Hepsi Barnett: How Did We Go About Remaking Our Constitution?

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Native Nations Institute
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Former staff member Hepsi Barnett of the Osage Government Reform Commission discusses the process by which the Osage Nation approached the task of developing a new constitution and system of government, and also provides the complex history that necessitated their creation.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

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Native Nations
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Barnett, Hepsi. "How Did We Go About Remaking Our Constitution?" Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota, May 2, 2011. Presentation.

"It's an honor to be here today. I want to...you good people get the opportunity to kind of get ‘Osage Nation Government Reform, Part 1' today, and I know that Chief [Jim] Gray is going to speak with you tomorrow. So there's a lot to tell, so I think it's going to work out pretty well. Hopefully we won't over inundate you with our 'Osage-ness,' but we're often...people often claim that we do that, so we'll try to keep it moving along here.

In terms of the Osage Nation government reform, I guess what I want to say is when we began this process...I have a picture up here, you can't really see it though, it's unfortunate, but it's a funnel cloud, something that we see often in Oklahoma. And I think that government reform lots of times is precipitated by some kind of crises. I think that's very typical, whether it be from corruption and fraud or just inability of the current structure to actually govern the people in the way that they see fit or larger issues. When it came to the Osage Nation, we actually had a larger issue and we were at risk of actually becoming extinct as a people by bureaucracy.

It's an interesting story and really to tell it, what I'll have to do is go back just a little bit and talk about the historical context of what brought us to where we were in...starting in 2003 with the 31st Osage Nation tribal council, how we began this change. When we got back, I think Regis [Pecos] touched on this this morning in terms of traditional governance; Osages had a traditional what they called Osage cosmology. I think our ancestors studied the universe and our relationship to the universe. They spent a lot of time looking at the night sky and the day sky. It was a highly complex political, social, and religious order, and it really reflected the natural order of the universe. We had an ancient clan system with 24 clans and those were divided between two moeities. The Osage's traditional form of governance really was based a lot on dualism, the dualism between the sun and the moon, day and night, sky and earth and our two ancient moeities were based on the earth and the sky. Similarly, men and women had very distinct roles. They weren't lesser roles; they were just different roles. So we had a war chief, we had a peace chief, there were lots of examples of how they used dualism as a way to structure themselves. So we existed under that system as it evolved for thousands and thousands of years.

I was just speaking with Miriam Jorgensen and she lives in St. Louis now, which was part of a vast territory that Osages lived in again for thousands of years and it was really a huge territory. I was talking to her basically saying that when Spain was a world power I believe the only tribe that they actually waged war against...declared war on was the Osage Nation. So we had a vast territory, we were quite powerful up into the 1800s. And then looking back on your American history, does anybody recall what happened in the 1800s? It really started with the Lewis and Clark expedition. They came right through Osage territory. When that expedition ended, it resulted in great change for the Osage Nation. We lost huge portions of land during that time through treaty process. We were first moved on to smaller lands in Missouri, eventually moved down into Kansas. I like to tell the story of everybody knows about 'Little House on the Prairie.' Well, in reality, it was 'Little House on the Osage Reservation.' And so during that time period, once we were moved down into Kansas settlers started moving, westward expansion started moving into our territory and as a result of that, during that time period, we ended up selling that reservation and buying our current reservation in Oklahoma. So we got cash for that and we paid cash for our reservation in Oklahoma, which were actually the very southern part of our traditional lands.

During that time period of moving and turning over big portions of our land, we were diminished quite a bit as a people mostly due to disease, small pox and the like. When Dave [Wilkins] was talking earlier about tribes that preemptively adopted a new system of governance to deal with the shifting geo-political sands of time that were going on during that period, the Osage Nation was amongst that group. We actually...there is a reference to an Osage Nation constitution in 1861. I don't have that up here because for whatever reason, this is where we have to go back and do the research, historically I couldn't find a lot of information about that, but what's clear to me is that the nation actually never governed itself under that constitution. There was a constitution, the Osage Nation 1861 Constitution, and I'm not sure if it's because it was one of those transitional attempts and there was a reluctance to give up our traditional ways during that time, but in terms of the 1881 constitution, we did govern under that constitution. Our ancestors adopted a three-branch system of government I think as a way to adapt and endure. We had already been through...we had already lost so many lands and been through so many treaties at that time. It was a great tremendous sacrifice for our people to give up our traditional ways. But they saw it as a way to endure as a people and so they adopted that three-branch system, had a separation of powers. The land was held in common, there was a residency requirement, and there was a whole body of law that was created under that constitution by Osages during that time.

One of the sort of more interesting laws I thought was that we had a death penalty, so if anybody killed somebody else on the reservation, they would suffer the death penalty. We had several laws that included for violent acts the punishment in terms of 50 lashes or whatever. But there was actually quite a foundation of law developed under that 1881 constitution. We governed under that, we had a principal chief, an assistant principal chief, national council, and a sheriff. We governed under that until 1900. It was a pretty extensive system of government. And then there...during that same period, from the latter 1880s until the 1900s, one thing that happened that really impacted the tribe greatly and that was that on the reservation that we bought in Oklahoma oil was discovered, probably the largest deposit of oil at that time in North America. And because of that, it really complicated our situation in Oklahoma. One of the things...one of the saving graces was that because we had bought that land we retained the mineral rights and we...that property was protected under the Fifth Amendment. In terms of that period of time, the nation -- when the Secretary of the Interior abolished the government under the 1881 constitution -- the nation defied that order and continued to meet as a council. They had...the only thing left under the Secretary's order was the principal chief for signatory authority to basically turn over as much of our resources as we could. It was sort of an exploitative move by the United States government.

At that same time Oklahoma was opening...getting opened up for statehood. You know the big land run in Oklahoma, you always see those Conestoga wagons and everybody's lining up to go get a piece of land. Well, it was really a piece of Indian land. And so through the cleverness of the Allotment Act they basically had divided all Indian lands into 160-acre parcels and were opening up every other one to white settlement. When it came to Osages, they had some difficulty, because we had bought and paid for our reservation and we had not treatied for it. Well, there was a treaty, but it was just a result of almost like a bill of sale really. They really honestly...we were holding up statehood and we were holding up the land run because we would not agree to allotment. We were heavily pressured to do so. All of the other tribes ended up agreeing to allotment and eventually the Osages made an agreement with the United States that we would allot our lands but we would only allot them to Osages. So they were divided up into individual parcels, 160-acre parcels. They went around at that time and everybody received a parcel of land to homestead. They went around again, you got another 160 acres, they went around again, you got another 160 acres until all of the lands were allotted to Osages.

Under that Allotment Act -- when we agreed to allotment basically the United States Congress passed an act called the 1906 Osage Allotment Act. That really impacted the tribe right up until 2006. So from 1906 really to 2006 when our new government came in, we basically were to a degree governed ourselves under the Osage Allotment Act. It created a final membership roll in 1908. There were 2,229 Osages. When I talk about our history, it's a complicated history. We're a complex people with a complicated history and part of that is that we...each member also received an interest or a head right in the tribal mineral estate. So the mineral estate itself was reserved to the tribe because the tribe had bought it and held it in common, but the royalties from the sale of the oil from the mineral estate went to individuals. So when you were allotted land you also were...received a head right to the royalties from the oil. Now you can imagine that during that time that was actually a lot of money. Literally over night during that time up into the 1920s the Osages became the richest group of people in the world. Now what that really created was a system where when there's a lot of money and it's flowing, it also brings a criminal element with it. That played out on the Osage reservation during that time period.

Before...at this point, the only way you can get a head right to the oil is to inherit it. During that time, there was not that stipulation by the federal government and as a result you had vast numbers of people coming to the Osage reservation to try to marry an Osage. And what was happening is that we would have non-Osages marry into the tribe and then the whole rest of the family would be murdered so that the only person left was the non-Osage who would then collect all of the royalties to the oil. So there was mass murder happening across the reservation during this period of time as well. I don't know if any of you have ever seen that FBI story, it's an old James Stewart movie. No, you've probably...maybe some of the elders here have seen that. There's a part of that movie that talks about when the FBI was first created really one of the first things they were sent to do was to deal with all of the murders on the Osage reservation because obviously it was a reservation, the jurisdiction went to the federal government, the FBI came in, basically there was all kinds of conspiracies going on. There were some people that were convicted of the murders. They did not serve very much time. You know the old saying, ‘If you want to murder someone go to a reservation,' well, that was certainly true during that time period. Like I said, I think this history is important because it tells you...when Dave [Wilkins] was talking a while ago and saying that we've adapted, we've endured, and we've been impacted by the different forms of government that we take on; I definitely think during that period Osages were impacted greatly.

Eventually the BIA [Bureau of Indian Affairs] as a result of the 1906 Act promulgated regs limiting voting and holding of office to adult members possessing mineral interest. So do you see what I'm saying? At that time there were 2,229 Osages. Every one of them had a head right so at that point every one of them could vote. Basically the BIA, which we all know stands for 'Bossing Indians Around,' created a system of governance that was really based on holding property or a plutocracy. So in order to be able to vote or serve on our imposed tribal council you basically had to own royalties to the mineral estate. Well, Osages have always governed themselves and even during that time, it's like I was saying under the 1881 constitution in 1900 and that was abolished, Osages continued to defy the federal government. As we...under the 1906 Act there were always groups of Osages that tried to defy that system of governance and rule ourselves. There were folks that ran for the tribal council that were eventually kicked off the tribal council by the Bureau of Indian Affairs for trying to assert their inherent sovereign rights. We appealed to the BIA a number of times to no avail.

Eventually what happened is there were a couple of court cases where Osages basically went to district court to try to remedy the situation we were under. You can imagine as we went through several generations from 1906 up into the ‘50s and ‘60s, now the system that we were creating was a system where more and more people within the tribe were becoming disenfranchised and could not be part of the tribal government. They could not vote nor could they run for office unless they had inherited a head right. Well, if you're Osage, it's a pretty bittersweet experience because eventually because of all the Osage murders they created a law basically saying that you can only inherit a head right. So by the time you actually become a member, you hope that you're of old age, you want to keep your parents with you as long as you can, depending on how many siblings you had perhaps not all of the siblings were left a portion of the head right so you had brothers and sisters, some older some younger, that may or may not have been part of the tribal government at that time. And like I said, greater and greater number of people becoming disenfranchised.

There was a guy named Leroy Logan. I think him and six other folks basically took this to district court and what they alleged was that the federal government had acted beyond the scope of their authority in approving actions taken by the council beyond those expressly enumerated in the Osage Allotment Act. If you look at the Osage Allotment Act, basically what it said that the tribal council could do was manage the mineral state. Basically approve leases and even the approved leases was a little bit of a stretch because they could approve them by resolution but then they went to the agency, BIA, and it was really the BIA who had the final approval power. So the tribal government really could not do much. Basically the court ruled...this is where it gets really...you know when they talk about schizophrenic court decisions, this is a schizophrenic court decision. The court basically ruled that the power of the Osage tribal council was not limited to those matters specified by the Act. And how they came to that conclusion was that tribes had the ability to self-rule. But why the case was taken was because we weren't under our own self-determination at that point. We were under a system that had been imposed upon us. There were a couple of different cases. They were a little bit crazy. Basically in the Logan case, what was eventually decided or not decided was one of the things that was brought up in the appeals was that the validity of the 1881 constitution and the unconstitutionality of creating a system of government where people were disenfranchised; that was left unanswered.

So what happened in the Fletcher case was a group of Osages then took that...what was not answered in Logan, took it to court. Basically the tribal council at that time was the defendant in the case. They made a motion to dismiss based on sovereign immunity. The court ignored that motion and set about resolving voting rights because the judge at that time felt like it was such an injustice what was happening at the Osage Nation and the court established a commission to reform the constitution and system of governance. Now, it was the right idea, but you had the same thing where now the court is reforming our constitution because they think it's wrong that the executive branch had done that. It was crazy. Basically the court formed a commission, they held a referendum, a court-ordered referendum to adopt a court commissioned constitution and they opened it up to all of the lineal descendents of the 1908 rule. So that was appealed by the tribal council... Based on the vote of that referendum there was a parallel government set up. So now we had the tribal council running and we had a parallel system of government running at the same time with a president, a vice president, a national council, judiciary, where as the tribal council had continued running the way that it had since 1906 where it was basically judge, jury and executioner, so to speak. So you had these two parallel systems. You can imagine that division that caused in a tribe that was already fairly divided. Basically the appeals process finally went through and in what's considered a landmark decision pro Indian Country is that the courts upheld the sovereign immunity of the tribe. So this parallel government that had been operating for three years overnight was disbanded and abolished.

That brings us up to the...Chief Gray likes to call them 'The Fighting 31st.' We had lots of problems at that time. One of the problems, I'm going to go back to the extinction. One of the problems that we had is that we had a solicitor that had interpreted an opinion on the tribal membership and basically his interpretation, and I won't name names -- Scott Keep -- basically had decided that the only real members of the tribe were the original allottees. When the 31st tribal council was elected, I think there were four allottees still alive and based on that opinion, what that meant was that when the last allottee passed on, the tribe would cease to exist. So Osages were aware of this fact. Like I said, it created somewhat of a crises. Chief Gray, under his visionary leadership, many of the tribal council members elected campaigned on resolving the membership issue. There was a...after determining that the membership issue could not be resolved without legislative action by U.S. Congress, a plan of action was developed and allies were engaged. So we had exhausted all of our judiciary remedies and it was basically determined that the only way we could change things at the Osage Nation was to go back to the United States Congress.

Congressman [Frank] Lucas and Senator [James] Inhofe of the...you don't necessarily think of Inhofe as Indian friendly, but he took up the Osage cause so I can't say anything much beyond that. They worked on our behalf. Wilson Pipestem led the lobbying effort, helped the tribe considerably to create a strategy and they introduced HR 2912 to the U.S. House of Representatives. On December 3rd, 2004, President George W. Bush signed Public Law 108-431, which reaffirmed the inherent sovereign right of Osages to determine our own criteria for membership and our own standards for citizenship and also affirms the inherent sovereign right of Osages to determine our own form of government. The only other thing that the act really did was to protect the head right property. So that was the one caveat, that we could basically determine our own membership just like every other tribe -- this was in 2004 -- and we could determine our own form of government. It was a huge, huge...I still can't believe it actually happened. That created a window of opportunity, ended a century of conflict and division.

Basically what happened at that point was this was in December of 2004, in February there was a big celebration. That left basically 16 months, and the reason that I say that is there was a bit of a time constraint because the 31st tribal council that was in there had run on the issue of reform, they found a way to make it happen, created the opportunity, but they knew that when basically their term was up in June of 2006 that there was a very good chance that the next tribal council may undo everything that they had just done. So they created an independent government reform commission. It was comprised of 10 people, eight members, two alternates. It was completely independent. There was a provision in the ordinance that they created around nepotism in terms of the people that they appointed. They could not be related to [them]. All of the folks basically that were on the government reform commission were head-right holders at that time. The duties were prescribed in the ordinance. There was monies appropriated for them to operate. They were basically a volunteer group of commissioners. They had no glaring political aspirations at that time. And basically what they were charged with doing was hiring a staff. Actually when I came on board, they held weekly business meetings, we also held more than 40 town hall meetings. We were charged with getting citizen input, we were charged with drafting a constitution. We were charged with conducting a referendum and holding elections for the new tribal government. That was all to be done within that 16-month period, which was now really...a lot of time had gone by. When I came on board, we had about a year. We had regular mailings. We tried to do as much education on government reform as we could. We held youth summer camps where we had the kids come in, create constitutions. We conducted a nationwide survey. It was mailed out to every eligible member. When you look at this, this is...the majority of the tribe is disenfranchised. When we started this process, if you look at the blue, those were the number of people at that time that could vote or be part of the government. The greatest majority of Osages could not.

Basically as we started narrowing down and getting down to drafting the constitution after we held all the town hall meetings, there were still some issues that were very controversial. I'm kind of skimming over this, but I can't tell you...with this kind of change and with so few holding so much power, you can imagine that there was a group of people that did not like what was happening. Even though we were all related, even though most people knew that it was the right thing to do, I affectionately like to refer to them as the 'Osage Taliban.' There was a group that were digging their heels in. They did not want to see this. Every tribe has this group. And we dealt with them throughout that reform process.

The very last thing that we did before we drafted the constitution was we held a referendum. And I say that because for us at that time it made a huge difference. We felt like there were some issues that were so controversial that if we put them into a constitution we had so little time that the constitution would not pass. So we put it to a vote of the people, the issues that we found most controversial. Some of them were on membership, blood quantum, no blood quantum, I can go back but during that time before the Osage Allotment Act there were probably at least half of the Osages that were considered by the other half as not eligible for membership. So there was huge controversy. With so much money at stake, you can imagine that there were a lot of other Indians and there were a lot of non-Natives who wanted to be Osage during that time because it meant getting a whole lot of money. So membership had always been very contentious and so we put that on the ballot even though we felt like we really wanted to unify the tribe that unless that question was answered, the question on blood quantum or lineal descendency, that we would have great difficulties. Also dual membership was another issue that we addressed.

There were seven questions on governmental structure; there were two questions reserved on reserve legislative power of the people, recall, citizen initiative, that kind of thing; one question on whether to separate, structurally separate business from politics; and then the last question was probably the most controversial question and that was the question on, what would the new role of the current tribal council be in the new government? We'd gone to enough town hall meetings that we knew that they had to have a role. How...what that role would look like, basically there were two choices put on the ballot. One was to create a bicameral system of government where the current tribal council would serve sort of as a House of Lords and there would be another legislative body and then the other question was to create that tribal council as a mineral council that served as an independent agency. That was really the only close split vote. I think it really literally was like 51 percent to 49 percent. It was really, really divided. And basically 51 percent of the people that voted in that referendum wanted the Osage Minerals Council to be an independent agency. Now I don't think what they realized at that time in retrospect was that meant they would have no legislative authority whatsoever and that it would actually exist as an independent agency under the executive branch because there were only three branches of government. When they figured that out it became pretty controversial. Basically the commission hosted a legal symposium after the referendum and just to have as many Osage lawyers come in and clarify what the vote on question number eight meant in regards to the minerals council.

We then, after that clarification, we drafted a constitution. We basically edited and edited and edited and then that draft constitution was mailed to every eligible member. This is just a little thing that Charles Redcorn had written. Basically on March 11, 2006, by two-thirds majority vote the Osage Nation constitution was ratified. Yay! In terms of fulfilling our duties as the Osage Government Reform Commission, we still had work to do. Once the constitution passed we created a transition plan for the new government. We formed a minerals council election board and tribal council adopted election procedures, formed a constitutional government election board, tribal council adopted election procedures. That was way more complicated than I'm making it sound right now. I won't even get into it, but not only were we having difficulty with our Osage Taliban but the BIA was, who had pretty much ruled at Osage 400 years gave us a whole lot of trouble, too. The government basically came in on July 3rd and the Osage Nation constitutional government was formed."

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