 Good afternoon, I'm Jenna Bednar, Professor of Public Policy and Political Science at the University of Michigan and the EDN Goldenberg Endowed Director for the Michigan and Washington program. On behalf of Dean Michael Barr, who's watching here today and the faculty and students of the Ford School, it is a great pleasure to welcome all of you to this special policy talks at the Ford School event with Riaz Kanji and Chairman Brian Newland. I'll be talking with Riaz 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. Riaz Kanji is a founding member of Kanji and Katzen, a firm that represents Native American tribes in field spanning treaty rights, sovereignty protection, taxation and regulation, land claims and land use, reservation boundaries, gaming and economic development and environmental protection. A graduate of Harvard College and the Yale Law School, Riaz served as a law clerk to the late honorable Betty Fletcher of the 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 Bay Mills Indian Community, a federally recognized Indian tribe in Michigan's Eastern Upper Peninsula. Prior to his election in 2017, Chairman Newland served as the chief judge of the Bay Mills Indian Community Tribal Court. From 2009 to 2012, Chairman Newland served as an appointee of President Barack Obama at 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 vote 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 Laws 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 gonna have some time at the end of the event today for audience questions. So think about what you might wanna ask now. We've received some in advance, but you can also submit your questions via the live chat on YouTube or you can tweet your questions to hashtag policy talks. So welcome, Riaz and Chairman Newland and thank you for being here today. Hey Miigwetch, thanks, Jenna. Yes, thanks for having us. Yeah, so Chairman Newland, I'd like to invite you to start us out and just give us a sense of the big picture frame. How would a tribes fit into the political structure of the United States? Well, that's a great question. You know, 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 referenced in 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 six of the constitution references the treaty power of the United States. And the United States has entered into and ratified hundreds of treaties with tribal nations over the years. And 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 we're referenced in the constitution but we're outside of the constitution, firmly recognized the sovereign governments by the United States Supreme Court going back 200 years. And the other part is that we're kind of a sui generis, we're very unique. We're local governments oftentimes but 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 the border in Canada and then with each other. And so we get to do lots of cool stuff in that framework. Grias, did you wanna add anything to that? That's all very well said. I'll just add that the Supreme Court decisions that Chairman Newland referenced 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 1820s and 1830s which really established the sort of the extra constitutional framework for tribal power. And 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 established tribes as sovereigns subject to the extraordinary power of 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 on the Eastern seaboard have been fundamental to the survival of tribes to this day because while in this country we often honor the rule of law and the breach and that has certainly been true with respect to tribal powers, tribal treaty rights. The fundamental notion that tribes have this residual sovereignty that immunizes them from state power and state authority has been essential to the ability of tribes to survive because otherwise undoubtedly state governments who have all been very jealous of tribal prerogatives would have acted to snuff out those tribal powers. So you've just raised the states as we've been thinking a lot about where the tribes fit sort of within our constitutional framework it does sort of seem like their 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? Well, Rios can probably give you the pinpoint citation for this quote but the Supreme Court in a case from the 1800s recognized the 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, Christy Nome 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 at 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. 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 and 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 right to fish but what that led to is a joint effort to manage the fishery and the resources in the Great Lakes and then in 2007 a separate agreement to manage fish and wildlife hunting in the seeded territories. I'll break out my handy Michigan map for you. My screen is reversed. So I mean we're talking 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 also comes with a lot of friction even more recently here with my tribe using our powers related to public health we have actually worked with the state government and local governments and other tribes to coordinate COVID testing across the eastern upper peninsula which up until this month actually made it I think contributed to the relative low rates of COVID in this part of the state compared with others. So Riaz maybe if you want to extend any of that and I'm particularly curious about when there is disagreement how it's resolved. Well there's plenty of disagreement and plenty of mechanisms of resolution what I'm just thinking Jenna that it might be helpful to take one step back for a second and to talk I realize that in talking about federal policy it might be helpful to situate us in terms of where we are with respect to the federal government and then to tie that back into the state relations we have gone through various eras of federal policy in this country with respect to tribes and so when we talk about the states as Chairman Newland says having been viewed as the deadliest enemies 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 sort of hell bent on tribal annihilation 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 1871 1871 Congress and it was really the House of Representatives of the Senate's prerogatives in this regard put an end to treaty making the year of treaty making came to an end even more damaging though for tribal interests was that in the 1880s began what was known as the allotment era where the United States at that point very hungry for tribal land because large reservations had been set aside decided to break those reservations up and it was called the allotment era lasted for about 50 years treaty promised reservations were subject to being parceled out on an individual basis to tribal members usually four year acres of land and lo and behold a lot of land was left over afterwards which was sold off to non-Indian settlers and that's why we see in lots of parts of the country you can have reservations with a fair amount of non-Indian land holding on those reservations 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 as a 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 this short period a little renaissance of tribal rights during the New Deal era the union reorganization act was passed in the effort to infuse tribal governments with some authority did a last very long 1950s came along the termination era where the federal government actually set up to explicitly terminate tribes the whole goal was to assimilate tribes into the body politic you know as America feeling its muscles post World War II 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 tribes were not going away and that it was important federal policy to infuse tribes with a measure of autonomy again over their own their own fortunes their 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 we have tribal governments that have been strengthened immeasurably over the last 50 years you know 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 Newland and many tribe tribal governments across the country who are doing an incredible amount of 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 of tribal governments there was this jealousy sort of a sense of it's a zero sum game either we the state get to regulate and tax within in your lands or it's the tribes doing that and then so the more tribal power the less state power but within the last it's really the 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 chairman Newland mentioned South Dakota is sort of a you know the archetypal example 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 COVID testing for example a perfect example of tribes and states working together on issues it turns to your question about resolution of disputes you know the model the old-time models litigation and that's what we do has been litigation that's tribes versus states and sort of some of that zero sum but there is a growing compacting effort you know 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 gaming to environmental protection a whole gamut of issues where tribes and states now work closely together so I have two questions actually many things so many interesting things but two 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 in particular I you know I'm very curious about this flip actually it seems to have flipped 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 blunter terms then Riaz would you know to paraphrase Bill Clinton it's the land stupid I mean it's really just about land ownership and land 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 you know wealth that has been derived from mining or developing Indian lands and a lot of times that's driven it and you know as we talk about economic development in the story of America the the core of our legal system is intended to protect your personal liberty and your personal property and with Indian country these seasaws back and forth if we've got a two century or a century and a half experiment with there's always this effort let's privatize land holdings in Indian country and make tribes just have an economy just like us and it's been those tried with allotment and it 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 in it and when I say that it failed Indian people in Indian people were worse off and the net effect if you look at allotment or at termination in places like the monomony 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 Chairman Newland's answer is a very large part of it and I think there's a story that sums it up well in my mind which is we just had a case in the Supreme Court about the Indian territory in Oklahoma where tribes were removed from the east to this large area of what is now modern day Oklahoma with the thought that we'll let the tribes have millions of acres of land there they'll rebuild their homes this is not land we will ever need and so a lot of tribes end up in Oklahoma and the Osage tribe the chief, the Osage had been moved around the west because of settlement pressures the Osage came to Oklahoma and the chief of the Osage intentionally picked out the worst possible farmland he picked out just land that was desolate and said we're picking this land because now the white man won't bother us anymore and then lo and behold oil was discovered in that land and then came another crush of settlement so a lot of the impetus for breaking the treaty promises and the treaty system had to do with economic pressures but it's also really interesting I spent a lot of time reading historical reports from Indian agents and others over time and there were just so many conflicting impulses even from people who were well intentioned and there was a very large strand of American thought that the phrase that sort of summed it up was we're going to kill the Indian to save the man that the only way that Indians were going to survive in this country was through assimilation and just sort of strength sense of American strength and manifest destiny manifested itself that way with respect to the tribes 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 strong as that assimilationist force was there was this enduring underlying strength and a commitment to culture and history and one's ancestors that allowed the tribes to suffer through just incredible hardship but to cling to their identity and that you know 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 going away and we need an independent policy to deal with that and one last anecdote I'll tell that because you know human, individual humans have a lot to do with history Richard Nixon when he proclaimed that self-determination policy a lot of times you know how did Richard Nixon end up being so enlightened about Indians and the story is he played football at Whittier College in California and his coach was a Native American and he was very close to his coach and he learned a lot about the history and the law of tribes and it sort of stuck with him so sometimes little accidents like that can also play a big role and just a PS on Ria's story about the Osage reservation there is a great book that came out the last few years called Killers of the Flower Moon that details the history of the Osage reservation and the oil boom there and a lot of the machinations 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 were involved in turning that book into a movie so for those of you watching and that's a great book to read it's a fascinating story Yes I I second the 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 to the states in terms of sovereignty and if that's the case how can there have been all of this fluctuation Well I'm out of practice on the law a little bit since I've been doing this job a few years so Rios can talk about how the law developed the question about sovereignty I would say yes and no I mean tribes are 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 so in those treaties very widely often times the earlier the treaty that with the more advantageous it was tribes have sovereign powers now that has been eroded over time by Congress and then the Supreme Court by essentially might makes right claiming powers that you know depending on who you ask may or may not have existed and Rios can talk about that actually in the case he just litigated in one at the Supreme Court about whether might makes right Indian law yeah we're at a really interesting juncture in the court in the Supreme Court with respect to tribal rights because I think Jenna the answer to your question is as a matter sort of original principles first principles tribes were meant to be on the same plane as states and I think that was Chief Justice Marshall's vision that tribes would have territorial sovereignty they would control the peoples within their borders regardless of whether they were citizens of the tribe or not just you know just like the state of Michigan might but really what happened over time it was more the court than Congress or the executive branch that 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 governmental structure and so the court 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 you know 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 a more recent by virtue of the Violence Against Women Act where Congress said no they need to at least have that authority tribes can tax their own members can tax non-members only in you know sort of limited situations idiosyncratic Byzantine set of laws what's been really interesting with the Supreme Court lately is and this is really just the last 10 years or so and especially accelerated now with the addition of Justice Gorsuch to the bench is that the court has slammed the brakes on its own authority to divest tribes of powers and has been returning more to this original notion that it's Congress that has plenary power with respect to tribes and a tribal power is going to be restricted we need to see Congress saying that and saying it very explicitly and otherwise we the court are not going to be in the business of restricting powers and this Oklahoma case the very recent one was the most forceful exposition in that set of principles to date yet and it was by Justice Gorsuch who said very clearly that you know we are going to enforce the rule of the law not the rule of the strong we're not going to worry about consequences of revesting tribes 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 their borders and that's on top of that sorry Jenna I was going to say I was going to add that's an instance where you would think ideologically that conservatives might not be inclined to be allies of tribes but this notion of originalism and textualism where you look at the treaties themselves as foundation a law and the law about treaties generally is pretty cut and dry as far as the Constitution goes 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 on to by Justice Sotomayor and Indian law and Indian policy really scrambles ideological lines and that's what makes it fun to do this kind of work one of the things yeah absolutely all I was going to ask which is you know you sort of answered it is should we be thinking about the treaties as being a quasi constitution as defining the relationship between the tribes and the federal government and that it's the courts that fill in the gaps in the treaties much as they fill in and interpret 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 and I'll explain why here you have to remember that these treaties were negotiated there was 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 site who is negotiating with a handpicked 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 D.C. to go to the National Archives and look at the 1336 Treaty of Washington which my tribe signed there was a party to and really facilitated Michigan's statehood a year later so I was in the archives room and they showed me the document that was negotiated by the treaty council and then the document that was ratified by the Senate and you could see the changes they pointed them out so what was agreed to in the negotiations and what the United States ratified and that happened a lot and I had asked the archivist what was the process for transporting these documents and they said back in those times if the United States negotiated a treaty with France there was a special fox that it was put in and it was bound up and sealed so you could tell if it had been opened 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 what would they do with the Indian treaties they said they rolled it up and tied a string around it and actually in the case of California where they negotiated 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 ceded the land up to California that were never ratified by the U.S. Senate so from a legal standpoint tribes are really good we accept that the law is the law just quit changing the rules on us and we can make it work and most tribes will say we'll live by the treaties we'll honor our obligations if you honor yours so from that standpoint tribes would say there was foundational law but you have to remember the context in which they were negotiated it wasn't the same context that the Constitution was debated by you know co-equal states okay thank you for that so we've had some amazing questions from the audience but before we get to those I have one thing that I want to ask you about and I guess in particular chair in Newland I want to start with you based upon your experience in Washington so as president elect Biden is making his cabinet nominations this is happening right now his intentions known we've heard so much discussion about the possibility of him nominating congresswoman Deb Haaland 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 oversees the Bureau of Indian Affairs Bureau of Indian Education but other land agencies that directly impact tribes it would be the symbolism itself is important but it would actually be a big shift in the department's operations because Indian affairs makes up anywhere between one-fifth of the department of the interior's budget and one-seventh approximately of its workforce and like I said Bureau of Indian Affairs, Bureau of Indian Education and other programs related to tribes and it's never had a Native American overseeing the entire department and it was actually only under President Obama that you really saw natives elevated to the leadership of the department itself as solicitor of the department of the interior and 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 the 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 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 give us maybe a little bit more detail about you know 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 take to see differently you know the secretary of the interior whether she's Native American or whether she's not it is you know not going to be the secretary of Indian affairs that person's going to have a big job in wide responsibilities but the biggest part is again just that awareness and often times in Indian country just having people remember us is important and I'll give you another example why people are used to you look at a map and you say okay 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 other times our reservations are only a small part of a lot of our sacred sites in ceremonial sites are located far from the reservation and so you know Bureau of Land Management for example doesn't always think well this area where we're going to do a permit for a mine is 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 res we got to take a look here and make sure we're reaching out and thinking about the impact that's huge and frankly that would prevent a lot of conflict and you know maybe limit work opportunities for attorneys in private practice but I think it's going to be important for tribal relations because dealing with those on the front end is way easier than dealing with them on the back end and just being aware of it is half the battle yeah Ryaz if you had something to add we have an audience question that I think builds upon this a little bit but before I get to that was there anything that you would think about in this possible appointment of Deb Haaland I think that all sums it up beautifully and you know just the poetic symbolism when you think of the fact that the department the department interior grew out of the department of war and for many years remained the department of war with respect 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 someone who's watching right now who's interested about this relationship between cultural sovereignty and political sovereignty so how can cultural sovereignty that is protection of traditional intellectual property repatriation language etc reinforce and further political sovereignty hmm do you want to try that one Ryaz well I'll say a few things but I think the chairman is going to have more to say all given the way our courts work there is a certain instinctive approach to and reaction to litigation arguments and part of that is this sort of some archetypal notions of here's what tribes are and here's what's embodied in tribal status and the cultural issues are sort of a significant part of that understanding and the more robust the sovereignty that tribes exercise be it culturally, economically, politically the more likely the courts are to recognize and vindicate the political sovereignty and our Oklahoma case I thought was a really striking example that before we did that case I never would spend any time in Oklahoma and when the court granted this case about the reservation batteries we went down there and I was so struck by the exercise of authority by the tribes there across the spectrum including culturally it became clear that while the state of Oklahoma wanted to make that case about the city of Tulsa which was within the reservation batteries what we wanted to do was make the case about the entire rest of the 19 million acres which is largely rural Oklahoma very poor and very resource strapped in terms of Oklahoma state resources because Oklahoma's a low tax, low government kind of state and meanwhile you had the tribal governments not only the creek but the other the other five tribes they're exercising a remarkable amount of robust authority and part of that was culturally in terms of language revitalization in terms of protection of sacred sites, burial sites when you drive around the creek reservation you still have the traditional burial grounds there where the graves are raised off the ground and are open and it's a very striking sort of image and being able to tell that story but how the tribes have maintained all those cultural protections and acts over time was an important part of saying yes the reservation is still here, yes it still exists and yes the tribes should be able to maintain political sovereignty in this area. And I would just I think Riaz is spot on on all of that in terms of they reinforce one another right because the more of your governmental sovereign powers you exercise the more ability you have to protect your culture and those things that are important to you you know the our American legal system as I mentioned earlier is really designed to protect individual liberties and individual property and it's not very 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 all kinds of IP litigation about who you know Urban Outfitters own you know the word Navajo and its use on things like t-shirts so and 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 it's we're not you know it's poorly suited to deal with a lot of these things if we have a ceremonial site that is located on you know a 200 acre farm somewhere else our legal system would say you know the farmer that's his property he can sell it he can make it a tourist site he can raise it and you know plant corn there you have no rights to that but that's a diminishment of our religious practices so you know 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 is a two-parter so I'm just going to ask the first part of it first and then I'll ask the second part and it's really continuation of what you were just talking about except bringing it home to Michigan so what are the most pressing legal issues for indigenous peoples in Michigan right now you know it's hard I can't speak on behalf of the other tribes and their people but I would say just generally you know water related and treaty related issues you know with the Great Lakes whether it's treaty fishing or protecting the quality of the Great Lakes from climate change or 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 in Michigan don't have a large land base so a lot of times our kids in our families live off the reservation or even in the southeast Michigan and you know if they end up in foster care or in the adoption process you know the Indian child welfare act means that we still have a role to play as tribes into keeping those kids as part of our people as part of our tribe in Michigan's actually Michigan tribes are probably sophisticated about Indian child welfare as anyone in the any tribes in the country and that's one of the places actually where the tribes in the state have had a very good relationship in the last 15 or 20 years but those issues Great Lakes issues generally in Indian child welfare I would say I want to take you back to Great Lakes in a minute but because we had another audience question about child welfare this might be a good moment to drop that in and Riaz I'm sorry if I cut you off you might want to pick up on this one but so the audience member asks 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 law be improved in the future and maybe you could tell and others like me who might not be familiar with it just what is the Indian Child Welfare Act Chairman Newland or Riaz either one Chairman Newland I actually think you know 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 1940s forward until it was enactment just a very consistent across the country effort to put Indian kids in foster care take them 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 family and they're out of the tribe they're in another part of the country and so that the Indian Child Welfare Act for the most part has effectively put a stop to that here in Michigan we've actually kind of we've done the belt and suspenders because we have a state law called the Michigan Indian Family Preservation Act but generally what Iqwa 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 foster care in the people who studied are involved with child welfare refer to the Indian Child Welfare Act as the gold standard for child placement and foster care but at the end of the day what is meant is keeping Indian tribes intact because that was a backdoor way to break up tribal communities and 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 it it's a good law yes did you want to add anything to that no I'll time in when we go back to the Great Lakes okay here's my Great Lakes question my students in state gov this semester we were just talking about the Great Lakes compact and it just occurred to me as you were speaking Chairman Newland that Native Americans are not in any sense a part of the Great Lakes compact that is there not signatories to it why is that how should we think about that and surely surely the tribes must be involved in the design of it and the implementation of it or not why weren't we involved that's a great question I'd like somebody to answer that too I don't know but we should be and we have vested legal interest as well as general interest as sovereign governments over the fate of the Great Lakes just like the other states provinces and countries that are a part of that yeah and I think 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 have a voice I think one thing we've really seen change in terms of legal landscape in the last decade or two is this understanding that the tribes treaty rights are sort of an environmental sword 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 line 5 pipeline that the pipeline that crosses under the Straits of Mackinaw which is a huge flashpoint issue here in Michigan and Governor Whitmer in her order of a couple of weeks ago now where she issued essentially a shutdown notice for the pipeline one of the things she invoked in that order was the tribes treaty fishing rights that Chairman Newland mentioned the rights under the 1836 treaty which would be rendered utterly meaningless where the pipeline to leak or to rupture into the Straits and 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 growing to appreciate and that sort of principle carries over to water rights as well to all manner of sort of environmental habitat protection and resource allocation issues. I would imagine so and should we be thinking 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, Jenna, so there is a there was a a coal terminal that was proposed out in Puget Sound a few years ago to basically bring by rail all this coal from Montana and Wyoming, put it under these ships and bring them over to China and the tribes in the Puget Sound area very similar to here in Michigan were saying this is going to jeopardize their treaty fishing rights and you had tribes in Montana in particular who had coal on their reservation and wanted to buyer market price and they were pushing for the construction of this coal terminal and so you had tribes on both sides of this issues and there are a number of tribes that are engaged in mining and oil and gas development who these interests clash all the time and I think just generally 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 ourselves right yeah and the other message implicit in your response just now is that as we have been learning in this post election period not to over generalize about the political preferences of any particular subgroup of our great American population we definitely shouldn't make generalizations about tribal interests as well that it's going to be very tribe specific and that's important so here's the second part of that two-parter on audience member how can non-indigenous folks be best allies for the indigenous peoples rights I guess the term you see in a lot of activist movements is past the mic 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 Riaz mentioned a little bit about line 5 that's been the work to bring awareness to the line 5 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 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 the pipeline issue there wasn't an effort to co-opt us and say we're going to exploit the tribes interests here for our own gain and we're going to speak for them it was truly like we want you at the table with us it's important and we made our own case for ourselves and I think it speaks for itself in the governor's decision so the best way to be an ally is to listen and be humble and not presume that you can speak on behalf of others I've really seen that and as Chairman Newland says in the intersection between the environmental movement and tribes and when I first started working in Michigan 20 years ago it was much more in the way of the environmental groups either speaking to the tribes trying to co-opt the tribes for their own purposes and not really engaged in full scale listening and allowing the tribes to speak with their own voice and there's just been a wonderful change in that over the last couple of decades and it could be that for example moves like the 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 you can speak for yourselves I appreciate that very much I'm looking through these good questions and trying to find something that is brief You should ask Riaz about the justice merit because I would like to know what Riaz has to say Okay, alright so here I'll just lay this question out Does the shift from Justice Ginsburg to Justice Barrett suggest the coalition of justices that had been issuing favorable rulings for tribes over the last few years no longer commands a majority of the court? Well it's an excellent question and of course it's one that's very much on our minds I am a natural born optimist so I'm going to be very optimistic about Justice Barrett unless and until she gives us reason to think otherwise our issues really do cross political and ideological lines as we've been discussing that's certainly been true at the court if Justice Barrett is a textualist in the vein of Justice Gorsuch she really honors the language of treaties without regard to these concerns about consequences will be a good check if she's a fair weathered textualist and she's truly more concerned about the interests of non-Indians it'll be a rougher ride and there's this really no way to know she doesn't have a sort of written track record on Indian issues but she does have a bad commitment to textualism and the rule of law so we'll be hopeful and the last thing I'll say on this is Justice Ginsburg for all that she was a wonderful justice and a hero in a lot of areas of the law was not a wonderful justice with respect to Indian law her record was very mixed in part because she wasn't a strong textualist and she did have in some ways a surprising concern for the rights and interests of non-Indians especially on reservation boundaries these issues of tribal power over non-Indians were hard issues for her so we'll have to see but there is cause for optimism I think we'll close 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 to the audience for the outstanding very interesting and spurred a lot for us to think about so I invite you all to please stay tuned to our website and the social media for more information about upcoming virtual events at the board school thank you everyone thank you Jenna