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Were other enforcement mechanisms put in place?
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Leo
Cardenas
[Full Interview] [Topic Top]
But in the agreement itself, there were resources with which
to do things that hadn't been there before. CRS always works
a dispute so that whatever enforcement mechanisms are there, they're self-enforced, by the
parties themselves. You know, we've never seen ourselves as having the capability of doing
follow-up.
Question: Were there certain things that you did to insure that?
Answer: Well, in this case, the money and the commitment, and on both sides, like I said. It's easy to
point to money, but it's the commitment and it's also the relationships that were established. And
in this particular case, it not only established relationships here, because it eventually became a
national agreement, but as a result of that, McGraw Hill then went into the four other cities and
worked those programs almost voluntarily as a result of the agreement.
Leo Cardenas
[Full Interview] [Topic Top]
How do you or how do they enforce that agreement?
Answer: We have self-enforcement mechanisms. And let's use as an example, again, a bilingual
program that's simply not working, and let's say that part of what we have, while we were there,
was that the program was not explained to the community. Once the community group gets a
greater understanding of
it, then the next step is that program itself has a certain amount of resources to be spend in a
school year and that those resources will include the minority community -- minority
parents as an example, and so the resolution lies in the fact that now the minority parents have to
fulfill their part of the agreement. They will attend parent-teacher meetings, and they will see
that the
children do certain things so they are committed to the resolution. It's not just the fault of the
program, it's not just the fault of the school. There is a role to be filled by the community. And
of course they themselves now have a greater role and a greater voice, which is really what they
wanted.
Bob Ensley
[Full Interview] [Topic Top]
Question: So what would be the enforcement mechanism so that they don't go
back on this?
Answer: Federal court. Get a temporary restraining order to keep them from making these
discriminatory decisions.
Julian Klugman
[Full Interview] [Topic Top]
Answer: Yeah, that was one of the mandates at that time. There had to be a monitoring mechanism.
Question: CRS mechanism?
Answer: No, but we wanted to build it into every agreement if we possibly could. In the case of
Klammath Falls, I got the League of Women Voters to monitor.
Question: Aside from monitoring, do you build in any mechanism so that if something is found to be
wrong, there's some way to fix it?
Answer: Yeah.
Question: Give me an example.
Answer: Remember now, you build an ongoing group that's going to continue into the agreement.
That's number one. Number two you have the monitoring group. Things are not going right or
the time table is not being met. In essence they say to the groups, "You said within three months
there would be a report, there's no report, let's go." They're monitoring it.
Question: Is there any sort of enforcement that says, "Ok, you really have to go because if you don't,
then..."
Answer: If the monitoring group says the agreement is violated, then I would come back.
Question: You, as the mediator, would come back.
Answer: Yeah.
Question: Is that the typical way of dealing with this sort of thing?
Answer: You can, in court cases usually they have monitors. We would love to have monitors, but
we
just don't have the staff, but courts will pay monitors. They have court hired monitors that the
parties paid for.
Will Reed
[Full Interview] [Topic Top]
I always build in a monitoring mechanism for
any of these
things that get written up in the mediation agreements. Who's going to test this thing? Who's
going to enforce it? Who's going to be sincere enough to see that the garbage trucks
are rolling over to Blue Sky? Who's going to be looking at recruiting Indian teachers for the
school
district? Who's going to be the one to try to recruit Indian policemen and jailers? Are you going
to find
some? How do you identify those? Then, underneath all of that, in monitoring mechanisms, in
order to
have a full-fledged working, sincere, and functional mediation agreement, you're going to make
sure that
you have tentacles coming out of that agreement that will address work issues. What I mean by
that is
you put together a committee. Let's say you are looking at recruiting Indian teachers. You
address all this stuff in the agreement. Subsections, headings and so forth. So when you got the
agreement finished, you have all of the other mechanisms put together to address and speak to
each
issue or concern.
Dick Salem
[Full Interview] [Topic Top]
Question: Was there any implicit threat that the larger
Justice Department might do something if the agreement wasn't adhered to?
Answer: No, but we often felt it necessary to be sure that members of the community were aware of
their rights and knew who in the federal government to call if they wanted to move in that
direction. This was especially in smaller communities where people were at tremendous
disadvantages for legal and other resources. But, that does not mean we were not perceived as
having some clout. We might call a U.S. Attorney's office, and say we've had a complaint and we
think somebody from the F.B.I. ought to go in and investigate it. Or we might encourage
somebody in the community to call the U. S. Attorney. That was appropriate. We were
never supposed to share confidential information.
Nancy Ferrell
[Full Interview] [Topic Top]
Question: Were there any
provisions in the document that addressed what would happen if any of the provisions weren’t
followed, any enforcement mechanism?
Answer: Generally, I would say yes. I can’t remember specifically on that document. We always
had the "what if’s," and our agency was a recourse as far as calling us to come in and help
interpret and redefine or help the parties begin to implement. The things we did, like the task
force, became recognized groups under the president, and reported directly to the president. So
they had their own legitimacy and recourse. Any violation fell in under existing policies and
procedures. So it wasn’t outside the system. It was just creating this place where people were
focused on ethnic relations and discrimination and helping these people who were pretty much
isolated get redress. The remedy was available there; it just wasn’t being exercised, because
people were afraid to seek remedy.
| Bob Hughes
[Full Interview] [Topic Top]
Do you remember
the
points of the agreement?
Answer: One. We recognized the Indian treaty and their usual custom fishing areas, and their right to
access waters by passing through other waters for fishing. Some such verbiage. They have a
right to pass through and use private property in order to exercise that right. A major, major
concession was the recognition of those rights. But that was worked out in a joint committee.
The tribal attorney in this case, who's a non-Indian, young man, was probably crucial in the
working and persuading. He probably said something like "If you will give this recognition, I
think in exchange, we can get to these other concerns that you have addressed."
Question: What was given in exchange?
Answer: All of this. There was a listing of procedures. All nets shall be lit at all times, they shall be
placed so as to provide clear navigation channels in and out of the bay. There will be no loud
playing of radios or excessive noise while fisherman are involved in fishing. There were a
number of things like that, which addressed these specific concerns that had been raised.
The Tribal Fisheries Patrol was a key part. They had one large boat with a sergeant in charge of
it, who was a highly respected man, a Chippewa. He was from another part of the country, and
he was highly respected, had a lot of law enforcement experience, and outside of tribal
enforcement. During fishing, operations are taking place, during the fishing season, the Fishers
Enforcement Patrol will regularly visit these areas and will ensure that all fishermen have copies
of this agreement and that they will have authority to lift nets that are improperly placed and so
on. So there was an enforcement procedure. And I believe that was it. These agreements are
permanent. They'll last forever. It doesn't terminate at a certain point. The last item in the
agreement would be that the mediator will arrange for a meeting three months from now for the
purpose of reviewing implementation of the agreements. Secondly, for the purpose of
addressing new issues related to this general area that may have arisen, that are not addressed
specifically in the terms of the agreement. Thirdly, and this is by far the most important, I could
renew working relationships. Now, I don't recall if I said all of that on the first case, because
that was a growing awareness. But from that point on, every mediation agreement, I would try
to persuade them to agree to that. This may have been where I first used that. What came out of
this was, the time of the next meeting was after the fishing season had been completed. In the
meantime, there was a procedure for a complaint channel, a number at the Fisheries Patrol
Office, and this is the name of the person who's in charge of it. Call, and he will respond to calls
from property owners. That was a commitment that he had made. He must have been invited
into the meeting to be introduced and so on, a very attractive person and a lot of this was
successful because of him. He could be depended on to come, and he did.
The provision for the follow-up meeting was at the conclusion of the fishing season, which
would be over in October or something like that. There's various runs of salmon, I had to learn
all this. "When the last run has run then the mediator will reconvene the parties and we'll review
the implementation of the agreement." And at that point, we arranged for, prior to the beginning
of the next season, which would be about August or September, we'll meet again and be sure
that we have the right phone numbers and any changes that have taken up. All these things that
the Indians have little knowledge of, but that was provided for. That went on for several years,
that kind of meeting.
Question: With you involved?
Answer: I was for the first year or so, but we would meet at the sheriff's Marine Patrol Office, the
precinct where they operated out of. And I'd work out of the role of mediator and turn it over to
the sergeant in charge of the Marine Patrol. He'd have the responsibility for contacting the
parties to be convened, and maybe I would attend, maybe I wouldn't. But I was trying to get out
of their dependence on me. There were various problems that came up later, but that was the
process and dynamics that went into that case. That was my first fishing rights case. But it
wasn't the last.
Julian
Klugman
[Full Interview] [Topic Top]
Then we set up a group to monitor the agreement. I had noticed two older white
women who were coming to the sessions and they were from the League of Women Voters.
Klammath Falls, Oregon is a little town, but it turned out all the professional women, all the
wives of professionals, belonged to the League of Women Voters. I found out talking to these
women that Indians was one of their study topics. So I had a meeting at 11:30 at night after one
of my sessions, in my hotel room, all these 10 white ladies, sitting on my bed. Everything had to
be voted on, and I said, "Come on, we have to move and they had an emergency board meeting
with me." I just laid it out. "You're going to be on the cover of the such-and-such magazine,"
and I really sold it to them. They voted right then and there to be the monitoring group. They
were the status women's group in town.
Question: That was acceptable to the Native Americans?
Answer: Yeah, they had a relationship with the woman, the matriarch.
Manuel Salinas
[Full Interview] [Topic Top]
Question: Did you put into place any sort of monitoring mechanism or
enforcement mechanism? So that if things didn't go as everybody agreed, once the assessment
was done and the chief agreed to follow it, would there have been any recourse that you or the
committee could've taken?
Answer: Within the assessment there was a paragraph in there that CRS would continue to monitor.
We did very little of that, because as I said it was going very smoothly. But within that
assessment that was stated in there. I don't know whether it was the closing paragraph or
something like that. But it was in there so that the city would know that we're still around, we
can still be helpful, and we can still ask questions and see where you're at. That was in there.
But that was to the extent of it. I didn't promise to come back or check back on any particular
schedule.
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