Frank Ettawageshik: Reforming the Little Traverse Bay Bands of Odawa Constitution: What We Did and Why

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Native Nations Institute
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Frank Ettawageshik, Former Chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO came to develop a new constitution and system of government, the key components of the LTBBO constitution, and how the new LTBBO constitution differs in fundamental ways from the old one.

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Ettawageshik, Frank. "Reforming the Little Traverse Bay Band of Odawa Constitution: What We Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"I'm Frank Ettawageshik, and I am from the tip of the lower peninsula of Michigan. Our tribe, the Waganakising Odawak, we're the Ottawa at the Crooked Tree Place, and we have many relatives, Odawa relatives, that are all the way from Canada clear to Oklahoma. Our experience -- and I'll get right into the slides -- we were not on the list of federally recognized tribes for many years, and we always maintained that we were not an unrecognized tribe but that we were, that in our case we were -- the government had just made a mistake as far as it went, because we knew that we were inherently sovereign and that we had always acted as a government and for some reason we weren't on their list. And so while our sovereignty as inherent sovereignty was something that we certainly could work with, it made it a lot easier to assert that sovereignty, to exercise it, if it was recognized by the United States. And so we went through a 120-year legal process that culminated in 1994 with the signing of Public Law 103-324, which reaffirmed our federal status. It did not grant us recognition and it did not restore recognition, but it reaffirmed that we'd always had it. And at the time that we did this we had a constitution that had been put together, but it was largely based on the Indian Reorganization Act model...So we decided that we needed to do some changes -- and I don't want to get ahead of myself in the presentation -- but the reform in our constitution was initiated with the signing in the fall of 1994 of that reaffirmation act by President Clinton. It was a long process, and our constitution -- which as Steve [Cornell] pointed out, I do carry in my pocket all the time, and it's a handy reference. As a chairman, I carried not only our constitution but I also carried the United States Constitution. And this was approved in a secretarial election on February 1st, 2005, and this constitution went into effect on September 11th of 2005, when all of the officers that had been under the new constitution, that they'd all been elected, so that we didn't have a new constitution that called for one form of officers and have old officers trying to govern under it. So it didn't go into effect until all the new officers were sworn in.

We have a picture of course of the constitution and also the U.S. and our constitution. When I'd go to Washington on many of the trips, the congressmen would hand me one of the U.S. constitutions, and I decided that it was important that I be able to reciprocate. So we had ours printed in the same size, same general colors and the whole thing put together so that when we went in we could -- not only were we being told that the U.S. has a constitution but we were showing how we had chosen to govern ourselves, and that we were a constitutional government. This size is also real handy because it works well for all of the tribal citizens to have as a reference.

Why did we want to change? What were the things that we felt [in] the previous constitution was inadequate? The first thing was is that all the authority began within the constitution instead of originating from the tribal citizens. We felt that as an inherent sovereign that the people, our citizens, were the ones that maintained that authority, but our constitution didn't reflect that. And all of the power was within a seven-member tribal council. The chairman and all the council members were on that, and there were no checks and balances. If you didn't like what the council and wanted to go to complain to somebody, you went back to the council. Well, that doesn't really give much [of a] way for people to get redress of their issues. And then if you wanted to go to court, well, we had a tribal court, but it was created because the council passed a statute that created the court. So although we never did this, some tribes have done this, and that is they would-- if the council disagreed with what the court had to say on a particular case -- they'd abolish he court, create a new one, try again. And I know of at least one instance where this happened at least three times until the council got a ruling that they liked. Well, this really doesn't give much faith in the government for people's ability to deal with the questions that they have. And the other one that we had in here was the constitution that we had looked primarily to domestic issues, to internal issues. It didn't really focus a lot on the external activities or external look of the tribe.

So what are the changes? What are the changes that we did that were the most important changes? Of course we did a lot. There was a fundamental difference in the constitutions. But the first change that we made is that we put guarantees protecting traditional cultural practices, language and tribal heritage in the development of laws and the operation of the government. As Steve pointed out, that was one of the things that we felt was really important that we needed to have. The next one is that we have a separation of powers allowing checks and balances to protect the tribal citizens' access to their governmental processes. We also wanted to make sure we had an independent court, one that was, that couldn't be influenced too strongly by the other branches of government. And the last one is we put provisions in for a foreign policy dealing with foreign policy issues as well as domestic issues.

So what do these changes look like? Well, the first one guarantees protecting traditional cultural practices, language and tribal heritage. We had in the preamble to the constitution, right at the very top, it says, "˜In the ways of our ancestors, to perpetuate our way of life for future generations, we the Little Traverse Bay Bands of Odawa Indians, called in our own language the Waganakising Odawak, a sovereign self-governing people who follow the Anishinaabe traditions, heritage and cultural values, set forth within this constitution the foundation of our governance.' This is just the beginning of the preamble but it says we assert that we have these rights and responsibilities and -- as was pointed out as Steve talked about -- the directive principles. We wanted to make sure that there is -- we wanted to be sure that there's a lens through which the government would have to look at its actions because when we did this we were delegating to the government certain authority. The people maintained the authority, but they would give some of it to the government and they could take it away or they could add to it. But in doing so, what we wanted is whenever the government exercised the authorities that we were giving to it, we wanted them to look through this lens, to look through this way of thinking about things, and that is number one, promote the preservation and revitalization of Anishinaabemowin, which is our language, and Anishinaabe culture, so that we wouldn't, we didn't want the government to be drifting too far away, and we wanted to give it parameters, and -- as Steve mentioned -- be adhering to a higher law, that it wasn't just this document, it wasn't just the powers of the council, but there was a higher law that we all had to adhere to. It goes on to talk about, "˜promote with special care the health, educational and economic interests of all the people, especially our children and elders,' and "˜shall protect them from social injustice and all forms of exploitation.' We built into the teachings, our seven grandfather teachings -- we built those concepts into these directives that would then be, they would go to the government. There's more of this and if you're interested, at the end of this presentation there's a link that I put in here for finding a copy of the constitution if you'd like to read the various parts that I'm speaking of.

So the next part here is continuing, what do the changes look like? Well, we have the separation of powers and in this case separation of powers allowing checks and balances to protect the tribal citizens' access to their government processes, including an independent court. We wanted to figure how this was going to work, and so the separation of powers is something that keeps any one part of the government from acquiring and building too much authority and getting too much power, so that there are ways for -- all of this slows the government process down, but it also gives access to that process cause it doesn't happen in the blink of an eye. It takes a while for it to happen, and in so doing it gives people time to be thinking about it. And so in this case, through the delegation of authority, our tribal membership authorized the tribal council to be the legislative body with duties of lawmaking and appropriation of funds. The executive branch [is] to administer the funds and force the constitution and implement the policies and procedures that are approved by the council. And the judicial branch [is] to interpret the constitution and apply the laws that the tribe had made. And so we wanted to have this, this is a way that we dealt with that idea of giving more access to our tribal citizens and having a more open process and also to keep, put a check on runaway governments where you have too much authority within a single person.

So we then go to more things about what are the changes that we implemented look like, and in this case, provisions made for foreign policy. Well, too often we think just, we just give a slight nod to this idea of foreign policy, but foreign policy, it isn't just dealing with say France or dealing with Japan or dealing with the Indigenous people of Australia, but foreign policy is dealing with the other tribe that's just down the road. Foreign policy is dealing -- it's an international policy, which means that it's dealing with all of the other nations that we deal with. We knew that this was -- we wanted to make this quite a broad statement so this is, "˜We, the Little Traverse Bay Bands of Odawa Indians, speak through this document to assert that we are a distinct Nation of Anishinaabeg of North America that possess the right to self determination, freely determine our political status, freely pursue our economic, social, religious and cultural development and determine our membership without external interference. These same rights and principles of the Little Traverse Bay Bands of Odawa Indians acknowledge to be inherent among other peoples, nations and governments throughout the world. We recognize their sovereignty and pledge to maintain relations with those peoples, nations and governments who acknowledge those same fundamental rights and principles and who recognize the sovereignty of the Little Traverse Bay Bands of Odawa Indians.' This essentially is the authorization for what amounts to what the activities of a state department [are] for instance, but one of the things that we've talked about often has been the idea that too often we rely on, and we've come to do this as tribes, we rely on the United States government to decide who's going to be in the club. In other words, there's federal recognition and we'll join organizations [where] every member of that organization has to be a member of a federally recognized tribe. And so what we do is we allow the federal government to choose who's going to be in the club, and then after that, that's who we talk to. And if there's another tribe out there that we may know quite well but is not yet federally recognized or hasn't chosen to do that, we somehow think of them as a lesser entity, and yet what we're doing is we're giving up the sovereign right to decide with whom we will have diplomatic relations. And it's not just a right, it's a responsibility for us to decide who we feel comfortable with, who actually acknowledges our sovereignty as well as us acknowledging theirs. And that's a responsibility of a nation. And through this particular point we were able to move into some areas, one of which is this. You're not going to be able to read this. It's really fine print. But it's the United League of Indigenous Nations Treaty. Our tribe was one of the ones that helped negotiate this treaty, and last fall [2011] the 90th nation signed this treaty. These nations are from the areas of the world today called Australia, New Zealand, Canada and the United States so far. Forty of those 90 are in New Zealand. They're Māori. And this is one example of that international or foreign policy relations.

Other examples are a treaty that, it's the Treaty of Peace, Friendship and Mutual Aid. It was done in 1947, and it was done by the members of the National Congress of American Indians (NCAI). It [NCAI] was only a few years old at that time. And this treaty acknowledged each others' sovereignty, acknowledged each other, and agreed to set aside differences and to work together for common goals. And this is another example of the kind of treaty that's out there when people are thinking, looking outside in the foreign policy, not just a domestic policy dealing with internal issues.

So what we found as we were going through in understanding is that the adoption of a new constitution is only the beginning. The constitution is a living document that reflects the historic strengths and the evolving culture of the citizens who adopt it and use it to govern themselves. So [as] an example, we adopted our constitution on February 1st, 2005. It was implemented in September of that year. We've had a number of elections. We've had a recall. We had a chairman who was unpopular for a number of reasons, and under our old constitution we only had removal and removal had to be for cause and the person had to break a law in order to be removed. Under the new constitution we put in recall, which means that if the population decides that they choose to recall that person, they can for whatever reason. Well, we've gone through a recall, and not only that but we've had a smooth transition of power to the vice chair when the chair was removed. What this ended up doing is showing that the constitution provided tools for our community to peacefully settle issues of leadership and dispute without the blink of an eye in terms of the delivery of services to the community and in terms of the long-term work that we were doing for our future generations. And so when you work on changes like this, you need to realize that having the document is just, it's a tool, it's a living tool, and it's something that we need to, you need to think through. And some people say, "˜Oh, boy, we got the constitution, now we're all done.' Well, that isn't it at all, and I know that from lots of experience that that...but it gives you the right tools if you think it through, and if the community has really been working on it and is behind those changes that would do it. So we have contact information. I didn't get my PowerPoint [presentation] in time in to be put in the booklets but...I'm certain that it can be distributed if people would choose to get a copy. Also the copy of the Little Traverse Constitution can be found at the tribal website and in what we call the Odawa Register, which contains all of the laws, the constitution, the regulations and posting of proposed laws so that we do all that posting on the web, we require that it be done for so many days, I think it's 27 days before it can be acted on by the council, so that there's time for people to make comments on proposed legislation. And with that, I thank you and that'll be it for right now. Thanks."

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Frank Ettawageshik, former Chairman of the Little Traverse Bay Bands of Odawa Indians, and Gwen Phillips, Ktunaxa Nation Director of Corporate Services and Governance Transition, field questions from the audience about their presentations detailing how their nations either reformed or are in the…