Riyaz Kanji & Bryan Newland: Tribal Sovereignty: Current issues and legal challenges

December 1, 2020 0:59:53
Kaltura Video

Join us for a panel discussion on Tribal issues, focusing on Tribes’ status as sovereign governments and current issues relating to tribal government.


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

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

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,

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

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.