Join us for a panel discussion on Tribal issues, focusing on Tribes’ status as sovereign governments and current issues relating to tribal government.
Transcript:
Good afternoon and Janet
bad now professor of
public policy and
political science
at the University of Michigan
and the ET and Goldenberg
and our Director for
the Michigan Washington program
on behalf of Dean Michael Barr,
who was watching here today.
And the faculty and students of
the Ford School is a great
pleasure to welcome all of you
to this special Policy Talks at
the Ford School event with
re-ask Kanji and
chairman bryant Newland.
I'll be talking with 3Hz and
Chairman Newland about issues of
tribal sovereignty and
recent legal challenges
to that sovereignty,
both in Michigan and nationally.
Before we dive into discussion,
let me very briefly
introduce our guests.
Rehash Carnegie is a founding
member of conjugated Canson
affirm that represents
Native American tribes
in field spanning treaty rights,
Sovereignty Protection,
taxation and regulation,
land claims for land use,
reservation boundaries,
gaming and economic development
and environmental protection.
A graduate of Harvard
College and Yale Law School,
Reais shirt served as a law clerk
to the late honorable
Betty Fletcher of
United States Court of Appeals
for the Ninth Circuit and
Justice David Souter of the
United States Supreme Court.
He is a principal advisor to
the Tribal Supreme
Court Project and
represents tribes at all levels
of the federal court system.
Brian Newland is the president of
the bank notes Indian community.
And I really recognized
Indian tribe Michigan's
Eastern Upper Peninsula.
Prior to his election in 2017,
Chairman Newland served as
the Chief Judge of the baby
bells Indian community
tribal court from
2009 to two thousand
two thousand twelve,
Chairman Newland served as
an appointee of
President Barack Obama.
Obama, and the Department
of the Interior,
where he was the senior
policy advisor to
the Assistant Secretary
of Indian Affairs.
He also served as
the Michigan native
boat coordinator for
President Obama's 2008
campaign and worked
with Hillary Clinton's
2016 presidential campaign
to help develop its Indian
affairs policy proposals.
Chairman Newland is an alumnus of
the Michigan State
University College Los
indigenous law program,
as well as the James Madison
College at Michigan
State University.
And then finally, it was a couple
of quick notes about our format.
We're going to have
some time at the end of
the event today for
audience questions.
So think about what
you might want to ask.
Now. We've received
something advanced,
but you can also submit
your questions via the
live chat on YouTube.
Or you can tweet your questions
to match tag policy talks.
Oh, wow. Re-ask and
Chairman, New Land.
And thank you for
being here today.
They'd make which Thanks, Jenna.
Mistakes rather this yeah.
So, Chairman Yellen, I'd like to
invite you to start
us out and just
give us a sense of
the big picture frame
tracks fit into the
political structure
of the United States.
Well, that's a great question.
You know, people are,
people who are students
of government are
very used to our
constitutional republic
with a federal government,
state governments as the
two forms of sovereigns,
and then local units
of government.
Actually, there's a third
sovereign in our system,
which is tribal governments.
And we are both reference
than the US Constitution,
but also extra constitutional
meaning we exist
outside of the constitutional
framework in the United States.
So the commerce clause
of the US Constitution
references that
Congress has the power to
regulate trade among the states,
with foreign nations, and
also with the Indian tribes.
And then Article, Article
six of the Constitution
references the treaty power
of the United States.
And the United States has
entered into and ratified
a number hundreds of treaties
with tribal nations
over the years.
In US, treaties are agreements
that your students are
probably familiar with as
negotiated between
sovereign governments.
And those treaties form
the backbone of the relationship
between tribes in
the United States.
But where, where reference
in the Constitution,
but we're outside of
the constitution,
firmly recognize this
sovereign governments
by the United States
Supreme Court
and going back 200 years.
And the other part
is that, you know,
we're kind of a sui
generis were very unique.
We, we, where local
governments, oftentimes,
we also act with the powers that
many state governments
have and then exercise
diplomatic relations both
here in Michigan with
our fellow tribes across
border and Canada and
then with each other.
And so we get to do lots of
cool stuff in that framework.
We asked, did you wanna
add anything to that?
That's all very well said.
I'll just add that
the supreme court
decisions that Chairman,
Neil and reference
are are are very
interesting in terms of the rule,
thinking about the rule
of law in this country.
There was a trilogy of opinions
by the great Chief Justice,
John Marshall back in the 18
twenties and 18 thirties,
which really established the sort
of the extra constitutional
framework for tribal Power.
And what, what Chief Justice
Marshall said was that
tribes are domestic dependent
sovereigns. He called them.
And the important point
about those decisions were
that they establish
tribes as sovereigns,
subject to the Plenary Power,
the Federal Government, but
separate and apart
from the states.
And those holdings which arose in
the eastern part of
the United States where
Georgia and Alabama
were trying to crush
the Cherokees and the
creeks and other tribes.
And on the eastern seaboard.
Been fundamental to the
survival of tribes to this day.
Because while, you know,
in this country we often
honor the rule of
law and the breach.
And that has certainly
been true with respect
to a tribal Power is
tribal treaty rights.
The fundamental notion
that tribes have
this residual sovereignty
that immunize them from
state power and state
authority has been
essential to the ability
of tribes to survive.
Because otherwise,
undoubtedly, state governments
who have always been very
jealous tribal prerogatives
would have acted to,
to snuff out those tribal powers.
So you've just raise the states,
as we've been thinking a lot
about where the tribes fit
sorted within the
constitutional framework.
It does sort of seem like they're
rivals in a sense to the states.
And so what are
some of the points
of comparison and contrast
between the tribes and
the state and local
units of government.
Rails can probably give you
the pinpoint citation
for, for this quote.
But the Supreme Court in a
case from the 18 hundreds,
recognize that competition
between tribes and states.
And said, states are often
the deadliest enemies of the
tribes where they're found.
And that's often the case
actually during this pandemic,
we see that playing out
across the country.
The highest profile
case in South Dakota,
where the Cheyenne
River Sioux Tribe
has put up health checkpoints
on the highways around
the reservation.
And the Governor, Christie now
has been fighting with
the tribe to try to get
them to take it down.
And we've seen tribes and
states kind of battling for,
battling over who
has jurisdiction to
make decisions in Indian country.
And but the flip side
of that coin is that
it can also lead to
some very unique
cooperative relationships
as well between tribes and states
and local governments to
serve everybody's
collective interests.
Do. I would love to
hear a little bit more
about some of those
cooperative opportunities.
Sure. I mean, the biggest one
that comes to mind
here in Michigan is
the cooperative management of
the Great Lakes fishery
in that occurs,
that's actually a consent
decree that was entered by
a federal court coming out of
tribal treaty rights
litigation where
the federal government and
the tribes here in Michigan,
including my tribe, had
to sue the state of
Michigan to stop interfering
with our treaty rate to fish.
But what that led to
is a joint effort to
manage the fishery resources
in the Great Lakes.
And then in 2007, a separate
agreement to manage
fish and wildlife hunting in
the ceded territory
is I'll break out
my handy Michigan map for you.
My screen is reversed.
So I mean, we're
talking, you know,
the the northern third of
the Lower Peninsula and
the eastern half of
the upper peninsula.
And that's really been useful.
I mean, it's, it's also comes
with a lot of friction.
But even more recently
here with my tribe.
Using our power is
related to public health.
We have actually worked
with the state government
and local governments and
other tribes to coordinate
covert testing across the
eastern upper peninsula,
which up until this month
actually made it, I think,
contributed to the
relative low rates
of coded in this part of the
state compared with others.
So maybe if you want
to extend any of that.
I'm curious about when mary
IS disagreement,
how it's resolved.
But while there's plenty of
disagreement and funny and
mechanisms of a resolution,
I'm I'm just thinking
that it might be
helpful to take one step
back for a second and talk.
I realized that in talking
about federal policy,
they might be helpful
to situate us in
terms of where we
are with respect to
the federal government
and then the high that
back in the state relations.
We have gone through
your various eras of
federal policy in this country
with respect to tribes.
And so when we talk about the
stasis, Chairman Nuan says,
yo haven't been viewed as the
deadliest one of the tribes.
That's often been true.
It's also been true that
there have been periods of
time when the federal
government has been,
you know, sort of hell-bent on,
on tribal and elation.
And we've gone through some
real vicissitudes
in federal policy.
But we started off with
the Chief Justice
Marshall framework
of tribes as sovereigns,
which led to this era
of treaty making.
As the Chairman talked
about hundreds of treaties
entered into from the time of
really before the founding
until 18711871 Congress.
And it's really the House
of Representatives being
jealous of status
prerogatives In this regard,
put an end to treaty-making.
Treating me came to an end.
More, even more
damaging though for
tribal interests was
that in the 190s,
began what was known
as the allotment era,
where the United
States at that point,
very hungry for tribal land.
Because large reservations
have been set aside,
decided to break those
reservations up.
And it's called the Latin Europe,
last for about 50 years,
where many Treaty promised
reservations were subject
to be parceled out on
an individual basis to,
to to tribal members,
usually four-year acres of land.
And lo and behold, a lot of
land was leftover afterwards,
which was sold off to,
to non-Indian settlers.
And that's why we see in lots of
parts of the country have
reservations with
a fair amount of
non-Indian land holding
on those reservations.
In, out West, you still have
large reservation areas
with these in holdings.
In states like Michigan.
By and large, you have
very small land bases
now for tribes.
Largely the result of
that, that policy.
In the New Deal era,
the allotment policy
was put to an end.
Recognition of just how
devastating it had
been for tribes.
And there was the short period,
a little renaissance
of tribal rights.
During the New Deal era,
union Reorganization
Act was passed.
An effort to infuse
tribal governments with
some authority. It
didn't last very long.
19 fifties, a cable on
the termination era
where the federal
government actually set
up to explicitly
terminate tribes.
And the whole goal was
to assimilate tribes
into the body politic gills
of America feel and its muscles,
the post-World War Two.
And then it was
Richard Nixon in 1970
who ushered in the
modern era with
his proclamation of
Indian self-determination
and a recognition that
tries or not go away.
And that it was
important federal policy
to infuse tribes with a
measure of autonomy again,
over their, their own,
their own fortunes are own fate.
And ever since that time,
federal policy has
been largely oriented
towards respecting tribal
sovereignty into building up,
helping tribes rebuild their
governmental institutions.
So that brings us to the
modern era where you have
tribal governments that
have been strengthened
immeasurably over
the last 50 years.
Yeah, partly with federal help,
partly as a result of
economic revitalization.
Gaming has played a
significant role in that,
but other forms of economic
strengthening as well,
which leads to today
where you have leaders
like Chairman Neil
and many tribes,
tribal governments across
the country who are doing
an incredible amount of
I'm governmental activity,
robust activity across
a wide spectrum,
everything from
health to education
to economic development,
environmental protection.
So when we talk about
tribes as sovereigns,
it's a real sovereignty.
At this point. Governments
really acting as governments.
And what we've seen with respect
to the states is that at
first there was
outright hostility
to this revitalization
and tribal governance.
There was this jealousy,
sort of a sense of,
it's a zero-sum game.
Either we, the state,
get to regulate attacks
within Indian lands,
or it's the tribes doing that.
And then so the more
tribal power and less
state power within the last,
it's really last 20 years or so.
There's been a greater
enlightenment on the part of
states and a recognition not
all states by any means.
A chair vanilla mentioned
South Dakota as sort
of a, you know,
the archetypal example of,
of a renegade state.
But a growing recognition
that working together
with tribes can
really help to enhance
overall governmental capability
and governmental infrastructure.
So like the joint covert
testing, for example,
a perfect example of
tribes and states working,
working together
on, on, on issues.
In terms of your question
about resolution of disputes.
The other model, the the
old-style models litigation.
There are a lot of
what we do has been
litigation that's tribe versus,
versus states and sort of
some of that zero-sum.
But there is a growing
compacting African efforts
of tribes and states to
work out these issues.
The fisheries issues
that the Chairman
talked about being a key example,
but they span everything
from taxation to,
to gaming to
environmental protection.
A whole gamut of issues where
tribes and states now
work closely together.
So I have actually many things,
so many interesting
things but to questions.
So as you were talking about
these different periods
that characterize
these relationships.
Do you have a theory
for what caused
the change from one
period to another?
It in particular, I,
I'm very curious about this flip.
Actually that seems to flip
multiple times between,
on the one hand, you know,
trying to disintegrate the
tribes and then flipping and
saying now what we need is
increased sovereignty
and empowerment.
Where did that come from? I can,
I can put it, maybe in
blunt terms than Rhea has.
Put it up to paraphrase
Bill Clinton,
it's the land stupid of eight.
It's really just about
land ownership and
control over lands.
Because if you think
about it, tribes had,
prior to the founding, prior to
colonial powers reaching
this continent,
tribes owned every square
inch of this continent.
And vast resources
here in North America.
And there are vast resources
that are found on what's
left of Indian country and
in wealth that has been derived
from mining or
developing Indian lands.
In a lot of times that's,
that's what's driven.
And as we talk
about economic development
in the story of America,
the, this, the core of
our legal system is
intended to protect
your personal liberty
and your personal, the property.
And with Indian country,
the seesaws back and forth.
If we've got a two century,
century and a half
experiment with,
there's always this, this effort,
let's privatized land
holdings in Indian country
and make tribes just have
an economy just like us.
And that's been, that was
tried with allotment,
was tried in the termination era.
And there's always, you know,
every few years there's
rumblings of let's
go back to that.
And it failed miserably
both times that was tried.
And when I say that it failed,
Indian people and Indian
people were worse off.
And then the net effect,
if you look at a lot or at
termination and places like
from a nominee
tribe of Wisconsin.
What happened was Indian lands
and valuable Indian lands were
made accessible to non-Indians
for exploitation or development.
So it's a story about
who got the land.
Yeah, it's such a
great question and I
think Joe Chairman
Dillard's answer is,
is a very large part of it.
And I think there's, there's
a story that sums it up.
Well, in my mind,
which is, you know,
we just had a case in
the Supreme Court about
the Indian territory
in, in Oklahoma,
where tribes and the
roots of east to
this large the area of what
is now modern-day Oklahoma,
with the thought
that, you know, will,
that the tribes have millions
of hits the land there,
the rebuild their homes.
This is not land
we will ever need,
right? It was sort
of the thought.
And, and so a lot of tribes
and up and up the
homo and the o saves
tribe that cheat the
LSH had been moved
around the West because
the style at pressures,
the ASH came Oklahoma
and the chief of
the LSH intentionally picked
out the worst possible farming.
E, picked out just land
that was desolate and said,
we're picking this land because
now the white men won't
bother us anymore.
And then, lo and behold,
a number of decades
later, oil's discomfort.
In that land, right?
And then it came you another
crush of settlement.
So a lot of the impetus for
breaking the treaty promises
in the treaty system
had to do with
economic pressures. But
it's also really easy.
I've spent a lot of time reading
historical reports from
Indian agents and
others over time.
And there are just so many
conflicting impulses,
even from people who
are well-intentioned.
And there was a very
large strand of
American thought that the,
the phrase, It sort
of summed it up was,
we're going to kill the
Indian, save the man.
That the only way that
he needs were going to
survive in this country
was through assimilation.
And you'll just
sort of spent sense
of American strength
and manifest destiny,
manifested itself that way with
respect to, to the tribes.
And, but you know, I think it's
a real story of human endurance
and survival and how the
tribes did not go away.
And they as much as,
as strong as that
assimilationist force was,
there was this enduring
underlying strength
and a commitment to culture and
history in one's
ancestors that allow
the tribes to suffer through
just incredible hardship.
But to claim to
their identity that
your strength in a lot
of ways is what led
to the modern era where
I think the government,
the federal government,
realized at a certain point,
these people aren't
gone away and we need
a more enlightened policy
to deal with that.
And one last anecdote,
I'll tell that
because you're human,
individual humans have a
lot to do with history.
Richard Nixon, when he
proclaimed that
self-determination pulse
has a lot of time,
you know how to
read Richard Nixon,
anything so enlightened
about Indians.
And the story is he played
football at Whittier
College in California.
In his coach was a
Native American,
and he was very
close to his coach
and he learned a lot about the,
the history and RWA tribes
and it's sort of stuck.
And so sometimes little
accidents like that can
also play a big role in it.
Just the PS, I'm Raza story
about the sage reservation.
There is a great book
that came out the
last few years called
killers of the flower moon.
That, that details the history of
those age reservation and
the oil boom they're in,
in a lot of imaginations
around trying
to gain title over those lands.
And there was a spate of
murders on the reservation.
And I think at the time
the pandemic started,
Martin Scorsese and
Leonardo DiCaprio,
we're involved in turning
it book into a movie.
So for those of you watching,
and that's, that's a
great book to read.
It's a fascinating story.
Yes, I second that
recommendation wholeheartedly.
And so again, just to follow-up,
so remember, I know
nothing. I mean, you know.
So should I be thinking
about the tribes as being
constitutional equals two
states in terms of sovereignty.
And if that's the case,
how can there are ban all
of this fluctuation? Whoa.
I'm out of practice on
the law a little bit.
Since I've been doing this
job a few years and realize
contact about how
the law develop.
The, the question about
constitute sovereignty.
I would say yes and no.
I mean, tribes are on it,
were outside the
constitutional framework.
But the relationship
between tribes
and the federal government
is very similar to
the federalism structure
because states have
their agreements with one
another to create the
federal government.
And that was the Constitution.
Tribes have our agreement about
our relationship with
the United States
through the treaties
that we've signed.
And in those treaties,
very widely,
oftentimes the earlier
the treaty that the more
advantageous it was to the
tribe that signed on to it.
So tribes have tribes,
I have sovereign powers
now that that has been
eroded over time by Congress and
the Supreme Court by
essentially might makes
right claiming powers that
depending on who you ask,
may or may not have existed in
re-ask can talk about that
actually, in the case.
He just litigated and one at
the Supreme Court about
whether might makes right.
And in Indian law.
We're at a really interesting
juncture in the court,
in the supreme court with
respect to tribal rights.
Because I think the, you know,
the answer to your question is as
a matter of sort of
original principles.
First principles, tribes were
meant to be on the
same plane as estates.
And I think that was Chief
Justice Marshall's vision
that tribes would have
territorial sovereignty.
They would control
the peoples within
their boarders
regardless of whether
they were citizens of
the tribe are not just,
you know, it's just like the
state of Michigan might.
But really what
happened over time,
it was more of the court
than Congress or the
executive branch.
Said over time, no
tribes can't possibly
have the same measure of
authority over non-Indians,
even within their
reservation boundaries
that a state government
that's just inconsistent
with our sort of sense of,
of, of, of governmental
structure.
And so the court in,
in basically common-law
decision-making over time has
really eroded tribal power
with respect to non-Indians
in reservation boundaries.
And what we end up with is
a really complicated set of
rules and principles that govern
the measure of tribal authority
within reservation boundaries.
So tribes, for example,
cannot exercise
criminal authority over
non-Indians within
their boundaries
by virtue of court decision,
except with respect
to violence against
women issues by virtue
of more recent convert,
you know, by virtue the Violence
Against Women Act
where Congress said,
no, they need to at least
have that authority.
Core tribes can tax
their own members,
can tax non-members only in
certain limited situation.
We developed a really sort of
idiosyncratic Byzantine set
of, set of Walden's,
what's been milliamps and
with the Supreme Court
lately is this is really just
the last ten years or so,
and especially
accelerated now with
the addition of justice
Gorsuch to the bench.
That the court a slam the brakes
on on its own authority to
divest tribes of parents
and has been returning more of
this original notion
that Congress has
plenary power with
respect to tribes.
And tribal power is
going to be restricted.
We need to see Congress saying
that and saying it
very explicitly.
And otherwise, we the quarter not
going to be in the business
of of restricting powers
and the Oklahoma case,
the very recent one was
the most forceful exposition in
that set of principles today yet.
And it was by Justice course it,
you said very clearly
that we are going
to enforce the rule
of law and not
the rule of the strong.
We're not going to worry
about consequences
of reinvesting tries with
power and authority.
That's for the
political branches.
And we're going to adhere to
this greater understanding of
tribal territorial authority over
people within, within
their borders.
And that's the picture.
I'm sorry, Jen was saying.
I was going to add that.
That's an instance
where you would
think ideologically,
the conservatives might not
be inclined to be
allies of tribes.
But this notion of
originalism and textualism,
you look at the treaties
themselves as foundational law.
And the law about treaties
generally is pretty
cut and dry as far as the
Constitution goes, has,
has made for instances
where you can
get Justice Gorsuch to author
this forceful opinion defending
treaties with Indian
tribes and tribal rights.
And it's signed onto
by Justice Sotomayor.
And Indian law and Indian policy
really scrambles
ideological lines,
is that, you know, and that's,
that's what makes it fun to
to do this kind of work.
One of the things,
yeah, absolutely.
Yeah. I was going to ask you.
You sort of answered it is,
should we be thinking about
the treaties as being
a quasi constitution,
as is defining the relationship
between the tribes and
the federal government.
And that it's the
courts that fill in
the gaps in the treaty
as much as they fill
in and interpret the copy of
the Constitution in relation
to federal and state relations.
So should we be thinking
about that as an equivalence?
I would say that's
a rough analogy.
I'll explain why here.
You have to remember that these
treaties were negotiated.
There is an asymmetry
in power between
the federal government and
the tribes negotiating
these things.
And they're written
in English, right?
So oftentimes there
was a translator on,
on-site who is negotiating
with a hand-picked delegate,
handpick from the United
States delegation of
Indians to sign a treaty on
behalf of people
they may not have
even had power to represent.
And so it's negotiated
in a foreign language,
it's written down in
a foreign language,
and it's carried off to
the United States
Senate to be ratified.
I had the opportunity
when I was working in
Washington DC to go to
the National Archives and look
at the 1836 Treaty of Washington,
which my tribe signed.
There was a party to really
facilitated Michigan
statehood a year later.
And so I was in the archives
room and they showed me
the document that was negotiated
by the Treaty Council.
And then document that
wasn't a go or ratified
by the Senate.
And you could see the changes.
They pointed him out.
So what was agreed to in the in
the negotiations isn't what
the united states ratified.
And that happened a lot.
And I'd ask the archivists,
they said so what
does the process what
was the process for
transporting these documents?
And they said, well, we
went back in those times.
If the United States negotiated
a treaty with France,
there was a special box
that it was put in and it
was bound duct and sealed
so you could tell if
it had been opened and
and there were security
measures in place so that,
you know, when it was ratified,
that that was the document
that was negotiated.
And they said, well, what they
do at the idiot treaties,
they rolled it up and
tied a string around it.
And actually in the
case of California,
where they negotiated now
a number of treaties with tribes.
They were never even brought
to the senate to be ratified.
They were discovered
later in a basement.
And so you've got all
these treaties that,
that seeded the land that made up
California that were never
ratified by the US Senate.
So from a legal standpoint,
tribes, tribes are
really good at.
We accept that the laws,
the law just quit changing
the rules on us and
we can make it work.
And, and most tribes will say,
will live by the treaties.
Will, will, will honor our
obligations if you honor your.
So from that standpoint,
yes, we would.
Tribes would say, think of
them as foundational law,
but you have to remember
the contexts in which
they were negotiated.
It wasn't the same context
that the Constitution
was debated by co-equal states.
Okay, thank you for that.
I, so we have some amazing
questions from the audience,
but before we get to those,
I have one thing that
I want to get ask you about
and I guess in particular,
Sharon Newland, I'd
want to start with you
based upon your
experience in Washington.
So as president elect,
IDH1 is making his
cabinet nominations
isn't happening right now.
His intentions known.
We've heard so much discussion.
The possibility of ham
nominating Congresswoman
adapt Holland,
who's currently representing
New Mexico's first district.
So if she's nominated
and confirmed,
she would be the
first Native American
Secretary of the Interior.
Could you talk about what
that appointment would mean
to the tribal communities?
I think the symbolism
speaks for itself.
Not only the first Native
cabinet secretary,
but a native woman as
a cabinet secretary and not
just any Cabinet Secretary,
the department that are overseas,
Bureau of Indian Affairs
and Indian education,
but other land agencies that
Directly impact tribes.
It would be, it would
be this symbolism
itself is important,
but it would actually
be a big shift in
the departments operations
because Indian Affairs makes
up anywhere between 1 fifth of
the Department of the
Interior's budget and 1
seventh approximately
of its workforce.
And like I said,
it includes Bureau
of Indian Affairs,
Bureau of Indian Education,
and other programs
related to tribes.
And it's never had
Native American overseeing
the entire department.
And it was actually only
under President Obama that we
really saw natives elevated
to the leadership.
The department
itself as Solicitor
of the Department of the Interior
in the deputy secretary.
So to have somebody
who understands
what life is like
on the ground in
a tribal community where the
land is held in trust by
the Department of the
Interior and Bureau
of Reclamation helps deliver
your water and your
reservation butts
up against national park.
And what does that mean to
have somebody who intuitively
understands how the policy
decisions land on the ground.
It's hard to overstate
the value of that
to, to, you know,
we always say representation
matters and I
think that would be just,
that perspective would be huge.
This is fascinating,
fascinating to me.
It give us maybe a little
bit more detail about
take us inside
because you've been
there and make a prediction.
What would you expect to be,
the change in the extent
that tribal communities
are involved in shaping
federal policy.
And what federal
policies might bother.
You see differently.
The Secretary of
Interior, whether,
whether choose
native American or,
or whether she's not.
It is not going to be the
Secretary of Indian Affairs
that that person's going to have
a big job in wide
responsibilities.
But the biggest part is,
is again just that awareness
and oftentimes in Indian country
just having people remember
us is, is important.
And I'll give you another
example why people are used to.
You look at a map and you say,
OK, there's the state
of Michigan on the map.
The state of
Michigan's powers are
confined to the boundaries
I see on that map.
Well, a lot of times tribes have
governmental powers that
extend beyond the reservation.
For example, managing
our treaty fishery.
And another times,
our reservations are
only a small part
of what we used to have.
So a lot of our sacred sites in
ceremonial sites are located
far from the reservation.
And so bureau of land
management, for example,
doesn't always think, well,
i'm a 100 by this,
this area where we're
gonna do a permit
for a mine is a 100 miles
from the reservation.
We don't have to
worry about tribes
having somebody who knows, hey,
just because we're
not on the rare
as we gotta take a look
here and make sure we're reaching
out in thinking about the impact.
That's, that's huge and
and frankly that would
that would Prevent a lot of
conflict and maybe limit
work opportunities for
attorneys practice.
But I think it's
going to be important
for for tribal relations because
dealing with those
on the front end is
way easier than dealing with him
on the back and just being aware
of it is half the battle.
Yeah. We as if you
had something to add
that we have an
audience question and I
think builds upon
this a little bit.
But before I get to that,
it was there anything that
you would think about
in this possible I meant,
I think that alsos
it up beautifully
and just the the
poetic symbolism.
And when you think of the
fact that the Department at
the Department of Interior grew
out of the Department of War.
And for many years you'll remain
the Department of War with
respect to to the tribes.
So this would be
just a really
striking development
in so many different ways.
Yeah. Well, so here's
one question from somebody
who's watching right now.
Who's interested about
this relationship between
cultural sovereignty and
political sovereignty?
So how, how can
cultural sovereignty,
that is protection of traditional
intellectual property,
repatriation, language, etc.
Reinforce and through their
political sovereignty.
Knew ahead, turn outward 3f.
Well, I'll say a few things,
but I think that the
chairman's gonna have more
to say at all.
Given away our our courts work.
There is a certain
instinctive approach
to and reaction to
litigation arguments.
And part of that is, is
sort of some
archetypal motions of,
here's what tribes are and,
and here's what's an embodied in
tribal status and
the cultural issues
are as sort of a significant
part of that understanding.
And the more robust the
sovereignty that tribes
exercise be culturally,
economically,
politically, the more
likely the courts
are to recognize and vindicate
the political sovereignty.
And our Oklahoma case,
I thought it was a really
striking example that,
you know, before
we did that case,
I'd ever spent any
time in Oklahoma.
And when the court granted
this case about the
reservation boundary,
if we went down there,
and I was so struck by the
exercise of authority by the,
the tribes there
across the spectrum,
including culturally,
it became clear that
while the state Oklahoma wanted
to make that case about
the city of Tulsa,
which was within the
reservation boundaries.
What we wanted to do
is make the case.
But the entire rest of
the 19 million acres,
which is largely rural Oklahoma,
very poor and very resource
strapped and trans Oklahoma State
resources because
Obama is a low tax,
low government kind of state.
And meanwhile you had the travel
Darwin's down only to creep.
But the other, the
other five tribes,
they're exercising
a remarkable amount
of robust authority.
And part of that was culturally
in terms of language
revitalization,
in terms of protection of.
Sacred sites, burial sites.
When you drive around
the creek Reservation,
you still have the the
traditional burial grounds
there were the graves are
raised off the ground and,
and are open and it's a
very striking sort of,
sort of image and being
able to tell that story.
But how the tribes had maintained
all those cultural
protections and
an ax over time was an
important part of saying,
yes, the reservation
is still a year.
Yes, it still exists.
And yes, the tribe
should be able to
maintain political sovereignty
in this, in this area.
And I would just edit
grasses is spot on and on
all of that in terms of,
you know, they reinforce
one another, right?
Because the more of your,
your governmental
sovereign powers you,
you exercise, the more ability
you have to protect the,
your culture and those things
that are important to,
you know, the, the, our,
our American legal system,
as I mentioned earlier,
is really designed to protect
individual liberties and
individual property.
And, and it's not very, it's,
it's poorly suited
actually to protect a lot
of the cultural issues
in religious issues that
are important to tribes,
which is why you see
companies that can trademark
words from our own
indigenous languages.
And it's why you can
see companies that can
trademark Indian likenesses
or even words like Redskins.
And there's, there's all
kinds of IP litigation about
who can Urban Outfitters
ONE, the word Navajo.
And in C you sudden
things like T-shirt.
So in, in our American
legal system would say,
well, you're the first to put
it in the commercial use,
so that's your property.
And so we're not, you know,
it's poorly suited to deal
with a lot of these things.
If we have a, a
ceremonial site that is
located on a 200 acre
farm, somewhere else.
Our legal system would
say, the farmer,
that's his property can salad,
he can make it a tourist
society can raise it.
And in plant corn there,
you have no rights to them.
But that's a diminishment
of our religious practices.
So I think the whole purpose
of tribal sovereignty,
the whole purpose
of our existence is
to continue to exist
as tribal people,
and that includes our
cultural way of life.
So protecting our political
and legal sovereignty,
protects our ability to maintain
our way of life and
what's important to us.
It's very interesting.
So I have another question
from an audience member
and has a two parter.
I'm just going to ask
the first part of it
first and then I'll
ask the second part.
And it's really a continuation
of what you were just
talking about except
bringing you. And Michigan.
So learn the most
pressing legal issues
are indigenous peoples
in Michigan right now.
It's, it's hard. I
can't speak on behalf
of the other tribes
and their people.
What I would say just generally,
water related in
treaty related issues
with the Great Lakes.
Whether it's treaty fishing or
protecting the quality of
the Great Lakes from
climate change,
oil pipelines or
other degradation.
And on top of that,
Indian Child Welfare is always
an important issue
because we don't have
a large land base.
Our tribes of Michigan don't
have large land-based.
So a lot of times, our kids in
our families live off
the reservation or
even in the in
southeast Michigan.
And if they end up in foster care
or in the adoption process,
they knew Child Welfare Act
means that we still have
a role to play as tribes
and into keeping those kids
as part of our are people
as part of our tribe.
And in Michigan, the Michigan
tribes are probably as
sophisticated about
Indian Child Welfare
as anyone in any
tribes in the country.
And that's one of
the places where
the tribes in the state of had
a very good relationship in
the last 15 or 20 years.
But those those issues,
Great Lakes issues generally
in Indian Child
Welfare, I would say.
I want to I'm going to
take you back to great
lengths in a minute.
But because we had
another audience question
about child welfare,
This might be a good
moment to drop that
in and realize, I'm shocked,
sorry if I affect you.
You might want to
pick up on this one.
But so the audience member asked,
the Indian Child
Welfare Act has now
been in place for
almost 40 years.
What has and has not changed in
that time related
to child welfare.
And how should the lobby
improved in the future?
And maybe you could tell me,
and others like me might
not be familiar with it.
Just what is the Indian
Child Welfare Act?
Chairman New Zealand
or we as either one.
I actually think what
has and hasn't
changed in that time.
I think the Indian
Child Welfare Act
has changed things
for the better.
Because you saw, if you read
about Indian Child Welfare
and adoptive placement,
you had from the 19 forties
forward until it was enactment.
Just a very consistent
across the country effort
to Indian kids in foster care,
foster care taken from their
families, adopt them out.
The phrase adopted out is
just everybody in Indian
country knows what that means
because somebody's
kid was adopted
by a non-Indian family and
they're out of the tribe,
they're in another
part of the country.
So that ended child welfare
for the most part as
effectively put a stop to that.
Here in Michigan, we've actually,
we've done the belt and
suspenders because we
have a state law called the
Michigan Indian
family preservation.
But generally what
it does is it says,
if you have an Indian child
in the state foster care system,
that child's tribe will
have an opportunity to
exercise jurisdiction
over the case.
And if they don't, here's
then the standards that
state courts will use.
And this is subject
to a very big lawsuit
that's going on right now.
But, you know, foster care in
the people who study are
involved with child welfare.
Refer to the Indian
Child Welfare Act as
the gold standard for
child placement for,
for kids in foster care.
But the end of the
day, what is it?
What is meant is keeping
Indian tribes intact,
because that was a backdoor way
to break up tribal communities.
In many tribal communities,
there are whole generations
of kids missing because they
were placed in
foster care and then
adopted by people
outside the tribe.
So how should the
law be improved?
I think the law should
be improved by following
you. It's a good law.
We asked, did you wanna
add anything to that side?
And then we go back to the
Great Lakes with my students.
In state GV this semester,
we were just talking about
the Great Lakes Compact.
And and it just occurred to me,
as you were speaking
German Newland,
that Native Americans are
not in any sense a part of
the Great Lakes Compact.
That is, they're not
signatories to it.
Why is that?
How should we think about that?
And surely, surely you want
that the tribes must be
involved in the design of
it and the implementation
of it or not.
Why, why weren't we
have that's a that's
a great question.
I'd like somebody that I
don't know. But we should be.
And we have vested
legal interests as
well as just general interest,
a sovereign government over
the fate of the Great Lakes,
just like the other states,
provinces, and countries
that are part of that.
And I, I think that will,
that's something that is
changing pretty
dramatically in terms
of the recognition of
the tribal role on
these issues and the
fact that tribes should,
should have a voice.
Yeah, I think one
thing we really see
change in the legal landscape in
the last decade or two is
this understanding that
the tribes treaty rights,
our sort of
environmental soared in
some ways that a treaty
right to take fish,
for example, is meaningless
unless there are fish to take.
And so tribes have become
increasingly assertive
in advancing
treaty rights arguments to
ensure protection of the
habitat and the environment.
And the courts have
become increasingly
receptive to those arguments
as have other governments.
And a very recent
example is with respect
to the battle over the
Enbridge Slide five pipeline,
the pipeline that
crossed the straits,
the Mac and on which is
yellow huge flashpoint
issue here in Michigan.
And Governor, what we're in
her order of a couple
of weeks ago now,
where she issued
an essentially a shutdown
notice for the pipeline.
One of the things she
invoked in that order
was the tribes treat
efficient rates that the
Chairman mentioned that
the rights of the 1836 treaty,
which would be rendered utterly
meaningless where
in the pipeline to,
to leak or a rupture
in the straits.
And that's, you know, that's,
that's an example of the type
of argument that
tribes are advancing
ever more vigorously and that
the courts and the state
and local governments are,
are grown to appreciate.
And that sort of
principle carries over
at two water rights as well to
all manner of environmental
habitat protection,
resource allocation issues?
Yeah, I would imagine so.
And should we be thinking
you were talking about
habitat protection?
Should we be thinking
that in general,
tribal involvement
is going to be in
a kind of pro environment
or green direction,
or are there times when
the tribal interests
are going to clash
with environmental
protection interests?
I think both data.
So there is a there is
a coal terminal that
was proposed that in
Puget Sound a few
years ago to basically
bring by rail Aldous call that
from Montana and Wyoming,
put it onto these ships and
bring them over to China.
And the tribes in the
Puget Sound area.
Very similar to here in Michigan.
We're saying this is
going to jeopardize
a treaty fishing rights.
And you had tribes in Montana
in particular who had
a call on the
reservation and wanted
to a buyer at a market price.
And they were pushing for
the construction of
this coal terminal.
And so yeah, tribes on
both sides of this issues.
And there are a number of
tribes that are engaged in
mining and oil and
gas development.
At who? These interests
clash all the time.
And I think just generally,
odds are tribes are happy to do
the environmental
regulation ourselves.
So you may often see tribes
that are opposing efforts
to place state or federal
environmental regulations
on the tribes
without our consent.
And that's not
necessarily because
we're opposed to
environmental regulation.
It's because we're the
sovereign government.
We want to have the authority
to do that herself, right?
Yeah. And, and I and
the other message implicit
in your response just now
is that as we have
been learning in this
post-election period,
not to overgeneralize about
the political preferences of
any particular subgroup of our
great American population.
We definitely shouldn't make
generalizations about trial.
Just as well. That it's going
to be very tribe specific.
And that's important. So
here's this second part of
that two parter from
an audience member.
How can non-indigenous
folks be best allies?
Are the indigenous
people's rights.
I guess the term you see in
a lot of activist movements
is pass the mike.
And that's really to make
sure that as tribes,
we can be leaders on the
issues that we care about.
And I think to use
the example that
Reais mentioned a little
bit about line five.
That's been the work to
bring awareness to the line
five issues has been
the work of a lot of
people across the state,
in the environmental community,
in civil rights communities,
small business owners and
just people here on the
ground in northern Michigan.
And one of the things that has
just been amazing to
me to be a part of
is as tribes as we got
better about asserting
our interests in it,
in the pipeline issue.
There was an effort
to co-opt us and say,
okay, we're going to exploit
the tribes interests here for
our own gain or we're
going to speak for them.
It was truly like,
hey, tribes you're at,
we want you at the table with us
because what you have
to say is important.
And, and we made our
own case for ourselves.
And I think that speaks for
itself in the
governor's decision.
The best way to be
an ally is to, to,
to listen and be humble and not
presume that you can speak
on behalf of others.
I've really seen that.
And then as chairman knew,
it says in the intersection
between environmental
movement and drive.
And when I first started working
Michigan 20 years ago was
much more in the way the
environmental groups,
either speaking to the tribes,
were trying to co-opt the
triads for their own purposes.
Not really engaged
in your full-scale
listening in and allow the tribes
to speak with their own voice.
And there's just been
a wonderful change
in that over the last
couple of decades.
It could be that, for example,
moves like a consideration and
possible appointment of someone
like Congresswoman Holland,
is just acknowledgement
of how important it is to
incorporate Native
American voices in
decision-making and just make
sure everybody's at the table.
And so they, you know,
you can speak for yourselves.
And I appreciate that very much.
I I'm looking through
these good questions
and trying to find
something that is very,
as you said, North Korea's about
the justice Barrett there
what re-assess couscous.
Yeah. All right. So here and
here I'll just lay
this question out.
Does the shaft from Justice
Ginsburg to Justice Barron
suggested the coalition
of Justice says that had
been issuing favorable
rulings are tribes.
I mean, the last few years no
longer commands the
majority of the court.
While it's an actual question
that of course is one that's
very much thought
our mind's eye of
a natural born optimist.
So I'm going to be very
optimistic about Justice Baer,
Until unless an anthology
gives us reason to
think otherwise,
your issues really DO
cross across political
and ideological lines
as we've been discussing.
And that's certainly
been true at the
Court of Justice Baer.
It is a textualists
in the main adjusted
score city of she
really honors the language of
treaties and statutes with,
without regard to these concerns
about consequences
will be in good shape.
If she's fair weather
textualists in,
and she's truly more concern
about the interests
of a non-Indian cell.
It'll be a rough ride.
And there's, there's really
no way to know as she doesn't
have a sort of written track
record on Indian issues,
but she does have and about
commitment to textualism
and the rule of law.
So we'll be hopeful.
And the last thing
I'll say, and this is
Justice Ginsburg.
For all that she was a
wonderful justice in
a euro and in a lot of
areas of the law was
not a wonderful justice
with respect to idiom I
record was very mixed
in part because she wasn't
a strong textualists.
And she did have, in some ways,
a surprising concern for
the rights and interests
of non-Indians,
especially on a
reservation boundaries.
So these issues are tribal
power over non-Indians,
a word they were hard issues for.
So, yeah, we'll,
we'll have to see,
but there is, there is
cause for, for optimism.
But I think we'll
close out of there.
I just want to thank you
both for your time today
and your insight and for
engaging in such an
important conversation.
And thank you the audience.
Your questions were outstanding
and very interesting and,
and spurred a lot for
us to think about.
So I invite you all to
please stay tuned to
our web site and
the social mirror.
More information about upcoming
virtual events at
the Ford School.
Thank you, everyone. Thank adeno.