Thoughts from an Airport Cafe: International Indigenous Governance, and Home

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A parade of humanity streams by, each passenger more harried than the last. There’s no rhyme or reason to the fracas here in Terminal 4 of the Los Angeles International Airport. Gate 48B to be precise.

No less than four American flags at the arrival gates remind folks that this is #Murcia. But no one seems to pay them any mind. Wrangling young kids who would rather run off, and finding the proper gate capture the attention of most passengers who are either deplaning, making a connection, or hoping to board. 

I’m traveling solo, seated at a table for two. I’ve given up two chairs that surrounded my table to an Australian group consisting of two families and more kids than should ever be brought on an international trip.

Naturally, they were a lovely bunch.

My travels this week take me to New Zealand and the World Indigenous Business Forum. I plan to share the work we are doing at the University of Arizona to develop an International Indigenous Governance Consortium that will deliver access to education on Indigenous governance to Indigenous peoples around the world. It’s a tall order in a world that is constant motion – not unlike Terminal 4 here at LAX. 

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It’s a cliché (but a useful cliché) to say that what makes these jaunts worthwhile is the opportunity to share information with communities, and folks who haven’t been exposed to the ideas of Native Nation Building. It’s true that the foundation of our research began with the Harvard Project on Native American Economic Development some twenty years ago. But for most Indigenous peoples, twenty years is a drop in the bucket of time. And as recent developments across global jurisdictions demonstrate, the lessons are timely, relevant, and important. 

Whenever I take these trips, I set my phone to an image of home, 300-odd acres of Oklahoma plains, and the home place where my Parents, Grandparents, and Great-Grandparents built, lived, and made a life in a world devoid of traditional values. 

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Thinking about Grandpa back in Cotton County helps me keep in context the work that I do. It reminds me that our target audience isn’t really the academics and Indigenous business elite who are attending the conference, but the folks at home who live on the land, and deal with life in all of its complexity. 

And, of course, I think about my son, Clark, and the world that my generation will leave behind for him. Given the political quagmire surrounding our President’s Supreme Court nominee, it makes me question the future as he becomes a man. But I still have hope. For him. For the folks at home. And for the many people who will be attending the World Indigenous Business Forum. 

But such questions are far from the mind here in Terminal 4 at LAX. The irritated faces of travelers, and the frenetic announcements of the PA system all take top billing over such introspections.

Soon, I will join them and contribute to the broad stream of people who pass through LAX everyday. But my true north will always be far from the locales that I visit.

It remains as it always has – on 360 dusty acres in Cotton County, Oklahoma. Where Papa sits in his recliner watching Football, and the crickets chirp outside.

Language, Identity and Culture

We had a farewell morning tea for a colleague earlier today. My friend is a lovely woman of British extract who will be moving away to start life anew with her ‘partner’. The use of the term partner as a synonym for all manner of couplings is something I’ve found strange here in New Zealand. I suspect that if I ever called Gwyn my partner rather than my wife, I might see more than a few raised eyebrows back home in the good old U.S. of A.

Language

While stubbornly drinking my morning coffee (all good Patriots know that tea is for redcoats and commies), I had a chat with an acquaintance who forcefully insisted that New Zealand’s adoption of the Māori language (te reo Māori) as one of the country’s official languages was one of the most ‘liberal’ and forward-thinking moves NZ had made in recent years.

Before I had time to reply, she then took aim at the United States, arguing that America’s refusal to adopt Spanish and the 566 languages of America’s Indian tribes was an especially sordid transgression. By the same token, she ignored the fact that America doesn’t actually have an official language. Perhaps this was an inconvenient truth as Al Gore might say. Nevertheless, in her view, such a lack of linguistic accommodation reduced the American values of equality, life, liberty, and the pursuit of happiness to nothing more than empty falsehoods.(They [Americans] don’t support those [values]. Not really.)

Identity

As one might imagine, I’ve had several conversations about America with my Kiwi friends. The lone commonality between them is that everyone seems to have an opinion of America. (Do you really own a gun? What’s Walmart like?). Despite the many chats I’ve had, I can’t recall having ever been told, prior to today, that the bedrock values of my Country are a sham. Suffice it to say, this particular conversation did not last long and I excused myself for the comforts of a quiet office.

When my blood pressure reached a plateau, I paused to consider her comments. She was correct in that in so many places, the notion of language is inextricably tied to notions of culture – almost to the point that a language can define one’s national identity. This is true, perhaps, in most places – China, France, the UK, Germany and even Mexico all come to mind. Still, I don’t think my colleague quite appreciates how things work in America.

Unlike New Zealand which has a total population that is roughly the size of Boston, the United States is a massive, free-wheeling, culturally diverse Nation. In previous posts, I’ve likened the US to a big dysfunctional family that stays together for tax purposes. Like it or not, the left is stuck with the right because, let’s face it, the costs associated with revolution and secession would really cramp our style. We’ve already tried a separation, and as the fates would have it, we’re better off together than apart. True love lasts, as the kids say.

As this matter of population diversity relates to identity, perhaps nowhere in the world is identity so loosely linked to language than in the United States. English is spoken by the vast majority of Americans, so this is the de facto language in which we do business. It’s not prescribed by law (although attempts have been made). It’s simply the way things are done. In America, language, then, is not so much a matter of national identity as it is a matter of national convenience in a wildly diverse country.  

Culture

Even so, perhaps my acquaintance’s remarks are more on point as they relate to culture. Perhaps American values are moot points because we do not accommodate a plethora of languages and the cultures they purportedly represent. It’s true that culture is a thorny concept in America. Historically, we don’t do very well with cultures that are not our own. The trail of tears and subsequent expropriation of American Indian lands come to mind. Slavery and Japanese interment camps also ring a bell.

Still, I’d like to think that these are exceptions to the rule of American exceptionalism. Our values aren’t diminished because we fail to meet the standards. Even under our founding documents, the values of equality, life, liberty, and the pursuit of happiness are objectively self-evident truths. As such, our standards should rather inform our future actions as opposed to being defined by them.

And I think, in general, this is how it works. This is why Edward Snowden’s revelation of the NSA’s domestic surveillance programme prompted such a strong reaction. Same for Obamacare. Same for drones. Same for Benghazi. Same for the IRS harassment of conservative groups. These issues became big deals because they so starkly cut against the core of what America stands for as a Nation. 

As a country, then, America is not a Nation that finds its identity through the mass conformity to or accommodation of a particular language. America finds its identity through the common acceptance of a shared set of values, no matter how imperfect our policies may be.

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And with that thought, my temper cooled. My pulse no longer raced. In fact, I quite nearly felt a twinge of sympathy for my acquaintance. For unless one is an American and rather accustomed to breathing the sweet air of freedom, I suspect that it is very difficult to apprehend how this all works in practice. Easier to find inconsistencies and write off the whole system of universal human rights than to accept the nuance reflected in the universality of the human condition. 

Thoughts from the Waitangi Tribunal

 The Aramiro marae located between Hamilton and Raglan, New Zealand is a peaceful place. Surrounded by verdant hills, and craggy terrain, the marae structure itself is unprepossessing. In many ways, the humble building mirrors the selfless values of an ancient people that have long struggled to survive. Accordingly, the world seems very far removed here. The drums of war in Syria and frightful memories of terrorists attacks in a bustling city are all distant points on the horizon in so quiet a vale.

What brought me to this sleepy corner of New Zealand was a hearing of the Waitangi Tribunal. The Tribunal is a novel institution among Nations with significant populations of Indigenous peoples. For New Zealand, the Tribunal is the judicial body tasked with hearing Māori claims alleging governmental violations of the 1840 Treaty of Waitangi. The Treaty of Waitangi is the agreement signed between Māori and the British ceding   The following is a brief description from the Waitangi Tribunal website:

The Waitangi Tribunal was established in 1975 by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Māori  relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi.

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For the Māori hapū or subtribes that participate in the process, the route to redress and the resolution of their claims is lengthy. It can take years to get a hearing before the Tribunal and years after the hearing to get an adjudication of a final outcome. The process may seem impractical given that there are quicker routes to recovery, including direct negotiations with the Crown. But the speedy benefits of one do not produce the same meticulous documentary process of the Tribunal proceedings. Whereas Crown negotiations get the money to the iwi faster, it does not necessarily record the painful history behind the dollars or provide closure. The Waitangi Tribunal attempts to do both.

One thing about the Tribunal proceedings that struck me as a Western, legal academic is how relaxed the rule of evidence are. The morning of the hearing, organized chaos ensued behind and scenes. My friends and hosts, the Greensil family, were feverishly putting the final touches on evidentiary briefs and guitar selections alike. The guitar numbers which had lyrics in English and Te Reo (Māori) were brief summaries of their family lore, offering their perspective of the Māori land confiscations that permeated New Zealand from the 1860s through the formation of the Waitangi Tribunal itself in 1975. Decades, even centuries of displacement was finally coming to a head and, to them, a musical expression of the moment seemed a fine way to present testimony of their family’s history.

What was remarkable in witnessing the scene, was the faith the participants had in the process. In America, I’m often cynical and skeptical about the ability of our courts to be impartial and to administer justice in a fair manner. But in the Waitangi Tribunal proceedings, claimants presented their interpretation of events before the Court without a hint of cynicism, as if expecting a fair hearing and an impartial outcome from the Judges rather than merely hoping for one. For my friends, the testimony marked the culmination of a life’s work for their family matron – an attorney trained right here at Waikato University Law School. This embrace of the process and the knowledge of how long it took the parties to reach this point made the event exceedingly beautiful in its own way.

My friends hail from Whaingaroa, an area of New Zealand containing the town of Raglan, a surfing haven famous for its black sands and iconic surf breaks. The town was featured in the seminal surfing movie The Endless Summer in which famous surfers follow the summer season around the world as the seasons change. Their iwi has long maintained a political separateness from the Tainui Iwi Confederation, a mega-iwi that seems to dominate much of Māori political affairs here on New Zealand’s North Island. Their district is said to always have been a separate political entity, giving the hapū in the area a unique, spiritual obligation to tend to the lands in perpetuity. Having been to Raglan a few times now, it is difficult to imagine a more sublime place over which to exercise such stewardship.

After the first few testimonies, the hearing gets a bit tedious, soldiering on through the morning, afternoon and into the early evening. Witness after witness presents the essence of their briefs, which have all been submitted to the Tribunal in advance. The presentations are supposed to be kept within certain time constraints but these are loosely enforced. The Tribunal seems to prefer allowing claimants to tell their story, rather than rigidly enforcing a schedule.

The pitfalls of such loose evidentiary rules and relaxed time constraints are obvious. The quality of testimony presented to the Tribunal varies widely. Some evidence, such as that presented by my friends, is well documented, packaged in quite professional briefs that have all been vetted by a small phalanx of attorneys. By contrast, testimony from others explored the finer points of possum eradication and proper techniques for re-seeding cockles. Where some claimants focus on the big picture of land confiscations, brutalities and oppression, others play small ball.

In all, attending the hearing was a much welcomed opportunity. As a would-be scholar, I try to maintain objectivity to the extent possible. But witnessing a hearing like this reminds me that what I view in abstraction has real world consequences for the people involved. For my friends, this hearing was about their lands, their home place, and their family. It’s just as important to them as our acreage in Oklahoma, our farmhouse, and my family is to me.

No matter where you are, history is a painful thing.

When Tribes Fail to Govern: Lessons from the Tribal Payday LendingFiasco

My work here in New Zealand sometimes feels far removed from the context of my tribes and family back in America. But every now and then, stories drift across the Pacific from Indian Country that remind me how similar the challenges facing the World’s Indigenous peoples are. In this case, challenges of governance and good governance, in particular, strike me as a stubborn blight that Indigenous peoples are hard-pressed to overcome, both here and at home.

Earlier this week, Indian Country Today featured a column by Jane Daugherty with the headline “New York’s Attack on Tribal Lenders is a Threat to All Natives.” For those familiar with the debacle, the headline  referenced the State of New York’s decision to sue three online payday lenders that are said to be affiliates of the Cheyenne River Sioux Tribe of South Dakota. The rub of the case, as summarized by the Wall Street Journal, is below:

The lawsuit poses a key test for regulators who have begun cracking down on online lenders, including those affiliated with Indian tribes. Government officials say the lenders are violating state interest-rate caps and consumer-protection laws, but tribes say they are immune because they operate as sovereign governments.

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In her analysis of the matter, Daugherty opined that “New York’s action ignores the sovereign immunity of recognized Indian tribes, as repeatedly upheld in the Supreme Court and in numerous states.” She then goes on to cite a Colorado State court opinion on tribal payday lending and sovereign immunity as a “highly relevant” corollary to the matter at hand in New York.

A few thoughts.

First, it needs to be mentioned that a Colorado State court opinion is not highly relevant to the New York lawsuit at all. Ms. Daugherty isn’t a lawyer so it’s understandable that a layperson might confuse the jurisdictional authorities of various courts. But the fact is, while a New York State court might choose to consider the reasoning of a Colorado State court judge, an opinion issued in another state is in no way dispositive of the lawsuit before the court in New York, regardless of how compelling the logic of the Colorado opinion is. This is problematic for Daugherty’s piece because of the bulk of it cites excerpts from the Colorado opinion en route to the conclusion that New York will waste taxpayer dollars just like the State of Colorado – presumably because the outcome will be the same. On the contrary, New York could well reach a different conclusion entirely and even see its opinion upheld in Federal Court.

Second, and in her defense, Daugherty correctly notes that the legal doctrine of tribal sovereign immunity is the major, legal oblation on the line in the New York matter. To wit, a gaggle of potentially affected tribes  have already filed a complaint seeking injunctive relief from the Federal District Court in effort to forestall New York’s efforts to regulate the tribal payday lending industry. In their complaint, the tribes asserted the defense of tribal sovereign immunity, a legal doctrine which prevents tribal governments from being sued without their consent. Elsewhere in the complaint, the tribes argue that permitting NY to regulate the industry even while the lawsuit proceeds, would be tantamount to inflicting an irreparable harm on the tribes through the disruption of the payday lenders’ operations. Indeed, there is some evidence to support this point already.

There’s little question as to the profound consequences that such a legal challenge presents. Tribal sovereign immunity has long been viewed with some skepticism by the courts and has at various junctures come perilously close to being extinguished altogether. Naturally, parading an ethically suspect payday lender before the court, one that charges clients north of 355% interest on loans, does not a sympathetic defendant make. Nevertheless, one goes to war with the army one has, not the army one wants – as Defense Secretary Rumsfeld was fond of saying.

Still, it stands to reason that the tribes involved could have taken preventative measures to ensure that clients doing business with tribal entities do not get hosed with 355% interests rates. I sometimes see red when I think of the interest rate on my credit card. I might well see black were my statement to include a rate of 355% (!!!). Frivolities aside, the tribes in question should have been proactive about establishing regulatory guidelines of their own, in order to ensure fair dealings and conformity to industry practices. True, tribes are not (in my view) subject to state regulatory regimes in this instance. But this is not to say that some form of regulation to protect consumers has no place in the tribal payday lending industry. What makes the lawsuit unfortunate is that the situation could have been avoided entirely had the tribes in question taken the initiative to govern.

The lesson to learn from the debacle is that effective tribal governments carry on with the business of governing. Whether it is regulating the shady business practices of its own entities through tribal codes, or engaging with other tribal governments to implement, broad industry wide standards, effective tribal governments undertake the decidedly non-glamorous work of governance rather than allowing power vacuums to fester into a full-blown lawsuit.

When viewed through the prism of tribal governance, the lawsuit pending in New York represents a critical, lost opportunity for tribes to demonstrate their competence.

Indigenous Governance in the United States and New Zealand

It’s been a long while since I’ve added an update on my work with Indigenous peoples. I had hoped this site would turn into a place where I could share some of the questions that have come about from my work and a place where I could obtain feedback from those interested in similar issues.

Alas, somewhere between finishing my dissertation, welcoming my firstborn Son into the world, and moving to New Zealand, the blog was left to flounder.

My time in New Zealand has been spent with the Māori and Indigenous Governance Centre in the Te Piringa – Faculty of Law at the University of Waikato. Having never lived abroad, it has been somewhat of a transition but the work has been interesting and I couldn’t be more please to be working in my field of expertise. And true to form, a lot of questions have come up that I’ve tried to address in various capacities – most directly in the form of a couple of law review articles that are still in the works.

What I wanted to share, for now, is an article I drafted for the New Zealand Lawyer Magazine that applies some of the work done on Native Nation building in the U.S. to the situation of Māori iwi here in New Zealand. The response has been underwhelming so far but I hold out the naive hope that someone will give it a read and seek out further information – including the resources of our centre.

By way of clarification, the point of the article, of course, was not to imply that America has the cure for every conceivable ill that colonization hath wrought. Rather, the point of the article is to suggest that there are enougH similarities between the challenges of indigenous governance in the U.S. and New Zealand that our countries can share lessons and avoid each other’s mistakes.

I conclude the piece with this thought, which more or less summarizes my thoughts on Indigenous governance in general:

Having traversed the desolate plain of trial and error, our tribal nations have experienced federal policies towards Indian governance that have ranged from the outright termination of tribal institutions, to the extant policy promoting tribal self-determination. If Māori can benefit from the troubling lessons of the United States’ past, we should be so fortunate to see something good come from something that was objectively rather grim. [Link]

Happy Waitangi Day

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You can be forgiven if the salutation above means relatively little. If I hadn’t the day off, it’s quite likely the day would have passed from my radar too. Even so, Waitangi Day is New Zealand’s celebration of its founding document the Treaty of Waitangi. The treaty marked an 1840 agreement between the Māori peoples and the “Queen of England” that permitted the Brits to establish a civil government in New Zealand in exchange for the recognition of Māori ownership over their lands and other property interests. 

Unsurprisingly, there has been much disagreement on the contents of the treaty – the lot of which makes my job here possible. Of principle importance is what exactly both sides ceded in the original understanding of the treaty. The Māori contend that they did not give up complete sovereignty to the Crown such that their traditional governance entities would be rendered moot. The British Government and, subsequently, New Zealand’s constitutional monarchy contends that, in fact, the Māori did just this.

Of course, the the matter isn’t quite so black and white. Consider that the New Zealand Government established the Waitangi Tribunal in 1975 to hear Māori claims of violations of the treaty. To date, some $700 million have been spent by the Government on reparations to the Māori in the form of land and property transfers, and formal apologies for violations of the treaty, all with the consent of the British Monarchy. Such payments, however, have stoked the resentment of some non-Māori New Zealanders who allege that the Māori are simply exploiting the treaty to obtain special privileges from the Government. The Māori claim that such concessions by the Government are simply what is appropriate given the destruction of their culture and governing structures.

As an aside, my work here will focus on the restoration of traditional Māori governance structures and their long-term viability. To wit, concerns about extant Māori governance entities have reached such a pressing level that the University of Waikato’s Māori and Indigenous Governance Centre has committed significant resources for examining the best practices of tribal governance from around the world in hopes strengthening Māori governmental institutions at home. All of which is a very long way of saying that my work here will focus on finding ways to help create stable governing entities for Māori peoples. 

Taking a step back, as an American in New Zealand, it’s a bit odd celebrating another country’s founding. But I tried to get in the spirit by having a lunch of what the locals call fish and chips – or what I routinely call fish and freedom fries much to the confusion of my local restauranteur – who happens to be a Vietnamese immigrant that speaks only limited English. To compensate for my foolishness, I make it a point to leave a tip. Unfortunately, I think this further confuses him since New Zealand isn’t a country that tips its service industry workers. Strange, I know. 

In all, it has been a relatively agreeable Waitangi Day. I met a number of colorful characters, including a neighbor named Jared who tells me that he has an aunt who is Sioux. Incidentally, I met Jared when he dropped by and woke me up, around 8am this morning asking to for a spoonful of instant coffee for his coffee mug. I suppose I’ll have plenty of time to sleep when I’m dead – although sleeping in would have been quite nice today. I was also pleased to make the acquaintance of Syd, a local, Indian entrepreneur who runs the quick-mart only a couple of blocks away. The Simpsons would be proud.

And with such august company, I have to say that the national holiday/day off has been quite nice. From the Southern Hemisphere to you, Happy Waitangi Day.