, it was agreed on in our revenue allocation plan with the Bureau of Indian Affairs and so we really stay steadfast to that. And at the time, when we rolled it out, I think the challenge was is the people I'm sure wished that it was more than what it was and then I think the next challenge is that as we moved along we learned more about it because we would say, we would just...when we started, we wanted to get it out. And then along the way over the years we would kind of adjust it as needed, but the first year, the first issue was, "˜What if you turn 18 in the middle of the year? Do you get the money at the end of the year or do you have to wait?' And so that was one challenge. And then the next...so we had to set some timeframes on. If you turn 18 by a certain time during the year you are eligible for the dollars at the end of the year. So that was one challenge.

And I think another challenge was in dealing with elderly issues, that it might affect their Social Security benefits, and so we did try and find ways to manage that as well. But because it's young -- I think it's only been in place around four years or so now, maybe five -- but it was, we knew that we would have to work out some kinks and I think when it will be an impactful decision making down the road will be for those very young people that were maybe not even born or born when we started it that they'll have 18 years worth of revenue saved for them and at that point they may want to start considering some...putting in some safeguards for the individual, some requirements for them to get their money and those kind of things. But I think all in all, there's a lot of different positions on whether per capita is good or whether it's not good. I think in our case, because we viewed it as a distribution based on a shareholding, we had a little different viewpoint on it. Our ambition wasn't to subsidize the individual's life, it was to share in the overall profit of the, in our case, the casino. And so my own self, I have my own mixed emotions about whether it's good or bad, because I'm more in line with that the funds could be better spent providing programming, but I also recognize that the whole idea of gaming was to create an opportunity for quality of life of members. And so as you know and as we all know, every little bit counts, especially these days with everything being so expensive. And so if we create job opportunities, we create education opportunities, we provide social programming, and we are able to give distributions to help enhance the quality of life, then it's a positive thing."

Ian Record:

"You touched on a couple of the issues that the Native Nations Institute -- which recently published a policy paper on per caps and what Native nations needs to be thinking about as they develop their policies -- you touched on a couple of these critical issues. One of which is, when you issue a per capita distribution -- for instance particularly one that may fluctuate based upon the performance of the businesses or the enterprises from which the revenue for those distributions is coming from -- you have to be careful about what that's going to do to the eligibility of certain of your citizens for programs that they rely very heavily upon like Social Security."

Jamie Fullmer:

"The other challenge to that is if you expect...if you receive this much the year before and you only receive this much the following year, nobody's really happy about that. So one of the challenges as well is just growth, population growth. If you have a set percentage that you give and even if you make more revenues, if you have more births or enrollments in the year, it's still going to decrease the total payout. And so sometimes people assume that we are making less money when in fact, we're making more money, but we're growing faster than the money's growing."

Ian Record:

"Yeah and that's...I believe Native Americans are the fastest-growing population in the United States. That's going to be a huge challenge for those nations that issue per capita distributions moving forward, is it not?"

Jamie Fullmer:

"I would think so, and I'm not real privy to any other distributions and values, but I would think that just that natural growth, something's got to give. If you've got a limited amount and you're growing here, well, something's got to give, whether it's programming or actual dollar distributions or both. It really depends on how well the tribe is planning for the future and that growth."

Ian Record:

"And it really gets back to this issue that we talked about earlier in our discussion about citizen education really, that you have to...because these issues like per capita distributions, these governing decisions that you have to make or at least lead in as elective leaders that you have to educate the citizens about what exactly all of this means. For instance, why is the per capita distribution amount down this year, or what does it mean when we're doing a performance based per cap or a profit based per cap based on a percentage of the revenue versus a flat amount every year?"

Jamie Fullmer:

"That is again another struggle area because not everybody understands money, especially in the context of being one piece of a percentage. And it's challenging for those that understand money and so it's even more challenging for those that don't, and I'm talking about the percentages and how the common person in their thinking, they think about themselves and, "˜Hey, my check's less than it was last year. We must be making less.' That's the common sense approach to things, but when you look at the bigger picture and you realize and recognize that, as you said, if it's performance based, if the performance isn't as good, it's going to go down. If the performance is as good and you've grown and your membership has outgrown the dollar amount, it's still going to go down and so there might be two reasons that it's going down, two very different reasons. One is maybe a not so good of a reason, the other one is a good reason. Having great performance and growing as a nation is what we hope to do. So again that leads into the whole idea of diversifying where tribes should be considering, how do they create other opportunities, not just for per capita, but if the tribe itself is growing and continuing to grow then all of the programming is going to be effected: the education programming, the health care programming, the social programming, how the governments are staffed, staffing issues, the space allocations, the building sizes. You can go on down the list all the way down to the size of the pipes for sewage and water and it's not a bad thing to grow, but it's an expensive thing to grow and I believe that's one of the challenges, getting back to the challenge of the finances, is the common citizen doesn't take that into account. And sometimes when you lay it out there and it is statistically done and drawn out, it's hard for people to really connect to how those statistics affect the future growth."

Ian Record:

"So it seems to be two things that jump out of what you're saying about trying to meet that challenge or fight that struggle is strategic thinking and planning first of all: anticipating what the demands are going to be on tribal governance and tribal administration moving forward with the rapidly growing population, the strains that's going to put on programs, services, infrastructure, etc. And then it's the issue of not just citizen education, but education in laymen's terms, that most every citizen can understand."

Jamie Fullmer:

"Financial education is a very important next step for Indian Country, well, the whole country, but when we focus on Indian Country, that's a great next step because tribes have gone from over the last several decades, many of them were very poor and there was a lot of poverty. There still is a lot of poverty. I don't want to take away from that, but for those tribes that have been able to climb out of poverty, now they have to learn how to protect their wealth. It's not just a matter of generating it, but how do we protect it once we've generated it because it is very easy to spend. They always say, the more money you make, the more money you spend. It's very easy to spend the money when it comes in because there are always needs and there are always wants that people believe are needs and so there's a never-ending demand for services and programming and opportunities for members. But at some level, the institution, the government, the Native nation government needs to look at how do we prepare for our future growth. So they have to do some trending, they have to investigate their current size, they have to investigate their future needs, whether it's land needs or water needs or space needs, they have to look at the need for civic buildings and growth in that area and then they need to look at what kind of enterprises do we need to do. A couple of things: bring in more revenue to the tribe itself and bring in more opportunity for the tribal members. And so that isn't just increasing per capita, it's increasing the quality of life per individual. And that's I believe most of our goals as leaders is our ambition is to create a quality of life for our people that is comparable to what's around us."

Ian Record:

"And ultimately, as a nation, it's really about promoting independence and self-sufficiency not just as the collective, but among individuals."

Jamie Fullmer:

"Sure. I think there's a little bit of I guess it would be backlash at times when a tribe becomes wealthy, people get angry about that. And it's really challenging in America that's supposed to be a country that is proud that people can go from poverty to wealth and they promote it in every other major arena and every other major setting, but when Indian tribes become wealthy, there seems to be a backlash that we don't deserve to be as wealthy as the other individuals that have wealth. I think that's another challenge that we face is we're still viewed as...that we may still carry on some of this second-class citizen status when we're well beyond that in the 21st century."

Ian Record:

"I wanted to wrap up with...first of all, I want to get your response to a quote and this is a quote that we heard first from, we've heard it from several tribal leaders, but we heard it from one in particular, Chief Helen Ben from the Meadow Lake Tribal Council up in Saskatchewan, and this really gets it back to this issue of governing institutions and she said, "˜My job as a leader is to make myself dispensable.' And really what she was getting at is, "˜My job as a leader,' and she expounded upon this, "˜is to put our nation in a situation where we have that infrastructure,' that you've been talking about, 'that environment in place of rules and policies and codes where when I leave office not everything falls apart.' There's a sense of stability and continuity there. And I was wondering if you could address that issue with respect to your own nation and what's going on in that respect."

Jamie Fullmer:

"I think that my nation has been around for a long time, and there's been a lot of strong leaders and it's traditionally and culturally appropriate for us to have strong leaders. I think there's a balance between leadership and having a strong institution. Ultimately, I believe you need both because you can have a great institution, but if there isn't leadership steering it and keeping it moving and accepting the challenges that come up, then it can also stagnate. So I don't think that leadership is ever indispensable in my opinion. I think that leadership is a necessary part of everything that we do. With that said, a strong institution sure makes it a heck of a lot easier to be a strong leader and because you know what it is that you're wanting to accomplish and you know how to put to work the institution so that it can bring about the changes that the people want and need. And I think finally -- in my own nation as I said -- my ambition as the chairman was just to be a part of the growth, the ongoing growth, and I've never seen myself as anything more than that, never wanted to be more than that. That if I could say in my life that I contributed to my nation's growth in some way, then I feel like I have done my responsibility, and that holds true throughout my life. I feel like I can offer those same kinds of contributions to Indian Country as a whole and that's why I do what I do as the owner of Blue Stone Strategy Group. But back to the whole point of, I do believe that you have to have leadership, but I also believe that if you have a capable institution that you can plug folks into leadership roles, and as long as they have the necessary skills and ambition that there can be successes."

Ian Record:

"So in a nutshell what you're saying is that good governing institutions essentially empower the leaders to be effective."

Jamie Fullmer:

"I believe so. And there are those magnanimous figures out there that can, they don't need all of that around them to make it tick, but most of the people that sure does empower them to make wise and thoughtful decisions as opposed to reactive and crisis-oriented decisions."

Ian Record:

"Well, Jamie, we really appreciate you taking the time out of your busy schedule to be with us. I've certainly learned a lot and I think Native nations and leaders across Indian Country will learn a lot from your thoughts and perspectives on not only what your own nation has been doing, but what's going on in Indian Country. We'd like to thank Jamie Fullmer for joining us today on this episode of Leading Native Nations, a program, a radio program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit our website: nni.arizona.edu. Thank you for joining us."