American Indian Constitutional Reform and the Rebuilding of Native Nations

[ Native American Studies ]

American Indian Constitutional Reform and the Rebuilding of Native Nations

Edited by Eric D. Lemont

Tribal leaders, academics, and legal practitioners offer a comprehensive overview of American Indian nations' governmental reform opportunities and challenges at the turn of the millennium.

2006

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6 x 9 | 360 pp.

ISBN: 978-0-292-71317-8

Since 1975, when the U.S. government adopted a policy of self-determination for American Indian nations, a large number of the 562 federally recognized nations have seized the opportunity to govern themselves and determine their own economic, political, and cultural futures. As a first and crucial step in this process, many nations are revising constitutions originally developed by the U.S. government to create governmental structures more attuned to native people's unique cultural and political values. These new constitutions and the governing institutions they create are fostering greater governmental stability and accountability, increasing citizen support of government, and providing a firmer foundation for economic and political development.

This book brings together for the first time the writings of tribal reform leaders, academics, and legal practitioners to offer a comprehensive overview of American Indian nations' constitutional reform processes and the rebuilding of native nations. The book is organized in three sections. The first part investigates the historical, cultural, economic, and political motivations behind American Indian nations' recent reform efforts. The second part examines the most significant areas of reform, including criteria for tribal membership/citizenship and the reform of governmental institutions. The book concludes with a discussion of how American Indian nations are navigating the process of reform, including overcoming the politics of reform, maximizing citizen participation, and developing short-term and long-term programs of civic education.

  • Preface
  • Introduction
  • Part I
    • Chapter 1. Remaking Tribal Constitutions: Meeting the Challenges of Tradition, Colonialism, and Globalization (Duane Champagne)
    • Chapter 2. Seasons of Change: Of Reforms, Melees, and Revolutions in Indian Country (David Wilkins)
    • Chapter 3. The Indian Reorganization Act and Indian Self-Government (Elmer Rusco)
    • Firsthand Accounts: Why Engage in Constitutional Reform?
  • Part II
    • Chapter 4. Members Only: Designing Citizenship Requirements for Indian Nations (Carole Goldberg)
    • Chapter 5. My Grandma, Her People, Our Constitution (Joseph Thomas Flies-Away)
    • Firsthand Accounts: Membership and Citizenship
    • Chapter 6. Constitutional Rule and the Effective Governance of Native Nations (Joseph Kalt)
    • Firsthand Accounts: Governmental Institutions
  • Part III
    • Chapter 7. Realizing Constitutional Change through Citizen Participation (Eric Lemont)
    • Chapter 8. The Process of Constitutional Reform (Steven Haberfeld)
    • Firsthand Accounts: Maximizing Citizen Participation and Ownership in Reform Processes
    • Chapter 9. Overcoming the Politics of Reform: The Story of the 1999 Cherokee Nation Constitution Convention (Eric Lemont)
    • Firsthand Account: Overcoming the Politics of Reform
  • About the Contributors
  • Index

Hassen Ebrahim, the former Executive Director of South Africa's Constitutional Assembly, writes that a constitution "must be a reflection of a people's history, fears, concerns, aspirations, vision, and indeed, the soul of that nation." In many ways, this book is about the soul of American Indian nations.

Tremendously important and exciting changes are taking place within the 562 federally recognized American Indian nations and Alaska Native villages in the United States. On the one hand, centuries of land seizures, physical relocations, chronic disease, and federal policies of assimilation (and even termination) have taken their toll. The 2.4 million American Indians and Alaska Natives have disproportionately high rates of poverty, unemployment, teenage suicide, alcoholism, and high school dropouts. On the other hand, the past several decades have brought nothing less than a historical revolution. Especially since the commencement of the U.S. government's policy of Indian self-determination in 1975, Indian nations have seized opportunities to exercise their powers of self-governance. For the first time, a large number of Indian nations—distinct political entities with inherent sovereignty recognized by the U.S. Constitution, Congress, and the courts—are determining their own economic, political, and cultural futures. Many American Indian nations have taken over responsibility for managing and delivering a wide range of government programs and services in areas as diverse as health, education, gaming, economic development, housing, and environmental management. The great increase in governmental responsibilities assumed by tribal governments over the past thirty years has produced larger government bureaucracies, workforces, and budgets. It has led as well to more frequent, sustained, and complex interactions with surrounding governments and private businesses. All of these developments demand stronger and more responsive government institutions.

The urgency of this demand is driving American Indian nations to reexamine the very foundations of their governments. For most, this involves the first step of taking a closer review of their written constitutions, many of which were introduced by the U.S. government as part of the Indian Reorganization Act of 1934 (IRA). Since its passage, more than a hundred Indian nations have adopted IRA constitutions. Countless others govern under constitutions modeled after IRA constitutions. While the IRA did not add to the sovereign powers of tribal governments, it did—for the first time—formally acknowledge those powers that the U.S. government would recognize. These include the power to form a government, define membership/citizenship, regulate the domestic relations of tribal members, prescribe rules of inheritance, levy dues, fees, and taxes upon tribal members and nonmembers doing business within the reservation (subject to conditions), remove or exclude nonmembers from the reservation, regulate the use and disposition of tribal property, and administer justice with respect to all disputes and offenses of or among tribal members (other than certain major offenses reserved to the federal courts). These powers continue to form the broad outlines of tribal government powers as recognized by the U.S. government.

IRA constitutions and those modeled after them by non-IRA Indian nations share certain structural weaknesses. Most centralize power in a small tribal council, lack provisions for separating power among branches of government, and do not provide for independent courts. In many cases, this centralization of political authority conflicts with tribal traditions of decentralized, consensus-oriented methods for allocating political responsibilities and engaging in collective decision-making. At the same time, the lack of effective and impartial courts has hampered American Indian nations' ability to fully realize the opportunities brought about by self-governance.

In addition to their structural weaknesses, IRA and IRA-style constitutions suffer from varying degrees of political illegitimacy within American Indian nations. Because large numbers of tribal members did not have the opportunity to read and understand these constitutions at the time of their adoption, the very basis of tribal government among many Indian nations has never enjoyed the broad-based support and legitimacy of the tribal citizenry.

The structural weaknesses and lack of legitimacy of IRA-style constitutions have contributed to well-publicized crises in tribal government. These crises have ranged from chronic government instability and allegations of corruption to full-blown constitutional deadlocks that bring daily government to a standstill. In response, a considerable number of the 562 federally recognized Indian nations in the United States are tackling a wide range of constitutional reforms, including revamping systems for electing tribal officials, restructuring tribal councils, developing and strengthening tribal courts, and rethinking mechanisms for separating power among branches of government. With dozens of American Indian nations having completed, currently undertaking, or planning major reexaminations of their constitutions, Indian Country is witness to a veritable wave of constitution-making and revision. Like other countries breaking free from the yoke of colonialism, Indian nations are increasingly charting their own course.

Importantly, the changes Indian nations are making to their constitutions are more than technical responses to mechanical insufficiencies. In many ways, they represent only the first attempt to resolve a more fundamental challenge, one that emerges again and again in tribal leaders' interviews, presentations, and conversations. It sometimes remains unspoken, hidden in the undercurrents running through a conversation. But just as often, it appears in the form of a question as pressing as it is difficult to answer: How can American Indians balance a largely spiritual, holistic, oral, family-based, consensus-oriented view of the world within a larger society that is secular, individualistic, written, and majoritarian? While federal policies of relocation and termination in the 1950s and 1960s threatened the very political survival of Indian nations, the current era of self-determination has confronted tribal leaders with this equally important, albeit more subtle, dilemma.

If any single solution emerges in the words of tribal leaders, it is the importance of retaining one's values, both individually and collectively. Tribal leaders' emphasis on values should not be surprising. A constitution must reflect a society's fundamental values if it is truly to serve as its highest law. In his landmark book, The Origins of American Constitutionalism, political scientist Donald Lutz reminds us that the genesis of a society's political values predates its written political documents. Indeed, a society's deepest values are born in its people's most ancient, primal, and unspoken worldview:

Essentially a people share symbols and myths that provide meaning to their existence together and link them to some transcendent order. They can thus act together and answer the basic political questions: through what procedures do we reach collective decisions? By what standards do we judge our actions? What qualities or characteristics do we strive to maintain among ourselves? What kind of people do we wish to become? What qualities or characteristics do we seek or require in those who lead us? Far from being the repository of irrationality, these shared symbols and myths are the basis upon which collective, rational action is possible. Since these myths and symbols are frequently expressed in political documents, they tend to structure the form, determine the content, and define the meaning of the words in these documents. . . . By studying the political documents of a people, we can watch the gradual unfolding, elaboration and alteration of the myths and symbols that define them.

Through detailed empirical research, Lutz traces the roots of the core American constitutional tradition back in time to earlier state constitutions, colonial charters, English church covenants, and, ultimately, the Old Testament. Viewed in this fashion, the U.S. Constitution is only the latest written expression of Western values that have been developed and modified over thousands of years.

In contrast, American Indian nations have been denied the luxury of seeing their own fundamental values organically incorporated into their political documents over the span of millennia. Native cosmologies, including oral origin stories and creation myths, that served as many Indian nations' original "constitutions" have been systematically attacked and weakened by federal policies of termination, relocation, and assimilation. Reform leaders therefore face a difficult dual challenge. They must first reaffirm (and in some cases rediscover) these core beliefs and then develop strategies for having them serve as the foundation of their governments. This difficult work of community and nation rebuilding is compounded by the entrenched presence of written constitutions developed by an outside nation—the U.S. government.

Moreover, the overwhelming legal, political, and cultural influence of the United States further compromises American Indian nations' ability to hold on to their identities and their values. The pressure to simply move forward and adapt is strong. Influential media newspapers and magazines question American Indian nations' sovereign status. Outside investors pressure them to develop courts and codes modeled after their state and federal counterparts. Finally, there are deep divisions within American Indian nations themselves over the extent to which traditional values and methods of political decision-making can and should be incorporated into new governing frameworks.

In the end, constitutional revision may prove sufficient for some American Indian nations to succeed in realigning tribal government with tribal values. For others, the process of reform may serve as an important tool for rediscovering these values. Most likely, the wave of constitution reform sweeping Indian Country will represent a critical starting point in American Indian nations' journey to retake ownership of their governments.

In Part I of this book, tribal leaders discuss the complexity of forces underlying their desire to reexamine their nations' governing frameworks. Although each firsthand account offers a unique perspective, the desire of American Indian nations to exercise sovereignty, promote economic development, and preserve their cultural identity is a recurring theme. Duane Champagne's chapter provides an in-depth discussion of these competing tensions and concludes that neither traditional forms of tribal government nor IRA constitutions nor the U.S. constitutional model can in and of themselves provide a solution. Instead, each Indian nation must skillfully synthesize elements from all three models to realize its own economic, political, and cultural goals.

In his chapter, David Wilkins cites the convergence of four trends prompting governmental reform in Indian Country: perceived inadequacies of the Western constitutional model of governance, a resurgence of traditionalism, internal crises and elite corruption, and broader state and societal developments over the past fifty years. At the same time, Wilkins notes three persistent quandaries that continue to constrain American Indian nations' ability to act decisively in the area of governmental reform: the ever-uncertain understanding of their legal rights vis-à-vis local municipalities and counties, state governments, and the U.S. government; the fundamentally conflicting tasks of providing much-needed social and educational services to their constituents while simultaneously developing and operating profitable businesses; and the fact that members of tribal communities are also state citizens and citizens of the United States.

In an important contribution to the scholarly literature concerning the origins of the IRA, Elmer Rusco provides additional insight into its legislative history and the first year of its implementation. Rusco also questions the conventional and often-repeated view, echoed by a number of contributors to this book, that the Bureau of Indian Affairs thrust a "model" IRA constitution upon unwilling tribes. Citing original archival material, Rusco argues that some of the best-known problems of IRA constitutions, including their failure to reflect the specific cultural values of individual tribes, were not the product of the Bureau's malicious intent to control tribes or saddle them with boilerplate constitutions. Rather, they resulted from more mundane and benign problems of implementation, both administrative and political.

Part II of this book discusses common areas of revision among American Indian nations undertaking constitutional reform. The first section of Part II discusses American Indian nations' struggles to resolve issues of tribal membership and citizenship though tribal constitutional reform. Jaime Barrientoz speaks powerfully of how the Grand Traverse Band of Ottawa and Chippewa Indians' decision to share its gaming revenue with its members has injected a divisive set of economic considerations into the Band's debates over membership criteria. Le Roy Shingoitewa stresses the cultural aspects of membership within the Hopi Tribe and the Tribe's determination to retain its cultural identity in future generations. Albert Hale, a former president of the Navajo Nation, connects the debate over membership and citizenship to the political sovereignty of American Indian nations. Hale argues that members of American Indian nations must define themselves as citizens of a nation rather than members of a tribe if they are fully to exercise their governing powers and ensure their continued existence.

To be sure, the topic of membership and enrollment is complex and suffused with often competing concerns over identity, distribution of economic resources, and jurisdictional authority. All too often, commentators and tribal leaders alike lock into one of these concerns to the exclusion of other, equally valid, aspects of the membership debate. Through detailed case studies and policy analysis, Carole Goldberg's chapter draws out the conflicting motivations American Indian nations face to alternatively expand and contract their criteria for enrollment. Goldberg's parsing of the complex and layered nature of this heated issue will be sure to help focus future discussions. Judge Joseph Flies-Away, a member of the Hualapai Nation, offers a compelling case study of his nation's experience with its constitutionally based blood quantum requirement.

The creation of more stable, effective, and culturally legitimate governmental institutions is the focus of the second section in Part II. Joseph Kalt's chapter focuses on the empirical connection between strong, stable, and culturally appropriate government institutions and enhanced economic and political development. Stressing the cultural fluidity of the rule of law, Kalt underscores the importance of Indian nations' aligning their constitutions with their own most deeply held beliefs and values.

This section on the reform of governmental institutions concludes with case studies of two Indian nations that have undertaken such large-scale constitutional engineering. Carroll Onsae discusses the Hopi Tribe's current initiative to realign its sixty-year-old IRA constitution with the political systems embedded in deeply held Hopi religious and traditional beliefs. Onsae reports that much of the reform process involves the redelegation of political authority to the Tribe's twelve local villages. Steven Chestnut, a longtime lawyer for the Northern Cheyenne Tribe, discusses why and how the Tribe substantially revamped its courts and its tribal council in a large-scale constitutional revision process in the mid-1990s.

Part III of this book discusses the process of tribal constitutional reform. Unfortunately, Indian nations' most important constitutional goals can be left unrealized because of the sheer difficulty of developing effective processes of reform. Some of the very characteristics of IRA-style constitutions that Indian nations most want to amend—centralized power in the hands of relatively small tribal councils, underdeveloped mechanisms for separation of powers among branches of government, and the absence of independent courts—often serve as institutionalized obstacles to the initiation and implementation of effective government reform. The general disengagement from politics and tribal government of many tribal members further hampers attempts for broad-based change. As a result, many Indian nations have seen the self-interest of incumbent officeholders combine with citizen apathy to prevent productive reform from taking place.

Two critical issues related to the development of effective processes of American Indian constitutional reform are citizen participation and the politics of reform. Citizen participation in constitutional reform processes is the topic of the first section of Part III. Reform leaders such as Sheri Yellowhawk of the Hualapai Nation, Lenny Dixon of the Lummi Nation, and Theresa Two Bulls of the Oglala Sioux Tribe argue that the success of a reform process—and ultimately the acceptance and legitimacy of a new or revised constitution—rests on providing citizens with both a grounded education in tribal government and the real opportunity to participate in the development of new and revised constitutions. Based in part on these firsthand accounts, my own chapter disentangles some of the reasons tribal members may choose not to participate in reform initiatives. My chapter concludes with suggestions for increasing citizen participation and understanding based on the experiences of different American Indian nations.

The second section of Part III discusses the universal difficulty of managing the politics of reform. Drawing from his own experiences and observations—as well as best practices from the fields of negotiation and community organizing—Steven Haberfeld's chapter discusses strategies for mediating conflict and generating ownership in new and revised constitutions. Martha Berry's firsthand account and my own chapter discuss the Cherokee Nation's success in developing and proposing a new constitution in the middle of a searing constitutional crisis. In 1999, the Nation formed an independent constitution commission and held a nine-day constitution convention. The inclusiveness and independence of these two institutions—combined with innovative strategies for achieving maximum citizen education and participation in the reform process—provide one model for other nations interested in pursuing constitutional reform. In addition, convention debates over the boundaries of citizenship, patterns of political representation, and methods for achieving separation of powers reflect the substantive challenges faced by Indian nations as they have diversified and assumed greater governmental responsibilities over the past several decades.

Eric D. Lemont, a lawyer at Goodwin, Proctor, LLP in Boston, Massachusetts, is a Research Fellow at the Harvard Project on American Indian Economic Development and the founding director of its Initiative on American Indian Constitutional Reform. Since 2001, he and the Harvard Project have sponsored working sessions on constitutional reform at which American Indian constitutional reform leaders from across the United States have gathered to rethink strategies for strengthening American Indian constitutions and constitution-making processes.