constitutional amendment process

"Modern Tribal Governments, Constitutions, and Sovereignty" Session at NCAI's Annual Convention

Producer
National Congress on American Indians
Year

This session, convened by NCAI at its 2014 Annual Convention, chronicled the growing movement by tribal nations to reform and strengthen their constitutions in order to reflect and preserve their distinct cultures and ways of life, more effectively address their contemporary challenges, and achieve their long-term priorities. It shared the constitutional stories of four tribal nations who have either reformed their constitutions or currently are in the process of doing so.

The session includes 5 presentations from prominent Native nation leaders and scholars:

  1. Sherry Salway Black and Ian Record provide a brief overview of tribal constitutionalism and the current movement among tribal nations to engage in constitutional reform.
  2. John “Rocky” Barrett, longtime chairman of the Citizen Potawatomi Nation, shares how the Citizen Potawatomi Nation long struggled with an imposed system of governance and how it turned to constitutional reform to reshape and stabilize that system so that it is capable of helping the nation achieve its strategic priorities.
  3. Erma Vizenor, former Chairwoman of the White Earth Nation, provides a detailed history of White Earth’s Indian Reorganization Act (IRA) system of governance, and why and how White Earth decided to create an entirely new constitution in order to make its system of governance more culturally appropriate and functionally effective.
  4. Richard Luarkie, former Governor of the Pueblo of Laguna, offers a detailed chronology of the Pueblo’s constitutional and governmental odyssey over the past few centuries, and how the Pueblo is in the process of reforming its constitution to fully exercise its sovereignty and make its system of governance more culturally appropriate.
  5. Justin Beaulieu, Coordinator of the Constitution Reform Initiative for the Red Lake Nation, describes the process that Red Lake designed to engage Red Lake citizens about the nation’s current constitution and what they would like to see in a new constitution.

 

 

Resource Type
Citation

“Modern Tribal Governments, Constitutions and Sovereignty”. (October 2014). Presentation. National Congress on American Indians's Partnership for Tribal Governance. Atlanta, GA. Retreived from https://www.youtube.com/playlist?list=PLBjQrzrj0Iyu5miLAFGEg9VS6BhS_JS58

Transcripts for all videos are available by request. Please email us: nni@arizona.edu.

Verna Bailey: Making Self-Governance Work for Standing Rock

Producer
Native Nations Institute
Year

Former councilwoman Verna Bailey of the Standing Rock Sioux Tribe representing the Long Soldier District reveals the ins and outs of working with changes in a tribal council government.  Her experiences offer insight into the history of self-governance for Standing Rock Sioux Tribe.

People
Native Nations
Resource Type
Citation

Bailey, Verna. "Verna Bailey: Making Self-Governance Work for Standing Rock Interview," Leading Native Nations interview series, Native Nations Institute, University of Arizona, Tucson, AZ,  December 09, 2015.

Danielle Hiraldo:

Welcome to Leading Native Nations. I’m your host, Danielle Hiraldo. On today’s program, we are honored to have with us former councilwoman Verna Bailey. Ms. Bailey served on the Standing Rock Sioux tribal council representing the Long Soldier District. Ms. Bailey currently serves as a community member for the Standing Rock Constitution Reform Committee. Ms. Bailey, welcome.

Verna Bailey:

Thank you.

Danielle Hiraldo:

Good to have you with us today. I’ve shared a little bit about who you are, but why don’t you start out by telling us a little bit more about yourself. What did I leave out?

Verna Bailey:

Ok, prior to becoming a member of the Standing Rock Sioux tribal council, I was part of the tribe’s work force. I started working in 1960, retired in 2005 as a councilmember. I’ve had breaks in between, you know, but always went back to the tribe; that’s where my heart was. I consider myself a retired tribal employee more than anything else.

Danielle Hiraldo:

Thank you. What does or what did the Standing Rock Sioux indigenous constitution or traditional form of governance look like?

Verna Bailey:

Prior to 1914, as I understood it and as I was told, our people were governed by unwritten laws, customs, practices. We had a way of life that everyone believed in so that it worked for us. Decisions were made in a general council setting, participation was encouraged by all those there so that people can speak about what they thought was best for our people. That general council setting has been replaced through an adoption of a constitution in 1914. Like I said, people were encouraged to talk and this contributed to better decision-making for our people.

Danielle Hiraldo:

Who were a part of the general council setting? Were there specific members that were only allowed to be in that or is it open to the entire community?

Verna Bailey:

It was open to the community, as I understood it, but there were also people who were designated to serve in certain areas of responsibility who were there and who contributed to discussion, deliberating, and decision making. These were our Akicita who were given the task of keeping order in our camps. There were councilors, similar to tribal councilmembers today, who sat, discussed matters and made decisions for people.

Danielle Hiraldo:

And how were those roles and responsibilities, like you said with the Akicita how were they separated or allocated?

Verna Bailey:

Usually by the leaders and what they saw that you could do and best use your skills for the good of everyone. There was never any reluctance to do what was asked of you. I believe that if you are asked to do something and you felt that you could do it, there was never a no; you just did it.

Danielle Hiraldo:

How were the leaders chosen then? Was that still a part of that same system?

Verna Bailey:

Leaders recognized that they had to earn the recognition to become a good leader. They were seen by the people to be intelligent. They were seen to be brave, good hunters, good providers to the elderly, the widows, the orphans and people who needed help in camp. They possessed all of these qualities and the women and the men too believed that they could be good leaders. They held themselves accountable to the people. It’s not like today where we speak in terms of holding them accountable, they held themselves accountable because the people trusted and believed in them to do what was expected of them so that people could live.

Danielle Hiraldo:

How did they hold themselves accountable? By what means?

Verna Bailey:

Well, they knew they were chosen to be leaders based on the qualities that I just stated and they knew that the people believed they could be a good leader so they made themselves transparent. They did these things and they were not asked to or reminded; they weren’t constantly reminded that as leaders they had to do these things, they just did it because they knew it was expected of them. Now-a-days, we remind our leaders that, ‘this is your job, this is what you have to do’. It wasn’t like that in those days, the men held themselves accountable.

Danielle Hiraldo:

How much of the structure remains today?

Verna Bailey:

You mean from the traditional form of government or after the 1914 constitution?

Danielle Hiraldo:

The traditional form.

Verna Bailey:

Well, there’s been a lot of change. Maybe what remains of that traditional government is what they expect of leaders. They put into the constitution what they expect their leaders to be, you know, the qualification requirements are there. Back then, it was unwritten – they’re similar. They’re not evaluated to the point as to whether you’re a good hunter or not, but they know you have the will, the drive and ability to get things done. That recognition, I think, is still carried forward. So much more skills are required these days that we didn’t have any of that back then. Computers, who would’ve ever think we would have computers? But that’s what leaders use today to do their work, you know.

Danielle Hiraldo:

How do you define nation building and what does it entail for Standing Rock?

Verna Bailey:

Nation building… the Standing Rock Sioux tribe already has the foundation to build upon for a better nation. I believe that we need to build on that. We need to do better for our children, families; for our survival. Our young people need to learn what tribal government is. They’re going to be in charge some day. What was it the men had in mind when they formed a structure for the people? They need to know that they have to stay healthy. They need to seek higher learning and they need to work hard to create jobs and things to do that will lead to a better life for our people. So, I believe we have a foundation in place, we just need to put our determination to work.

Danielle Hiraldo:

As a former councilperson, what were some of the challenges you faced?

Verna Bailey:

As a woman, I tried to speak to the best of my knowledge what programs were needed, what laws needed to be changed and to make improvements in a whole lot of different areas. I served on the judicial committee, the health education involvement committees. It was hard. Sometimes the men resisted what recommendations women brought forth on the tribal council. A long time ago, the roles and responsibilities were divided among men and women, boys and girls. You know, expectations were different for men and women. I’m not saying all of that was brought forward into the present setting but still, it was hard for the men, I think, to accept the good of what a woman was saying to make things better in the way of laws, programs and that kind of thing. I know that there are men out there who will disagree with what I just said.

Danielle Hiraldo:

Yeah, but it’s from your own perspective. It’s your own experiences and some of the challenges that you had to face.

Verna Bailey:

It was hard to convince the 16 other members of the tribal council that something was good. Laws needed to be changed. Rules and procedures of the tribal council needed to be worked on and there were things that needed to be added. Like I said earlier, people held themselves accountable but now-a-days people hold the leaders accountable. We even have a code of ethics in our constitution and that kind of thing. The do’s and don’ts’s kind of vary in difference between members of the tribal council.

Danielle Hiraldo:

So, you brought up that there’s, at the time, a 16-member tribal council. Can you talk about how the government is composed now?

Verna Bailey:

There are 17. I said 16 but I was the 17th. I did not include myself; there are 17. Initially, back in 1973 there was a federal lawsuit brought by Philomene One Feather and others. Their claim was that it wasn’t equal protection under the Indian Civil Rights Act that we had two council members from each district. Some of the districts were more heavily populated than others and so they brought that claim into federal court. The judge agreed that the tribe had to live up to the One Man, One Vote principle so that required a change in our constitution. You know, it required taking a look at the numbers, the geographical areas of our districts and try to create a balance among the resident voters. That was put into place and it was further revised in 1984 and through that process, we kept pretty much in mind that equal representation. We have 17 councilmen and 8 of those represent districts and 9 others including chairman, vice chairman and secretary who are all elected at large. That’s the present system that we have. Compared to 1914, there was a quorum required of 11 councilmembers who were elected but in general council so it jumped. We still require a quorum of 11 under our present structure but just think, back then that was the same number to do business.

Danielle Hiraldo:

Since you brought up the 1914 constitution, can you tell us about what events led to the leaders adopting a written constitution at that time?

Verna Bailey:

My questions to people about how that came about, they thought it was time to put in writing some of the requirements on how they would conduct business and set up a system in which it required a certain number of people to be there to make decisions and that’s how the 11 came about. I think it may have been due to the unrest on the reservation about that time. People were moving and I think what they tried to do was put a structure in place so that people can be involved in the decision making but work with a smaller number of people. Now, I’m not sure why they thought that should be that way but that’s how the 1914 constitution was structured. It was interesting to see in the 1914 constitution that members of the tribal council were elected in the general council. That meant everyone. They elected the tribal council and created a quorum and allowed them to do business. They were even fined for not attending meetings but that was interesting to see.

Danielle Hiraldo:

How were the districts identified? Were they identified in the 1914 constitution or did that come later in amendments?

Verna Bailey:

It came about, I believe, through the 1959 constitutional recommendations. There were seven districts identified. There was the agency, which is Ft. Yates, the Cannonball area, the Porcupine and in South Dakota there was the Kenel district, Wakpala district, Little Eagle, Bullhead. Later, there was the sub district of Little Eagle, which was McLaughlin. Now some of the names have changed but they are identified within the constitution.

Danielle Hiraldo:

I kind of jumped around a little bit, but going back to the 1914 constitution…I think you’d mentioned a couple of times that there were certain things in the constitution that leaders wanted to make sure were mentioned in there. Do you mind maybe explaining some of those?

Verna Bailey:

Like I said, I think they wanted to structure a form of government and it could be, like I said, due to the unrest that was on the reservation at that time. But I think that people were moving. I understand that some people had gone into Canada, some had join other tribes to the south of us. They wanted to form a structure of government so that decisions could be made. They established the number of people who would make up a quorum to conduct business. It was interesting to see that as time went on. The IRA was approved in 1934. The Standing Rock voted in October of 1934 to accept IRA then later voted not to incorporate or put in place a constitution pursuant to IRA.  There is a provision in our constitution that clearly states that, “This is a constitution not pursuant to IRA.” When I asked why that provision was put there, some of the men said, “We must never forget that our constitution is not an IRA constitution.” Even in the 1959 efforts to amend the constitution, there were mimeographed notices sent out to the districts saying that this was happening. They notified the people that the 1914 constitution was changing to one that was being drafted in 1959. Again, I believe I have that here. Even then, the people say they put these copies out that say this is not an IRA constitution, this is outside the IRA. It seemed like there was an importance for people to know that this was not associated at all with the provisions of the Indian Reorganization Act.

Danielle Hiraldo:

But initially, they did vote to have it, right?

Verna Bailey:

They voted. I asked some of the men, in their opinion, why they changed their minds about IRA. What they said to me was that we were being told what we wanted to hear about the benefits, all the good things that could come about by accepting IRA and putting in place a constitution, you know pursuant to IRA. Later, we began to become distrustful of the process. It appeared we were being told what we wanted to hear and the federal government was being told what they wanted to hear. It was not a good situation; we did not understand it and we weren’t sure if that was the right thing to do so we advised ourselves and our relatives and people to not vote for that. So they voted that effort down. So it’s not a constitution pursuant to IRA.

Danielle Hiraldo:

Had there been other amendments to the constitution?

Verna Bailey:

Yes, there has been a number of amendments from 1914 to 1915 up to the present. Right now, we’re in the process of looking at amending our constitution. There was a petition circulated amongst our tribal members, which was drafted by Chase Iron Eyes. There were four amendments to the constitution that he was seeking. The matter reached the tribal council and the tribal council enacted a resolution. In that resolution, they authorized a committee, a constitution review committee, including membership from the districts and other representatives plus the group you met on Standing Rock last week, to take a look at those four amendments and report back to the tribal council. We’ve gone to the districts and the people…I personally read two recommendations; one in the Long Solider district and one in the Running Antelope district, where they requested that training be held before they can even begin to make recommendations on what needed changing in the constitution. They felt that not enough people in the districts understood or even knew what was in the constitution. Tell us about it, tell us what these things mean. What’s in it that needs to be changed that you are doing this? If there isn’t anything that’s not broke, leave it alone, you know that kind of thing. I know that some of the other members have been treated very rudely by some of the members of our tribe who don’t agree with what’s going on right now.

Danielle Hiraldo:

From your perspective, what prompted Standing Rock to go down the constitution reform road? I know, speaking of last week when we were there, there were several amendments that were presented at some point in time, like 26 or 27 amendments, that only six or seven – I might be getting some of the numbers wrong?

Verna Bailey:

Oh there were a number of recommendations; I’m trying to say 33.

Danielle Hiraldo:

Oh wow, really?

Verna Bailey:

Not all of them, just a few of them, were approved to actually be put on the ballot. That was a comprehensive review. Back in 1981, the tribal council created a constitution revision commission and they outlined the work that had to be done by this group and trainings were involved, you know. Meetings in the districts were involved. The commission had to meet with different organizations, mainly the district councils to get their input on what they thought should be changed. There was a lot of work, a lot of contact. There was legal reviews on some of the questions that were being asked. It took a lot of time, a lot of effort and it cost money but the tribe wrote into their self determination grants. Two of them I can think of where they covered the cost to do this work. Initially, it was through the BIA budget team process that the tribe requested funds to take a look at an effort earlier than that and I believe the tribe received about $50,000 to start that one but things got more expensive as time went on. It took more time than they anticipated to gather all of the recommendations, to analyze them, to have the legal review that I mentioned before ever drafting a report to the judicial committee and tribal council.

Danielle Hiraldo:

Do you know what prompted that type of process to come about?

Verna Bailey:

Speaking about the 1981, from what I remember, people thought it was long overdue. They thought the constitution really needed to be looked at to see if it needed changes. Now, remember the term, ‘it’s long overdue that you do this,’ so yeah. I believe it was at the request of tribal membership.

Danielle Hiraldo:

So, what are some of the challenges that CRST citizens faced with previous constitutional amendments? Other than the time and that it was obviously expensive?

Verna Bailey:

Pretty much of what I said, there was a number of challenges. Again, training and getting the people to believe that what they actually proposed was going to be considered. People didn’t think that what they said would go any further than that meeting but they were documented. All recommendations were reordered and analyzed further down the road. It was hard to gain the trust and confidence of the people, that this is how we’re going to do it; we’re going to do it with you, you’re going to tell us. That’s pretty much what’s happening today. We’re asking the people to tell us.

Danielle Hiraldo:

That was actually going to be my next question; what are some of the challenges that you feel you might face redoing the current constitution, outside of the four resolutions that were presented by Chase?

Verna Bailey:

Well, our scope of work is clearly defined in the resolution. We don’t have any authority to go outside of what’s there but I do imagine that there will be other recommendations brought up in district meetings as we move forward. We are going to have to consider those and report them to committee. But, it’s outside of our authority to make a recommendation that this should be a change to the constitution. Already, the tribal council has taken a position that three of those amendments don’t require a constitutional change, that our present constitution and the ordinances that we have in place can take of that. If there is no ordinance in place, one can be drafted to take of that particular one. There’s only one then that would change the eligibility requirement in the constitution that says you cannot have been convicted of a felony. We’re getting a lot of comments on that issue. I’ve personally been told that that provision needs to remain in the constitution. Speaking of educational and eligibility requirements – not educational – eligibility requirements in the constitution way back when, one of the men, I believe it was James McLane who said, ‘We want the qualifications of our leaders to be in the constitution.’ We want these things to be in the law, the law of the people so that as time goes on we know these are the kid of leaders we are going to have. This constitution will probably stay in place for a long time; it shouldn’t be so easy to change. You’ll see that and we’ll see how people react to that and what kind of recommendations will be given to us.

Danielle Hiraldo:

What are some of the efforts you’re going to use to engage to talk about at least these four proposed amendments?

Verna Bailey:

Well, in our initial meetings, we haven’t had very many, we’ve talked about the scope of work; we’ve talked about the communications that we need to have for the district meetings. There are other things we need to plan for which we have ideas now on since the training that was provided by Jones and yourself at Standing Rock. Taking from that, I’m hoping we can come up with a plan that will work that’s involving the people, you know, working hand-in-hand with them not against each other. We need to come together on this and try to do what’s right.

Danielle Hiraldo:

So what are some of Standing Rock’s core values?

Verna Bailey:

Core values? Shared beliefs…let me put it this way. I was raised by a grandmother so I was among older people much of my young life and there was always advice, teachings to the younger people. Ill put them out like they put them out to us. Usually it started with spirituality; you cannot live without faith. From that there were other things that were taught. Ceremonies and witch prayers were offered. Valuable information on ceremonies came about through that. Then there was wisdom, you know, they would constantly tell you to go to school, get an education. This is a tool we need for survival. Later, I turned that around and used to tell my coworkers, ‘You have to know the reds better than the feds.’ You’ve got to learn those things, you know, because they will challenge you on non-compliance issues and so you need to know what they are. Approvals of certain programs and projects may be delayed because of some issue that the tribe can resolve knowing what they can do. So, that was always out there for us and patience; things don’t happen overnight. Take time to think about it, to plan and to work together so that it can happen. But remember, those things just don’t happen quickly or as quick as you want them to. So there was that. One of the other things that I appreciated was the advice; to listen to the elders and to the children, that there was always something to learn from them whether it be a school issue, you know, elderly. Maybe there are some things they can still contribute. They’ve got their minds and they know how we lived a long time ago and how things can still work today. Those are the kind of things we need to hear from them. They’re out there. Communicate. Like I mentioned earlier, they say talk to those who don’t say anything in public but be respectful. Generosity; don’t be stingy. Share what you have, share your knowledge, share your experience so they can learn from that and do better in their work too. Truthfulness; don’t lie. The truth always comes out, they tell you and you’ll find that it does. Honesty; be honest with yourself first and others. Don’t lead people to believe that something is going to happen or change or come about when you know that it’s not. Be honest and be visible, don’t hide. Put yourself out there so people can see what you’re doing and let tell you if you need to make changes in how you’re doing things to do better. Don’t look at it as criticism; look at it as something that they intend as something helpful to you. Sometimes that’s hard to do. Obey the laws. They’re not put out there just for certain people, they’re put out there for all of us so you have to obey the laws and our rules within our own government in our traditions. Obey them. Bravery; don’t be afraid to do what is necessary for the good of the people. You know, I think back to a time when I was a young girl. Two of my cousins and I went out to visit our paternal grandfather. He was not home at that time when we got there, our grandmother told us he was bringing a turtle up from the creek. So, we ran down to where he was and he did have this turtle. When he saw us he took out a knife and said he was going to butcher the turtle right where he was so we stayed to watch that. He removed the heart of the turtle and he said to us, ‘It is our belief that to take the heart of the turtle and to eat it,’ he said, ‘will make you brave. You will not be afraid to do something that you know you have to do which is good. Not talking about bad things, talking about good things, but you will not be afraid.’ So, he offered us the turtle’s heart, ‘Do this,’ you know, ‘you won’t be afraid.’ Well we were reluctant to do that but I was the first one to swallow it and my cousin Charles swallowed it, my cousin Alvida took it. When we were done I raced back to town and I found grandmother and I told her that my grandfather had made us eat the heart of turtle. ‘He said that this was going to make us brave, is this true?’ She looked at me and said, ‘Yes it is. That is a belief. You said you ate the turtle’s heart?” and I said yes. Well, she notified other relatives, you know. So when I would act up or my cousins acted up, they would say, ‘Oh, well that’s because they ate the heart of a turtle.’ Maybe along with taking the oath of office, we should offer the turtle’s heart to our leaders.

Danielle Hiraldo:

Well, that’s one way to incorporate core values. Are there any others? I’d like to see how many would do it.

Verna Bailey:

Yeah, I guess so. That was quite an experience, I tell you.

Verna Bailey:

You wont know of them unless you’re taught what they are and so I think that we need to keep telling our grandchildren and our own children what they are and strive to achieve them and to set examples. Too often we preach to our kids and tell them this is what you must do, but we never show them what we mean and practice ourselves. I think that its time that we revitalize all of that and for those of us who don’t do it to begin, it’s not too late. The core values will always be there so I encourage us to keep them and to teach them.

Danielle Hiraldo:

So Miss. Verna can you tell me how the district organizations came about? Currently, there’s a provision in living in constitution for district organizations, right?

Verna Bailey:

I don’t remember what year the provision was put into the constitution, I’d have to look back, but there is a provision in our current constitution that allows districts to create their district councils. They’re authorized to make recommendations to the tribal council, advise the secretary of interior of matters affecting them. The tribal council, pursuant to that section in the constitution, enacted a law, title twenty as we refer to it, was created by ordinance and it describes how you establish a district council. It provides for the officers, the planning commission members what their eligibility requirements are, what authority the district councils have – pretty much rules and procedures of the tribal council. It’s more formal, more structured today than it was a while back, you know, and districts are good about identifying the needs that people face in the communities and it’s good that they’re there. The tribal council needs that kind of advice to come from the local level and they allocate their own resources through gaming, taxes and that kind of thing to pay for their projects, their programs and administration. Most of them have district buildings that they operate out of, so it’s good.

Danielle Hiraldo:

What kind of authorities did the tribal council delegate to them? What can the district councils do?

Verna Bailey:

District councils can make recommendations to the tribal council on programs, projects…they can hire consultants to help them in this work but only with the approval of the tribal council. A lot of the stuff that the district councils are empowered to do still require approval from the tribal council. They are also empowered to create their own ordinances, you know establish their own curfews and those kinds of civic matters. They have exercised those powers, most of the districts. Right now, I think that district councils are awakening to what we’re trying to do here so I’m sure they’re going to have us come to their meetings and explain the procedures and the processes that we’ll use to go forward with the work given to us by the tribal council.

Danielle Hiraldo:

So do they meet every month too? Is it a monthly, town-hall type meeting?

Verna Bailey:

Yes, they have a schedule of district council meetings and we utilize that schedule to plan and go out to the districts.

Danielle Hiraldo:

For the constitutional work?

Verna Bailey:

Yes, for the constitutional work and we’ll continue to do that. It’s good to be out there amongst the local people.

Danielle Hiraldo:

So how are laws made and then enforced at Standing Rock?

Verna Bailey:

Laws are made when the tribal council recognizes that there’s a need to create one. At times, we may have a law already in place that needs to be amended. That responsibility is given to the judicial committee. The judicial committee, under the rules and procedures of the tribal council, have the responsibility of recommending laws and amendments there too. They would be responsible, they would oversee the drafting of the law and they would talk to people who are expected to enforce to see if there is anything that needs to be changed. Not only that, but the constitution requires the posting of a proposed ordinance for public comment for no less than 12 days. Once those comments are received, usually by the legal department, they’re taken back to the judicial committee for review and if they feel that a comment needs to be considers, they’ll do that and make further change to the draft before it’s presented to the tribal council. If there is substantial change to the draft that was sent out, it has to be reposted again for another period of time before it’s taken back to council. They’re enforced by the people who are authorized to enforce it within the ordinance. The tribe enforces, say like Title 20, they enforce their enrollment ordinance, which is a part of our code of justice; it has all of our laws within one code, our tax laws and those kinds of things our tribal council enforces. Our criminal section of the code is enforced by the BIA law enforcement and it’s done by approval of a resolution of the tribal constitution, authorizing them to enforce the laws of the tribe. Ordinances are structured and they identify who will enforce the laws. Tribal council doesn’t enforce everything that it passes; there are other committees that are created. The Chairman is authorized to put advisory boards and committees and that kind of thing in place, which he has through this current constitutional review work that’s being done. Ordinances require the establishment of others but they’re not authorized to do any more than what it says in the law. They are trained and they have to live according to or up to the ordinances.

Danielle Hiraldo:

You mentioned an ordinance on membership; can you tell us how you determine who’s a member or citizen of Standing Rock?

Verna Bailey:

I read that to the time when the membership requirement of the constitution was being discussed, there were recommendations to bring the blood quantum up to half; others said lower it. The requirement was one-quarter, you had to be one-quarter Standing Rock Sioux. Other recommendations came in saying that the tribal council should recognize all Sioux Indian blood and they mentioned Oceti Sakowin…so people asked, ‘Who are the seven bands of the Sioux?’ I think we need to further amend that section in our constitution to say who are the seven bands because there seems to be some confusion as to which seven that provision is meant to be. That is established by ordinance and it is in our code of justice. Right now, our enrollment office is located in the BIA offices so it works out fairly well for now but I think work will probably be done on that section in our constitution as time moves on.

Danielle Hiraldo:

Was membership or blood quantum citizenship criteria a part of the original 1914 constitution? Was there any type of criteria there?

Verna Bailey:

No, no there was not.

Danielle Hiraldo:

Just government?

Verna Bailey:

Yes. That didn’t appear…the enrollment ordinance in fact did not come about until around 1960. Prior to that, when I asked the older people how did you enroll tribal members, and they said all that was required prior to the tribe enacting its own enrollment ordinance was for a certificate of live birth to be transmitted from the Indian Health Service to the BIA reality and you were automatically added to the rolls. There was no membership criteria, you were just put on. You’ll see on the roles way back then that some people possessed a lot less than one-quarter degree of Indian blood were still put on the roll. But that membership roll was accepted as the official membership roll when the enrollment ordinance was enacted so those people were not dis-enrolled.

Danielle Hiraldo:

Traditionally, how did you determine who was Lakota or Dakota? How did you know who was a part of your community? Was it clans, family, kinship?

Verna Bailey:

There was…how shall I explain that? There was kinship. The women, I believe probably more than the men, kept track of who you were. That was another thing they always advised you was to never forget who you are. You had to know who your mom and dad were and what band of Sioux they came from. There was a lot of documentation in mind on who you were and they did not forget where you came from. In fact, it was in the early 1960’s, again I was in a room with these leaders who were men, talking about the different bands of Sioux. One of them – and they were teasing each other at the time this was said to me – they said, ‘Verna, you come from the band of people who used to hang around the fort; now, it’s 1960 and you’re still hanging around the fort.’ I told them, ‘Yeah and I’ll live here till I die. I’ll hang around the fort till I die.’ See, they recognized bands and where they were; they each had their places and the people in those bands.

Danielle Hiraldo:

So was that how the districts were identified in the constitution?

Verna Bailey:

No, not really. I’m not sure – I don’t know about how the districts were identified but later, the tribal council enacted the resolutions describing the boundaries of each resolution. That did not happen until much later. In Kenel, a district in South Dakota extends part way into North Dakota.

Danielle Hiraldo:

That actually makes me think of another question because you guys are in a really interesting situation where you deal with South Dakota and North Dakota because of your boundary and your territory, right? Can you talk about how Standing Rock relates to these other governments?

Verna Bailey:

Well, sometimes you will hear in conversations that that’s the North Dakota side; in fact, their constitution addressed it at one time saying that a certain number of councilmen had to be elected from the North Dakota portion of the reservation and others from the South Dakota portion. You still hear some discussion about the North and South Dakota portions of the reservation but I think that has lessened and when there were, like I said, the determination of boundaries of the districts that was done without regard to the state line. Like I said, Kenel extends into North Dakota so that was done without regard to where the state line was, which is good. We shouldn’t use that as a division. I believe that the people did not designate their own homelands, that was done by the government when it established the reservations and that’s where we had to live. If it were up to the people, there would be no boundaries but that’s how it happened. There were acts of congress, there were treaties that set apart land that we know as reservations today. I don’t believe it was the people themselves who agreed to that.

Danielle Hiraldo:

I’m going to turn back into the constitution reform part. From your perspective, what are some of things that will come up when you start talking to these communities? Outside of the four amendments, what are some of the issues you think that you might hear? Concerns about your current constitution.

Verna Bailey:

I think that some of the issues that will be raised but we’re not authorized to deal with would be membership requirements. There’s a question as to whether we should keep the eligibility requirements for tribal council membership in the constitution versus in an ordinance. Powers of the tribal council, they want to add to powers of the district council. What about the judiciary, they say? Is that a separation of powers? I think that’ll be discussed and there could be many other issues that could come up. We could report those but we’re not authorized to deal with them, the resolution restricts us just to four areas.

Danielle Hiraldo:

So do you see having to come back to the council for extended period of time? Within the resolution, you have a short time frame, right?

Verna Bailey:

We have only until September to finish our work.

Danielle Hiraldo:

Do you think that you’re going to have to request to have this extension?

Verna Bailey:

We haven’t talked about it. We’ve discussed what could come up, not in a formal setting of our meetings but we’ve mentioned to each other, ‘This one brought this issue up so I’m sure it’s going to come up.’ Those kinds of things are coming about but like I said, we don’t have rules to follow yet. We have to set a plan out and we’ll do that but all we can do is report to the committee on the things that we hear and it’s up to them. I don’t expect that we’ll be asking for an extension of time for ourselves and to continue us on the committee. I may be wrong, maybe the others have different feelings on that. We’ll see.

Danielle Hiraldo:

I’ll ask one more question if that’s alright with you. This is referenced to the plan; What do you see as your first steps for your plan of engaging the community? I know you said you wanted to go to the districts.

Verna Bailey:

Ok, again, I think we need to get back to the resolution. We can’t do any more than what was authorized so I believe that we will talk about what needs an amendment to the constitution. We have heard from a number of people that only one does and if that is the consensus and it comes to the motion of the committee that I’m part of then that’s how that will be. We also need to take a look at what it would require to change or delete the felony issue from the constitution. That would take some work, I believe in talking to people, getting out into the districts and drafting the language. Who’s going to help us do that? We have in-house attorneys I’m sure who will assist us with that effort. There may be only four amendments but I see a lot of work that we have to do to complete what is mandated at the resolution.

Danielle Hiraldo:

And you plan on starting with the districts and from there doing the training as you said, the constitution training. Do you plan on going article-by-article within the constitution training or what kind of ideas were you thinking?

Verna Bailey:

The Long Soldier district, the woman who made the recommendation said we want training on the whole constitution. That is to refresh the memories of those who have read it in the past and those who haven’t. It’ll be interesting work and I welcome that. I don’t mind another review; if it’s going to work, let’s do it.

Danielle Hiraldo:

Well, that’s all the time we have on today’s episode of Leading Native Nations. To learn more about Leading Native Nations please visit NNI’s Indigenous Governance Database website, which can be found at www.IGovDatabase.com. Thank you for joining us.

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

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

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

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

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

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

Pommersheim: "Yes."

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

Pommersheim: "I'm all for it."

Gwen Phillips: "Search and replace!"

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

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

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

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

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

Q: "Thank you for your time."

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

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

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

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

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

Northern Ute Tribal Enrollment May Rise, Pending Election Could Lower Blood Quantum

Author
Year

A tribal nation with what could be North America’s strictest enrollment criteria may soon decide on more flexible rules that might, if adopted, increase the tribe’s current 3,000-plus membership.

A pending election could lower the 5/8 Ute Indian blood degree requirement for membership in the Ute Indian Tribe, Uintah and Ouray Reservation, Fort Duchesne, Utah [“Northern Utes”], which occupies some 1.3 million acres of trust land containing significant oil and gas deposits...

Native Nations
Resource Type
Citation

Berry, Carol. "Northern Ute Tribal Enrollment May Rise, Pending Election Could Lower Blood Quantum." Indian Country Today Media Network. April 09, 2013. Article. (https://ictnews.org/archive/northern-ute-tribal-enrollment-may-rise-pend..., accessed February 22, 2023)

Tribal Constitutions

Producer
Native America Calling
Year

Modern tribal nations pass laws, exercise criminal jurisdiction, and enjoy extensive powers when it comes to self-governance and matters of sovereignty. And of 566 tribal nations, just under half have adopted written constitutions. In the American tradition, a constitution limits the power yielded by governments over citizens, which raises a question: how can the rights of tribal citizens be protected if tribal nations have yet to codify their own functions and operations? Join us as we discuss government power, sovereign status, and whether modern tribal nations are serving the needs of their citizens by adopting constitutions.

Resource Type
Citation

"Tribal Constitutions." Native America Calling. March 26, 2015. Audio. (http://www.nativeamericacalling.com/thursday-march-26-2015-tribal..., accessed April 6, 2015)