Bureau of Indian Affairs

A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country

Year

The federal government has a long-established special relationship with Native Americans characterized by their status as governmentally independent entities, dependent on the United States for support and protection. In exchange for land and in compensation for forced removal from their original homelands, the government promised through laws, treaties, and pledges to support and protect Native Americans. However, funding for programs associated with those promises has fallen short, and Native peoples continue to suffer the consequences of a discriminatory history. Federal efforts to raise Native American living conditions to the standards of others have long been in motion, but Native Americans still suffer higher rates of poverty, poor educational achievement, substandard housing, and higher rates of disease and illness. Native Americans rank at or near the bottom of nearly every social, health, and economic indicator. Small in numbers and relatively poor, Native Americans often have had a difficult time ensuring fair and equal treatment on their own. Unfortunately, relying on the nation's goodwill to honor its obligation to Native Americans clearly has not resulted in desired outcomes. Its small size and geographic apartness from the rest of American society induces some to designate the Native American population as the “invisible minority.” To many, the government’s promises to Native Americans go largely unfulfilled. Thus, through this report, the U.S. Commission on Civil Rights gives voice to a quiet crisis.

Resource Type
Citation

The United States Commission on Civil Rights. A Quiet Crisis Federal Funding and Unmet Needs in Indian Country. (2003). The United States Commission on Civil Rights: Washington DC. https://www.usccr.gov/pubs/na0703/na0204.pdf

Indian Affairs Mortgage Handbook

Producer
U.S. Department of the Interior: Bureau of Indian Affairs
Year

The purpose of this handbook is to provide guidance to BIA staff for processing leasehold and trust land mortgages on trust or restricted land; specifically, how to review and analyze a mortgage loan request from a lender using a minimum, streamlined, and standardized process. The handbook contains checklists, templates, and other documents to assist staff throughout this process. All references to “days” within this handbook are calendar days, not business days. Additionally, all references to “Agency” and “Region” within this handbook are to the applicable BIA Agency and/or Region. The following items will be addressed in more detail in the following pages:

  • Mortgage documents required from the lender
  • Requesting a certified Title Status Report (TSR)
  • Process for reviewing & approving leasehold and trust land mortgages
  • Completion of the BIA checklist for the required documents
  • Review of the lender’s appraisal
  • Reviewing certified TSRs for land status and encumbrances
  • Preparing the Regional Director’s (RD) or Agency Superintendent’s Decision Letter
  • Recording process in Land Titles and Records Office (LTRO)
  • Actions taken in the event of defaults and foreclosure
Citation

U.S. Department of the Interior, Bureau of Indian Affairs. "Indian Affairs: Mortgage Handbook 52 IAM 4-H" July 15, 2019. Handbook. (https://www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/pdf/..., accessed July 21, 2023)

The Ya Ne Dah Ah School (Chickaloon): Melding Traditional Teachings with Modern Curricula

Year

For many generations, education in American Indian/Alaskan Native (AI/AN) communities has been controlled by sources external to the communities and the people themselves. Large bureaucratic agencies, such as the Bureau of Indian Affairs (BIA) or public school systems overseen by state governments, decided on policies and practices for educating Indian children, mainly without regard for the concerns and priorities of Native communities. The cumulative effect of this disconnect is a long-standing legacy of low academic achievement, high drop out rates, and limited options for AI/AN students in school systems across the United States. In addition, the imposition of assimilationist educational policies resulted in ever-dwindling numbers of tribal and village members who are fluent in traditional languages and cultural practices. As tribal nations across the country assert their sovereign right to self-determination, they frequently look first to seizing control of the education of their youth. Such control allows tribal nations to create policies and implement practices grounded in shared tribal values and traditions, thereby allowing tribes to begin to reverse the devastating effects of cultural and academic erosion associated with non-tribal control. The story of how Chickaloon Village, an Ahtna Athabascan Indian community near Anchorage Alaska, reclaimed control of its children’s education, incorporated modern skills with traditional knowledge, and exceeded state and national standards stands as a proactive model of tribal self-determination, Native sovereignty, and community resourcefulness in creating a school of its own.

Citation

"The Ya Ne Dah Ah School: Melding Traditional Teachings with Modern Curricula". Honoring Nations. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. March 2005. Case Study. 

Permissions

This Honoring Nations case study is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development. 

Good Native Governance: Keynote Address

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference keynote speaker, Kevin Washburn, Assistant Secretary — Indian Affairs for the U.S. Department of the Interior, examines how Native nations are engaging so well in self-determination through good governance. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Native Nations
Resource Type
Citation

Washburn, Kevin K. "Keynote Address." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

From the Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference

Producer
UCLA School of Law Conference
Year

Assistant Secretary Kevin Washburn provided a snapshot of Native nations engaging in self-governance reinforcing the notion that "almost anything the federal government can do, tribes can do better" through good governance. 

Native Nations
Resource Type
Citation

Washburn, Kevin K. "Keynote Address." Good Native Governance: Innovative Research in Law, Education, and Economic Development. UCLA School of Law Conference. Los Angeles, California. March 7, 2014. Video.

John "Rocky" Barrett: The Origins of Blood Quantum Among the Citizen Potawatomi

Producer
Native Nations Institute
Year

In this excerpt from his presentation at NNI's "Emerging leaders" seminar in 2012, Citizen Potawatomi Nation Chairman John "Rocky" Barrett provides an overview of how the U.S. government -- specifically the Bureau of Indian Affairs -- imposed blood quantum on the Citizen Potawatomi people, and how the nation has worked to reclaim and exercise its right to determine citizenship according to its own criteria.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "A Sovereignty 'Audit': A History of Citizen Potawatomi Nation Governance." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 11, 2012. Presentation.

"Citizenship. We knew we could amend our constitution because they told us that the only way we were going to get this payment from the 1948 Indian Claims Commission -- the 80 percent of the settlement that had been tied up since 1948 -- in 1969 is we had to have a tribal roll and the BIA [Bureau of Indian Affairs] told us that the only way you could be on the tribal roll was to prove that you were one-eighth or more Citizen Potawatomi. Now the blood degrees of the Citizen Potawatomi were derivatives of one guy from the government in a log cabin in Sugar Creek, Kansas in 1861 who was told to do a census of the Potawatomi, the Prairie Potawatomi and the Citizen Potawatomi. And he told everyone that they had to appear. And as they came in the door, he assigned a blood degree based on what color their skin was in his opinion, and full brothers and sisters got different blood degrees, children got more blood degree than their parents 'cause they'd been outside that summer and those were the blood degrees of the Citizen Potawatomi.

There was a full-time, five-person staff at the central office of the BIA in Washington, D.C. who did nothing more than Citizen Potawatomi blood-degree appeals, about 3,000 of the blood-degree appeals when I first took office. When I became chairman, it had grown to 4,000 or 5,000 and I was in the room when a guy named Joe Delaware said, ‘I have a solution to the Potawatomi blood degree problem. We'll resolve all this. The first mention in any document, church, federal government, anywhere, anyhow that mentions this Indian with a non-Potawatomi language name, he's a half.' Well, they were dunking Potawatomis and giving them Christian names in 1702, full-blooded ones. If you were dealing with the white man, you used your white name and if you were dealing with the Indians you used your Indian name, like everybody else was doing. And so it was an absurd solution. I told him, I said, ‘That's nuts. That's just crazy. You're going to get another 5,000 blood-degree appeals over this.' He said, ‘Well, that's the way it's going to be.' Well, that was the impetus for our coming back and establishing, ‘What are the conditions of citizenship?' And we stopped calling our folks 'members' like a club. They're 'citizens.' And it finally dawned on us that being a Citizen Potawatomi Indian is not racial. It's legal and political.

If they...according to the United States government, if a federally recognized Indian tribe issues you a certificate of citizenship based on rules they make, you are an American Indian, you are a member of that tribe. And you're not part one, not a leg or an ear or your nose but not the rest. You're not part Citizen Potawatomi, you're all Citizen Potawatomi. The business of blood degree was invented so that at some point that the government established, tribes would breed themselves out of existence and the government wouldn't be obligated to honor their treaties anymore. That's the whole idea! That's the whole idea of blood degree and we're playing into it all over this country now over divvying up the gaming money. But I'm not going to get into that. But the business of blood degree, the 10 largest tribes in the United States, nine of them enrolled by descendency and that includes us. We changed it from blood degree to descendency, which was the only reasonable way to do it because we had no way to tell because of this guy in the log cabin in Sugar Creek was what we had.

And then we had permutations of that over the next eight generations that became even more absurd and Potawatomis had a propensity...we're only 40 families and all 31,000 of us had a tendency to marry each other. So when one Potawatomi would marry another Potawatomi -- I'm not saying brothers and sisters or first cousins -- but when they'd marry another Potawatomi then you got into who was what and it was...and this business of the certified degree of Indian blood was ruled to be unlawful, to discriminate against American Indians in the provision of federal services based on CDIB. It's supposed to be based on tribal membership, not the BIA issuing you a certified degree of Indian blood card. A full-blooded Indian who is a member of eight different tribes, whose family comes from eight different tribes, not any white blood, would not be eligible to be enrolled in many tribes. They had absolutely no European blood, would not be eligible simply because he was enrolled in multiple tribes."

The other thing about citizenship is ‘where do we vote?' The only way you could vote in an election at Citizen Potawatomi was to show up at that stupid meeting, violent meeting, and the guys that were in office would say, ‘Okay, everybody that's for me stand up.' Well, nobody could count that was on the other side so everybody would kind of creep up a little bit so you could count. Well, they counted you 'cause you creeped up a little bit so you voted against yourself. So the incumbent would say, ‘Okay, everybody that's for this guy stand up. I won.' Well, that's not how to elect people. That's not right. Two-thirds of our population lives outside of Oklahoma, one-third of it lives in Oklahoma. Those people are as entitled to vote as anybody in the tribe, so the extension of the right to vote and how we vote and for whom we vote and what the qualifications of those people and the residency requirements of those, that was an issue of citizenship that we needed to determine."

Robert Hershey and Andrew Martinez: The Legal Process of Constitutional Reform (Q&A)

Producer
Native Nations Institute
Year

Robert Hershey and Andrew Martinez engage participants in a lively discussion about the intricacies of secretarial elections and whether and how Native nations with Indian Reorganization Act constitutions should remove the Secretary of Interior approval clause from those governing documents.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Martinez, Andrew. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Andrew Martinez:

"Now I'm going to go into my questions. This Pueblo of Laguna document was the only document that actually noted anything towards cost. Allocated funds from the federal government for the tribe to go through this process. Funds are in the process of reprogramming for the secretarial election in the amount of $20,000. My question to the audience is, is this the same across the board, has this value changed since 2012? How's the money best allocated? What worked for the tribes?"

Audience member:

"Our tribe just went through that process of removing the Secretary of Interior, but we failed and they never mentioned to us any cost associated with it at all. And we did receive a letter saying that we would be okay as an IRA tribe, but there was still the fear within the community that we would lose our status and that we wouldn't be able to get grants, etc., etc."

Andrew Martinez:

"Would you mind me asking how you addressed that fear when it came up?"

Audience member:

"We held meetings, but we didn't hold enough meetings because by the time it was announced that there was going to be a secretarial election...going back to it, I've been on the committee for two years, and going back we should have held more educational meetings. I see that now."

Andrew Martinez:

"Hindsight's 20/20."

Audience member:

"Yeah, but that's what we should have done is that we should have held more meetings and did more explanation of what was going on and the benefits of it and so on and so forth. But it was just too little of time and not enough education."

Andrew Martinez:

"Did you work to only remove the approval clause from the mandate section?"

Audience member:

"That was the only amendment that we worked on, yeah."

Andrew Martinez:

"Okay. Thank you. Thank you for that. Any other responses? One other topic that I wanted to hit on is the means of communication. A lot...actually Red Lake right now has a Facebook page for their constitutional reform. There are other tribes that have Facebook pages. White Earth utilized YouTube to get information out to citizens. It's still up, you can watch it, it's actually very helpful. It helped me understand better what the process was going through and understand also the history of the tribe. It was great.

Some tribes have Twitter accounts. I guess I'm the young'in in the group right now. Twitter, I guess, is active for me so I could check Twitter and understand what's going on there, too. I also heard that White Earth used web sessions, broadcasted their meetings, understanding that you felt like you had to have or should have held more educational sessions. If your tribal members...if you have a large group of your tribal members who live off reservation, use the Internet, if they have Internet access, use it. Broadcast your meetings. I believe Justin.tv is one where you can set up a webcam, broadcast it, anyone can log in and check it out.

And if you choose to go the Facebook route, you have open discussions on there. It's up to you, the tribe, how much information you're going to put out there. If you only want to post about meeting updates and stuff like that, that's fine. You may still get some feedback, backlash to what's happening. You might get straight out opinions and sometimes some of the interactions that I've seen on the Facebook pages is pretty harsh, but it's intense and I would note that a little criticism and a little conflict is good. It breeds innovation. However, once it gets to a certain point it just starts to kill the process and really those are the individuals who you need to communicate with the most to start to quell their fears.

This last document that I have is a flow chart that I found from the Ho-Chunk Nation. Really this is how they went to break it down on there when they went through this process. They also utilized YouTube. However, they only have one video up. So moving from that on to questions, does anyone have any questions?"

Robert Hershey:

"There's a gentleman in the back there."

Audience member:

"Mr. Martinez, have you come across anything concerning the IRS [Internal Revenue Service] within doing what you're doing because some of their rules apply to the tribes too? And a lot of the times when you're doing a financial format for your people, we have to follow the federal guidelines and some of it seems like they're trying to infiltrate the government."

Andrew Martinez:

"So any documentation that I found regarding the IRS is what you're asking about? I have not. I could look into that, but I haven't found anything official."

Audience member:

"And then the other thing, like Mr. Hershey was saying is that for that reason the tribes are kind of...the funding source. When you get the funding from the federal government, when you remove yourself from that, they say that you're not going to get anymore funding. And in the health organization, there's some tribes that are under that format and other tribes are under the other format and they call it, I think, self-determination or something like that. And tribes were asking the questions, "˜If you go on that sides, do you get no more funding and if you stay on this side you still get funding.' So that was a lot of the concern. So a lot of the tribes didn't want to switch over for that reason too because that's where the money comes from to support all the programs that are for the tribes anyway. So that's why I was thinking that if you put the IRS, the funding source, the financial part of it, it has to be under all those things too. And they don't mention it and I looked at that [25 CFR] many times and I tried to make heads or tails with it, but you can't find it there. So that's why he was saying that you could find it elsewhere, too, and that's a good idea."

Andrew Martinez:

"Thank you."

Robert Hershey:

"I'm going to add something to what you said as well. Funding is obviously a major issue. These elections are not cheap. They are costly. But this is also something that the government has to think about in putting away this kind of...putting nest eggs away in anticipation of accomplishing this in order to cover the cost too. There's something that I wanted to follow up on as well and it goes back to this issue of trust. Not just a loss of funding or loss of federal status, but there's some tribal members or citizens -- we haven't had that discussion yet, the distinction between membership and citizenship, that's for another conference -- that they don't trust necessarily their tribal governments. I just want to put that out. That's a thought that comes out. So some of the people want the Secretary of the Interior to have oversight on this and I know some of you deal with that situation as well.

The other point that I wanted to bring out; there are alternatives in terms of amending constitutions as well. For example, if your constitution is restrictive as to the membership, you can always go to Congress and get a special congressional statute. Pascua Yaqui has done that. While their membership was very restrictive in their constitution, they went and got a special... I won't use an appropriation, but a congressional act designated that opened their enrollment for a period of three years. So there are also ways of getting around the specific inability to amend your constitution by seeing if you could get certain things accomplished by special acts. Any other questions? Yes, yes."

Audience member:

"One more question on that. Some of the tribes were established by executive order. And is there any other way you can get around that to be sanctioned by the Congress?"

Robert Hershey:

"I think the body of law is pretty well clear that whether you're established by treaty or by executive order, your rights and obligations and commitments are going to still be the same, they're going to be equal. I think that there's enough experiential evidence over the years and I have not seen any kind of distinction that would denigrate your rights because you're executive order. A lot of the tribes in the west...the reservations were created by executive order and they still retain their inherent sovereignty and you try to go ahead and take away their rights and it would not be accomplished that way. You've got to be on the same footing."

Audience member:

"And then the other one is, when they fund the services to the BIA [Bureau of Indian Affairs] where we're at, it's getting less and less and less. So if they can't get you the other way, they'll take the money away from you. So you don't have the services available for what you have too."

Robert Hershey:

"We call that termination by non-appropriation."

Audience member:

"Right. That's where we're at right now."

Robert Hershey:

"And especially with the sequester too. I know that tribes have been hit really hard with sequestration of funds as well."

Audience member:

"Right. My president, that's what he was asking BIA and they tell them, "˜We want original funding because if you can send billions of dollars across the ocean to these other people that you don't know and you know us, how come you can't give it to us?'"

Robert Hershey:

"This also resonates the larger question as to whether or not you feel economically empowered to go ahead and resist. And that's a consequence of colonization over the years as to whether or not you think you have the power to say no based upon economics or the power to do things on your own by virtue of your economic conditions."

Audience member:

"Thank you."

Audience member:

"I had a question about the secretarial approval that's in those constitutions that exists now. Is there...let me back up. I'm a management product of the education system. So my whole focus has always been on structures. Well, with my tribe it seems like the structures that are in place aren't meeting the needs of the people. There's a lot of resignation with tribal members about our government, our leaders. There's a lot of fear about repercussions if you're too vocal in the community and our court systems are controlled by our tribal leaders. So I think there's a lot of people that want to see constitutional reform, but there's fear about what to do with that.

So my question is, some alternatives for grassroots people who can have a voice about those constitutional amendments but...and I was told because, I don't want to make it sound like it's just no other way, but if the people can come together and our leadership would see that this is what the people want, possibly that they would buy into it and they would jump onboard. Hopefully that's the way it'll go, but I just want to make sure that if it doesn't, that the people have a way to deal with the situation so that they can have more voice in what's going on with our tribe. And I guess that's my concern so...

This is the question I guess. Is it possible, these petitions...because there's been a lot of petitions that circulate about different things in the tribe and one of the things is a lot of times they'll petition for money. So we have all the people vote on petitions to come from a certain funding. Well, the way I look at that is, if we get the number of people to sign the petition then legally the council should honor that. That's my interpretation, but I don't know because they don't. So I don't understand enough about legally the tribal members other than voting but we're an IRA [Indian Reorganization Act] constitution and it doesn't reflect who we are as a people and we're kind of stuck with it.

So if the people would petition the Secretary of Interior on some constitutional changes, is that going to be honored or are we...is there a way that the grassroots people can have a voice in our constitution and have those reforms be...to have some outlet? I guess is what I'm looking at, because like I'm telling you, there's a lot of frustration, there's just resignation, "˜Why do anything?' The people, the way that our election process works is families aren't representative, clans aren't representative, it's just whomever gets on the council is there, sometimes you don't have a family member there to represent you. So that's why I'm just saying that there's a lot of frustration. Maybe you have some suggestions on people like me that want to see some reform."

Robert Hershey:

"I hear your frustration. I would venture to say that in your constitution there exists a provision for initiative. Is there a provision for initiative in your constitution? There might be a provision for referendum and the distinction between initiative and referendum is that a referendum is usually decided by the tribal council and it's submitted to the members, the citizens, for a vote. The citizen-initiated way to create a referendum is by what's called an initiative.

So I would suggest two things. Number one, use that procedure in your constitution or those of you that have an initiative procedure in your constitution. Two, go around and get the signatures of enough people to comply with those requirements for initiative, which would then force the tribal council to have a vote on whatever particular thing you want. You're still going to have to go through your own tribe in this regard. The amendment of a constitution that's already been approved by the Secretary of the Interior is going to require a secretarial election so you could perhaps...and again, it's questions of authority within your own community and those people that have...are clothed in those authorities and there's power situations and power dynamics.

So the other option is to try and create a consultative mechanism. We hear about tribal consultation and I mentioned something to you yesterday in terms of how tribes consult with the federal governments or the state governments and the federal agencies, I've tasked one of my students, Edward, this semester because the idea that the tribal legislative bodies are not listening to people -- grassroots people -- to create some sort of a consultation mechanism that may or may not already be in place from tribal peoples to their tribal councils and try to get something like that passed. If...regarding an initiative, the tribal council is bound to honor and hold an election on a tribal initiative if there are enough signatures passed and if they don't do that, that's something where you can take the tribe to court, it doesn't involve sovereign immunity issues, that you could go ahead and try to force the council to go ahead and comply with the terms of the initiative.

So, either you get an initiative to deal with a large issue of constitutional reformation or you create an initiative to create an ordinance, a law, a statute that talks about intra-tribal consultation. So there are mechanisms in that regard.

Audience member:

"I was just wondering, let's say you failed at it, but for reasons other than participation or lack of participation. Is there a time limit or a waiting period before you can try again with the feds?"

Andrew Martinez:

"Not that I've seen. I haven't seen assigned period. It just...it takes a lot of work to get it initiated once again, get everything going."

Robert Hershey:

"That's the old thing, you know the definition of...no, I'm not going to go there. But I would give it sufficient time to go ahead and analyze what happened and figure out as the woman over there said in terms of more outreach, more education because of the fears and mistrust. Mr. Chairman? That's you, yeah. A comment, whatever."

Thomas Beauty:

"Yeah, just a comment. Removing the secretarial approval, I was thinking why wouldn't they approve? If they went through the whole process and they didn't approve it, but they approved somebody else's, what do you think their thinking is in regards to that? Are they just doing it because they want to still keep control or are they doing it because...what reason do you think? I'm not quite sure what..."

Robert Hershey:

"I think that the tribe itself votes to remove the Secretary of the Interior approval language, then the Secretary of the Interior must go ahead and remove that language. I don't think they have discretion to go ahead and say to one tribe that, "˜Yeah, we'll remove it. We agree with you that you can go ahead and remove it from your constitution,' and then not remove it from another tribe's constitution."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"I think the denial was that their members voted against it."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"They worked it, presented, they had an actual secretarial election, but that their membership voted against it. I guess there was fear and mistrust."

Terry Janis:

"In other situations we saw on the earlier panel that I was in, the woman [Jennifer Porter], her tribe reorganized and restructured, the BIA refused to approve that because their constitution still required constitutional approval or BIA approval, secretarial approval in order to amend their constitution and so they did a second secretarial election to remove the requirement for secretarial approval and then they did it on their own. But in that removal of secretarial approval, the BIA approved that.

So if you think about what that says about the Bureau of Indian Affairs, whenever you give them authority to approve or disapprove your decisions, they have two considerations I think. One is they have a trust obligation to give their best thought to it. They're not just going to agree with you just because they agree with you, but their history of a trust responsibility is to overrule you if they think you're doing the wrong thing. So that's a real sort of issue. You're giving them authority to disagree with you. The second issue is there is a long history of paternalism with the Bureau of Indian Affairs, there just is. And as any kind of large bureaucracy, you've got people in there that are old, old, 1950s Termination-era guys with the white hair and kind of like that guy."

Robert Hershey:

"No, no, no. Wait a second, they have white hair, I have moonstruck hair. That's right."

Terry Janis:

"But for that agency to change, people are going to have to die out. You know how bureaucracies are, right? And remember who they are. They come from assimilation, termination, that's why they were set up. It's going to take them a long time to change. And so as long as you continue to give them, in your constitution, secretarial approval authority, those are the dynamics that you're going to have to deal with and it's a crap shoot every time."

Thomas Beauty:

"Well, thank you for that clarification. Not only dealing with these entities of the government, they're always looking at what's their liability, what's their liability and that to me tells me that they don't want to make a move. They'll take forever to do anything because they're still thinking about it. What can happen down the road if we do this? Because they blanket all the tribes together and if they do one thing for one tribe and then, "˜Oh, no, it's a big fire!' So they take forever and I just wanted to put that comment out there. I know we probably all know that, but just dealing with them in my little short term, that's what I understand from them."

Robert Hershey: Dispelling Stereotypes about the Federal Government's Role in Native Nation Constitutional Reform

Producer
Native Nations Institute
Year

Robert Hershey, Professor of Law and American Indian Studies at The University of Arizona, dispels some longstanding stereotypes about what the federal government can and will do should a Native nation decide to amend its constitution to remove the Secretary of Interior approval clause or else make their foundational governing document more culturally appropriate in ways that perhaps do not conform to federal bureaucrats' attitudes about how that Native nation should govern itself. He also offers a broad definition of constitutions that encompasses things like Indigenous ceremonies, songs, the knowledge of elders, etc.

Native Nations
Resource Type
Citation

Hershey, Robert. "Dispelling Stereotypes about the Federal Government's Role in Native Nation Constitutional Reform." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Robert Hershey:

“Good afternoon everyone and thanks for staying awake after that fabulous meal. I usually have my students interact with me, but Terry [Janis] said something about being older and I want to just get this out of the way. May I ask you what color your hair is?”

Audience member:

“It’s calico.”

Robert Hershey:

“Okay. I wasn’t anticipating that. I like that one. There was a young man over there, I’m looking for people with the same hair color. Calico, I’d never heard that. Robert, what color is your hair?”

Audience member:

[Inaudible]

Robert Hershey:

“All right. My hair color is moonstruck, just so you know that. It’s not silver, it’s not gray, it’s not old. You’re getting a little moonstruck yourself. So let’s talk about that.

The other thing I want to talk about is gravity because I always like to remember, someone was talking about starting the beginning of the day with a prayer. I always like to remember that if it wasn’t for gravity, I would float away and oftentimes I do float away. So I’m pretty attuned to the idea that I like gravity. If you all want to stand up and jump and wake yourself up and feel gravity, you can. No takers?

The other thing that I want to tell you about is that in addition, I’m going to introduce myself a little bit, but I’m a judge for the past 25 years for the Tohono O’odham Nation, and it’s about questions. So I’ll ask you right now, do you have any questions? Now, the reason I’m asking you now is to give you time to think because you know that you’re going to have questions, but you usually take some time to think about your questions. You’re not like us, we stick our hands right up. ‘Us’ meaning me, this face. We take our time to answer, to ask questions.

When I was a judge, there was a removal proceeding of a council member and I’m up there, and it’s almost time for lunch and I said, ‘Are there any questions?’ And being dutifully trained and schooled by many of you individuals in many nations that I’ve worked with, I’m told to wait because people will have questions and so I wait and I wait. I must have waited over five minutes for questions and I said, ‘Okay, we’ll break for lunch and when we come back, we’ll finish this up.’ So I step off the bench and come down and the chairwoman of the legislative council says to me, ‘You didn’t wait long enough.’ So, I know that if you think that I’m going to ask you, ‘are there any questions?’ and you see a pause there, you’ll know ahead of time why I’m pausing.

I was raised in Hollywood, California. I was skateboarding down the Avenue of the Stars before they even laid Avenue of the Stars. I had hair down to here when I went to law school. My crazy aunt said my hair was my antenna to the cosmos and so I kind of thought that description was pretty good. And ultimately I became, went to law school and then I became a legal aid attorney for Dinébe’iiná NáhiiÅ‚na be Agha’diit’ahii (DNA People’s Legal Services). Close? Good. Joe? All right, I did it. It took me three weeks to pronounce it where I worked back in those days.

So when I became a legal aid attorney on the Navajo Reservation, John, this’ll be referencing the trickster idea and this is how Native people have played tricks on me my entire legal career. When I was asked, and I lived way back in a canyon about a mile and a half off the road and my landlady at that time -- who was in her 70s, still riding horses, chopping wood, herding goats -- she said, ‘Will you do me a favor? Will you please take my goats from my house to your house?’ And I figured a mile and a half; a young boy from Hollywood, raised with Charleston Heston, Peter O’Toole, cowboys and Indians movies, thinking that I could do this. And as soon as I started taking the goats, they took off up in the hills and they just went up. And the lead goat was named Skunk and he had this big bell on him that clanked and every time he moved away from me it clanked and I got so pissed off at this goat. And finally I came back after an hour and a half. I said, ‘I’m so sorry. I am so very sorry. I lost your goats.’ And all she did was laugh hysterically, bent over double, laughing and laughing and laughing. She says, ‘Don’t worry. They know where to go.’ And I walked back to where I lived and they were in the pen next to my house. And ever since then I’ve had to have a sense of humor about all the ecological catastrophes that are befalling us, about all the work.

Let me tell you something: in 1969, ‘70, I started this in ‘72, working with Native peoples, the strides that you have made, the things that you have accomplished in that time, the youth, all the programs have been monumental. So you should all know that regardless of the challenges, you are striving in such a positive direction and your attendance here at this [seminar] is a testament to that fortitude and stability that you’ve carried forward for over 500 years. And I appreciate it. I want you to know how honored I am to have had an entire legal career of over 40 years working with Native people. So I thank you too for allowing me this time to be with you.

The ethics of what we do today, the integrity that you mentioned -- humor, respect, integrity -- the ethics of what you do today become the oral tradition 100 years from now. We do not go ahead and live in the past. It’s dynamic. So what we are doing today is what will be thought about 100 years, 200 years from now, because you know you’re still going to be working on this -- as we all are -- 200 years from now. I don’t plan on going anywhere so I hope you’re not. So I want us to remember about that. The ethics of today become the oral history of tomorrow. You’re also saddled with the idea of imagery and American Indian policy because Native peoples are thought to be historical. Non-Native peoples can’t quite grasp the idea there are living dynamic societies in existence today, wrestling with their own problems after all these years of subjugation, if you will.

You mentioned something about trust and trust in constitutional reformation is absolute key because I’ve worked with tribes where the committees that the tribal governments have established thought of themselves as the anti-government, if you will. That they thought of themselves as the shadow government because they didn’t trust their tribal councils. So they were creating their own agendas in and of themselves. That’s why this dynamic partnership between the leadership and this independent body is absolutely crucial and it’s consistent and constant.

There are tribes that have been working since 1975, one of your neighboring Apache tribes, since 1975 -- Pascua Yaqui has been working since 1990 -- to amend their constitutions. I worked two years with Pascua Yaqui. It is a difficult process. Don’t, you may get frustrated; it is still an amazingly worthwhile thing to do. The gentleman from Canada was talking about, ‘But what about housing, why don’t we work on that?’ And as I said, O’odham in their districts, they have special powers reserved to the districts. Same thing with Joan’s [Timeche] in Hopi, and many of your communities, have already worked these things out. You have historical precedence upon which to build. They all become the framework for constitutional revision.

The BIA [Bureau of Indian Affairs] -- as much of a tiger as you see the BIA -- I think it’s an administrative mindset in the BIA because the law seems to be more progressive than how the BIA is effectuating the law, because you have provisions in 2000, the reformation to contracts, not needing as much oversight, even in land leasing, if you will. Only those contracts that encumber land for more than seven years require BIA approval in leasing. There are special congressional statutes giving tribes the authority to go ahead and enact leases for 25 years, up to 25 years without secretarial approval.

But here’s the key, here’s the kicker I think of what you wanted me to talk about and Andrew’s [Martinez] going to talk later and he’s going to show you, in big bold type, of the Native American Technical Corrections Act where the removal of the clause that requires secretarial approval does not mean you will lose your status as a federally recognized tribe. I’ll say that once again. You remove the language, taking out from your constitutions the requirement of secretarial approval of what you do, does not mean you lose your status as either an IRA tribe or a federally recognized tribe. You can do that. And we had testimony from the folks at Kootenai today to that affect. Laguna is another community that has done that. You see this happening. Do not let them threaten you with the loss of federal status. Forget about it. Give yourself permission to be whatever you want to be.

One of the other things that I’d like to tell you about is that because of the trust responsibility, and we’re all familiar with the trust responsibility -- I’m not going to go ahead and give you law professor’s lecture on the origins of the trust responsibility other than to say that it’s almost 200 years old in the federal case law. But because tribes have been so whetted to this notion that if they do something that does not comport with the values of this dominant society that they’re going to lose some sort of federal support for what they do. You have to disabuse yourself, you have to stop thinking in that way because there are international precedents and Miriam [Jorgensen] brought this up, but I wanted to reiterate this and harp on this.

The American Declaration, the United Nations Declaration on the Rights of Indigenous People, the International Labor Organization Convention 169, all are emerging and very, very, very strong and compelling documents that you should be thinking and you should learn about that and you have to ask your attorneys to tell you about that. If your attorneys don’t understand that, you send them to us, you send them to the University of Arizona for a crash course in international law precedents, and you start thinking in terms of the rights contained in those documents as being embedded in your constitutions. United Nations Declaration on the Rights of Indigenous Peoples, International Labor Organization 169, the American Declaration, the Committee for the Elimination of Racial Discrimination, these should all be part of your signposts, your guides as well; very, very critical. This gives you a whole other avenue. The United States has signed onto the United Nations Declaration. This gives you a whole other strengthening body of instruments to help you craft what you’re trying to accomplish.

Two other small points, not so small -- what I call mapping intergenerational memories. Every time that you go to your community in this process, community engagement, you are also asking for bits of history, you’re asking your elders to contribute to a body of knowledge, you are asking them to give forth their intergenerational memories and those intergenerational memories are not just for one specific purpose, not just for the purpose of revising a constitution, not just for the purpose of what was the home site assignment. They are the purpose for everything that you do. So that anything you undertake has this body, this repository of memory, whether it’s map-making your ancestral territory, whether it’s in the case of litigation for aboriginal title, you’re marking place names...I understand there’s issues on revealing sacred knowledge. There’s issues on dealing when it is appropriate to reveal, to talk about these things. That’s up to each community, each distinct individual community, to find a mechanism to go ahead and preserve and identify these intergenerational memories that help you for your entire broad spectrum of what you want to accomplish because then, in today’s ethics, you’re carrying forward past ethics and into the future.

The last thing, and it kind of dovetails on this, is what I call the 'reality of river thought' and the reality of river thought came to me when I saw the movie 'Apocalypse Now' for about the 18th time. You get in a boat in Saigon and you’re in this very, very busy city and as you go down the river further and further and further, further down the river, the only thing that matters to you is what’s right in front of the bow, what’s right in front at that moment. We’ve had speakers talk about never forgetting about where you came from. So in the process of constitutional revision, always remember that you started out in a large society and that is what’s carrying you forward. So when you’re looking over the bow, remember, there’s a whole past bit of information. It’s much more grander in scope. Don’t get trapped into this idea that the attorneys are basically saying, ‘Everything has to be in the four corners.’ You have dances, you have songs, you have paintings. These are all constitutions. The trick is how you craft them in a way that substantiates and flavors -- and as John was talking about -- this magnificent opportunity to engage your community, to determine where you’re going to be next and you’re doing it with respect, integrity, neutrality, a few punches here and there, can’t be avoided. Don’t ever let anyone ever tell you that you have to be bound by the forms that you were given to. Create your own. Create your own.

Now, Andrew’s going to move us into this idea that, so right now, when you have these certain forms of constitutions, how do you go about, what is the legal mechanism how you go about then reforming under the processes that have already been dictated to you and how do you start shaking those things off?”

Vanya Hogen: Redefining Citizenship Criteria Through Constitutional Reform and Other Means

Producer
William Mitchell College of Law in conjunction with the Bush Foundation
Year

Lawyer and tribal judge Vanya Hogen (Oglala Sioux) discusses the difficulties inherent in amending Indian Reorganization Act (IRA) constitutions to redefine tribal citizenship criteria, and shares the story of the Shakopee Mdewakanton Sioux Community as an example of one Native nation with an IRA government who was able to change its criteria through another approach: adoption.

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

People
Resource Type
Citation

Hogen, Vanya. "Redefining Citizenship Criteria Through Constitutional Reform and Other Means." Tribal Constitutions Conference, Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Colette Routel:

"Our next speaker is Vanya Hogen. Vanya is a graduate of the University of Minnesota's law school and ever since she graduated she's worked in the field of Indian law. She first worked at the BlueDog Indian law boutique firm and later went on to Faegre & Benson, which is now called Faegre Baker Daniels and then the Jacobson Buffalo law firm and has recently formed her own firm called Hogen Adams where she's representing Indian tribes.

Some of her sort of notable litigation successes I guess include representing Lauren Pourier in motor fuel tax litigation against the State of South Dakota and receiving a favorable decision from the South Dakota Supreme Court preventing the state from collecting motor fuel tax on the reservation to tribal members. And more recently she won a recent case in the 8th Circuit for the Fond du Lac Band [of Lake Superior Chippewa] challenging the required continued payments to the City of Duluth as part of their Fond du Luth Casino.

Vanya's going to talk with us here today about her representation of the Shakopee [Mdewakanton Sioux] Community in their enrollment and citizenship disputes and talk a little bit about revising IRA constitutions and non-IRA constitutions. I should say now she is actually a judge for Shakopee and has been for a number of years and doesn't represent them right now. So I hope you'll join me in welcoming Vanya Hogen."

[applause]

Vanya Hogen:

"Thanks not only for the nice introduction, but for inviting me to speak today. I'm going to apologize in advance because I've got sort of a bad cold and may break out into a fit of coughing during my presentation, but I'll do my best. The topic that I was given is "˜Mechanisms of Constitutional Reform' and I am going to talk about constitutional reform, particularly in the context of membership criteria, but I also want to talk to you about a way...another possible way to change membership criteria without having to amend your constitution. This is based on my experience in working with the Shakopee community.

As Colette mentioned, I am a judge for the Shakopee Mdewakanton Sioux Community's tribal court now. I have been since 2007, so everything I'm talking about today are from cases I worked on before I was on the bench, when I served as a lawyer for the Community and it's all from years of litigation in cases that are public, so that's why I can talk to you about it today.

The Community started in the early "˜90s to talk about changing its membership criteria from having a quarter blood requirement -- which was a quarter Mdewakanton Sioux blood -- to moving toward a lineal descendency requirement and it was a controversial idea. There was certainly not unanimity of opinions in the Community about whether they should make that move, but the Shakopee Community is very small. It only became federally recognized in 1969 and at the time they were recognized, there were less than 40 people who comprised the original membership of the community. And because of the quarter Mdewakanton Sioux blood requirement, they started to realize that kind of all the intermarriage that could occur within the community had already occurred. At the time we were looking at this in the early "˜90s there were really just eight different family groups that comprised the whole community and so if they kept the quarter blood requirement, folks could see that going into the future the membership was going to go down and down and down. And so there was a move to try to change the membership requirements and they ended up doing this in two different ways, one of which ended up being successful and one of it did not end up being successful. And I'm going to start by talking about their efforts at constitutional reform and this, I think, will be more broadly applicable.

The Shakopee Community was organized under the IRA [Indian Reorganization Act] and its constitution has language in it that says that any amendments have to be approved by the Secretary [of Interior], which means calling a secretarial election. Other tribal constitutions -- for tribes who aren't organized under the IRA, for example -- aren't required to go through the secretarial election process that's set out in federal regulations. And some tribes who were organized under the IRA have -- since the time they were originally setting up their constitutions -- have amended their constitutions and taken out those federal...the requirements to do a secretarial election. But at Shakopee, they had this requirement, and so there are federal regulations at Part 81 of Title 25 of the CFR that say exactly how you have to hold an election to amend your constitution. And I want to just quickly walk through how that process goes and then talk about how it went at Shakopee.

The first step is that the tribe has to figure out some internal process to come up with what the proposed amendments to the constitution are and often this happens with...in consultation with the Bureau of Indian Affairs and while that sounds paternalistic, if any of you are thinking of going through this process, I would actually recommend that you do get involved...get the Bureau involved early on, because at the very end of the process the Department of Interior has to approve or disapprove your amendments -- assuming they pass in the election -- based on whether they comply with applicable law or at least whether the Interior Department thinks they comply with applicable law. So you may as well know up front if the amendments that you're voting on comply with federal law at least in the view of the Department.

Once the tribe comes up with the proposed amendments, the tribal governing body has to vote to call the secretarial election. And the vote is not just to generally call an election to amend the constitution; it's a vote to call an amendment to amend the constitution in a particular way. So you actually are voting on calling election on the amendments that you are going to consider so you have to have them all done up front. The Department then has 90 days after that to call the election and then the Department sets up an election board, which consists of one Bureau official and two tribal members. And it's the election board's job to determine the voter list, to decide any challenges to the voter list and to actually oversee the election and the counting of the ballots, etcetera. The election board sets the potential voter list that gets published at the tribe and then people who are either...who have been left off the list and want to be on the list or somebody who's on the list and thinks other people are improperly on the list can file challenges with the election board. And what the regulations say is that the election board is supposed to be able to make final decisions about voter eligibility, which is important to the Shakopee story.

Once the election board decides on any voter challenges, they certify the final voting list, the election is held and then voters have three days in which they can challenge the election results. The Secretary then has...Secretary of the Interior then has 45 days to disapprove the amendments if she finds that the amendments are contrary to applicable law. So the way this is all written in the regs, it assumes that the challenges that are filed are not going to be about decisions on voter eligibility, it's all about the content of the amendments and trying to help the Assistant Secretary decide that they're contrary to applicable law.

What happened at Shakopee was the community engaged in a rather long process of holding community meetings to try to decide what the content of the proposed amendments should be, because they were not just looking at membership criteria, but they were also looking at, for one thing, taking all the requirements in their constitution for BIA approval of various ordinances and that kind of thing out of the constitution. If I recall correctly, because this was in the mid-1990s that they were doing this, they were also changing the size of their business council -- which governs the day-to-day activities of the tribe -- and several other things, putting references to the tribal court in the constitution. It was really kind of a major overhaul. So they came up with the language of the constitution, the governing body of the tribe, which at Shakopee was a general council, voted on those amendments, voted to call the election, the Secretary called the election or the...yeah, the designee of the Secretary called the election, an election board was set up, they put out a potential voter's list and there were challenges filed to over 50 percent of the voter's list and this kind of tells you a little bit about what was going on at the time in terms of membership disputes. As I say, there was a quarter-blood requirement, but there were a lot of disagreements in the community, as there are in a lot of different tribes at various times about, "˜Well, so and so isn't really a quarter blood. They never should have been included on that list,' or there's other families who everybody knows they're quarter bloods and they've been left off the list. There were all those kind of disputes and they all got filed with the election board as challenges.

So the election board goes through all the information that's been filed, they rule on these challenges to the voter list and they then certify the final voter's list. And as I say, the regs say that the election board's decisions about voter eligibility are final. So then there is an actual election and the constitutional amendments pass by...given the small size of the community, it was actually a fairly sizeable margin. Well, within the time to challenge, there are a couple different sets of challenges filed, all of them based on voter eligibility. And it turns out that...so some of the people in the community who are very opposed to changing to a lineal descendency requirement are challenging the blood quantum of a lot of people who voted in the election and they file boxes of materials with the Assistant Secretary.

Well, under the...the way this is supposed to work, the Secretary -- it turns out to be the Assistant Secretary who did it in this case -- has 45 days to approve or disapprove the amendments and is only supposed to disapprove them if they're contrary to applicable law. Well, on the 43rd day, the Assistant Secretary issued a decision saying that because there was so much information filed he could not approve the amendments in the time allowed by the regs. And so what he was going to do instead, he ruled, was appoint an administrative law judge who would go through these boxes of genealogical materials that had been filed to decide who really should be allowed to vote. And then the Assistant Secretary said once the administrative law judge made recommendations to him about that, he would call a new secretarial election based on the decisions that were made about who should be allowed to vote.

Well, in response to that, the Community decided to sue the Department and to challenge the Assistant Secretary's decision, and the arguments that we made to the federal district court were first of all that the regulations say the election board's decisions are final and what does that mean if the Assistant Secretary can come back and reopen it to another process? So we argued that the Assistant Secretary's interpretation was unreasonable. The other thing that we argued was that because the Secretary didn't actually approve or disapprove the amendments within 40 days -- he just said I can't decide this in 45 days because there's too much material -- that the amendments should be deemed approved.

Unfortunately -- from the Community leadership's point of view and mine as their lawyer -- we lost that case. And what the district court said to us was -- ruled -- was that although he didn't necessarily think the Assistant Secretary's interpretation of the word 'final'...and what the Assistant Secretary had said was when the regs say that the election board's decisions are final, that just means final for the purposes of holding the election, it doesn't mean final forever. The judge said, 'That may not be the most reasonable reading, but it's not unreasonable so I'm going to uphold it.' And then the judge also ruled that the Assistant Secretary saying, "˜I just can't approve this within 45 days because of...there's too much information to go through,' was effectively a disapproval even though it wasn't a disapproval based on the only reason that you're supposed to be able to disapprove, which is if the amendments are contrary to law. So we appealed to the 8th Circuit, we lost on a two-to-one decision and so we ended up with a final ruling that the secretarial election process was going to have to start all over again after we waited for an administrative law judge to rule on the blood quantum of all these people who had been challenged.

Well, it took, after about two-and-a-half years, we still didn't have a ruling from the administrative law judge, and in fact we had gone through three administrative law judges because they kept getting transferred or quitting. And so finally the Community decided, 'Forget it. We don't want to deal with this process. We aren't going to try to amend our constitution. If we want to do another secretarial election, we'll start all over ourselves.' So they took a vote and voted to withdraw the request for a secretarial election, transmitted that to the Department and it took the Department just a mere year to finally acknowledge that that had been done and to say, "˜Okay, well, you're not going to hold a secretarial election, but we're still going to go through with this blood quantum process because we can use that information to distribute some Docket 363 monies.' So that process kept going for years even though it then had nothing to do with the secretarial election process.

As you might imagine, just from the length of time it takes for me to tell you this, it was about three years I think from the time that the Community had adopted these amendments to the time that they finally decided forget this process, it's not working. So they...and they had decided earlier to try this other approach as well and that was instead of amending their constitution to try passing an ordinance called an adoption ordinance that would allow the Community to adopt lineal descendents as members of the Community. Now the Community's constitution was sort of your stereotypical boilerplate IRA constitution, and so it has an article regarding membership and Section 1 of that article sets out the criteria, the blood quantum criteria for becoming a member. So you can either be listed on the base roll that was created when the Community was organized in 1969, you can be a child of one of those people who is at least a quarter-degree Mdewakanton or you can be a quarter-degree Mdewakanton and trace to the same roll that Lenor [Scheffler] was talking about earlier, the 1886, I think it was called the Hinton Roll. So that was...that's one section of their constitution regarding membership.

The second section is more procedural and what it says is that "˜the governing body shall have the power to pass resolutions or ordinances, subject to the approval of the Secretary, governing future membership adoptions and loss of membership.' So the Community's general council passed a resolution that allowed people to become adopted into membership if they were lineal descendents, that is you did not have to meet the quarter-blood requirement and it provided that once that happened they would get all...those adopted members would get all the same benefits of membership that any other member got. The Community submitted that ordinance to the, I think it was then actually even called the 'Area Office,' that's how long ago this was, sent it to the BIA and the BIA disapproved it saying, "˜We don't think it makes sense that you could adopt somebody into membership who doesn't meet the membership requirements. That's not what that section is intended to allow even though you, tribe, think that's what it's intended to allow.'

So we appealed that decision, that disapproval to the Interior Board of Indian Appeals and argued, "˜Look, if you have to meet the membership criteria to be adopted into membership, then what does adoption mean? It's a completely meaningless term.' The IBIA [Interior Board of Indian Appeals] ended up agreeing with the Community's interpretation and what they actually ruled was, "˜We don't think that the Bureau's reading is unreasonable, but we also don't think that the Community's reading is unreasonable. But because the Community's reasoning...the Community's interpretation is reasonable and it's their constitution, the Bureau should have deferred to their interpretation of their own constitution,' and so the IBIA directed the area director to approve the ordinance and that's what happened.

And I would love to say that that's the end of the story, but it was not the end of the story because of course that decision was appealed to the IBIA and it ultimately got dismissed just because it was an individual tribal member who had appealed it and you don't have standing in the IBIA to appeal if you're just an individual member as opposed to the government. But that ultimately led to federal litigation and for reasons that I won't go into, the Community ended up having to pass another adoption ordinance that essentially did the same thing but they fixed some perceived procedural irregularities and that ordinance was also...it got approved by the Bureau, but it got challenged in tribal court and in federal court, but ultimately upheld in both of those courts.

And that's the way the Community's law has stood now for about I guess a little over 10 years they've had this adoption ordinance on the books, and many, many people have been adopted as members of the Community. And at first -- in the first couple of years after this -- there were a lot of hard feelings as you might imagine, from the people who really didn't want that quarter-blood requirement changed. They weren't happy that the Community leadership had taken this approach and it ended up that you'd see a lot of people applying for adoption who were the lineal descendants of the then current tribal leadership, but not very many people from other families in the Community, that is descendants of the groups who didn't want the constitution amendment applying for adoption.

But over time, that has changed and even though I don't have as direct a view of it now because I'm on the bench, it now seems that everyone in the Community has endorsed this and you see people getting adopted from all different families. And so it ultimately has worked for that community, for that community to change their membership criteria by ordinance instead of doing it through the more traditional route of doing it in terms of a constitutional amendment. I think that what the whole experience shows -- and I'm sure not telling you anything you don't know -- is that these issues are extraordinarily contentious and it just, particularly in a place like Shakopee, where you've got a tribe that makes per capita payments, you get in a lot of people who are litigious and so...there were well over a dozen I would say lawsuits altogether that were fought over these issues and it took a long time to heal. I don't know if there are questions that folks have about either of these procedures."

Audience member:

"My question has to do with enrollment criteria and of course the mechanisms that exist under our current constitution, which identifies an election process like you discussed. If a tribe does not follow that particular...is there an avenue or an option for a particular band of that tribe to have an election process that deviates from the constitution's election process to change a membership criteria, as an example?"

Vanya Hogen:

"I can't see your name tag [and] where you're from, but I assume you're from one of the MCT [Minnesota Chippewa Tribe] bands. And I wasn't here in the morning if there was discussion about this. And that is such a unique situation, but I guess my top-of-my-head lawyer response is that if you have an IRA-approved constitution that sets out a procedure, that's probably the procedure you're going to get stuck with, at least to have the outside world recognize the results of your constitution, of your amendments. How's that for a vague, lawyerly answer?"

Matthew Fletcher:

"So it's been a couple of decades removed from your experience trying to get amendments to your constitution approved or the tribe's constitution approved and then to have this ordinance approved, do you think that the [Department of the] Interior has changed? Is it more deferential to try now than it was in the "˜90s or would you still see the same nitpicky, "˜Well, this isn't what your constitution intended to provide so we disapprove'?"

Vanya Hogen:

"Well, I would like to think that at least, if nothing else, because of the IBIA precedents that came out of that decision, that the regional offices have been better, and certainly for Shakopee when they did have to adopt that new ordinance and it went up, there was no question but that it was going to be approved. I think it has probably gotten better. Although it kind of depends on...if you'd asked me that question six years ago I might not have said that, but depending on where the direction is coming from the top I think that can really make a difference, meaning that if we have a good Assistant Secretary that can make a difference. And I don't want to say...I got very caught up in this fight when I was litigating it for years and years and didn't think that what the Assistant Secretary was doing all the time was in the tribe's best interest, but I do understand when you have...in this case in particular, there were a lot of people in the Community who did not think that the way the leadership was going about this was the best way to do it and they really thought that that quarter-blood requirement should stay in the constitution and that...and so I can see if I were... if I had been in the Assistant Secretary's shoes that I would want to try to make sure that every possible procedural safeguard was put in place before something...this kind of change was effectuated. I think that's it for the questions."

Colette Routel:

"Are there any other questions? Let's thank Vanya for speaking to us."

[applause]

Vanya Hogen:

"Thank you."

Richard Luarkie: The Pueblo of Laguna: A Constitutional History

Producer
Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Laguna Governor Richard Luarkie provides a detailed overview of what prompted the Pueblo of Laguna to first develop a written constitution in 1908, and what led it to amend the constitution on numerous occasions in the century since. He also discusses the reasons Laguna is currently engaging in another effort to reform its constitution.

Native Nations
Resource Type
Citation

Luarkie, Richard. "The Pueblo of Laguna: A Constitutional History." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Richard Luarkie. Since January 2011, Richard has served as Governor of his nation, the Pueblo of Laguna. He previously served as First Lieutenant Governor of Laguna and as a village officer for several terms and he is also a former small business owner. Governor, welcome and good to have you with us.

Richard Luarkie:

“Thank you.

Ian Record:

“You and I’ve had the opportunity to sit down and talk in the past on a number of nation building topics. I wanted to sit down with you today and have a conversation about another topic that we haven’t really touched base on yet and that is Native nation constitutionalism and constitutional reform and specifically the Pueblo of Laguna’s current constitution, how it came to be, and how it is changing. And I figured it would be beneficial if we start at the very beginning. What did the Pueblo of Laguna’s 'traditional,' unwritten constitution, if you will, look like before colonization and what core governance principles and institutions did it rely upon?

Richard Luarkie:

“Well, thank you for allowing me to be here again. For the Pueblo of Laguna, like many other tribes, our governance was based on traditional models, traditional teachings. Our creation story tells us that at the time of creation when our Mother created all entities -- deities, the world, the earth, the sun, the moon, the spiritual beings as well as the humans -- there was always leadership and there was always governance. And that governance, though, was fueled and inspired by values of love, of respect, of compassion, of responsibility, of obligation -- not necessarily rights, but responsibility and obligation to do our part. And so leadership was responsible for the caretaking of that and so that’s how I saw our governance systems run prior to any formal government system that came into play like constitutions. So like many other tribes the inspiration of tradition, the inspiration of spirituality, the inspiration of a way of being, in our language we say '[Pueblo language],' our way of life, is really how we governed ourselves. So that’s how we were structured as a government.

Ian Record:

“So in 1908 Laguna became one of the first Native nations to actually develop a written constitution and I’m curious, what prompted Laguna to take that step when it did and how did that written constitution compare to what you just laid out, basically the unwritten way of life that you relied upon for so long in terms of, during that time prior to colonization when that was the sole guide for how the Laguna people lived. How did, what prompted the Laguna to develop that constitution and how did it compare and contrast to that traditional way of life?

Richard Luarkie:

“Well, when the 1908 constitution came along, it was probably a result of a culmination of events, of issues. Laguna like any other tribe had its issues. During the 1800s, there was a lot of divisiveness going on, there was a lot of infiltration from different factions, there was the attempt to hold onto our traditional way of life, our traditional governance systems, but you had Protestant and Presbyterian and Catholic and still some influence from maybe even the Mexican influence and of course the federal government. So you had all this dynamic going on. But you also have now, the inclusion of Bureau [of Indian Affairs] schools, the Carlisle Indian School, the Albuquerque Indian School and all the other schools across the country that took our young kids away when they were small in the 1800s and now come the late 1800s, early 1900s these kids are home and they’re now adults and they’ve been groomed in a manner of how is it that we should govern ourselves. So they’ve learned a whole new system so they began to utilize those teachings. What was also maybe, I don’t think it’s unique to Laguna because I know other tribes and in particular other pueblos this has happened to, but we had three Anglo governors during the end of the 1800s that were married into the tribe. They were Presbyterian and that became a strong influence during that time period and that’s what helped to architect that first constitution.

Understandably though, our local community saw that as looking at it maybe constructively...also recognized that the federal government through the recognition by Abraham Lincoln in 1863 when he recognized the 19 Pueblos by granting us a cane recognizing our sovereign authority. They recognized that acknowledgment. And so as a way to maybe better communicate with the federal government, they saw this as a tool. So it was then adopted by our council and when you read through the 1908 constitution, there’s still remnants of the time before where you had a leader and that leader was, it literally says in the 1908 constitution, ‘The governor is the supreme ruler,’ because prior to that the religious orders are what they call our caciques at the time, they were the ones that appointed the leadership and the leadership then had full authority. But when the constitution came in that changed and so, to a certain degree, and so you began to see remnants still sticking there within the constitution, but I really believe that it was for the purpose of trying to find compromise, trying to find a way to hold on to our traditional way of being, but also prepare for how is the future moving and how do we communicate with those other forms of government in the future.

Ian Record:

“So in part it was to enable outsiders such as the federal government to make sense of who Laguna was and what they wanted to preserve perhaps?

Richard Luarkie:

“I believe it was a way to make sense of who Laguna was, but also I think very, I think intelligently a way for Laguna to protect what it had and using the government’s tools to do that.

Ian Record:

“So that was in 1908 and we’re sitting here in 2014. So you have now 106 years as a Pueblo with a written constitution and I’m curious, how has that 1908 constitution evolved over the past now century plus?

Richard Luarkie:

“It’s real interesting because you begin to see, we’ve had four constitutional amendments since 1908. So you begin to see a shift from authority of one person to the authority being given to the council. You also begin to see a watering down, if you will, of maybe the practice of core values to more formality in how governance is done. And so what I mean by that is the 1908 constitution was in place for almost 50 years.

The first amendment took place in 1949 and so in 1949 that amendment took place for two pieces. The first one was to adopt the IRA because we now became an Indian Reorganization Act tribe. We adopted that. Even though it was not required, the government, the leadership at the time of the Pueblo felt that this was a way to enhance our ability to continue to work with the government. So we became an IRA tribe. They adopted that. They also adopted the membership process. So as a part of the 1940 census they wrote that in. So we began to see membership. But at that time membership was based on residency, it wasn’t based on blood quantum or anything like that. It was based on residency and it also demonstrated core values because if you were helping, you were taking care of your family, you were being part of the community, even if you were not from there, you applied for membership, you were considered for that membership and in many times given membership. So we have individuals that were from another tribe married in at Laguna applied for membership during that timeframe and on paper are four fourths Laguna. So those are things that happened during that time period.

Then we saw a short nine years later we saw the constitution amendment take place again in 1958 and we saw that core value practice begin to shrink and the driver in the 1959 constitution was revenue because now we went from having almost no revenue to having millions and the reason that happened was because of the discovery of uranium on our reservation. So in a short nine years the constitution had a major change. So we implemented blood quantum at that time period. So we went from a value of being a part of the community to defining who’s going be a member based on blood driven by dollars.

And so the other piece that also came in that was very critical during that time period was our tribal court system. So our tribal court system was adopted in the 1958 constitution. So we went from again that membership of being half Indian to half Laguna, tribal courts and per capita. So now we have those three things now being implemented into the constitution. And we began to see that the governor from the 1908 to the 1949 to the 1958 constitution, we’re beginning to see a shift of authority being given to, from the 1908 to the 1949 to the staff officers, away from the governor and in the 1959 constitution, ’58 constitution we begin to see more authority be given to the council, so from the governor to the staff now to the council.

And so now jumping to 1984 we saw another amendment. And so in 1984, the amendment that took place that was most significant there was again related to blood quantum and we reduced the blood quantum requirement from one half to one fourth and the driver for that is we were seeing more, we were seeing a declination in people being enrolled because nobody was meeting that blood quantum anymore. So that was a driver. The other piece of it was that it was an effort to make parents or grandparents, guardians, whoever more responsible for getting their children enrolled. So what also went into that constitutional amendment was that from the time a child is born, the parent, guardian, grandparent, whoever, they have two years to enroll their child. If they miss that two years, they’re out of luck. They can’t become a member, even if they’re four fourths. So that happened in 1984.

So in 2012, we did another constitutional amendment and the constitutional amendment was for two specific things: to remove secretarial approval and to remove the two-year restriction. So the secretarial approval one was pretty straightforward and so that we began to move down that path of being responsible for our own way of governing. The removal of the two-year restriction was an effort to try to get back to that core value because we constantly remind and we tell our people, ‘Love one another, respect one another, be good to one another, be inclusive,’ but if you’re not one fourth, you can’t be a part of us. That’s not consistent with that teaching so we, and if you miss that two-year timeframe, you’re out of luck. And so we removed that so that we can begin the process in that, and so the two-year restriction was removed. And the reason we shared with people is that it makes sense, there’s nothing wrong with people being made responsible to get their children enrolled, but what about those children that didn’t have a chance, that got adopted out. They never had a chance because they didn’t have a parent, they didn’t have a grandparent, they didn’t have anybody and it’s not fair to them.

So what about those people that traditionally, there in our part of the country when a male marries a female, he goes with her family land if she’s not from our Pueblo, obviously he leaves our Pueblo and back in the ‘40s, ‘50s, prior to that, they actually relinquished their rights and went with that other tribe. So if they did the right thing, life happens, maybe the spouse passes on, then this person, because of that two-year restriction is now out of luck, but this now gives them the opportunity to come back to the Pueblo. So those were the drivers behind those amendments and so we’re now beginning dialogue as a directive by the tribal council to now go to that next step of looking at blood quantum and so we’re preparing for that discussion this year with our community, which will probably, if they want to change that, lead to another constitutional amendment.

Ian Record:

“I was going to ask about these 2012 amendments. You and I have had this conversation in the past, but I think it would be helpful to go into a little more detail, because I remember you saying that one of the reasons why you guys tackled that first was to remove the consideration of the feds, of an external actor, if you will, from the deliberations about how do we want to constitute ourselves moving forward? What do we want our constitution to look like where we can basically base it solely on what’s in our best interest and not so much what will the feds approve or not approve of? Can you talk a little bit more about the mindset behind saying, ‘Okay, we’re going to deal with that first. We’re going to get that out of the way and then we can sort of focus on these huge constitutional challenges we face like blood quantum?

Richard Luarkie:

“Right. For our Pueblo we’ve done a lot of, taken a lot of time to look back at history and the implications of policy, federal, all the way back to the Spanish period and the church, the Catholic Church, the Protestants, all those implications, what’s happened. We’ve had also the great fortune to hear individuals like Mr. Jim Anaya and individuals talk about those areas of Indigenous rights and the areas of non-recognition to recognition to now the responsibility of that recognition.

So for Laguna, it was really embracing the ideology of the responsibility for that recognition and in order for us to be responsible, we have to make our decisions in the manner that best fits us, not only on paper and in constitutions, but here and here. It has to make sense to us. And when you have an external body saying, ‘Well, that doesn’t conform with this code or this whatever,’ that’s inconsistent. And so it was a significant driver for us to be able to remove that so that we can then move forward and make these much larger decisions because even things as simple as ‘Indian.’ When you look at the 25 CFR [Code of Federal Regulations] they have ‘Indian’ defined this way. When you look at ICWA [Indian Child Welfare Act], it’s defined this way. When you look at housing, it’s defined this way. So we’re defined for convenience. We needed to take that out of the way and we need to define who we are. And so those were our drivers.

Ian Record:

“It’s interesting, Laguna’s not the only one that’s taken that approach. There’s a growing number of other nations that have basically come to that same realization that, ‘if we are serious about taking full ownership in our governance again and understanding the often insidious forces that were at play, external forces that led us to have the system we have now that is not perhaps true to who we are, we’ve got to get that other actor out of the equation, that Secretary of Interior out of the equation.’ But you still had to go through a secretarial election, right, to get that out and I’m curious. We’re spending part of the conference this afternoon talking about that very topic of secretarial elections and removing the Secretary of Interior approval clause and you guys just recently went through the secretarial election and that’s often a very scary proposition for tribes is to think, ‘Oh, not only do we have to reform our constitution internally, but then we’ve got to go through this bureaucratic sort of often drawn-out process at the federal end and I was wondering if you can perhaps paint a brief picture of what it was like for Laguna, what some of the challenges were in that secretarial election process, perhaps any advice you could give other nations for navigating that process effectively so they can actually get through that election process and then perhaps return to the more important matter at hand.

Richard Luarkie:

“Well, for Laguna, one of the things that was beneficial for us is the relationship we had with the Bureau in our area and them understanding the whys -- why we want to do this -- and the whole purpose behind it and educating them on that. Once we had that piece, and it wasn’t a challenge for us. We’re fortunate we’ve had a good relationship so that wasn’t a big challenge. What was interesting to me and where the challenge fell was with our elders and the older population because their pushback was, ‘Well, if we remove secretarial approval, then we’re relieving the federal government of their trust responsibility,’ and we’re saying, ‘No. No, that’s not right.’ And so what it caused us to do was go through this whole process of educating and reeducating our community and reeducating and so it took us, we started this, gosh, [in] 2005. So it didn’t happen just overnight, but it took some iteration and most important, the most important ingredient was the education. So we still have, to this day we still have some elders saying, ‘That was not right because you relieved the federal government of their trust responsibility.’ You have the other end of the spectrum, our younger people jumping for joy saying, ‘It’s about time. Why are we letting the government do this to us?’ So it’s a growing pain and I think we need to even after the process has taken place, we need to continually educate of what does this policy mean and what are the implications and what does it mean to be a sovereign tribe, a sovereign nation.

Ian Record:

“So I’m glad you touched on citizen education because I wanted to ask you some more questions about that. You mentioned that just around this issue of these two amendments that you passed in 2012, that there was a several-year education process that went into place and I would imagine that that as you said continues on with some of the conversations you want to continue to have around the constitution, whether it’s blood quantum or something else. What approaches have you taken to that task of citizen education, of citizen engagement? What’s worked, what hasn’t? I would assume you’ve learned quite a bit from the citizen interaction you’ve had around this topic over the last several years and that you plan to apply to continuing the conversation with them now.

Richard Luarkie:

“One of the things that has been helpful is consistency and what I mean by that is we’ve, in particular to our constitutional review and amendments, we’ve established a Constitution Review Committee. Since our last amendment we’ve disbanded it, but over those years, once the council decided and the community decided that we need to do a constitutional change, that committee’s been consistent so from administration to administration, whether I’ve been the governor or not, we’ve not changed that committee. So the consistency has been there.

The other pieces that we started the conversation with the community, asking them, ‘What do you think needs to change? Here are the things we’re suggesting and here’s why.’ And so having their input was critical. The other piece is educating the council because if the council doesn’t understand and they’re being asked and it contradicts what you’re telling people, it creates a whole fireworks of assumptions and, ‘Well, he said, she said,’ kind of things and so making sure the council understands what’s happening.

And so I think those are really important things and making sure that there was clarity. And obviously with a larger community it’s more difficult to manage that communication, but I think those pockets are real important. And in our community, we have six villages so in our council meetings...every Thursday we have village meetings so that’s communicated to the villages so the villages have the opportunity to ask questions and pose comments or what not to get back to the council for consideration. And so those are the communication streams that we used. And so the point I’m trying to make is that communication was probably the key element in this constitutional amendment.

Ian Record:

“So you mentioned earlier that revisiting the blood quantum as a prime criteria for determining who can be a part of us and who can’t is something that you’re revisiting. Are there other areas of the constitution or other things that people are talking about integrating into the constitution? I guess I’m trying to get a better handle on what sort of constitutional issues will Laguna be tackling in the near future?

Richard Luarkie:

“That’s probably going to be the biggest one right now. The other piece of it, our offices,  we have a tribal secretary and we have a tribal interpreter and we have a tribal treasurer that are elected officials, but in the constitution it says that they have no governing authority. They’re basically elected administrators. So the question in the community has been, ‘Do we need to elect those positions or just hire full-time with people that have the background to fulfill those particular roles?’ What it’s going to cause is really the requirement to go do a whole job description and those kinds of things because right now in the constitution their job description is as an example tribal secretary, keep the meeting minutes, that kind of stuff and that’s it. So those kind of minor things I think we’ll see addressed in the future, but I think right now the focus really is going to be on this larger element of blood quantum and how do we maintain our tribe, how do we maintain identity as well as protecting our sovereignty going forward. And it’s a, I think it’s going to be a much larger conversation than just blood quantum because when I think about sovereignty, in my mind sovereignty isn’t a definition, of course they’re out there in a dictionary or whatever, but to me sovereignty starts here. Sovereignty is a community thing and I think that is going to be part of what’s going to be woven into this whole conversation of moving forward on blood quantum because it’s going to touch a lot of other areas.

Ian Record:

"Governor, we really appreciate you taking some time to sit down and share your thoughts and experience and wisdom with us."

Richard Luarkie:

"Yes. sir. You're welcome."