Harry B. Wallace has served as Chief of the Unkechaug Indian Nation since 1994. He is a licensed attorney in New York State. The Unkechaug people reside on the Poospatuck Reservation on Long Island, New York.
I hope our project will help educate some people about your work and what’s going on in your Nation. Let me ask you: what’s the proper terminology for referring to your Nation? Is it Unkechaug Indian Nation?
We’ve been referred to in two ways. Poospatuck is the name of the place: the Poospatuck Reservation. But we call ourselves Unkechaug people. We have tried to educate people that currently we call ourselves Unkechaug, which is also in reference to a place. That is how we refer to ourselves; most Indian people refer to themselves in relation to the land. So we say, “We are Unkechaug people from beyond the hill and Poospatuck is the name of the place where we reside.”
So I should say you’re chief of the Unkechaug Nation or the Unkechaug people?
Unkechaug Nation, Unkechaug people, I answer to either one.
Can you tell me a little about your background—as far as your career and also your work as chief?
I’ve been chief since 1994, I guess that would be 15 years at this point. I’m working on my 16th year. We have elections every year, which is the way the system is set up. Prior to that, I was in private practice as an attorney. I’m licensed in the State of New York, federal and state courts, Eastern and Southern Districts of New York. I’ve been practicing law since 1983. I went to New York Law School and I attended Dartmouth College as an undergraduate. I’ve been involved in Native American issues since my college days—actively involved. I was the president of the Native Americans at Dartmouth student organization, and president of the Indian Law Committee at law school. I was director of a comprehensive employment training program at the American Indian Community House from 1975 through 1978. I am the past vice president of the Native American Indian Education Association of New York. I am the past president of the Inter-Tribal Historic Preservation Task Force, which is involved in grave protection—burial site protection, scared site protection. Presently, I’m a member of the Tribal Courts Forum.
Your experience has given you, I’m sure, an incredibly deep and broad understanding of the issues affecting Indian Nations.
If anybody’s willing to listen to me.
Well, I’m listening. I’m ready.
My strongest role as chief is to guide the tribal council as it takes care of the various responsibilities, rules, and functions of the tribal code. The tribal council is mandated by our tribal law to perform, essentially, protection of land, protection of our sovereignty, protection of the common community, enrollment, economic development, culture preservation, land preservation, and education. Those are the general functions of the tribal council which consists of seven members and myself.
When it comes to enforcing tribal law, there are various aspects to take into account. Most people consider law enforcement to be a branch of police power; that is only a small portion of it. Police power is only the physical expression of somebody’s interpretation of what the law should be. What we have here is true democracy in that the law is comprised and composed by the people, and what we do as a council is articulate their expression of democracy.
For example, when it comes to enforcement of tribal law, if it’s an issue of land dispute, then it goes to three “land trustees” who are members of the council. In those disputes, their word is pretty much paramount. Their primary function as trustees is “to protect, to preserve and determine the use of the land.” If there’s a dispute amongst tribal members in respect to land use, the trustees take primary responsibility. Frequently they ask me, given my legal background, for guidance and to the extent that I can give that, I do. What I do is point them in directions where they can perform their functions much more efficiently, but the primary responsibility is held by the trustees.
When it comes to enrollment, the primary responsibility lies with the keeper of records. The keeper of records is not the formal record-keeping that you or I would think, it’s not just documents of tribal business. When it comes to simple documents, that’s a secretarial position. Instead it’s records of genealogy. Those are the records that we’re referring to. And that’s the keeper of records’ primary responsibility. So when the issue of enrollment arises, the keeper of records, who has access to the genealogical history of our people, accesses that documentation.
And is the keeper of records also a member of the council?
Right. He’s also a member of the council. And that is a very powerful function because all of our rights in this country, and all of the protections that we have, first emanate from blood right descendancy. So the record keeping function is a very significant function.
Now our council is an evolutionary body; it is a merger of what we call traditional form of government, which is government by consensus, and a more Anglicized form of government, which is a government by fiat. We merged and combined these two concepts and created this council, which consists of a chief, not a chairman. The chief is elected every year because the expression, “You’re only as good as your last act,” really holds true. The chief’s role is to influence and to guide; are you performing that role to the extent that you’re supposed to? I’ll give you an example: the oldest tribal member of our Nation, a woman who is currently 104 years old, she said to me when I was first elected, “You may be elected chief, but you’re not my chief—not yet.” And I understood what she meant by that: although I satisfied the requirements for election by getting the most votes, I had not yet proven myself worthy of her trust, and that only comes with time through my actions.
Ultimately, then, the chief plays a more traditional function, not just a judicial or legislative function. It’s more traditional in that the chief becomes a person that tribal members can depend on for guidance. It’s an important distinction. You know, attorneys are not only attorneys, but the official name for lawyers in this state is “attorneys and counselors at law.” Quite often we lose the function of counselor because we’re so embroiled in the advocacy as an attorney. We lose the concept that attorneys are also counselors, and we should offer more than fighting and litigating. We should offer guidance through a maze of problems. The chief functions in that role.
Are the other members of the council also elected?
Yes, they are. They’re elected positions.
Are the terms the same or are they less frequent?
The terms are different. The trustees’ terms are three-year terms.
As far as other justice or law enforcement responsibilities, what exists for the Unkechaug? If there is criminal activity, for example, is that something that falls within the council’s responsibility or some other tribal department?
What we have had in the past are working agreements with law enforcement agencies off the reservation: Suffolk County Police Department, the Justice Department, the state police department, and so on. In fact, working arrangements with these agencies have worked with varying degrees of success or failure. Most lately it has not worked at all because the Suffolk County Police Department, whom we’ve relied on primarily in more recent times to enforce tribal law, has decided to take upon itself the function and role of a tax collector, and because it took on that role, it engaged in acts of harassment and discrimination. So because of that, our relationship with the Suffolk County Police Department is pretty much nonexistent. We worked very hard over the years to develop a strong relationship and because one stupid act of misguided intent, that whole relationship was destroyed.
When did that happen, approximately?
2005, 2006, and then more recently last year. And as a consequence we had to sue them and get an injunction to protect them from engaging in acts of discrimination and that sort of thing.
What is the essence of the injunction? Are they not allowed to come on the reservation?
What the judge said was, “I won’t issue an injunction, but if they engage in any activity like that again, you should call my chambers.” So the status right now is that there is federal court oversight over police activities.
And if there were some kind of criminal activity, a theft or an assault, how is that handled today?
Today it’s handled by the police when they’re called. They’re called to come inside. We don’t want to call them, but there are situations where calling them is unavoidable because we don’t have any alternative.
When it comes to issues of health and safety, the EMT answers our calls for emergency, but they are always accompanied by the police. When we have calls for criminal activity, the police arrive, but they always arrive with five or six cars. We don’t want to call them, because we know if we call them there is the danger of precipitating a conflict.
Most problems we try to resolve internally. We know the police have one agenda, and their agenda is not to be law enforcement officers but to be tax collectors. There’s no need for us to deal with them on a routine basis because all they’re interested in is collecting taxes for the state. Since that’s their primary objective, we really don’t have anything to talk about.
Let’s talk about what internal mechanisms you use for resolving or dealing with these situations where you don’t, in fact, call the police but that require some level of response to restore peace.
Primarily mediation techniques, sitting down with counsel and the disputing parties and trying to reach accommodation. It works fairly well. Mediation is when both parties are amenable to their resolution. When both parties are not amenable, mediation is much more difficult and that then requires action by the council to make a decision, a determination, based on tribal rules. The overwhelming majority of dispute resolution that takes place on our land is as a consequence of techniques we have devised in mediation.
When we speak of crime, whether it’s an assault or a theft, can those acts be viewed as a form of dispute? Is there a way to mediate the resolution?
It depends on the crime. Like I said earlier, with respect to land disputes, the trustees’ determinations are paramount, sacrosanct. They really can’t be overturned, and that’s been upheld in outside courts as well. It’s in a party’s best interest to deal with the trustees in a comprehensive manner in an attempt to mediate any land disputes. Our land is community-held; no one owns the land. The land is held by the tribe in common. I don’t like to use the words “allot” or “allotment” because that has a legal connotation that is misplaced when it comes to our land, but for lack of a better word, “use and occupancy”—a deed is issued which can be left to the heirs, can be bought and sold by tribal members, can be devised in a will, but only to a blood right member. So it’s a little bit stronger that “use and occupancy” in that sense.
So land disputes you will never hear about, because they will very, very, very rarely be exposed to outside intervention. When it comes to what you would “criminal activity”— an assault, burglary, robbery—that would be a time when Suffolk County would be called in. It’s usually a crime that normally doesn’t occur in Indian Country without somebody learning techniques of non-Indians. Those crimes are skills we learn from you.
Here’s where I usually require your laws in order to be able how to determine how to handle them. In that sense, the state law enforcement agencies are called in.
But you said some of these crimes are handled internally as well as using mediation practices.
Yes, they are. Some of them are.
As chief, are you also at times acting as a judge? Is there something that parallels a state court in your Nation?
To the extent that you’re asking if I sit on a bench and adjudicate a dispute, it’s not like that. My capacity is much more as counselor. Now if both parties will agree that they want me to intervene on a matter, on a dispute, you’ve got to understand these are only disputes between tribal members. These are blood-right members. If they ask me to I mediate a dispute and adjudicate, for lack of a better word, I will do that. And I have done that in the past.
Quite often, the resolution of a problem involves the intervention of the trustees. The tribal members will say, “We want you present.” Even though, technically, I have no authority to make a decision or determination, I’ve been asked as chief to participate in the resolution of a dispute. One of those things came up very recently where there was a dispute over land between family members, father and son. I said to them, “You know how this is resolved. You know a trustee must make a determination, an ultimate determination in this case.” And the individual said, “Yes, we know that, but we want your participation to assist us in resolving this dispute; we want you to help guide the trustees in making the proper and fair determination.” I said, “The only way they will allow me to do that is if I ask and they consent.” Fortunately they consented and this is something that goes on everyday; something that you will not read in the paper; something you won’t be exposed to unless you happen to be married to one of our tribal members. It’s something you will never know, but it happens every single day when it comes to matters of tribal resolutions. As it turns out, in this particular case, the trustees made a decision, some of the parties were not happy with it, but the decision they made was final. The only way a decision can be overturned by a trustee is if it’s by a full vote of the tribe and it has to be by a 3/4 majority.
Just to clarify, the full tribe, not the full council, must overturn the decision?
Right. The full tribe.
That’s why I say being a trustee is a very powerful position, because that appeal process is not easy. It has been done, but it ain’t easy.
How many tribal members do you have?
That’s a military secret!
You mentioned that when you do have issues that you handle internally, you at times incorporate tribal traditions and practices. I wonder if you could share with me some of those practices?
The actual process of land dispute is a traditional practice. The trustees, well we call them trustees, but more often they’re clan mothers or they’re leaders of a family, generally women, because women are the caretakers of the land in the traditional sense. So we’d have women resolve these disputes, although it’s not guaranteed that a woman is a trustee. That is how the modern influence comes in. We allow either males or females to serve in that capacity; however, the function of the trustee is caretaker of the land. It’s a traditional act and there is no parallel in New York State law, federal law, or colonial law. So that act itself is a form of traditional justice.
The resolution of disputes by consensus or by an appeal process before the entire tribe is also a traditional form of administration of justice because we govern by consensus, which was our form of governance prior to the incorporation of a constitutional form of government as is more common in the United States. In fact, if you look at the Articles of Confederation, which was the primary document of governance before the ratification of the U.S. Constitution, that’s more of a governance by consensus than by majority rule, which is more in tune to the form of governance that we were engaged in and are currently engaged in than the United States, where majority rules.
Let me ask you a procedural question. When you have the trustees reviewing a land dispute, are there rules of evidence? Do witnesses get sworn in? I know those are sort of colonial or state law traditions. I don’t know if those are things that you also observe in the tribal forum or on the council.
The keeper of records becomes important because what the keeper of records has is a land book, a deed book, a historical record of how land was used and to the extent that the trustees rely on that they will proceed. Their primary source of evidence would be the keeper of the documents on file and the keeper of records. They would not rely upon statements of sworn testimony from any individual. They would go straight to the historical, traditional record history of the tribe as the primary source of evidence and then if there was something that needed to be supplemented, then they would ask individuals. But they would not just ask individuals, they would ask an elder of that family because that elder would have more knowledge of historical relationship than the younger individuals. So dispute resolution of land follows a traditional format, because it’s not just, “I have a deed and my deed is to the exclusion of all others.” It doesn’t work that way. It is, “How was this land held traditionally and how did it evolve to come into your possession?”
If you’re looking at a different kind of case or situation where there was a conflict—a physical assault between two members of the tribe—is there a similar approach where you wouldn’t just look at the two individuals, you would bring in elders, you’d bring in other people?
If there’s a physical confrontation involving violence, in today’s world that almost always involves police action…almost always.
In an ideal world, would you resolve those conflicts using traditional methods?
We would not have a tribe any more, because the traditional method of resolving unnecessary violence is banishment. In our world, if you were uncomfortable or unhappy with your present situation, you just got up and moved. And there was plenty of land available for you to move someplace else. And for those that supported you, they got up and moved with you. It was no big deal. And it was not a hostile act. It was simply, “I don’t like the way things are; I’m leaving.” Since we don’t have access to that land anymore because it was taken from us, we can’t do that anymore. We can’t act in that fashion and perform that simple act of defiance and leave.
So I see what you were saying before about how criminal activity and then the resolution through state police or state courts, all is influenced by the outside.
We did an informal survey in 1994 when I was first elected chief, and there were 394 arrests on our land in 1994. All but two arrests were non-Indian outsiders coming on our land and committing an illegal act. So, when you’re talking about police activity to solve conflicts, the overwhelming majority of people involved are outsiders.
Recent statistics came from the Suffolk Police Department—it didn’t come from me so I didn’t make this up, and since it’s a white guy who’s telling it, it must be true, right?
And here’s the other thing: back in the year 2004, we were concerned that summer about an influx of outsiders engaging in illegal drug activity, so what we did, from the hours of 9:00 p.m. until 7:00 a.m. in the morning all summer for a period of 12 weeks, we blocked the roads through our land and did not allow anyone onto the “rez” who was not a resident or who was not visiting a resident. It was only during the late hours, during evening hours, from 9:00 p.m. until about 4, 5, 6, 7:00 a.m. The hours varied depending upon the day. That was an experiment that we engaged in to determine who was, in fact, causing destruction in our community. During that period of time when the road was blocked, you could hear a pin drop on this reservation. Residents make no noise; they make no activity. That was during the time where the police were very cooperative with us and they said, “All you have to do is scare them; push the non-Indian to our side of the street and we’ll take care of them.” I said, “That’s all we want you to do.” We were concerned that the law enforcement’s effort to crack down on illegal drug activity on Long Island was pushing all of those people onto our land. So as a consequence, we blockaded our land and didn’t allow them to come, and we discovered that the people who are engaging in illegal activity don’t come from the reservation. We proved it, just by setting up a barricade in the evening one summer. The police know it.
How come you don’t continue that every summer?
I see. Let me ask you about that, because I know that your tribe is recognized by New York State, but it’s not recognized by the federal government?
I know it’s confusing to some people, but in the first instance, our treaties are with foreign governments. We have treaties with Holland, we have treaties with England. We have trade agreements with countries that pre-dated the United States of America by a hundred years. So the United States couldn’t recognize us because they didn’t exist as an entity.
So the very simple, fundamental fact is that the United States of American didn’t exist. So when our reservation area was established during colonial times, it was established by a colonial government, by the King’s representative in America, which predates the United States of America by 87 years.
Now, New York State does not have a recognition policy and if you ask them, they tell you that. What they will tell you is that, “During the colonial period we engaged in relations with several tribes, one of whom was the Unkechaug, and that colonial relationship was carried over when we incorporated them into the New York State constitution.” So our relationship, vis-à-vis the State of New York, was incorporated by reference in the constitution of the State of New York, where it says, all agreements that existed prior to the adoption of this constitution that are not inconsistent with it, are incorporated and are effective subsequent to the adoption of this constitution.
But I understand your point: they’re referencing an earlier arrangement.
New York had to incorporate our relationship by reference, because if they invalidated those arrangements, which had to do with transactions of large bodies of land, then they would in effect invalidate a whole series of land transactions. Whether those land transactions were legal or illegal, they were in existence, and the fact of the matter is New York incorporated us, not out of the goodness of their hearts, but to protect the validity of land transactions by highly speculative colonial representatives, some of whom signed the Declaration of Independence and some of whom were extremely instrumental in executing all the efforts of the Revolutionary War, such as William Floyd, Thomas Jefferson, and James Madison. Some guys you might be aware of.
What does it ultimately mean for you?
For us, we don’t need an act of recognition by the federal government because under the concept of international law and under the concept of sovereignty, our existence was predetermined prior to the United State of America. The United States and New York State have no choice but to acknowledge that fact. Whether they do so formally or whether it’s done so in a court of law, or whether it’s done so through acts of defiance on our part, it’s ultimately found to be valid. The Bureau of Indian Affairs can’t make a determination that we are a sovereign Indian tribe because they don’t have the power to do that under the constitution.
Now if we were sovereign enough to engage in acts of negotiation for land prior to the constitution, then we’re certainly sovereign enough to protect the rights of the people who occupy the lands that we have control over after the constitution. That’s my point. We don’t lose our sovereignty because who controls the American continent changed from Britain, and France, and Spain to the United States, Canada, and Mexico.
I see your point. Let me ask you, just in terms of a practical level, do you not pay taxes to the federal government? Do they want you to pay taxes?
Our tribe is not taxable. I don’t say “tax exempt,” I say non-taxable. Having said that, the federal government has yet to resolve in its own mind, “What exactly does that mean?” As an individual and as an attorney, I file federal tax returns. I have filed federal tax returns since I practiced in New York City for many years.
As far as our taxability, we are non-taxable. That’s clear and unequivocal. Even the State of New York acknowledges that and we have court decisions and opinions which substantiate that relationship.
What federal government recognition really amounts to, in essence, is access to federal dollars. And that is a consequence of the Indian Reorganization Act promulgated in 1934 that established a list of tribes who would be eligible for federal assistance. That’s really what federal recognition is all about: federal funds.
How does it affect you not to be receiving those federal funds in terms of health care, and schools, and justice?
In the past, it was devastating not to have access and protection. The other aspect of federal recognition is federal preemption from state interference, which means whenever there are Indian affairs, state law is not applicable and federal law preempts.
Now why has lack of preemption had a devastating impact on our community? Because the reason for federal preemption is the traditional, historical abuse of Native communities by states; massive abuse by states of Indian communities, including racism, genocide, stealing—outright stealing of land—denial of educational opportunity. The federal preemption was designed to prohibit that abuse, and if nothing else, Indian tribes would have recourse to a much more, in theory, sympathetic governmental system.
You say in the past it was devastating. So that means the situation has changed or improved over the years?
Yes, because we found a way to develop an economy to enable us to find, to develop our own resources.
I see. And what is that?
Mostly smoke shops, tobacco outlets, where the offside sales tax or excise tax has been raised to such a level over the last 40, 35 years that it created a viable economic opportunity for us.
As a consequence of that we’ve reduced our unemployment; we’ve been able to provide health care; we’ve been able to provide home improvement; we’ve been able to provide additional scholarship tuition assistance and educational opportunities, cultural development—all of these things, you name it. Now they want us to return to devastation and we won’t do it.
I know you don’t have a tribal court per se, but as an attorney I think you probably have insight into some of these questions I’d like to ask. For instance, what do you think are common misperceptions that practitioners in state courts would have about how tribal courts function or how tribal justice systems work?
I don’t want to create a court system that emulates court systems that have abused us in the past. Tribal justice that is simply a model or microcosm of state court is a waste of time, because all of the negative influences that you have in the state court system, political parties, political manipulation by legislators, lobbyists, all come into play to influence justice. And if the system is modeled in that fashion, it’s a waste of time. But if it is modeled after the traditional form of dispute resolution, which is a council of elders or a council of clan mothers or a council of leaders in a particular community, and their word and their determination is binding at risk of expulsion, then you will have true dispute resolution and any partisan influence on individuals will be de minimis.
When you rely on your elders and the wisdom of their leadership, and when you rely on dispute resolution where they are the final arbiters of a dispute, that’s how problems are solved. But if you have a system modeled after state court, with all due respect to the state court, well, that is not a system that I would want for our people, with all due respect.
Do you think that there are elements of tribal justice that state courts could learn from tribal traditions? Because in the tribal courts and here at the Center for Court Innovation, we’re always looking for new and better ways to do things, and we’re wondering if some of the traditional practices offer an example that state courts or tribal courts could incorporate?
I think there is some experimentation with the drug court, right? And 80 percent of all crime is drug and alcohol related. I believe that that’s the statistic if I’m not mistaken.
Something very close to that.
Okay, let’s say it’s at least more than half. How’s that?
In Indian country 98 percent of all crime is alcohol and drug related. Now, what that tells me is that if you eliminate alcohol and drugs from the system, then you’ve eliminated the overwhelming majority of crime in your society. Now how do you eliminate drugs and alcohol from the system? You take it out of the system and you adjudicate crime in a way that’s effective in dealing with alcohol and drugs. But if you make him a criminal, then you will have a criminal justice system.
My opinion—it’s only my opinion—is that you find a way to eliminate the processing of drug and alcohol-related issues from the system and you will only be dealing with crime. You will not have a calendar that will overwhelm you. So the effort should be to find a solution to drug and alcohol issues that are not in a criminal context. That’s why we have a system that uses clan mothers and elders because what you are essentially dealing with are a lot of young people who are learning how to disrespect your system and you’re taking elders and clan mothers—essentially parent figures, and using them to administer discipline on young people before they become criminals. And those figures receive a lot more respect in our world than they do, it seems, in your world at this point. But I think those figures are effective to us and they do have a very strong effect. Now there are those whom there is nothing you can do about. We used to just shoot them, but I guess you can’t do that anymore.
I don’t think so.
Then the criminal system has to deal with that. But I venture to say that the overwhelming majority of people that we are prosecuting as criminals in that system don’t belong in prison, prosecuted as criminals. They should be prosecuted in a separate system where some of these more traditional techniques would be effective.
So your attitude of looking at an addict who’s committed a crime as an addict first; is that a tribal perspective? Does that come culturally? Whereas maybe the state courts would say, “Well, he committed a crime, that’s what we have to look at first. Let’s adjudicate the crime; we’ll send him to prison.”
We know, and it’s been my experience within my own family, we know that you can’t trust a druggie. Anything they say is a lie. Even to help themselves, they’ll lie to hurt themselves. They are not that person that you might have known before. They’re somebody else. But we say in our way that, “They are not who they are.” So you can’t believe anything that they say. If that person says, “I’m going to rehabilitate”; you can’t believe that. What are the levels of rehabilitation under the current system? Eight percent? Ten percent? It’s not in double figures, is it?
Right, there’s a huge recidivism rate.
You know; that’s an industry in itself.
Yeah, it’s the revolving door. That’s what we talk about.
If you start with the premise, the person is a liar, then you know what you’ve got to deal with. But the criminal justice system deals with this person as a criminal. And if you deal with him as a criminal, that’s what you’re going to get. That’s my opinion. What I’m saying is that a traditional justice system does not deal with that person as a criminal. I’m not talking about violence now; I’m talking about a different situation. If we want to create a traditional justice system on our rez, we want it to be a system that deals with those individuals the way in which it was done traditionally, using those figures of clan mothers and elders as adjudicators. That’s my opinion. And that will resolve 90% of what is present in the criminal justice system today.
What you’re saying, if I’m hearing it correctly, is that because they’re afforded so much respect, the clan elders and the clan mothers are imbued with the power to really solve what can be incredibly difficult problems like addiction. I think in state courts, here’s so little respect for judges and the so-called justice system in general, that it doesn’t have the same moral authority.
No, it does not. And state courts try to adjudicate behavior and that’s always a bad thing. What we try to do is manipulate moral behavior, and the court systems are not going to do that. They’re just going to punish you when you violate. When you have elders, they’re mother and father figures. Kids say they respect their parents and all that stuff, and the clan elders are imbued with the moral authority to adjudicate their bad behavior. I think you have a whole different result.
How do you cultivate and maintain that kind of respect for the elders?
Here’s the situation. In our community, most of the people are familiar with one another, so you have that familiarity. If you have a system of adjudication where, let’s say, if you branch out to a bigger town, you have that same kind of familiarity, but excluding the cities for the moment, in those towns and villages you have the capability for that same kind of familiarity. You may not know those individuals, but you certainly know something about where they come from.
But the premise has to be, not that you’re innocent until proven guilty, but that you don’t belong in the criminal justice process. In order for that to happen, then you have to go into a different process of how you deal with this individual. And then it becomes a local thing. In the cities it’s much more difficult because the city environment doesn’t lend itself as easily, but I’m sure there’s a way in which it can.
How would you suggest improving relationships between tribal Nations and state justice systems?
One word: comity.Give it where it is due. Acknowledge that justice systems of the Native people are looked at as inferior. The irony is that those courts that are looked upon as inferior by the United States courts or the state justice courts are typically those courts who tried their damnedest to model their system after the state courts that refused to give them comity. And that’s really the bottom line. Respect for the law.
Why do you think comity doesn’t exist presently?
It could be discriminatory; it could be an attitude; it could be ignorance or lack of knowledge of the nature of the system.
Do you see a lot of ignorance in your dealings outside the Nation, when you come into state courts? Presumably there is, but I wonder how you’ve experienced or seen the ignorance about how tribes work and how they administer justice?
Absolutely. I see it in the child welfare arena in the family court with especially discriminatory acts. “Are you sure you have enough families capable of handling these children?” I say, “Well, given the state’s child protective track record, I don’t think we can do any worse.” That’s my comment to a judge. So I said, “Yeah, I think so. I think we got enough families to handle this.” That’s an insulting comment actually, but that’s what you get.
What other misperceptions do you see? What do people not understand?
We have no law; we have no constitution; we have no tribe. We don’t look like we stepped out of an 18th century movie. The concept of tribal identity is difficult for them to grasp. So you run into that. “I didn’t know there were Indians all around. I can’t believe that’s true. Is that true?” It’s very hard, very hard to overcome some of these misperceptions, it’s very hard to persevere.