Constitutions and Constitutional Reform - Day 1 (Q&A)

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Native Nations Institute
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Presenters and moderators from the first day of NNI's "Tribal Constitutions" seminar gather to field questions from seminar participants on a variety of topics ranging from dual citizenship to the relationship between a nation's constitution and its economic development environment.

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Cornell, Stephen, Jill Doerfler, Robert Hershey and Miriam Jorgensen. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Managment and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Justin Beaulieu:

"Okay, I have a question. It's kind of three parts. So the first part is citizenship. This is important to me personally because my kids and myself are involved. Citizenship, is there any tribes that have identified dual citizenship with another tribe where, like historically where, I can be a citizen or a member of like Mille Lacs, White Earth, Red Lake, etc., and then what impact does that have on federal status? If I'm federally recognized from one tribe, can I not get...I don't understand that. So the second part of the question is, are we putting the cart before the horse when we talk about putting this in our constitution not knowing if that's going to pass or not because how do we consider the next generations when we haven't defined really who they are yet? And then the third part is, has any tribes faltered with their constitutional reform because citizenship was included in there?"

Robert Hershey:

"What was the third part again?"

Justin Beaulieu:

"Has any tribes faltered with constitutional reform, like not passed it because there was a citizenship clause in their constitution, was it not ratified and what not?"

Stephen Cornell:

"So, who's going after that?"

Jill Doerfler:

"Well, I can say a couple things, I guess, probably with regard to White Earth. We don't have a clause that says anything regarding...that precludes dual citizenship, but we didn't really address it specifically like citizenship among multiple tribes and we felt...there was a question at White Earth if citizenship should be considered separately and that was sort of considered separately in the late "˜90s' efforts for reform where we kind of talked about those different options. And at that time, in the late "˜90s, the plan was to put up the new constitution and then put up citizenship sort of at the same time, but then have citizens vote on all those options. And as we worked on our effort more recently in the 21st century, we felt that it was better to put it up as a whole because then you can see the scope of the government because if you have a different type of citizenship that might impact other parts of the constitution and we felt that it would actually be better to put it up as a whole than to separate it out. So that's what we kind of came to."

Stephen Cornell:

"The only thing I'd add -- and this comes to a portion of your question -- there's nothing out there that says you have to redo a constitution all at once. And there's sometimes issues that people find particularly difficult to deal with, and as Jill was saying, this was an issue for them and they decided to put it altogether in a single package, but you can imagine a situation where a nation might say, "˜We need to make some critical changes; it's being held up by one issue over which we have real concerns. We're having trouble resolving that issue. We're going to set that issue aside and deal with it later.' Now that gets complicated for exactly the kinds of reasons Jill talked about, but there's nothing that says you've got to do it all at once and that's what most tribes seem to try to do, but this is your constitution and you're the ones who know whether some issue is going to derail the entire effort and whether one option should be to hold off on that until you can get some consensus over what it should look like. But in the meantime, let's do what we can do because we need to make these changes. So I just wanted to point that out."

Robert Hershey:

"Let me add one other little point to that. The majority of constitutions that we've looked at -- and we did a study of about 200 membership ordinances in different constitutions -- and the majority, the vast majority prohibited dual membership. And I think you'll see that more common than not. One of the tribes we were asked to assist, the question of membership was not even a part of the proposed amendments, but there was a suspicion that it was somehow part of the proposed amendments when it was not at all and that derailed the entire constitutional process. And I agree with what Steve said too, it's probably the trickiest part in there. It may be better to develop some sort of a consensus on the things that seem...like removing the Secretary of the Interior approval language at least initially on some of the ordinances to get that forum going. We have a tremendous amount of constitutional conventions that took place with White Earth to go ahead and inform the public and yet your turnout was a fraction of the people that were involved in the community so I think really it's about the process of education to where it becomes familiar because you're asking people to try and adopt something different than what they know what the status quo has been."

Miriam Jorgensen:

"I don't know of a tribe that has dual membership, although I heard that it was possible in Oklahoma. So I was glad to hear from Mike Burgess that is the case and I think one of the things that's important to think about is to go back to the fundamental idea of what matters to the nation in terms of its citizenship. If it's valuable to them because that's the way that many people see themselves or that there is a segment of the population for which dual citizenship is really important about what the definition of that community is, it might make sense to include it and I wouldn't be surprised if that's part of the reason in Oklahoma where because the Oklahoma Indian history and what, 45 nations relocated to Oklahoma, something like that..."

Herminia Frias (moderator):

"...Thank you. Marcelino?"

Marcelino Flores:

"Thank you to all our presenters, and what I'm understanding so far is that each tribal nation needs to come to an understanding of who they are and how they will govern themselves, but none of this happens in isolation. And I can appreciate Jill beginning to mention that where we're going is one of those questions and Stephen Cornell mentioning perhaps firewood issues and probably appropriate at the council meetings, but the question that I have is there are some things that just cannot be ignored and I think they need more clarification and understanding and that is the role of economic development, health care and housing, particularly for health care. We're largely dependent on the federal system and it's changing, it's very different now. We really don't know what it means to be under Obama Care, especially within the State of Arizona. So how do you address these larger issues in the context of constitutional reform?"

Stephen Cornell:

"I think that's a great question and I'll take a first shot at it. In some ways, I think in the areas you're talking about and I'm going to circle around and come back to your point. We had a tribal chair who said to us once, "˜We get a lot of money from the federal government for programs, a lot of that is treaty-based obligation and our attitude is, 'They owe that to us.'' But he said, "˜I pursue economic development because in my experience every one of those federal dollars is a leash around my neck and it restricts my freedom.' He wasn't talking about himself when he said "˜my,' he meant "˜my people.' 'It restricts our freedom because in order to get that money we've got to agree to year evaluation criteria, we've got to get your permission on how to spend it, we've got to spend it in the way that you think is best for us, not the way we might think is best for us.' And he said, "˜So economic development to me is a freedom program. It's how do I create the resources that allow me to escape that federal leash?' And he said, "˜Don't get me wrong. They owe us the money. They'll never pay us enough money to pay for the land they took, but I don't want to be sitting here having to ask their permission to do the things we think are important for our people.' Now you imagine getting, let's say he reached the point where he could afford health care for his people and where he could provide the housing and there are some nations that are doing that right now, that are pursuing tribally managed health care, for example. The real question is, if he got to that point, has he got the governing tools he needs to deliver on that responsibility? If you say to the U.S. government, "˜Treaty says you're responsible for health care, but you don't do a very good job of it. And I could sit here and wait for you to do a better job of it, but the chances are I might die waiting. So instead, we're going to take responsibility for that because I've got people whose lives are at stake and now we're getting the money to do it.' And now the question is, "˜Can I do it well?' That's going to depend on your constitution. That's going to depend on whether you've got the governing tools in hand that allow you to deliver the things you want to deliver to your people. Now you can get bogged down in the treaty argument and who should pay for it argument and all of that, but at some point you have to say, "˜There are things we want to do for our people and we've got to show that we can deliver.' So that to me is where all these things come back to constitutional questions. They come back to, what do you want to govern and do you have the tools to do it well."

Robert Hershey:

"This is where the Secretarial approval clause comes in too. If you're an IRA [Indian Reorganization Act] tribe, does that say something about your ability to get bank loans and foster economic development? You have the Supremacy Clause of the United States Constitution, the United States government behind you. Some lenders might look at the fact that you're an IRA tribe and they may go ahead and say, "˜Well, you're legitimate,' as opposed to another form of government, too. So that's something that...I said I wasn't going to give you a preview of tomorrow, but that's something I'm going to bring up."

Miriam Jorgensen:

"So now we know everybody's going to come back, Robert, because we're all excited about what you're going to talk about. I just want to say one thing and it's kind of to back up what Steve was saying and I will say that this comes from sort of thinking about what governments are structured to do. If your government is structured to provide health care to citizens and to seek funds to do that from the federal government, to provide housing to citizens and to seek funds from the federal government to do that and to provide streams of income to citizens and to use...rely on particular federal structures to do that, you have a government that's structured to do those things. But if you have a government that is structured to provide greater freedom and opportunity to your people and greater freedom and opportunity for the nation itself to be a self-governing, self-determined, sovereign entity, all those other things are likely to come, but you're going to have the government capacity to do it. So you have to think, "˜Have I built a government that's just about service provision or have I built a government that's capable of doing lots of other things and in the process, is therefore able to underwrite economic development, to underwrite the freedom of individual Native citizens of my nation to be able to access more streams of capital, to be able to have more opportunities and at the same time, yes, maybe I as a government am providing those things to them, but I'm structured to do much more.' So I think that's really the question that nations have to wrestle with -- are you going to limit yourself at the outset by saying, "˜I care so much about service provision that that's the only way I'm going to structure my government,' or, "˜I know that governments have lots of things that they need to do and if it does all those things well, it's going to be able to do service provision well as well.'

Herminia Frias:

"Thank you. We have a question in the back here from Nimrod? Oh, one more response from Jill."

Jill Doerfler:

"I'll just make one quick comment relating to that about services and citizenship and sometimes a concern that comes up is if we increase citizenship then what about services, what about putting strain on that and in a lot of ways our goals are to create strong nations with strong citizens who don't necessarily need housing assistance, but who, because there's good job opportunities and economic development within the nation, don't need to access those, but instead are maybe pumping resources back into the nation rather than extracting them. And so we talked about that quite a bit at White Earth as well. We want strong citizens who contribute and in some ways that don't need certain services maybe."

Mohammed Fardous:

"Hello, my name is Mohammad Fardous, and actually you already answered part of my question, but the question is that is it important to address the economic development in the constitution? If so, what factors should be addressed? Thank you."

Herminia Frias:

"What was the question?"

Mohammed Fardous:

"That economic development, is that important to be addressed in the constitution?"

Herminia Frias:

"Oh, is economic development important to be addressed in the constitution?"

Stephen Cornell:

"To me, that's something for an individual nation to decide. You may be in a nation where you feel the culture of dependency that has been forced on you by subordination and so forth is so deeply entrenched that you want to say -- and one of the things that you may state in a preamble or somewhere in a constitution -- one of the things you value as a people is to be able to support yourselves, to have control over your life, which in this modern time and in this country is going to require dollars. They speak. If that's important to you, you may want to say, "˜One of the things we want this constitution to do is to support prosperity, economic growth for our people so that we can be truly independent of some other government and their control of the purse strings.' I don't know, but to me that's up to an individual nation. It depends what you're most concerned with, and I don't think there's one answer, just as on so many of these issues we've been talking about there's no one answer. The answer is, what resonates with your sense of who you're trying to be and of what needs to change and of what you're trying to protect? That's what a constitution's about. Who are we, what do we need to change, what are we trying to protect? How do we do that? So it's really up to you."

Miriam Jorgensen:

"I think at the same time, though, every constitution is about economic development, but not explicitly. This goes back to the notion that we know that regardless if you're a tribal community, you're a state or provincial government, you're an international nation state, there are fundamentals that support economic progress. One of them is the fair resolution of disputes, and if your constitution sets up that process, it is fundamentally saying something about economic development. You have to have laws like I was talking about that people will abide by so that you can be a society that is a rule-of-law society, and that's not in an oppressive kind of way of, "˜Here's the law and you have to follow it and I said so,' but rather, "˜Do we have laws that we together as a nation agree on that these are the highest expression of ourselves and the way we want to live our lives and to some extent this is how we want to do business?' So does the constitution put in place processes that allow for rule of law to exist? And those are not necessarily saying anything directly about economic development, but they're structuring a governing authority that can support economic development."

Robert Hershey:

"I just want to reiterate the thing that you said about having a dispute-resolution mechanism. That's having a tribal court that has an independent judiciary because you're going to have to have people, if you're going to have investors coming from off the reservation, you're going to try to raise money for economic development projects, they're going to have to have confidence in that dispute resolution forum."

Stephen Cornell:

"And we're going to talk about that tomorrow."

Herminia Frias:

"Jill, did you want to add anything?"

Jill Doerfler:

"No."

Herminia Frias:

"Okay. We have another question in the back."

Jamie Henio:

"Hello. My name is Jamie Henio with the Navajo Nation and my background is primarily in housing and criminal prosecution, but the idea of government reform and constitutions is new to me right now. And I've started working for the Speaker's office about seven, eight months ago and this is...the idea of government reform is pretty much a hot topic on the Navajo Nation right now. So I'm thinking here, listening to everybody and the term 'IRA tribe,' what is an IRA tribe is my first question, what's that? And then the other thing is Navajo Nation, they're looking at...well, there've been attempts in the past, 1930, 1955 and 1960 to develop a constitution, adopt a constitution, but it failed every time. So right now that's where the movement's at again, too, is to develop a document that will govern the Navajo Nation. So if the Navajo Nation should adopt a constitution at this time, would they be considered an IRA tribe and under the control of the Secretary of the Interior? That's my other question."

Robert Hershey:

"Okay. An IRA tribe...well, first of all, after the terrible policies, after the terrible schizophrenic policies of how non-Native society has intruded upon and committed acts of aggression and genocide against Native peoples and then through the allotment period in the late 1800s to the 1920s, in 1934 some of the Solicitors and some of the people in Washington felt that they could go ahead and foster a restructuring of that terrible allotment period where Native peoples lost about two-thirds of their lands. They created what was called the Wheeler-Howard Act in 1934 and that was the Indian Reorganization Act and that basically then from that the BIA [Bureau of Indian Affairs] went out and issued pattern constitutions for the tribes to adopt. I think...it was nothing that the tribes or the nations asked for at that time. What it was, I think it was a convenience mechanism for the United States government also to go ahead and foster its relationship and its so-called trust responsibility with Native nations at that time. So that's the genesis of the IRA. Navajo came about in...and I know that you've had three attempts at constitutional conventions and reformations and that has not passed and I have a historical document written by a Navajo student of mine that I can get you too that talks about that. I think it may have been lost somewhere from...that was given to the nation, but I have a copy of that for you. The fact that you would adopt a constitution does not necessarily make it so that you would be adopting it under the terms of the Indian Reorganization Act. You can adopt a constitution in another way, by yourself. The way Navajo came through the Navajo Business Committee in the 1920s was by virtue of Standard Oil coming to the Secretary of the Interior and basically saying, "˜We want your oil and your shale,' and therefore they established a series of business agreements that then became the councils, which then became the series of concessions and agreements with the Secretary of the Interior and a lot of mismanagement. But it was motivationally driven by non-Native people trying to seek Navajo mineral royalties at that time, out of which then your statutes and laws have evolved keeping in mind the fundamental laws of the Diné. So it does not mean that you have to become an IRA tribe."

Herminia Frias:

"Thank you. Kevin? Which mic is that? Six."

Kevin:

"The gentleman that was talking about economic development, I think every one of the constitutions that are in place in one form or another discuss it in a manner and you were talking about disputes. Well, the issue is if self-determination is applied through a lot of federal programs, that's also under that principle of economic development and the right to govern ourselves. But we have to remember that it's not an act that gives us that right, it's our birthright. So as we can all understand that it's our right as human beings to go in that direction, it's already applied. We just have to apply it. It's already there, written in probably everybody's constitution in one form or another, in the programs that we receive, the ones that do receive them, the monies are there for that principle. Thank you."

Herminia Frias:

"Thank you. We have a question, yes."

Audience member:

"I kind of...I have a question, but I don't know if I'm asking to you guys or maybe to the tribes, because in 2000 we went and passed our new constitution, 2000, the year 2000. So we had an IRA and we made changes. We made it to fit us as Yavapai people, to fit how we're going to do economic development, how we make laws, how we interpret and how all these things happen. But today I think our constitution, when you look back, we're having problems with membership, and I think that's one of the things as tribal people and leaders that you need to look at, what's going to affect you in 50 years. Because me as a leader, I try to look out for 50 years ahead of time or the babies that aren't even born yet. I don't look for today or tomorrow, that's what...that's how I was raised and one of the things, I know that's what we're struggling with is membership and we're working at it but I know like you...one of you speakers presented today that the U.S. Constitution hasn't been changed and it's hard to change and sometimes you don't want to always change your constitution, but as Native people we change every so many centuries and we don't know how many people are actually of our descendance or have just came in and moved in our territory. So I think really the question goes...I don't know if it goes to you guys or us as people. We're the ones that identify ourselves and define ourselves. How many years do you let go by...because here we're...this is year 13 for us with our constitutional change from 1934 and it's been working, but the membership part has been hurting us because we...like this lady here, she's a teacher and she sees all the children that she knows are going to always live within our reservation and their parents are tribal members, their grandparents were tribal members, but we can't enroll them. And I sit there and I argue with my council because I will say, "˜Let's just enroll them. We know who we are. I know that baby's never going to...or that baby's going to live here or that baby may be doing something good in the future and we're not even going to be a part of it,' but it's because our constitutional change that binds our hands and that's why it's so important like what the...like what you did with your community when you had all your forums and meetings and...our committee is doing that now and this is learning for them and I'm glad that they're here, they're learning from you that this is what we need to do is to identify, do everything you can with your community, involve them because in 2000 our community was not involved in this change of constitution. And it is a good constitution and we're tweaking it now. So like I said, I don't know if it's up to...I know it's up to us, but because you guys are the professors and you guys know the rule of thumb or you know the U.S. Constitution, how do we go as citizens of changing them? Do we look every 10, 15 years or do we just not do it and just say, "˜Hey,' cause we do have some elders that say, "˜Just leave it. Just leave it. Don't change it.' So how...what do tribes do that you guys have worked with, I guess is what I'm asking."

Stephen Cornell:

"Well, I was going to ask Miriam because I can't remember whether it's Cherokee or Osage who built into their --Cherokee -- who built into their new constitution the provision that they would revisit it every 20 years I think."

Miriam Jorgensen:

"Actually, it was in the 1976 constitution, that's what motivated the..."

Stephen Cornell:

"...The change, yeah. So it's a...you'd have to think what the appropriate interval is for you, but it's certainly one thing to consider is to say, "˜The world changes and do we wait for a crisis to arise that forces us then into some quick forced constitutional reconsideration or do we say, no, we're going to revisit this document every 10, 15, whatever it might be years, and we'll prepare for that and we'll know it's coming. And therefore it won't be this process that happens in crisis conditions where you don't have time to think about what you're doing adequately because you've got to respond to something that happened. Instead, this will be part of our deliberate, continuing growth of our government.' The world changes; your nation's changed. We sometimes have...I think the anthropologists are probably to blame, but probably all of us are, this notion of these unchanging forever communities that lived in North America. Well, heck, there were trade relations, people had new ideas, people tried new things, people discovered that the climate changed or that you moved because you were following a resource and you had to do things in new ways and the rules changed because you said, "˜Ah, we've got to come up with a new solution for this, deal with the situation we're in now.' Why shouldn't that be part of your new tradition of how you govern, that we're ready to change when the world demands that we respond to new conditions."

Herminia Frias:

"If I can add to that, I think that sometimes we get fixated on that this is done and we forget that this is really a living document, this is really something that we need to adhere to and pay attention to as our society changes. So thinking about it, how is it that we do things today, how is it that we do things tomorrow, and how is it that we're going to do things 25 years from now? It changes."

Miriam Jorgensen:

"So I don't think Jill's going to necessarily blow her own horn on this, but I think that their experience at White Earth is probably real similar to what could go on for you guys at Hualapai. Jill's presentations about historically where their blood quantum rules came from, where their membership and citizenship rules came from, and really telling the history of that. I had read things that Jill had written before meeting her and I encourage you, if you never read any kind of an academic article in your life, to read her 2009 piece in American Indian Quarterly. It's beautiful, it works from the point of storytelling and it puts you in the position as if you were community members in 1910, '13 when the Indian agents came around and assigned blood quantum and you get the understanding that it's an entirely constructed idea. And I think that a lot of citizens today in tribal communities don't understand a lot of that history and they think that it's something that's been...that's definite as opposed to something that's more or less made up and you gave that, a version of that kind of talk multiple times, and it really starts to break down on people's understanding of where these rules come from and opens them up to a greater acceptance that there could be different rules and it can be more inclusive of children and grandchildren and great grandchildren and who's going to be in that community."

Jill Doerfler:

"Well, thank you very much, Miriam, for noting that. Yeah, I didn't get a chance to talk at length about it in my presentation today, but as I said, my research has been on Anishinaabeg identity historically, and so part of that was how people were talking about identity and citizenship in the 19-teens and the historical record on it is amazingly rich. And so we have people at White Earth talking about identity and blood quantum and I was able to use lots of quotes from them extensively to say...what they said time and again was A, "˜we don't know what you're talking about when you try to say blood quantum,' and B, "˜that doesn't really matter to us. What matters is our families, what matters is how we live our lives.' I'll just give two quick examples because I can't help myself. One, what happened is they're asking people at White Earth, "˜is so and so a mixed blood,' and they want to know because of land sale. That's what they're really looking at, but I was interested in the identity. So they asked a woman, "˜Isn't it true...is your husband a mixed blood?' and she says, "˜No, my husband is a full blood. He made himself a full blood.' And so we see there her answer being surprising...I don't know how many people would say that today, they make themselves, but at that time Anishinaabeg people created their own identity by their actions, what they did made them who they were and they were really in control versus this idea of blood quantum, which is sort of pseudo science and it's something that we don't have control over, that's just some kind of number assigned to us at birth by our tribe or the Bureau of Indian Affairs or something like that. And the other fabulous quote that I'll mention, as a person was being asked time and again about another person's blood quantum and he finally said, "˜I don't know. That person has been dead a long time. If you really want to know, you should go ahead and just go dig him up.' So Anishinaabeg people always have some good humor and that's one of my favorites because they're like...there's no answering these questions about blood quantum. And so I think I'll leave it with that."

Herminia Frias:

"Thank you. Justin?"

Justin Beaulieu:

"One of the things that I was going to touch on with her question is that I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That's the only thing. So if we're going to categorize ourselves into a category with animals because that...it's always kind of been about resources. The federal government didn't want to be babysitting a bunch of Indians so they said, "˜We're going to make...if you have a kid with a white person, they're half,' and then eventually we're going to be extinct before we're dead. So that was good to them. That was good for them and if that's what we want to continue, that's going to be our legacy, I guess that's our choice."

Herminia Frias:

"Thank you, Justin."

Mike Burgess:

"Mike Burgess again. Not to answer the blood quantum issue, but this young lady, you had a question that you made a statement that how often or how many...when should you change your constitution? My response to that would be and a suggestion is, when your leaders no longer honor it. And so when your leadership doesn't follow through with what that constitution abides by, because I was struck by one statement here that was up on the screen that the law must be followed, rightly or wrongly, be followed. So a constitution that does not define how leadership should be held up, it should be a constitution that has generally your bylaws or your rules of behavior or your ordinance for conducting themselves. So on the reverse side of that, leadership that wants to be in office that can't honor those rules doesn't need to be there in the first place. I bring this up because of my own people again. One constitution, it was [Three] Affiliated Tribes, we broke apart in '65, new constitution in '67, been amended 14 times. We've attempted to change the constitution three times in the last ten years, but my people...put it in political rhetoric, you live with the devil you know. So people who are afraid of change have to be instructed, taught and shown that change is good and beneficial. And so the few of us in my people that want to make these changes, we can't get heard and that voice has been squelched. Well, thankfully the internet is there and even that is misinterpreted at times. But there are these things that can be put in place and for one, we are discussing among ourselves not anymore lowering blood quantum, but raising it. And someone asked me, "˜Well, when and where would you have the cut off line to raise it?' So in 1976, every Comanche enrolled at that time received a per cap and I explained to them, "˜When we first got started with this blood quantum stuff on the reservation days, everybody was a full blood and one-quarter of our tribe was not full-blood Comanche. So why don't we go back to that time frame to 1976 and everybody's a full blood and our children come up half or quarter or three-quarters.' So you're not faced with this reducing blood quantum to get more numbers, which hasn't benefited us in the long run precisely because of per cap, educational benefits, and half the people who don't live at home want their medical card, their education and their per cap and never come home. So some of us are discussing this idea of citizen responsibility, coming home to vote each year, being recognized in the community at specific events and times. So we are having to come back to what some of you have now, citizenship requirements and things of that nature. So I wanted to expand on your question of when to change the constitution. Thank you."

Herminia Frias:

"Thank you. Charissa, right down there."

Audience member:

"This is in regards to the blood quantum. I was just...I teach my kids not to be...not to be prejudiced, but I'm also defending myself and my tribe when I say marry your own tribal members so we don't face these kind of issues. We have a lot of benefits, we have a lot of resources on our own land within our own tribe, we have our language, we have our traditions, we have our ceremony, we have our land. In our tribe, in our tradition, you have that umbilical cord when you're born, then it falls off. We bury it where we're from. We pray for it and we bury it and that's why it's important to teach your kids to marry within your tribe, marry within your tribe so we don't face these kind of problems. And it's important; if you start now when they're young, when they're older it goes on and on. And I tell my kids that. I don't want you to marry somebody that's not a non-member. "˜Why?' I said, "˜Because you're going to lose it, you're going to lose the identity of being a full-blooded Apache.' "˜Well, mom, what makes me Apache?' I said, "˜What makes you Apache? Look at all the hills around you, look at the horse you ride freely, look at everything you do; you hunt, you pray, you dance, you play. You do that because you're Apache. If you're out there, you won't do it. You'll be sitting on a city bus, you'll be doing these things. You'll be following the federal government and the state government. On our lands we have our own laws and we should keep our own blood quantum within our own tribe. Thank you."

Herminia Frias:

"A question in the back."

Jamie Henio:

"Thank you again for letting me speak. I just wanted to share a story regarding the constitution and the Navajo attempts at the constitution. Last year, I was fortunate enough to listen to a speech by a former Navajo leader at the Navajo Nation Bar Conference. And he explained the previous attempts to the constitution and he shared a story with the audience and it goes like this. Back in the early days, there was a big movement about adopting a constitution on the Navajo Nation and you have your pro-constitution people here running around trying to convince everybody saying, "˜This is good for you, this is life, this is life-sustaining.' Then you have your traditional people here who were sort of against it. So they had a big meeting and at that meeting the traditional leaders and the pro people met and the traditional leaders were saying, "˜Okay, you're saying this piece of paper, this document is life-sustaining. Okay, let's put it to a test then.' He goes, "˜We'll build two fires here. One here for you and then we'll build another fire here. On this fire, that's your fire. On our fire what we'll do is we'll go to our flock, get a sheep, we'll butcher, we'll make some bread, we'll fry some meat and cook it and stuff. On your fire, get a big tub of water, boil it and then what you'll do is we'll be cooking meat over here and we'll eat. On your fire take the piece of paper that you're touting around and put it in there and boil it and then we'll see which sustains life.' So you get it? He's telling people, "˜Take your constitution and boil it and eat it and see if it'll sustain your life for you.'"

Robert Hershey:

"And you think mutton sustains life? Ooh. No, I'm teasing. I'm teasing. I loved it. I ate it every day."

Jamie Henio:

"Well, the thing is then later on the guy says, "˜You know the reason why they rejected the constitutions? Because we still have that fear of the livestock reduction program.' And that's why they've been rejecting the constitution because they think that might happen again. So that was his point at the end after that."

Herminia Frias:

"Any other questions, comments? Okay, we have one more at least."

Audience member:

"Hello. I just wanted to make one point, something that Miriam said, which I think...I hadn't thought about before and that's when looking at sources of law to put into constitutions this recognition of international law. I hadn't thought about that, but Indigenous people are making progress all over the world when they're back against the wall and no one will listen and courts will not listen domestically that they're starting to make progress in international law with the Rights of Indigenous Peoples, the declaration on rights and obligations of man. I think that the way for this progress to continue is for it to be recognized in tribal constitutions. For example, the gentleman spoke about the birthright and where are you going to find that in a body of law to cite? But in something like an international document where self-determination and the importance of land to Indigenous people is emphasized. I think that's a great point, something I hadn't thought about."

Robert Hershey:

"I'm going to talk about that tomorrow, too. Thank you -- one of my students, an attorney, bright guy."

Herminia Frias:

"Anyone else? Yes, sir."

Roger White Owl:

"Hi. Roger White Owl. Three Affiliated Tribes. One of the things I guess I wanted to ask the panel, one of the things is as we look at this concept of the social contract in constitutions and what they are really about how important is ambiguity in these documents that you have a living document that isn't just technically written because even the great Greek philosophers said that the worst government was run by lawyers. So that is..."

Miriam Jorgensen:

"And I think Shakespeare said it, too."

Roger White Owl:

"Just how important...because as we see...as we see...as we see, as Mr. Burgess said, pointed out is that your constitution should not be too technical to where your people can't understand it. It's the people's document and so that's the reason why that attorneys make the worst lawmakers according to even Greek philosophers and the very essence of what we know as Western jurisprudence. And so as we look at that, it needs to be...our constitutions need to have this bit of room to be interpreted as the concepts of the rule of law in government and everything else is expressed in implied powers. That's what we have within the constitution and in constitutional interpretation. So how do you guys feel, how ambiguous should a constitution be?"

Miriam Jorgensen:

"Well, I can't give you an amount, like it should be 60% ambiguous and 40% not, but I think it is true that a degree of ambiguity is important and exactly for those reasons that you say a living document, that it allows there to be interpretation of that document that moves with the times. I've written a little bit about this and we talk about it as breathing room in a sense in the document, that you don't have to resolve every single issue by going into great detail in the document. That's what I was kind of getting at when I said about the rules of procedure, a lot of those rules of procedure for legislatures are very loose, they're sort of like, "˜Well, we're going to assign it to the legislative body to establish its rules of procedure. We're going to tell them how representation should occur and what the quorum should be. We might even tell them the dates on which they should meet or how often they should meet or the actual way that they establish their rules are going to be a little bit looser, that we're not going to specify this necessarily in the constitution, we'll just give some direction.' And that allows things to change a little bit if they need to. I think however that in order to have one of those constitutions that has breathing room in it, your constitution absolutely needs to specify a body that's responsible for interpreting the constitution because if you don't assign somebody to interpret the constitution, you've got this somewhat ambiguous document without any ability to say, "˜Okay, at this point in time this is what it means.' Our interpretation may change a little bit, we may change and grow like Steve was talking about, we may change to adapt to the times or to changing circumstances or whatever but you still need somebody to do that... that constitutional interpretation. And if you go back and look at the Mohegan constitution, that council of elders, which I said has that funny role, it's both a legislative body with respect to custom and tradition and certain kinds of traditional law, it's also a constitutional interpretation and judicial review body for that tribe. And so it has very clearly assigned this role."