Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution (Q&A)

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Native Nations Institute
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University of South Dakota Professor of Law Frank Pommersheim fields audience questions about the importance of civic engagement to constitutional reform, removing the Secretary of Interior Approval clause from tribal constitutions, and other important topics.

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Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

Q: "How do we decide if [constitutional reform is] best for the whole and not just a few? I really get nervous about that."

Pommersheim: "Well, I think that's an excellent question. I guess my suggestion is that in matters of constitutional revision or thinking -- it's one word I didn't use -- is sort of patience. It's an incredibly important process, and so patience to me is really a watch word, is to not rush to constitutional judgment, to amend a constitution or change the constitution. Patience. And I think it's patience with, easy to say, but patience with openness, that is on the council, for example, if somebody is proposing that there needs to be a revision to the constitution or an amendment, I guess one approach is to have some open kind of hearings on it, is just to have the opportunity for people to say who are in favor of wanting to change a constitution kind of where they're coming from, what is in the constitution that they think is harmful or doesn't work and how a change might be beneficial. And to have discussions, not only at the council level, but tribes that I'm familiar with have communities, you go out to the communities and you have hearings about it, and you have to have, I guess, belief that patience and openness and transparency will eventually lead to the best possible idea. I don't want to be naí¯ve, because obviously when you're on a council you can be catching a lot of grief, and I actually don't have an answer for that, but I think being patient is always something that is appropriate in a constitutional context. And your way of putting it is, is this really best for the tribe? Because constitutional revisions are not meant to benefit a small subgroup of the tribe, they're supposed to benefit the tribe as a whole, and I think that's a legitimate, not in a confrontational [way], but that's a legitimate response of a tribal council member, that we have to take a look at this and see if it's really going to benefit the whole tribe. What is the overall benefit of the change? Very much so. And again, I think for tribes that have these institutions, oftentimes there's just the tribal council and then there's the people. There's no mediating kind of institution, and I think, for example, tribes that have community colleges, they are a tremendous kind of benefit because the colleges are basically independent, they're not really politically affiliated, they're educational in nature, and to me it seems they are the appropriate bodies to host these kind of discussions about proposed amendments. Because I think it is important for tribes to have -- and they could be community groups as well -- but to have some kind of intermediate organizations that mediate between the council itself and interested tribal members. You need something I think in between to kind of facilitate the communication in a fair-minded way."

Q: "Reform versus amendment -- is there a huge difference between the two?"

Pommersheim: "Amendment is the technical process that allows you to change the constitution. Every tribal constitution that I've ever seen has an article that deals with amending the constitution. That's how you change a constitution that has already been adopted. You amend it, and how you amend it is contained in the constitution itself and that can lead to reform. But you cannot reform a tribal constitution -- or the process for reforming a tribal constitution is the amendment process. And an extreme amendment, which is permissible under the Indian Reorganization Act and others, is that you can do away with your current tribal constitution. But amendment is the technical, constitutional way spelled out in the tribe's own constitution -- not from the federal law or anything -- about how you can change the constitution. Most tribal constitutions that I've seen require either a petition by X percentage of tribal voters and/or approval by X majority of the tribal council, and then it gets voted on by the people. So in your own tribal constitution, go back to it, it should have a section for how you amend the constitution and that's how any change will be effectuated."

Q: "So we actually have to go by the current constitution that's in place right now in order to go through the processes of changing it."

Pommersheim: "Yes."

Q: "And the next question I have for you is what is your advice for removing the Secretary of Interior from making any decisions for our government?"

Pommersheim: "I'm all for it."

Gwen Phillips: "Search and replace!"

Pommersheim: "But, I'm all for it -- two parts. I'm all for it because that's what tribal sovereignty is about. Tribal sovereignty can't be about having the Bureau [of Indian Affairs] approve your most critical, organic document. It's just too inconsistent. But, you have to think it through about how it will work, because it is true that if you do away with the approval powers of the Bureau of Indian Affairs, you're taking on, in a good way -- but you need to think about it -- you're taking on a new responsibility. You're not going to have the Bureau to fall back on to actually run the elections, and you're not going to have the Bureau to fall back on to complain about when you don't like what happens. It's all going to be on you -- I don't mean you personally -- it's going to be all on you. And so yes, it's a step forward for tribal sovereignty, but I think thinking requires that to ask yourself, and this may be an unpopular question, do we -- of your tribe, any tribe -- do we have the infrastructure, do we have the capacity to monitor our own constitution? And that might be a painful kind of question, but I think it's a little bit irresponsible to go marching forward to do away with the Bureau's approval process without asking the coordinate question about whether you have the infrastructure and resources and legitimacy to do it on your own, because sometimes people get caught up in the rhetoric and the abstraction about sovereignty. But sovereignty has a subset of questions, which one of to me includes, "˜Do you have the institutional capacity to carry this out?' And your answer might be, "˜No, we don't.' But then you can develop a plan. Say, "˜Okay, let's not do it right now. Let's develop a plan so in three years we have developed the resources and the institutional capacity to do away with the Bureau's supervisory responsibility.'"

Q: "Instead of doing away with all of it, is there a way to do away with a majority of it?"

Pommersheim: "Well, it comes in two parts. One part is, and this I think is the first part, is to do away...if your tribe's constitution has stuff where the Secretary actually has to approve certain ordinances you pass, that could be done away with immediately I think, and you can do that without worrying too much about the resource issue, although you have to ask it. The broader thing is to basically get out of the IRA constitutional thing completely, and which you're permitted to do under federal law, the Bureau can't stop you. And then you're completely out from the Bureau altogether. So there are at least two parts. If there is stuff in your tribal constitution that allows or requires the Bureau to approve certain ordinances and certain subject matter areas, you can amend the constitution and get out from those. But if you are an IRA tribe or a tribe -- you don't even have to an IRA tribe. This is a little bit tricky because any number of tribes knowingly or unknowingly who are not IRA tribes who never voted for the IRA nevertheless adopted their constitution under that rubric, and would have to amend their constitution to do away with the Bureau's ability to supervise the elections, the amendments. Because it's true -- and you have to hold your local superintendent to the fire -- is that when a tribe is amending its constitution under the IRA, the Secretary cannot tell you that you can't do it. The only thing the Secretary can tell you -- and they have to approve the form of the amendments -- they can only tell you that we the Bureau have a problem with this amendment because it's contrary to federal law, and if they can demonstrate that the proposed amendment that a tribe is considering is opposed to federal law, they have the responsibility to tell the tribe that they're not going to allow you to engage in that amendment because it's contrary to federal law. But that's it. They can't say, "˜Oh, we don't like this amendment, we don't think it's good for the tribe.' No. And it's important that tribal people hold the local Bureau superintendent's foot to the fire. Know what those regs say. So again, where a good lawyer comes in handy. Because local superintendents come in all vintages. Some that know too little and some that know too much, and very few that know the right amount. So you want to have a good lawyer who can, in a good way, a respectful way, make sure that the local superintendent who is the first person that you deal with in these amendments, make sure that he or she actually understands the regs and how they work."

Q: "And then my last question is we have a court system that's separated from our tribal council, but in our constitution and bylaws, there's a portion of it that should there be I guess a conflict or whatever or the courts can't reach a decision it comes back to council I guess, it gives us that power all over again. And there's a lot of us that's uncomfortable with that. And so in working with our constitution now, we're trying to come up with a plan to safeguard the process, and so it's getting to the point where we have to think about these things. At what point do we involve an attorney for advice in this, or is this a thought-out plan that needs to be for our people alone? And -- as I think many people agree in here -- that we don't have educated tribal members, and it's sad, but I see that a majority of our educated tribal members don't come back to help the tribe. They're out doing their own and just living life they way they earned it. There are a few of us that do come back and our heart is where it is and this is what we want to do to...I'm loaning myself to my tribe in order to help them. But the thing with our court system, the concern that I have is that when it comes back to the council, we don't have any codes in place or anything that we can follow to help us make these decisions. Instead, it's going to be a majority consensus or something, and everybody refers to the CFR code, but in actuality I don't think that's followed either. So where's the justice for the person that is in front of the court?

Pommersheim: "Well, two things. You had asked at the stage you're at now, I think you definitely need a good lawyer to help explain to you or you explain to him, back and forth, about the problems you see in the way your constitution is set up where somehow the tribal court, whatever what means, can't reach a decision, it goes back to the tribal council. I think a good lawyer can help you evaluate the pros and cons of that and then if you're thinking about changing it, how you might actually sort of draft something to allow you to do that. It's also true and can be tricky, if you have an IRA constitution, the Bureau is required to give you technical assistance for free. And so you can approach the Bureau for free technical assistance, but be careful about things that are free."

Q: "Thank you for your time."

Pommersheim: "It is true. If you know -- because a number of my former students work for the Bureau -- there are many, many good people who work on the Bureau and if you connect with the right person, they will definitely help you. But there's also the baggage of the Bureau as an institution, but there are many good people who can be helpful."

Gwen Phillips: "He said he wanted me to ask questions cause he didn't think he'd be able to take up enough time. I don't think he's got a problem there. So I was mentioning that we've been at this constitutional, and I'm going to call it reform, because I really see it as a "˜re-form.' It's becoming, it's taking a new shape, where we also did some constitutional amendments or revisions and that was within that Society Act constitution, just to get it a little closer to saying "˜we're sovereign' without the government's knees shaking. Because I had mentioned, we've got the two going on right now. The internal constitution, that's our self-governing constitution that once we get to that point, it will be legislated into effect by the [Canadian] Parliament. And then the other one that allows us to have that certainty for business purposes that we're legitimate and they can sue us if they need to right now as a non-profit entity. I think one of the most important things we went through, I'm going to put a couple comments out and then ask a little bit of question, is because it's been such a long, long process, there's no darn way we could afford lawyers to guide us through the process. And because we have -- you've heard me note -- we have over 40% fetal alcohol [syndrome]-affected individuals -- and for those who don't know that's brain damage, permanent brain damage -- lovely people, but many challenges with understanding these concepts. But they can give you the spirit. Law is basically two components. I'm not a lawyer so please correct me, all of you legal lawyers and attorneys and barristers and solicitors and whatever you all are. But I've come to know that law takes two, there's two components to it. One is called the spirit of the law, the other's called the letter of the law, and that's where interpretation comes in, people, is in between the two of those things. So if you in community spend enough time with your people talking and capturing spirit and documenting it so that that becomes your constitutional record, then when it comes time to actually go to defense, an interpretation of the letter of the law, that your people see themselves in there. So we don't let the lawyers come until it's time to draft the letter, and as they're doing it we make sure they're working with the people who captured the spirit so that they can insure that the spirit is legally defensible basically. So it's critical that you spend enough time just with your people, because I'll tell you that we actually appreciate some of our people having a felony that are on council, because we demand that our council members be ready to defend our inherent right to govern, and the federal government doesn't like that so they'll through our leaders in jail at times. So we've defined basically what it is you can have and what it is you can't have. So it brings again the spirit of the people to the table and people can say, "˜No, we don't want you there, you abused my nephew.' Well, that says, okay, that's a very personal thing, but what they're saying is, "˜We want to protect children.' So if we catch the spirit, embed it in the letter, I think we're okay with this. We have to also I think recognize that process and procedure and regulation goes hand in hand with the law we establish. So if we establish this supreme law so to speak, we have to have at the ready, already, all the regulation that goes sideways from that, "˜cause that's where we get into trouble when we say, "˜Oh, we'll do this,' but we haven't put the process to it or the regulation on how we will go about doing it and then we get stuck. We haven't considered, "˜Oh, gosh, that's going to now lead it back to my desk again, and what am I going to do about it?' Etc. So making sure we've got the good processes in place as we develop these things. And as you were speaking I was getting this picture in my mind of a shield, that a constitution should be like a shield and I'm the battle warrior, we're back to the Star Trek theme. Did you see that? I brought it back to the Star Trek theme. But that shield, to me, shouldn't be a big shiny shield that's really pristine and looks like it's never been taken out of the case. To me, it should be all dented and it should show your battle scars, "˜cause to me your constitution should live through all of those, to be able to take the sideways hits, to be able to stand up to the arrows and sometimes the bulldozers and whatever else, and live through all those things. So sometimes you may actually have to weld on a new little piece to that shield because something's happened in the environment around you that you haven't thought of, nuclear weaponry or whatever or something, I don't know. So you might have to change it a little but if you've done a good enough job of your spirit, hopefully it's not a whole reform we're having to go through again. So my question now is, in our developmental processes right now one of the things I've been asked to do is create an ombudsman-type position. So who's going to hear the challenges of a decision of government? Because those end up back on government's table, and that's what bogs us down in this crisis mode all the time, all the time, all the time. So it's like a deflector, a place to not park those things "˜cause they're very important, but it's the proper machine to actually hear those things. "˜Cause I'll tell you when you put process behind complaint, people stop complaining "˜cause they're lazy about process sometimes, and that's just reality. But if it really is an important thing, they'll find a way, they'll take the energy, they'll take the time. So what tools or how would you actually see embedding or would you see it embedding that piece into the constitution?"

Pommersheim: "Let me see if I can pull that together. To me, this is one of the themes, and I think what Gwen was saying helps to pull it together, is having effective communication. That it's very important in all walks, but certainly in this context, is having effective communication between the government, between the people, between the communities, between tribal institutions, and in some situations having an ombudsperson who can advance or enhance that communication, that might be a way to go. You just have to examine it from your own tribal circumstances saying if we had a person or office whose specific charge was to ease communication or make it more efficient, that's definitely something to carry forward. One other thing about communication, is communication with lawyers, is that lawyers work for you and you should always feel that it is your right and in fact your duty to say to the lawyer, "˜God damn it, I'm paying you and I don't understand what you just have said. So say it again so I as a layperson can understand it.' There's nothing wrong with that, because it is true that part of our training as lawyers is not to communicate in ordinary language because that will strip us of some of the myth that surrounds us and why you're paying us all this money. And so you have every right to demand, and the best lawyers can communicate with people in ordinary ways. Nothing that we have spoken about today or spoke about tomorrow is so esoteric or complex that a good lawyer [couldn't] put in pretty ordinary language. And so you -- it's a two way street. You have to hold your lawyers accountable to you. You can't nod your head to something your lawyer says if you didn't understand it. And it's not your fault, it's his fault or her fault. And the big red sign in the back says, STOP, and I'm lawyer and I believe that means, 'It's finished, Bob, take a hike.'"

Q: "One more thing. You brought up interpretation, which is absolutely critical and you talked about your Fourth Amendment analogy and then borrowing on principles from the federal government and federal judicial opinion to help guide an interpretation, whether that was appropriate. The term "˜separation of power' that we hear around here is another term that we shouldn't just go ahead and adopt wholesale and say that we should have separation of powers. We can have co-equal, we can have distinct branches of government, but we shouldn't just go ahead and say, copy necessarily an interpretation from the federal government in having separation of powers."

Pommersheim: "Yeah, and one last thing about that is this notion about separation of powers. I think what it's about -- and it makes people uncomfortable to talk about it -- but what does separation of powers is to limit the abuse of power. It's easy to talk about values that you share in common, it's a little bit more difficult to say, "˜How are we going to deal with the potential abuse of power in your tribe?' And separation of powers, this is one of the tried and true ways of doing it. But you may have things in your tradition and custom that you deal with the abuse of power. But I think in the modern world the abuse of power is an issue, and I think it is naí¯ve in the extreme to think that, potentially, abuse of power is not a constitutional issue. Separation of powers isn't the necessary way to go, but I think it's a question, a necessary question, that a tribe has to provide its own answer to. How do we, in your tribe, deal with the potential abuse of power?"

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University of South Dakota Professor of Law Frank Pommersheim discusses the key constitutional issue of dispute resolution and presents three cases demonstrating how tribes are endowing their constitutions with legitimacy through the careful, thoughtful resolution of disputes.