Native Law and Legal Strategy | Native Peoples, Native Politics || Radcliffe Institute
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Native Law and Legal Strategy | Native Peoples, Native Politics || Radcliffe Institute


-Good morning, everyone. We’re going to start this
morning with a blessing by Jonathan Perry. -[NON-ENGLISH SPEECH] Creator, we want to say thank
you for the great minds that have gathered here today
to share their knowledge and to help bring indigenous
issues and indigenous people to the forefront and
to a great future for all of our people, for opportunities
for sharing and opening our hearts and our minds, for
understanding and awareness and respect. We want to say thank you
to all of the families and all of the
people who sacrificed for us to be here today. We want to say thank
you to our ancestors, thank you to all the beings
that have helped us to achieve our goals, who sustain us,
nourish us, protect us, teach us, and care for
us every single day. We want to send our
blessings and prayers out to those who are
sick and who need our prayers or our
thoughts or our well wishes at this time, all
of those that were not able to attend this gathering or
were not able to travel with us or are not able to be
here in some fashion. I’d like to offer an
honor song for all of you and all of your
families at this time. [NATIVE AMERICAN SINGING] I want to say thank you for
coming to our territory. Thank you for joining
us in what is considered to be Wampanoag Nipmuc
Massachusetts territory, this area. This was, of course,
a thoroughfare for all of our people
both by the sea and land. And we have over
12,000 years, anyway, scientifically
proven success here. So we hope to revisit those
many, many years of success. And I think we’ll do well. I just want to do
one more quick song, and I’d like to ask all
of you to help me with it. This is very specifically
a Wampanoag song. And normally we
would join hands, one hand to the back of the
shoulder on the heart side all the way around. But if you can, if
you can’t, you can’t. That’s fine. But I need some
help singing this. It’s very easy. So just join in as you can. [NATIVE AMERICAN SINGING] -Thank you so much, Jonathan. That was a very beautiful
way to start today on a very beautiful spring day. So good morning. I’m Liz Cohen. I’m Dean of the Radcliffe
Institute for Advanced Study, and I’m delighted to welcome
you to today’s conference, Native Peoples, Native Politics. We are very proud to
co-sponsor this conference with the Harvard University
Native American Program, or at is as it is commonly known
in these parts, HUNAP. I want to thank Jonathan Perry
for his wonderful opening blessing in tribute to
the people who walked this ground long before us. I’d also like to thank
Shelly Lowe, the Executive Director of HUNAP, Dan
Carpenter, the Faculty Director of the Social Sciences
program here at Radcliffe, and Maggie McKinley, Climenko
Fellow at the Harvard Law School, for their leadership
in planning today’s conference. As Harvard’s Institute
for Advanced Study, Radcliffe fosters
interdisciplinary inquiry into important and
multifaceted subjects. We bring leading
thinkers together to investigate new
questions, and we are committed to sharing
that emerging knowledge with the broader community
through public events like this one today
and many others. Coming up on Tuesday,
May 10, we will launch the Kim and Judy
Davis Lecture Series here in the Knafel Center. Professor Diana Mutz of the
University of Pennsylvania will deliver the
inaugural Davis Lecture about public opinion
toward globalization. And you have a card to
remind you on your seat. Mutz’s talk will
take a sharp look at the free trade controversy. Her topic could
not be more timely as we watch
presidential candidates in both political
parties grapple with this volatile
issue and assess its impact on the lives
of American producers and consumers. So I hope to see you
here with us on May 10. We conclude our
academic programming for the year with
Radcliffe Day on May 27, when we bestow the Radcliffe
Medal on Janet Yellen, Chair of the Federal Reserve. We will celebrate Yellen’s
ideals and intellect with a morning panel
that’s entitled Building an Economy for
Prosperity and Equality. A lunchtime program will feature
personal remarks about Yellen by former Fed
Chair Ben Bernanke, followed by a conversation
between Harvard Professor of Economics Greg
Makiw and Yellen herself. So even if you can’t
join us in person, you can tune in to the live
stream of the whole day on our website on May 27,
or you can watch it later when it is posted as a
video on our website. At Radcliffe we also
help focus attention on important topics
of broad interest that cross many Harvard schools,
fields, and disciplines. This year, in
partnership with HUNAP, we have hosted a
rich set of programs centered on native and
indigenous peoples. Let me give you just
a few examples of what our thematic year has produced. Fellows in our
fellowship program have worked on projects related
to Native American history, rights, and culture. The Schlesinger Library
hosted an edit-a-thon to improve and increase
Wikipedia entries on native an indigenous women. A poet and a playwright
gave public performances. And an exhibition of the
photographs of Matika Wilbur is currently on display in
the Johnson-Kulukundis Family Gallery in Byerly Hall,
which is just two doors down. It will remain up
until May 28, so please be sure to visit this wonderful
exhibition during the break today at lunch, or in
the short periods we have in the morning
and the afternoon, or sometime in the next month. This stimulating and
varied body of work related to native and
indigenous peoples has benefited the entire
Harvard community. Next year some of
our programming will address another
theme, this time the issue of urbanism, historically,
humanistically, and as a worldwide phenomenon. For the following
two years we will investigate many different
aspects of citizenship. The timing will correspond with
one significant anniversary, the 150th anniversary of
the 14th Amendment, which extended citizenship
to African Americans. And that comes in 2018. And we will anticipate a
second major milestone, the 100th anniversary of the
19th Amendment giving women the right to vote. And that would be 2020. The Native and Indigenous
Peoples Initiative has enjoyed robust support
from Provost Alan Garber and has been nurtured by many
Radcliffe staff, especially Rebecca Wasserman
and her team, as well as faculty,
departments, and centers all across the university. Today’s conference is
a fitting culmination to those collaborative efforts. A quick glance at the
speakers on today’s program demonstrates the breadth
of partnerships that have made this conference possible. Before today is out we will
hear from lawyers, community leaders, artists, policymakers,
anthropologists, activists, the 67th president of the
Seneca Nation, and even a CEO. This conference has brought
together an even broader range of people in today’s audience. That’s you. You are sitting among painters
and public health advocates, consultants and clergy members,
teachers and tribal members. You have come from
all over New England and as far afield as Quebec,
North Dakota, and Arizona, as well as from
Harvard’s many schools. Today’s program will bring
together even more people virtually. Students in the
state of Washington and a member of Ontario’s
Ministry of Aboriginals Affairs, among many
others, have written to us to say that they plan to tune in
to the simulcast online today. And I’m sure that
many more viewers will watch the video on our
website in the months and years ahead. It is fitting that today’s
conference on native peoples and politics has gathered
so many different people in conversation
with one another, because the practice
of politics inevitably brings vastly
different individuals and groups with
multiple priorities and conflicting agendas
into common conversation, and sometimes combat. Given where we are in this
year’s election cycle, it can seem like
politics consists solely of delegate counts and
convention countdowns. But if we reduce
politics to nothing more than election
hoopla, we oversimplify what it really means. In fact, the equation
of politics with voting is a fairly recent phenomenon. For much of human
existence, voting as we understand it today
in our democratic society has not existed. Even when it has,
participation has usually been restricted to a very
small minority of the world’s total population. In reality, the definition of
politics changes over time, and it is shaped in unique
ways by different societies and different cultures. People have acted
politically across the globe and throughout human
history, but they have done so in many other
ways than casting ballots. I’m an historian of the
20th century United States. In the time and
place that I study, universal suffrage was
officially the law of the land. But in my research
over the years, I have found that voting
was not the only or even the most common way that
Americans acted politically. Let me remind you of just
a handful of other ways that ordinary people
advocated for their rights and for the kind of just
society that they desired. In the 1930s, working
class Americans organized into
industrial labor unions to demand a larger share of the
wealth their labor had helped to create, to influence
their working conditions, and to exert more control
over how they allocated time in their own lives. From the 1940s
through the 1960s, household members and
homemakers took to the streets to assert their
power as consumers, participating in
boycotts and petitioning against high
prices, and lobbying for greater protections
against unsafe and exploitative products. In the 1950s and 1960s,
African Americans mobilized with strategies
ranging from restaurants sit-ins to protest marches
to demand their equal rights as citizens, creating a
civil rights movement that would inspire similar claims by
the American Indian movement, feminists, and gay
rights activists. Beginning in the 1970s,
political activists on the conservative
right from anti-taxers to anti-abortion demonstrators,
undertook similar actions to promote their causes. In all of these cases
and more, Americans were acting politically. In sum, today’s conference is
part of a broader conception of political participation
that goes beyond what happens in the voting booth. As we dig deeply into
the multiple ways that Native Americans
have registered their political
will, we will also be probing the very
wide range of voices speaking within those
native communities. We will surely see that there
is not one conversation nor one uniform point of view. I personally look forward to
a day of learning and gaining new insight and inspiration. So let me tell you a little
bit about how today will work. This morning we
will have two panels before we break for lunch. After lunch there’ll be a
keynote address and then a final panel. Each panel will conclude with
a question and answer session. If you would like
to ask a question, please step into
the center aisle, where we will have
set up a microphone, and when you come
to the mic, we ask that you identify yourself
and state your question. And finally, I hope
you will join us at a concluding reception which
will be held in Fay House right next door, where we can
continue our conversations. Now I’d like to hand things
over to Professor Dan Carpenter. Dan is the Director of the
Social Sciences Program here at the Radcliffe Institute,
the Allie S. Freed Professor of Government at
Harvard University, and a member of the Provost
Advisory Council on Native and Indigenous Issues. He is a political
scientist who specializes in public bureaucracies and
governmental regulation. He also studies diverse ways in
which individuals participate politically, what he calls
the performance of politics. Dan’s research has
focused most intensively on petitioning among
groups often marginalized and disenfranchised throughout
much of American history, such as African Americans,
women, and Native Americans. So please join me
in thanking Dan for his hard work organizing
today’s conference, and help me welcome
him to the podium. Dan. [APPLAUSE] -Thank you very much, LIZ. I want to begin following
Jonathan Perry by acknowledging the Wampanoag Nipmuc
Massachusetts peoples on whose lands we gather today. Today’s conference is both a
culmination and a beginning. Let me start with
the culmination part, keeping in mind
tomorrow’s HUNAP pow wow will continue this
important celebration. Three years ago
Radcliffe began thinking about appropriate themes
for the set of events that would occur over
a one to one and 1/2 year period that coincides
with today’s conference. And Radcliffe has embarked upon
this series of conversations and events, the
indigenous peoples theme, not because the Institute
has a particular expertise in this area, but because
Radcliffe, and Harvard more generally, have clear needs
and obligations to enrich our dialogue on native issues. A university is a
conversation of a sort, a highly bureaucratized
conversation, to be sure, but a vital
dialogue nonetheless. And it is vital to
the future of Harvard, and in deep consistency
with Harvard’s native past, that the voice of Native
American and indigenous peoples be amplified and strengthened. And it is with thanks to HUNAP
and associated Native Studies leaders at Harvard at this
process has been renewing. And we at Radcliffe are
pleased and honored to play a collaborative part in
this larger and much longer term dialogue. We started in the fall of 2014
with Anishinabe poet Gerald Vizenor, who gave
a poetry reading and gave thoughtful remarks
on the meaning and intention of his concept of survivance. Professor Angela Riley of
UCLA and a Chief Justice of the Supreme Court of
the Citizen Potawatomi Nation of Oklahoma,
visited Harvard Law School to give a lecture on
indigeneity and law. Professor Ned Blackhawk of
Yale came in November, 2014 and gave reflections
on the Sand Creek Massacre and its many cultural
and historical legacies. This academic year we’ve
been privileged to be joined by two Native American
Radcliffe Fellows, Kristiana Kahakauwila, and Alyssa Mt. Pleasant. Professor Kahakauwila just
this Wednesday afternoon gave a wonderful reading from
her novel To Weave with Water. Professor Mt. Pleasant has been working on
her study of the Buffalo Creek reservation and gave an
inspiring lecture in the fall. Alyssa and Tiana
have both honored and enriched us with their
daily presence, their meetings with students,
staff, and faculty, and other Radcliffe Fellows. A third fellow, Carol
Armitage, has also been exploring themes
and indigeneity in her choreographic work,
and we thank all of them for their citizenship. In January we held a workshop
on the university and indigenous dispossession, where we learned
what other universities have been doing to confront
their own relationship to indigenous peoples, and
we learned of rich models for Harvard to emulate. And I’m proud to announce
that the Radcliffe Institute, in collaboration with HUNAP,
the Harvard University Native American Program, and the
Yale Indian Papers Project, and supported by the
Mashpee Wampanoag, the Nipmuc, the Wampanoag
tribe of Gay Head Aquinna, and the Mohegan Tribe,
has received a $275,000 grant from the Council on
Library and Information Resources, CLIR, to digitize
more than 4,000 petitions by and concerning Native Americans
in the Massachusetts archives of the Commonwealth. Collaborative meetings
with tribes for this work are underway this spring, and
digitization will begin soon. And of course, just
last night Matika Wilbur offered a beautiful
presentation, opening up her photographic
exhibition, Seeds of Culture: The Portraits and Stories
of Native American Women. What unites so many
of these events forms the theme and title
of today’s conference, Native Peoples, Native Politics. In the face of
massive dispossession, structural racism, how
have native peoples performed what Gerald
Vizenor calls survivance? How have they done
political work in doing so? How have they endeavored to
tell alternative stories? How have they drawn upon law,
treaties, and other resources? How have they formed
alliances and coalitions to defend their
sovereignty and dignity in the face of
institutionalized erosion, in the face of
organized assault? In talking with Native
American leaders and citizens we learn that so much of native
politics and empowerment, as Liz Cohen just remarked,
occurs outside the ballot box, which is not at all to
say that voting rights are unimportant. Quite the opposite is
they are under attack throughout the land,
including in Indian country. But it is to say that
Native Americans have often been denied voting rights,
and where they have had them, they have often composed
a numerical minority of the electorate. Tools of law, treaty
making and monitoring, retelling and reframing
stories, building alliances and coalitions, resisting,
blogging, protesting, making art and politics, and
yes, voting, all of these are political and cultural
acts, not just political acts. But we should never forget the
deeply political dimensions of these acts. And what you will hear
today are four panels and a keynote address, five
successive conversations, if you will, on what
native politics means, how it is taking shape, and
how native authors, artists, filmmakers, actors,
scholars, and others view the political and empowerment
dimensions of their work. On to beginnings. As we look forward
to Harvard’s future and to Radcliffe’s,
it is vital to ensure that our discussions
include and incorporate native and indigenous
perspectives in the themes we address, including in
citizenship and urbanism, in the years to come,
and that, again, we continue to amplify native
presences and native voices on Harvard’s campus. But let me pause with
a sobering statistic. Just two weeks ago,
Harvard’s Office for the Vice Provost of Faculty
Development and Diversity released its report
entitled Ten-Year Trends in Ladder Faculty. And in that report, the
office remarks that, quote, and I quote, “We still
need to make more progress, as we have only 60 ladder
faculty who are black, 62 latter faculty
who are Latino, and none who are
Native American.” Let me repeat that. 60 African American
ladder faculty, and by ladder I mean tenure
track, 62 Latino ladder faculty, zero Native
American ladder faculty. And this report comes
in the same year that Northwestern, Yale,
and other universities are moving forward
with plans to hire several native faculty
each, as well as faculty in Native Studies departments,
which of course do not exist here. And it comes at a time when
Harvard’s peer Dartmouth, whose charter dedicates it,
like Harvard’s does, to the education of
Native American youth, has native faculty in
several different departments across this college. This report comes
to us in the middle of a presidential campaign,
one that Dean Cohen alluded to, which, among other things,
has given us two competing aspirations that you’ve
heard of recently, one of making
America great again, and another of making
America whole again. I’m not going to tip my hand
as to my intended voting patterns in the
fall, but I do prefer the latter of
those formulations, making whole to making great. And just this last week
another round of reverberations of those phrases, making
whole and making great, has made me think, what is it
for a university to be great? And what is it for a
university to be whole? On the latter of those
questions, wholeness, I would not presume to know
an answer to what adds up, to what things jointly
and together suffice to make a university whole. But I can say this. The richness of the dialogue
we have witnessed this year between HUNAP and Radcliffe
in observing the heroic work that Dennis Norman,
Shelly Lowe, Jason Packineau, and the
whole HUNAP community and Harvard’s native student
community, we can say that Harvard can never be whole
without its indigenous peoples, that Harvard can never be whole
without its indigenous history fully told and explored,
and that Harvard can never be whole until its
indigenous family is included fully on
its ladder faculty. Beyond this, no university
pretending to be great or whole can claim to honor diversity
and inclusion while excluding native peoples, native
peoples who are represented in the very charter whose
accompanying funds saved Harvard from insolvency in 1650,
excluding those native people from its ladder faculty. So before turning
to today’s panel, and speaking for myself
only, a white man in alliance with my native
sisters and brothers, let me outline a vision,
sketched in a petition, if you will, to make Harvard
whole in the coming years, that Harvard bring
Native Americans to its tenured
faculty, including but not limited to scholars of
the indigenous North American experience, history, culture,
religion, spirituality, society, and politics, and,
by the way, Federal Indian law in the United States,
that Harvard draw upon its rich intellectual
and material resources to examine America’s
relationship with indigenous peoples and the long
history of dispossession, forcible guardianship, removal,
and compulsory evangelization in boarding schools,
to say nothing of institutionalized violence. And finally, that Harvard do
for its own indigenous history what Northwestern has
done, what Dartmouth has done, what Yale and
Brown are now doing, or what the University of
British Columbia has done, namely that Harvard do for
its own indigenous history what Harvard is doing
now, and next year, including proudly and
appropriately, here at Radcliffe, in its
commemoration of slavery and its own relationship
to racial bondage, to do three things. A, appoint a
committee to examine Harvard’s own relationship to
Native American dispossession, B, to offer seminars and courses
in which students can join with faculty in conducting
research on Harvard’s indigenous history,
painful and even embarrassing as that
history may be, and C, to hold a conference,
as Radcliffe, again, will appropriately
and probably do on slavery in the
university in March of 2017, another
conference in the future on indigenous dispossession
and the university. Making Harvard whole is
something happening today, Friday, April 29, in native
peoples doing native politics, and in the future by
performing native politics for and by native peoples. Thank you. [APPLAUSE] So I want to introduce
Maggie McKinley, who’s the moderator of
our first panel. Maggie McKinley is a
Climenko Fellow and Lecturer of Law at Harvard Law School. She’s also from the Fond du Lac
Band of Lake Superior Chippewa. She writes about legislation,
theories of interpretation, minority rights
and representation, and federal Indian law. And she is the principal
co-investigator of the Language of Lobbying
Project at the University of Chicago, and
collaborator with me– and I’m honored to say that–
with the North American Petitions Project at the Harvard
Department of Government. I rarely describe a paper
and essay as brilliant, but I want to alert you
all to her brilliant essay coming out in next month’s
Stanford Law Review– it is next month, right? It hasn’t been postponed–
entitled “Lobbying and the Petition Clause.” I’ve been working on
petitioning now for 15 years. It’s the single best
paper in the field. She’s also done thoughtful
work on lobbying and on federal
Indian law, and she helped immensely in the
creation of the framework for this conference. Having gotten to know her
over the last couple years has been a privilege
and pleasure. As I am a student, a
very amateur student of Native American politics and
Native American petitioning, it is with frequency but
with patience and kindness that Maggie often corrects
me on my historical facts and cultural
misapprehensions, and I have to admit they are many. But I am indeed
honored to call her a colleague, a
collaborator, and a friend. Maggie McKinley. -Good morning. That introduction, in many
ways, completely oversold what’s coming this morning. But thank you so much,
Dan, for overdoing it. I’m always grateful for that. So welcome to our first
panel of the morning. This is on native law
and legal strategy. And what you’ll notice
first is that we’re missing one of our panelists
to a rogue flu that hit him this morning. But we’re going to do our
best to muddle through, and we’re grateful for your
patience with the panel. And we’re looking forward
to having more Q&A with the audience at the end. So I’d like to start off
by thanking our organizers, both at Radcliffe– so
Dean Cohen Becky, Paul– and at HUNAP, Dennis,
Shelly, and then there’s also Jason and
Sam, way in the back. Thank you so much for all
of your energy this year. It’s been a pleasure to work
with all of you, and an honor. I’d like to extend a
very special thanks to Dan Carpenter, the
political scientist mastermind behind
our thematic year of the Performance of Native
Politics Outside the Vote. We often envision voting
as the primary mechanism of representation
in a democracy. So why exactly did we
focus our thematic year on participation
outside of the vote? In 1924, Native Americans
were extended the franchise in federal elections. You heard me right. That was 1924. 19. That was 54 years
after the ratification of the 15th Amendment, which
outlawed extending the right to vote on the basis of race. And it wasn’t until 1964 that
natives were given the right to vote in states like Utah. In Minnesota, where
my family is from, the Minnesota
constitution contained an explicit civilization
clause that required natives to pass a civilization test
before a district judge before being able to vote
in Minnesota elections. This means that for a majority
of this nation’s history, over 150 years, Native
Americans were excluded from the primary mechanism
of representation in our government. Our tribal governments
still have no formal means of representation in our
federal and state systems. We’ve had to find ways to
advocate for our sovereignty elsewhere. Luckily for our communities,
sovereignty is like water, and when one channel
is closed, it flows into whatever
channels are open to it. We’ll hear later today about
efforts aimed at Congress and the Executive
Branch, and also efforts aimed at the public
through art and mass media. But we’d like to start
first with the courts. This is the site where
the United States first articulated the famous words,
domestic dependent nations, and in so doing
named what some call federal recognition
of tribal sovereignty, and what others–
not so friendly– call a legal fiction. In many ways, the
story of native America within the courts
is a familiar one. Like many other
disenfranchised, discrete, and insular minorities,
natives took to the courts during the Civil
Rights era to bring the tools of impact litigation
to bear on the problems that the electoral branches
just would not solve. Like Brown v. Board, Roe v.
Wade, and Romer v. Evans, natives saw some
successes in the courts. But the native story
is also distinctive. Unlike the traditional liberal
integrationist approach of other minority
groups, natives enjoyed structural
protection as minorities through sovereignty and
local self-governments, and not simply
through the protection of constitutional rights. Over time the courts have
become increasingly hostile to the structural protection. Not only is it something foreign
to other minority groups, the court began to
see native sovereignty as something that was actually
in tension with the rights of others, mostly the
rights of non-Indians within Indian country. Rather than rights
saving minorities from the local
control of federalism, as we often hear in our
oversimplified story of the Warren Court and
the Civil Rights era, we’ve seen a much more
nuanced relationship between natives and the courts. It’s this more
nuanced relationship that our panel explores today. And to foster that
discussion, we’ll begin with someone
that I like to think of as the conductor of the
National Symphony of Indian law litigation, Richard Guest, Staff
Attorney the Native American Rights Fund and head of its
Tribal Supreme Court Project, and in full disclosure,
my former boss. If there’s a single case
in the entire United States and elsewhere that’s
important to Indian country, I have no doubt that
Richard knows about it and is organizing everything
around it already. And we’ll also hear from the
Honorable Diane Humetewa, United States District Judge
for the District of Arizona, citizen of the Hopi
Nation, and the very first Native American woman
appointed to the Federal bench. Please join me in
welcoming our panel. [APPLAUSE] -Thank you, Maggie. It is a pleasure to
be with you all today and to be a part of an
important dialogue that’s been long in coming to
this part of the country. The conversation has
taken place elsewhere, but certainly it’s
necessary here. My role today is to come to you
from the Native American Rights Fund, NARF, as we
refer to ourselves. HUNAP, NARF, you
get all the acronyms once you start coming to
Indian law conferences. Have to figure this out. And as has already been alluded
to in the remarks this morning, the movements
throughout this century ultimately led to the formation
of the Native American Rights Fund. It was really as a part
of the work of the NAACP LDF, the Legal Defense Fund,
that the concept came out, through the California
Indian Legal Services, for the need for a
National Indian law firm, that there would be a
nonprofit established that would undertake the work
of national litigation on behalf of Indian tribes
and individual Indians. And so NARF was established. David Getches, Charles
Wilkinson, John Echo Hawk, my current executive director,
were all there in 1970. And they decided that the
location for the Native American Rights Fund needed
to be at a neutral site, because Indian country
out in the West is captured by various
interests, much like now, here in the east and
in the south, where if you’re in the southwest,
you have particular interests for particular tribes,
if you’re in California, if you’re in the Northwest,
if you’re in the plains. And so they made a
conscious decision to locate in Boulder,
Colorado, just right off the campus of the
University of Colorado, and that was in 1970. I’m not going to
read my PowerPoint. I’ll let you do that. But when NARF was established
through its indigenous board of directors, they determined
that there would be five goals, and it became our
mission statement. The preservation
of tribal existence and the protection of
tribal natural resources became paramount. Again, throughout
much of history, Native Americans survived by
being invisible to the majority population. That being invisible
meant you didn’t even know they were there,
and that was a survival tactic, because if you knew
they were there, that they had lands, that they had
goods, Indians learned, you’d take them away. And so they very much
lived life under the radar. The protection of
tribal natural resources has been a primary
mission of NARF. We have been involved in almost
every major piece of litigation involving water rights and the
protection and preservation of tribal resources that
mean survival for the tribes. We’re also engaged
in the preservation of Native American human
rights, the accountability of governments to
Native Americans, and one of our major roles
in the past number of years has been the development
of Indian law and the education of the public. So I lay that out there
just as a framework to do to be thinking that
back in 1970, leaders from throughout Indian
country came together with lawyers to talk about how
best to serve Indian country. One of my basic
presentations, just about the sources of federal
Indian law– and I do this at Indian law
conferences with lawyers all the time, because we need
to be reminded that there are sources for
federal Indian law, for the establishment through
these various mediums. Under the US Constitution
we have the Treaty Clause formulated under
international law with military and
foreign affairs policy. And for us, we view that
not as a grant of authority, but as a reservation of rights
under the US Constitution. There’s the Indian
Commerce Clause, and much has been written
around this particular clause. And the Supremacy
Clause, which I like to read,
Article VI, Clause 2, “The Constitution and the laws
of the United States which shall be made in pursuance
thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the
Supreme Law of the Land.” So we move from the
Constitution to federal statutes and regulations. Many of you may
know or may not know that there’s an entire title
of the US Code dedicated to the regulation of
Indian people, Title 25. Indian people are perhaps the
most highly regulated people on the planet, and
it comes into play with our interactions
in the courts and through the
administrative agencies and through Congress, which
you’ll hear about later. Then we have the
development of common law through the federal courts. And I think that that is
a topic that we’ll get into more in my presentation. And then I like to remind
folks that similar to what Dean Cohen talked
about, there were specific periods in the
development of Indian law that many Indian law
professors adhere to. And they talk about
the formative years from the founding of
the United States. Well, Indian tribes were
here before the formation of the United
States, but we talk about those formative years,
and this is a development of federal Indian law. We have the Allotment
and Assimilation Era. And again, this was
an era where there were many well-meaning
non-Indians who believed that this
was in the best interests of Indian
people, that by breaking up their reservation and giving
lands to individual Indians and assimilating them
into the mainstream, that we were doing
right by Indians. And the exact opposite
was the truth. And in 1928, there was a
report issued called The Miriam Report, and it detailed the
poverty and the suffering that was occurring throughout
Indian country as a result of allotment
and assimilation. And thus we come into
the Indian Reorganization Era with the passage of
the Indian Reorganization Act in 1934, where the
Congress made a determination that the future
for Indians meant allowing their
governments to reorganize. They saw them, and again
created constitutions for tribal governments
in which to govern on their reservations. They stopped the
process of allotment through the Indian
Reorganization Act. The whole idea of
allotment was to break up the Indian reservations,
destabilize a central form of
government, and thereby take care of the Indian problem,
that Indians would just be absorbed into the mainstream. But guess what? Indians didn’t want to be
absorbed into the mainstream. They wanted to maintain
their identity. They wanted to maintain their
culture and their traditions. They wanted to maintain their
traditional ways of life, because that’s who they were. So we enter into an era where
there’s a real conflict, where again, well-meaning,
well-intentioned non-Indians are saying, here’s
a solution for you, instead of looking to the
tribes, to the Indians, and saying, what do you want? So we have this era of
self-determination, the Indian Reorganization Act. I’m getting ahead of
myself, but there was also that same force that existed
within the United States government that continued
to see Indians as a problem, and they continued to seek
that the best way to help Indians was to terminate
the federal relationship with the tribes. And there are examples from
around Indian country of that occurring, and again,
the devastating impacts, where tribes
had been successful in the use of the
natural resources. One of NARF’s clients is the
Klamath Tribes in Oregon, and they were one
of the leaders. They had huge timber resources. They were living a high quality
of life on their reservation, engaged with the non-Indian
communities around them, with the state of Oregon. And in the 19050s,
the federal government saw them as a success, that they
didn’t need federal supervision anymore, cut the ties,
broke up the reservation, and the tribe almost
immediately fell off a cliff to where they experienced
the loss of who they were as a people. They were no longer
successful economically, that again, it was an area
where we could talk and do an entire conference
on the termination policies and its impacts. As we move forward,
there’s the famous speech in 1972 that
President Nixon gave, The Indian
Self-Determination Act, where he recognized and Congress
ultimately passed– I never get the name right anymore,
The Indian Education Self-Determination, or Indian
Self-Determination Education Assistance Act. We refer to it as
630A contracting of opening up opportunities
for tribal governments to take on programs that
were once administered by the federal government
on behalf of the tribes, and give them the
financial resources to run those government
programs themselves in all different kinds of
areas regarding governance. Now we come to talk
about the work that I do, the Supreme Court Project, and
my colleague, John Dossett, who you hear from later from The
National Congress of American Indians. Prior to 1978, and
really into the 1980s, Indian tribes were having
great success in the courts. When NARF was founded
in 1970, we immediately brought a number of
pieces of litigation, in particular,
under the treaties. There were the
great fishing wars that were taking
place in Washington and Oregon and Michigan. And fishing rights
and hunting rights were one of those rights
expressly preserved under the treaties
with the United States. There were land claims happening
here in the east coast. And NARF was, along with
others, bringing those claims into the federal courts and
having levels of success. But back in 1978, there was
a justice, at that time, on the Supreme Court,
William Rehnquist, who had a different
vision for Indian tribes, who really was a deeply
committed states’ rights activist, who
really is committed to, or was committed to, an ideal
that no one has special rights. No one in this country
has special rights. We’re all the same. So again, I don’t believe
that it was necessarily started as animus
against Indian people, but his own commitment
to his own ideals, that he crafted the
opinion in Oliphant, which was an Indian law case
involving criminal jurisdiction over non-Indians
on the reservation. And the rule came out
of Oliphant, something known as implicit divestiture. And what that means is
although it’s not explicit, there’s no way that the United
States would have bargained for Indian tribes having
authority over non-Indians and being able to criminally
prosecute them even though they commit crimes
within their lands, and even though
under the treaties that the United States had
entered into with tribes, that they actually
say that tribes would have this authority. So implicitly, the
Indian tribes were divested of that authority. William Rehnquist went on
to become Chief Justice. And then we start
seeing the period, now, what I described
in the earlier slide as possibly the period
of judicial termination, where through the courts, the
United States is achieving, or opponents to Indian
country in the exercise of inherent tribal
authority are achieving a level of success
of terminating those rights and the
exercise of those rights. So during the October term 2000,
there were a number of cases– and please let me know. Write it down if
I’m taking too long. In 2000, there were
a number of cases that came down, in
particular, Atkinson Trading, dealing with a
tax on non-Indians in a hotel situated
on the Navajo Indian reservation located on fee
land owned by the hotel, but surrounded by
reservation trust land, receiving services
from the Navajo Nation, but feeling that they should
not be subject to the hotel tax. And then we also
had Nevada v. Hicks, which involved state officials
coming onto the reservation to execute search warrants for
the illegal hunting of big horn sheep off reservation,
but within the hunting grounds of the tribe. We were successful in both
cases in the lower courts. We had won judgments in
favor of no state authority in Hicks, yes to tribal
authority in Atkinson Trading. We end up in front of
the US Supreme Court, and we get two decisions
adverse to Indian country. And it shook up a number of
leaders, because at that time, there were a number of other
efforts underway in the media, at Congress, that were
truly anti-Indian. And so a meeting was
called in Washington, DC, on September 11, 2001. And the National
Tribal Leadership all came in on that day to meet. Senator Inouye was
there, and as you know, had to excuse himself
because planes had just flown into the World Trade Center. And then a plane flew
into the Pentagon. The silver lining to
that very dark cloud was the fact that we
had a captive audience of tribal leaders
in Washington, DC. And so through that came what
was known as The Sovereignty Protection Initiative,
initiative by the National Tribal Leadership to preserve
tribal sovereignty in all respects. And there were four projects
that were formulated out of that meeting. There was the
legislative project to undo what the court had done
in Oliphant, and subsequently in the Montana case with
respect to civil jurisdiction, to address tribal authority
over non-Indians legislatively. There were also efforts underway
at that time in the Congress with respect to the
immunity of tribes, and trying to waive that
immunity so that non-Indians could sue Indian
tribal governments, and a host of others. So those were
initiatives underway, and there was a
project established to address legislative fixes,
to ensure full expression of tribal sovereignty. Then there was the
media public relations, addressing it through educating
the public with respect to that the tribes are here,
they haven’t gone anywhere, they will continue to be here,
and that it’s a good thing that the tribes are still here. There was the Judicial
Nominations Project, now known as the NCAI Project
on the Judiciary, where we worked extremely
hard on identifying native candidates who were
qualified to serve as judges on the federal courts prior to
Judge Humetewa’a appointment, there had only been
two– in the history of the federal
bench– two judges who were of Native
descent on the bench. One of them didn’t know
he was Native at the time, that he was appointed
by President Carter. The other had resigned
his seat shortly after he was appointed
by President Clinton to return to private practice. So for a long period of time,
we had no Native American judges on the Federal bench. And we’re working
to change that, and we’re working at the
level of the state courts as well to change
the dynamic there to make sure that Natives
have an opportunity to serve on state court benches. So along with those
three projects, the Tribal Supreme
Court Project, a real effort by the
National Tribal Leadership to address what was
happening in the court, what they were witnessing
in terms of the erosion of tribal sovereignty
through the courts. So the purpose of
the project was to strengthen tribal
advocacy, do that through coordinating resources,
developing specific strategies, creating relationships
and networks. We have the staff with the
attorneys at the Native American Rights Fund. I say attorneys. There are two of us
who do this work, and I do it mostly full-time. Attorneys at the
National Congress of American Indians, John
Dossett and his colleague Colby Duren. And then I now have
a working group. I have to update this slide. I’m now up over 300
attorneys, tribal leaders, and law professors
on our working group. And our role is multifaceted. We monitor all the cases
in the lower courts. We try to identify
trends that are occurring in the lower courts. We’re trying to
identify cases that we believe are problematic for us. If you remember,
the NAACP, when it was envisioning how to
undo racial segregation, it brought a series
of targeted cases that they felt that they
could win all the way up through the Supreme
Court, culminating in Brown v. Board of Education. And there was a
strategy behind that. The project tries
to emulate that. We oftentimes cannot bring cases
the way that the NAACP would bring cases, because cases are
happening all the time without our input and us being
able to say, bad case, please don’t bring that. Well, the tribe, the people,
the individual allottees, they need to have their
rights vindicated, and they’ll use the courts or
whatever sources they have. So we can’t control it. So we move along
very quickly now to the role of the work of
the Supreme Court Project. We keep these cases updated and
we conduct national conference calls on a regular basis to
talk with the work group members throughout the country. The normal things that
a project of this sort would do in consultation
with the Tribal Leadership, we work heavily at the search
stage in the Supreme Court, where a determination is
made whether to grant or deny review of a particular case. We have an ongoing relationship
with the United States Solicitor General’s
Office whenever we’re not adverse to them in a case. And we coordinate
moot courts, and I’ve had the pleasure of mooting some
of the most well-known Supreme Court practitioners who
have been arguing our case, including Neal Katyal,
who argued the Bay Mills case and the Dollar
General case, Paul Clement, who successfully
argued the Nebraska v. Parker case this term, and
a number of others. So in just a couple
of minutes, I just want to kind of cover some of
the work that we’ve tracked and give you an idea of
just the breadth of work. In 2011 we published
our Ten Year Report for the Supreme Court Project. And you can see from
the graph the types of cases that were at court,
where we were petitioning the court or someone was
petitioning the court, to decide an issue. And civil jurisdiction, criminal
jurisdiction, Indian gaming, lands sort of led the way. The most litigated issue
was sovereign immunity. Then you look at the cases
that the court granted, and you see that
they are dominated by cases usually brought
by the federal government or by state governments
against trials. The trust
responsibility, taxation were the leading cases. This graph was to illustrate the
outcomes for tribal interests in the lower courts. We’ll talk about the
outcomes real quickly in the Supreme Court. And on average, we are 50-50. We win half the time,
we lose half the time in the lower appellate courts. So to kind of wrap this
up, our win-loss record with the Rehnquist court at
the start of the project we actually improved. In the beginning
there was a slide that talked about David
Getches and the loss rate, that Indian tribes at the
time were winning only 25% of their cases, one in four. Our winning percentage
was lower than that of criminal defendants
in front of the court. So when we got together
with the Project, we saw almost immediate success. There are varying
reasons for that, but we were four wins,
three losses, two draws. When the Roberts court
came in, and at the time of the publication of
the Ten Year Report, we were zero for seven. And we had– partly
because of the retirement of Justice O’Connor,
Chief Justice Roberts coming on the court to replace
Chief Justice Rehnquist, Samuel Alito, who until the
Nebraska v. Parker case, has never voted in favor
of Indian interests in a single case. And now we’re starting to take
a look at the more recent terms. We’re now– with no
decision in two of the cases at the court today–
we’re now two and two. We had the loss in Patchak,
the win in Ramah Navajo, the loss in Baby Girl,
the win in Bay Mills. This term we now have
the loss in Menominee and the win in
Nebraska v. Parker. So we’re at 50%. And I haven’t had a chance to
break that down and analyze why, because we were
basically zero for nine, and all of a sudden
we’re not anymore. So I have to start
crunching that data. But some things we
have noticed is, there’s been a real decrease
in the number of cert petitions in Indian law cases
over the recent terms, and there’s been a huge decline
in the number of Indian law cases granted. Before the Rehnquist
court, there was an average of three
to four Indian law cases heard by the Supreme Court. During the Rehnquist court,
there was two to three. With the Roberts court,
it’s been one Indian law case on average. Now that’s changed, and we’ll
be taking a look at that. And this term the number
of Indian law petitions is back up to its
average of 26, 27. So there’s the presentation. I hope that there are questions,
and that I did leave time for us to have that
interaction to dig down a little bit about this. Thank you very much. [APPLAUSE] -I was happy to yield
time to you, Richard. It was very fascinating to me. Well, I want to begin
first by thinking Councilman Perry for that
wonderful welcome and blessing and beautiful song,
and Dean Cohen for her encouraging
and kind remarks. My remarks were
to have followed, I think, a foundational
set of remarks from our absent presenter. So if you will bear with
me, I hope that some of this isn’t too general. But in the time
that we have left, or the time that I hope to
have left on the program, we’d love to hear questions. And I certainly have
questions of my own for Richard that will
probably go beyond the break. But what I’m actually
going to talk to you about builds on a little bit of
what Richard talked about, but it sort of comes from
a different perspective. I’m first going to talk about
tribal court systems generally. And what I mean in terms
of tribal court systems is really discussing the
rule of law and custom in those systems, and the
federal government’s influence over those systems. And I’m going to use
my own Hopi tribal court, the court that I used
to sit on as an appellate court judge, as an example. And then I’m going to talk about
judging within the two systems that I’m familiar with,
the tribal court system and now the federal
court system, sort of give you a comparison
and contrast as to what I see are similarities and
differences in the role of a judge in those
systems, and then talk about the need for
coordination and consultation, which sort of goes very
nicely with what Richard just finished discussing. And I’m going to try to
do that by first laying a foundation of where I
come from, the Hopi Tribe, because this is going to
be the example that we’re going to use. As you can see here,
our reservation area was established by
executive order in 1882. How many in the
audience have ever been to the Hopi Indian Nation? Oh, gosh. Probably a quarter
of the audience. Well, if you can
see on the map, we are that little brownish area
in Northeastern Arizona that’s surrounded by the blue, and
the blue is the Navajo Nation. So we are a landlocked
tribe, essentially, comprised of 12 villages,
which is important for you to remember as we go
through this discussion. And you’ll see the acreage
in terms of square miles, and according to our census,
the population of tribally enrolled members, which, by
the way, has been growing. Historically we were and still
are a very traditional tribe, and we are a
matrilineal society, which is also very important
for our discussion this morning. And so historically,
you were automatically a member of the tribe
if your mother was Hopi. And then because of the
sort of advancements in the rules of enrollment,
now the current criteria is you have to have a quarter
lineage of Hopi blood. And so traditionally,
essentially, we still follow our mothers’ line in
terms of village membership. Just by notation, the little
small blocks on the map denote where the other Indian
nations are in Arizona. There are 22 Indian
nations in Arizona, two of the largest in
the nation, the Tohono O’odham, which is to the
south, adjacent to Tucson, and runs into Mexico, and
of course the Navajo Nation. Those of you who have been to
Hopi recognize this photograph. And for some it might be
difficult to make out, but this is on 2nd Mesa,
the village of Sipaulovi and Mishongnovi, which are
both on the bottom of the mesa, and the traditional homes are
on the very top of those two mesas. And you can see the
expanse of the homes that are below the mesas. And then Highway 264
runs adjacent almost at the bottom of
this photograph. We are a very
traditional community. There is sort of a
modern village photograph down to the left,
the lower left. And you can see we still are
a very traditional farming community. Basically our existence
revolves around our farming and the growth of corn,
and our crops of corn that we use in our ceremonies,
of course, for our sustenance. And we follow a very
traditional ceremonial cycle, and we are very well known for
our kachina ceremonies, which have now become art in terms
of our kachina carvings, which are primarily done
by the men in our villages. My village affiliation, I am
from the village of Hotevilla, which is 3rd Mesa. And I am a member
of that village. My grandmother– my great
grandmother, I should say– was one of the
families who relocated from the traditional
village of Old Oraibi, which the Hopi consider the longest
continuously inhabited village in the United States. I think we compete with
Acoma for that label. But in any event,
my great grandmother helped to establish–
she was one of the so-called traditionalists
who moved away from Old Oraibi to resettle the traditionalists
to different areas on the mesa. And my family, then, is from
the village of Hotevilla, which is about six, eight miles
down the road from Mishongnovi. And I am of the Tobacco Clan. We say [NON-ENGLISH SPEECH],
which is essentially the responsibility of our clan
system is to be caretakers and provide the tobacco for
all of the ceremonies that are necessary in our society. So I want to begin by talking
a little bit about some of the influences
that Richard mentioned in terms of our history with
Indian tribes and the Federal government. This is how our
constitution looks today. It is our Constitution
of the Hopi Tribe. And essentially, this
was enacted in 1936. And I want to point out the
preamble of our constitution. As you can read there, it
recognizes the village autonomy of the Hopi people. And whenever I
read this preamble, that the Constitution is adopted
by the self-governing Hopi and Tewa villages, I
think about what happened in enacting this Constitution. First, let me go
to the next slide. And if you’ll see the
first bullet point, it talks about the Indian
Reorganization Act. Of these eras that Richard
talked about, we, of course, were influenced by these eras
in the federal government. There was a period of time
where the original Spaniards who came– the Hopi people
along with the other Pueblo people in New Mexico fought
off the Spaniard influences, and that stood for a while. And then came the
federal government with all of the
policies of assimilation and taking the children off
to boarding school and so on, and then the influx of the
federal officials, the BIA officials, if you will, who
came into the community. And then there was
this era of time where the federal
government said, well, look, if we just give them
rules or structure of rules, then they can start
governing themselves. And so there was this
movement on the Hopi villages. And if you can imagine
back in the 1930s, there was still a very
traditional Hopi language that was predominantly
the language there. These officials would go
into the kiva chambers, our ceremonial chambers,
and try to convince the leaders of our villages
to adopt this Constitution. And there was a
large back and forth, and it was a two-year process
of going village to village, going into the kivas, talking to
the men, getting them to go out to the communities to say, this
Constitution is a good thing. And at the end of the day,
when you think about it, this Constitution was actually
passed by a vote of 104 to the 651 eligible
members to vote. And so we still
have this struggle in our community about the
legitimacy of this Constitution because of the number of people
that actually voted to pass it. But in any event, what
I think about when I look at this
preamble is really the foresight of some of
the elders who participated in those discussions
to really point out the autonomy of the very
villages from which they came and the role of the villages
in Hopi society generally. This Constitution establishes
the tribal government. It essentially is a
one-branch government. And that’s necessary
to also remember because it does not establish,
like our Constitution, a three-tiered
branch of government. Oh, I’m going backwards. So moving forward
to our establishment of our tribal court systems. You can see there that
we also fell influence to the code of federal offenses. Essentially what
occurred– how many of you know where the
Bureau of Indian Affairs developed out of? War Department. So during these various
eras of assimilation, you did have the necessity
for these Indian agents to do something to bring
these native people in line. And so what happened was,
they established these courts. And the courts were really
made up of ad hoc rules. And the ad hoc
rules of punishing Indians who weren’t coming
in line with what the desired federal policy of
the day was, ad hoc rules to deal with the
traditionalists, in our case, at Hopi, who refused to
have their children taken to boarding school. How do you deal
with these folks who are disrupting the forward
movement of the government? And so oftentimes
what would happen is, the BIA superintendent
would appoint a person, a friendly Indian,
to be a judge on these courts. And in our case, you can see
here that the CFR court in Hopi was established in 1940. It was essentially
the BIA superintendent who told an individual, here’s
the code of federal rules. Read this book and apply it to
the cases that come before you. And in many instances,
a lot of the cases that were first heard in the CFR
courts were criminal matters. And if it was interesting. I was reading some of
the former documents, and the judge, the
first CFR judge, basically said, well,
I’ll read this book, and I’ll just apply it
until the Hopi people know what this court is about. SO I thought that was
kind of interesting. So jumping forward, the CFR
court, then, was in operation. And again, it only predominantly
worked on criminal matters. And there was an
assumption in the community that the other matters, the more
civil matters, the things that involved family,
were all being taken care of at the local level. And when I was an
appellate court judge, I found it very, very
interesting to learn that our Hopi court
was established almost in an ad hoc
manner, if you will. There was a lawsuit
that was brought by a Navajo man
against the Hopi tribe because his livestock
had been taken. They had gone over into
a Hopi land grazing area. And the non-Indian
lawyer at the time convened a meeting of the
existing tribal council. And there was a discussion
about what do we do? How do we address this issue? And there was only
a small paragraph that then describes a
vote to establish a court system in 1972. And so out of this
sort of reaction, then, comes this is what we call
Ordinance 21, which is, today, our ordinance that
establishes our Hopi court. One of the interesting things
that occurred a couple years later is that the Hopi
council, in their wisdom, passed a resolution, H-1276,
that requires the tribal court to apply custom, tradition,
and culture in deciding matters of both substance and procedure. And that resolution actually
establishes the foundations of how the Hopi
appellate court applies custom and law in current cases
that come before it today. I also wanted to point
out this provision. And I don’t know if you
can read that up there. But this is actually a
section of the Constitution, Article III, that talks
about the organization, the acknowledgement
of the villages that were established
at the time. But what I wanted to point
out here is Section 2. It basically reserves
to those villages certain types of decision
making to appoint guardians for orphan children, to
adjust family disputes and regulate family
relationships, to assign farming land and
property and inheritance. Again, another very thoughtful
and deliberate statement that basically says, we
preserve these rights to our individual villages. And so this, actually,
also provides a basis for our tribal courts. When primarily
addressing civil issues, many of these civil issues–
in particular, property and inheritance– are
sent back to the villages for a first decision. And if the village doesn’t
want to get involved in that decision,
they have to certify that to go up to the court
to let the court exercise its jurisdiction
over that matter. But what has happened
over time is, those various provisions
that I pointed out have established a very
interesting practice and procedure in the Hopi court. That is, because tradition
and custom oftentimes aren’t known and may never be
known by certain individuals, especially if you’re not in a
particular society that needs to know, it created a quandary. So in the late
’90s, early 2000s, the Hopi appellate court,
before I was on it, established a system to
develop that customary law. And the way that was created
was sort of happenstance. It resulted as a
property dispute, and the tribal judge
took it upon himself to go to the village,
hear from elders about how property
was distributed in that particular
village and in that clan, and then heard from
elders in the family, and they developed
this body of law. And it was through that system
that that became precedent and process and procedure. And again, those
procedures are used today. What that has developed,
however, is a tension. Because I’ve talked primarily
about the custom and tradition in civil types of
cases, family cases. But we still have
essentially a reversion back to the CFR courts in
criminal practice. And there it’s very difficult,
because you have individuals who are asserting due
process rights that flow from the United
States Constitution and the Bill of Rights. And you have an adversarial
system on the one hand. And oftentimes, that adversarial
system in the criminal process flows into the civil process. It does that in particular
situations where you have individual
judges, frankly, who are used to
that sort of system. They revert back to the
systems that they’re used to. Oftentimes they come
from state courts, or county courts, city courts,
who come out to practice law. And so there’s this
tension between how do you adhere to the
common practices of custom and tradition in resolving
interfamily disputes, and still pay attention
to the individual right? So I will tell you that
there are these tensions that have developed, because
of course our societies, like many tribal
societies, are changing. And so people value their goods,
people value their property. And one of the
areas that started to emerge when I left
the court back in 2007 was the introduction of
the concept of wills. Well, if you have this body of
traditional and customary law that addresses property
distribution, especially homesteads, agricultural,
farming land, livestock grazing areas, and you have
individuals who have grown up in today’s society who have
been taught that ownership, property, possession
is a valued thing, the two are always going
to come in tension. There’s this tension
that’s automatically built in to the argument. So those are some
of the struggles that I think the modern day
courts are going to deal with. I want to move really
quickly and sort of talk about the role of judging. As you can see here, in
the Hopi tribal court, it is a unilateral
system of government. There are only two court
systems, the trial court and the appellate court, and
the ultimate decision maker is the Tribal Council. But I have yet to see the
tribal council overturn an appellate court decision. The tribes, like many tribes
throughout the United States, they have broad
civil jurisdiction to address things that
occur to the extent that it hasn’t been eroded,
as Richard well knows. There is still limited
criminal jurisdiction as a result of the Major Crimes
Act, the Assimilative Crimes Act, Oliphant, Duro
versus Reina decisions. And tribal judges primarily,
on the Hopi court, have to wear the hat of a
mediator, an arbitrator, and ultimately a decision
maker, in many instances. But in the US Court
system, as you know, it’s very circumscribed. We have the Supreme
Court precedent that we have to apply. We have, in my case, the
Ninth Circuit precedent that you have to apply. We are limited
jurisdiction courts, so we only can hear
matters of diversity over a particular amount,
a constitutional question. We are very rule-
and process-oriented. And of course, we are always
subject to appellate review, whereas in the Hopi
instance, as I mentioned, the ultimate decision maker
is the Hopi Tribal Council. And so the issues in
being a tribal court judge versus a
federal court judge are really very different. In the tribal court systems,
when I was an appellate court judge, you really had
to balance thinking about the preservation of
custom and tradition because of its impact not just to
the individual case, or even the individual claim, but
beyond that, the impact to the society in the
particular village or the clan, and the existence of the
Hopi tribe as a whole. In the federal courts, I
would say, in many instances, it’s much easier,
because you’re only focused on the case
in front of you, only focused on the
individual’s rights and claims. And the law, for the
most part, will guide you as to how the outcome should be. And so in some very real
ways, tribal judging is very difficult in
comparison to judging in state or federal courts. I want to end by talking about
some of what Richard mentioned. And this has to do with
the coordinated need for examining, consulting,
and coordinating discussions and understanding of the
role of federal courts in Indian communities. I think back to my experiences
as both a lawyer in the Senate Indian Affairs Committee, as
a US attorney for the District of Arizona, and now as a judge. And one of the observations
I have always made– and I’m glad to see that
the tide has changed with organizations such as NARF
and the Supreme Court Project. But for the longest time,
and as a very young lawyer, I was always in federal court. And I knew in our
courthouse there were a variety of issues being
discussed that directly impact if not an Indian family, but
activity in Indian communities. And frankly, there
were very few times when I would see tribal
leaders, Indian individuals, organizations, appearing
at those arguments. And it always dawned
on me that there needed to be some
attention paid to what was going on in these courts. And so as the US Attorney,
one of the policies that I implemented in my office
was that every Indian country case, we were going to transmit
the outcome in a short press release to the tribal
nation that it involved. And it was an
interesting comment that I received from one
of the tribal leaders that we were meeting with
shortly after the policy began. And he said, you
know, you’ve really created a dilemma for us. And I said, well,
I don’t understand. He goes, you know those press
releases that you send out? He said, we really don’t
know what to do with them. The tribal council sometimes
wants to put them out to the community, and
sometimes they don’t. And so we’re debating that. And I thought, well, at
least they’re debating it. So they understood the
reach of the federal court in their community. That was my goal. And I don’t know that
that’s being done today. But one of the things
I think about often, on the federal
bench, every day we receive a bulletin from the
Ninth Circuit Court of Appeals. And it’s remarkable
the number of cases involving Indian community. I, of course, am in the Ninth
Circuit, Arizona, California, Alaska, Washington, Idaho,
all along that western edge of the United States. And our federal
court systems today are being asked
to examine what it means to be an Indian,
in the Bryant case just argued in the Supreme Court
about a week and a half ago. I’m seeing decisions from
the Ninth Circuit courts, district courts in California,
about claims of disenrollment in various tribes. Federal courts are being asked
to answer those questions. Federal courts are being
involved in disputes about gaming between tribes. It just goes on and on. Water rights, breach
of contract when tribal governments
enter into contracts with non-Indian entities. So I think that in future,
these cases will only increase. And the need to at least
talk about and understand the reach of federal courts
in Indian communities, and the impact to tribal
members, is really important. And so I want to applaud
NARF and the work that Richard and John and
others are doing on that level. So I think I’ve
gone over my time, and I’d like to just end there. [APPLAUSE] -Thank you so very much to our
panelists for THAT incredibly rich discussion of
tribal courts, state courts, federal courts,
and Indian law generally. I’d like to open it up for
audience questions now. And as Dean Cohen mentioned,
though, the custom at Radcliffe is there is a microphone
positioned in that center aisle. So if you have a question,
please collect your thoughts and bring yourself up
to that microphone. And I can see a line is forming. And if you could start
by– oh, a wonderful line. If you could start by
introducing yourself and then by asking
your question. And all panelists here will
try and take a swing at it. But thank you so much for all
of this amazing participation. I’m so glad to see this has
generated so many questions. -Hello. My name is Kelly Dennis. I’m from the Shinnecock
tribe across the water. I’m actually here with my
cousin [? Tiala ?] and Matt. We drove all night to get
here, also a tribe member. And also my cousin
[INAUDIBLE] is also here, and she’s more fortunate
that she’s more local. And we’re also from
the [INAUDIBLE] tribe out here in Grafton,
Massachusetts. So on behalf of all us, we want
to say [NON-ENGLISH SPEECH] to the panelists and to you,
and also [NON-ENGLISH SPEECH], welcome everyone. And [NON-ENGLISH SPEECH], hello. So my question’s, I
guess, to Richard Guest. Well, first of all,
thank you, Richard, so much for being the counsel
of record on our land claim petition to the Supreme Court. It’s been a huge endeavor
and we definitely couldn’t have done it
without NARF helping us. My cousin and I
also, we’re attorneys working for the
tribe, and then we have our nonprofit
that we’re continuing to do work for the tribe. And so my question,
first, is, I don’t know if you really
touched on current events with the passing
of Justice Scalia and how that may affect
the current court decisions at the
Supreme Court level with potential Native
American cases. And also in the case that
President Obama, his nominee Judge Garland is able to get
placed in the Supreme Court, if you see any potential
impacts happening there. And then also another question
is, I really appreciate the overview of the
Indian Reorganization Act and the Constitution
that has pretty much been imposed on tribes. And what’s kind of
been the unfortunate trend is that we do, with
the native communities, want to be able to still
reflect our traditional values. And yet we tend
to still, anyway, adopt these IRA-looking
constitutions with just one tribal council because
that just seems to be the thing that everyone has. But I was wondering if you might
be able to give some insight as to a path to constitutional
reform for IRA Constitution tribes, to Diane. Thank you so much
for your question. I just want to make
a quick executive decision because
we’re low on time and there is quite the line. I’m wondering if we could
collect a few questions, and then the panel will address
them en masse, or selectively. So thank you very much. If the next person
could come on. -Hello, my name is Irene Bedard. I’m President CEO of Sleeping
Lady Films, Waking Giants Productions, and I’m going
to be on a panel later. I actually have two questions. The recent VAWA reauthorization
also included some, I guess, jurisdictional rights over
non-Native individuals. And I wondered how that is
playing out in the Tribal Law and Order Act, along with
another question I have about our international
sovereignty rights that came up with
the World Indigenous Forum semi-recently, and how
that is affecting some of our international status. Thank you. -Good morning. My name is Rosalind LaPier. I teach at the
University of Montana in the Environmental
Studies department. But I’ve also worked
for the past 25 plus years with Native
language revitalization. So my question is
related to NALA. So that’s the Native
American Languages Act that was passed in 1990. Part of the
provisions of NALA was to allow for native children
to basically do three things. One is to express themselves
in their native languages, to be educated in
their native languages, and to also be assessed
in their native languages. So the past 25
plus years there’s been a group of native
language schools that has been working on
the third piece, which is assessment, and that’s testing. People who are part
of the native language revitalization
movement have been working towards having the
federal government allow tribes and communities
to assess or test in their own native languages. So the question
is, how can we get NALA, which is a policy
that already exists, it’s already on the books, don’t
need to create a new policy. How can we get it implemented,
fully implemented, across the board? And how do we get the USDE–
USDE to implement that policy? -Hi. My name is Leland [INAUDIBLE]. I’m a community member
in Los Angeles County. And I’m also part of
the ICWA Task Force there, the Indian Child
Welfare Act task force there. And I also was part of
the Baby Veronica case, an adult adoptee, the
amicus brief there. And I’m also Navajo in
Santo Domingo pueblo. And my question is regarding
more along the adoption line and the foster care
line, such as the Lexi case, the Alexandria P. Case
that happened in Los Angeles County recently. And I would like, I guess,
from a judge’s perspective– so this is more
for you– what you think about these cases
coming within your district since you are part of
the Ninth District. And also, I guess, the
gentleman’s, his perspective as far as how they
kind of go along there. So that’s kind of my
wonderment, I guess. Thank you. -So we’re going to–
that was quite the list. We’re going to try and give
a few answers to these, and hopefully we’ll have a
bit more time at the end. I think they might just be on. -They might be on. Why don’t you go ahead,
Judge, and talk about ICWA, or any of them. -Well, I did want to mention,
and I failed to mention, that I am aware of the
provisions in the Tribal Law and Order Act and the
Violence Against Women Act. And the Tribal Law
and Order Act provides an opportunity for
tribes to expand into having federal
criminal authorities up to a certain extent,
essentially doing a bit more beyond the
Indian Civil Rights Act, which requires
tribes only to implement a one-year penalty. And the Tribal Law and
Order Act provides tribes, if they meet certain
criteria, which are predominantly due
process, right to be heard, the right to be represented
by legal counsel, and judges who are law
trained, and a number of other certifications, if
you will, or requirements. And about, which I’m not
all that familiar with, also provides an opportunity for
tribes to essentially– well, I should say, for the
federal government to use tribal convictions
related to domestic violence or partner abuse. It’s essentially a
three strikes provision that the federal prosecutor
can use those prior convictions as a basis for a federal
charge of domestic violence. And that is currently one of the
cases that is being considered by the Supreme Court is what
those prior tribal court convictions have to look like. And so I do know that there
are a couple of tribes, one particular in Arizona,
the Pascua Yaqui Tribe, which is a quote, VAWA certified
tribe, which essentially– basically it operates like
a municipal court or a city court. Everything looks like if you
walked into the Pasqua Yaqui, except that you’re on
the tribe’s nation land– it looks like a city court. So they’re exercising
that jurisdiction. I know that Hopi, back in 2011,
voted to adopt the Tribal Law and Order provisions. And what that did, really,
was it created some tension, because the Hopi tribe
used to have the ability to have non-lawyer
judges who spoke Hopi, who were well-versed
in custom and tradition. And now a number of
those individuals have to be replaced
by law trained judges. And of course, being
as small as we are, there aren’t a whole
lot of law trained Hopi who are willing to
be judges in Hopi court. And so there’s a bit
of a tension going on. And so I think that, depending
on what type of court you come from or what kind
of community you come from, those communities do have
to make the decision whether or not to change
their existing models to meet the requirements of
[? Taloa ?] and the Violence Against Women Act. That’s the only thing
I’ll say about that, and maybe Richard has
something to say about it. -Well, I would start
with the first questions that were put out. Scalia not being on the
court, a good thing. I won’t say his death
was a good thing. I was nowhere Near West
Texas on February 13. But it was a good thing. We’re hoping what would
have been potentially a landmark Indian law case
in the Dollar General case would have fundamentally changed
the way in which tribes have authority over
non-Indians who do harm on Indian reservations
to Indian people would’ve changed with
Scalia on the court. I firmly believe that. With his absence, were
hoping for a four-four split and an affirmance of the
lower appellate court. With respect to Garland,
jury’s still out. He was not good for us at the
DC Circuit, generally speaking, a specific case in particular
I won’t get into, but one that an issue that’s going to be up
at the Supreme Court next year more than likely. Two cert petitions
pending on those issues. And there is a whole effort. Although a tribe maybe
under an IRA constitution, there are opportunities today. Tribes can reform
their constitutions. They have that authority. They don’t need to
rely on the BIA. The BIA has actually, I
believe, removed that provision that requires tribes to go
seek their approval if they’ve adopted an IRA constitution. However, it’s very difficult
to do in the community because there are vested rights
now in particular families within the tribal
communities with respect to making any changes. With WAWA authorization
and native languages, I would defer to John
Dossett in the next panel to revisit those
questions in terms of where we are with the
implementation of both of those. I would tell you that during
the Dollar General argument, Justice Kennedy was very
forceful in his questions slash remarks, where he
was asking the advocates, where does Congress
get this authority? He wasn’t asking, where
do Indian tribes get this authority to exercise
jurisdiction over non-Indians, but where would Congress
get this authority to extend jurisdiction,
whether it be criminal or civil or other? So it’s something
we’re exploring, we’re examining to see where
it might be going with that. And then thank you
for your contribution with the Baby Veronica case. That had to be one of the
most disappointing outcomes. The statute was clear. The discussion by
Justice Alito of blood quantum in the very first
paragraph of his opinion, very, very disturbing. As Judge Humetewa said,
what we’re seeing now in the courts is, we’re
getting back to a place where the discussion is about
who’s an Indian, you know? This was what the discussion
was back in the 1930s and 1940s. Who are Indian tribes? We had a disturbing decision
at the Supreme Court in the Carcieri case, after
Governor Carcieri Rhode Island, that may influence
outcomes down the line if we don’t get a
legislative fix, that really addressed that question. Who’s an Indian? Who gets to decide
who’s an Indian? What’s an Indian tribes? Are those Indian
tribes really sovereign if they’re put together of
different groups of Indians onto a reservation, and we call
it a confederation of tribes? What real authority is there? And there’s been this dynamic
within the United States government, like I said before,
between self-determination and termination. It still exists inside
the federal government. It hasn’t gone anywhere. It’s just underneath
the surface. -So we are incredibly
grateful for all of the audience
participation and interest, but we are out of time. So join me in thanking our
panelist, and thanks again. [APPLAUSE]

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