constitutional amendments

Wilson Justin: Leadership with Cultural Knowledge and Perseverance

Year

Wilson Justin is a cultural ambassador for Cheesh’na Tribal council and serves as a Vice Chair Board of Directors for Mt. Sanford Tribal Consortium.  He relays his expertise and perspective on the intricacies of Indigenous governance in Alaska through adapting cultural traditions, creating a constitution, navigating citizenship, and asserting rights of Indigenous people. 

Native Nations
Resource Type
Citation

Native Nations Institute. "Wilson Justin: Leadership with cultural knowledge and perseverance."  Leading Native Nations, Native Nations Institute, University of Arizona, Tucson, AZ, November 15, 2016

For a complete transcript, please email us: nni@email.arizona.edu

Yurok Tribe: Jurisdiction/Territory Excerpt

Year

ARTICLE I - TERRITORY , JURISDICTION AND AUTHORITY

SECTION 1 - Ancestral Lands

The Ancestral Lands of the Yurok Tribe extend unbroken along the Pacific Ocean coast (including usual and customary off­shore fishing areas) from Damnation Creek, its northern boundary, to the southern boundary of the Little River drainage basin, and unbroken along the Klamath River, including both sides and its bed, from its mouth upstream to and including the Bluff Creek drainage basin. Included within these lands are the drainage basin of Wilson Creek, the drainage basins of all streams entering the Klamath River from its mouth upstream to and including the Bluff Creek and Slate Creek drainage basins, including the village site at Big Bar (except for the drainage basin upstream from the junction of Pine Creek and Snow Camp Creek), and the Canyon Creek (also known as Tank Creek) drainage basin of the Trinity River, the drainage basins of streams entering the ocean or lagoons between the Klamath River and Little River (except for the portion of the Redwood Creek drainage basin beyond the McArthur Creek drainage basin, and except for the portion of the Little River drainage basin which lies six miles up from the ocean). Our Ancestral Lands include all submerged lands, and the beds, banks and waters of all the tributaries within the territory just described. Also included within the Ancestral Lands is a shared interest with other tribes in ceremonial high country sites and trails as known by the Tribe, as well as the Tribes usual and customary hunting, fishing and gathering sites. The Ancestral Lands are depicted on the "Map of Yurok Ancestral Lands", on file in the Yurok Tribal Offices.

SECTION 2 - Territory

The territory of the Tribe consists of all Ancestral Lands, and specifically including, but not limited to, the Yurok Reservation and any lands that may hereafter be acquired by the Tribe, within or without Ancestral Lands.

SECTION 3 - Jurisdiction

The jurisdiction of the Yurok Tribe extends to all of its member wherever located, to all persons throughout its territory, and within its territory, over all lands, waters, river beds, submerged lands, properties, air space, minerals, fish, forests, wildlife, and other resources, and any interest therein now or in the future. 

Cheyenne and Arapaho Tribes: Legislative Functions Excerpt

Year

ARTICLE VI - LEGISLATIVE BRANCH

Section 1. Composition. The Legislative Branch shall be comprised of one Legislature. The Legislature shall consist of four Cheyenne Districts and four Arapaho Districts. Each Cheyenne District shall have one Cheyenne Legislator and each Arapaho District shall have one Arapaho Legislator, for a total of eight District Legislators. The Legislature shall select a Speaker from among its members.

Section 5. Powers. (a) Legislative power shall be vested in the Legislature. The Legislature shall have the power to make laws and resolutions in accordance with the Constitution which are necessary and proper for the good of the Tribes. All actions by the Legislature shall be embodied in a written law or resolution. All actions by the Legislature shall be made by a majority vote of the Legislators present unless otherwise specifically indicated by this Constitution. Tie votes in the Legislature shall be decided by the Governor. Laws and resolutions which have been enacted shall remain valid until amended or repealed. 

Topics
Citation

Cheyenne and Arapaho Tribes. 2007. "Constitution of the Cheyenne and Arapaho Tribes." Concho, OK.

Cherokee Nation: Amendments Excerpt

Year

Article XV. Initiative, Referendum and Amendment. Section 9. No convention shall be called by the Council to propose a new Constitution, unless the law providing for such convention shall first be approved by the People on a referendum vote at a regular or special election. Any amendments, alterations, revisions or new Constitution, proposed by such convention, shall be submitted to the registered voters of the Cherokee Nation at a general or special election and be approved by a majority of the registered voters voting thereon before the same shall become effective. The question of such proposed convention shall be submitted to the citizens of the Cherokee Nation at least once every twenty (20) years. 

Native Nations
Topics
Citation

Cherokee Nation. 2003. "Constitution of the Cherokee Nation." Amend. XV, Sec. 9. Tahlequah, OK.

Crow Tribe: Amendments Excerpt

Year

ARTICLE XII - AMENDMENTS

This Constitution may be amended by a two-thirds (2/3) vote ofthe Crow Tribal General Council provided that at least thirty percent (30%) of the Crow Tribal General Council vote in an election called for the purpose of amending the Constitution. The process to propose amendments to this Constitution shall be defined by the Legislative Branch in legislation which complies with the requirements ofthis Article of the Constitution. No amendment shall become effective until approved by the Secretary of the Interior or his duly authorized representative. 

Topics
Citation

Crow Tribe of Indians. 2001. "Constitution and Bylaws of the Crow Tribe of Indians." Crow Agency, MT.

John 'Rocky' Barrett: Blood Quantum's Impact on the Citizen Potawatomi Nation

Producer
Native Nations Institute
Year

In this short excerpt from his 2009 interview with NNI, Citizen Potawatomi Nation Chairman John "Rocky" Barrett discusses the devastating impacts that blood quantum exacted on the Citizen Potawatomi people before the nation did away with blood quantum as its main criteria for citizenship through constitutional amendments in the mid-1980s.

Native Nations
Resource Type
Citation

John "Rocky" Barrett, Chairman, Citizen Potawatomi Nation, "Constitutional Reform and the Citizen Potawatomi Nation's Path to Self-Determination," Interview, "Leading Native Nations" interview series, Native Nations Institute for Leadership, Management, and Policy, The University of Arizona, Tucson, Arizona, March 28, 2009.

"It was a period of time where the...my realization that there was...the Bureau [of Indian Affairs] was asking us to give them advice on the agency budget. And then when we would, they would ignore us as far as the advice. And there were...almost at every stop there was some deliberate statement of policy that the United States government and the Bureau of Indian Affairs' job was to represent the interests of individual Indians, and not tribes or tribal governments. And that had certainly been manifested almost entirely in the 1948 Indian Claims Commission settlements. And it had forced us into a situation of closing our rolls in 1962 except for some arbitrary blood-degree cutoff. The concept of blood degree was foreign to our culture, and we did away with blood-degree determinations in constitutional amendments in the mid-1980s. But that period of time between '62 and '80 disenfranchised an awful lot of people and led to a -- on the whole -- a great deal of the separation that the people felt from the tribe and its culture. It became all about splitting up this poof money that was coming from the government, these little payments, and less about the fact that here we are, a people with its own language and art and history and culture and territory and government that had been there for thousands of years, and suddenly we placed these arbitrary stops in our system over a $450 check. In retrospect, it seems insane, and it was. Truthfully, it was."

Andrew Martinez: Constitutional Reform: The Secretarial Election Process

Producer
Native Nations Institute
Year

Native Nations Institute's Andrew Martinez (Salt River Pima-Maricopa Indian Community) gives participants a concise and informative overview of how the secretarial election process works when Native nations amend their constitutions, and what happens (and doesn't) when Native nations remove the Secretary of Interior approval clause from their constitutions.

Resource Type
Topics
Citation

Martinez, Andrew. "Constitutional Reform: The Secretarial Election Process." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management & Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Andrew Martinez:

"Good afternoon. My name is Andrew Martinez. I'm originally from San Diego, California. I grew up on the Mesa Grande Indian Reservation out there. And just for scale, it takes about two minutes to drive through on the highway. It's pretty small. I came to NNI last semester as an intern. I just kind of wandered into the office, spoke to Joan, she decided to take me on. I was given the task to look into the secretarial election process and the first thing she said is like, "'Go to the 25 CFR.' I'm a business major; I'm a minor in public policy and management. I'd never look at 25 CFR. I was very, very lost and the more I read it or the first time I looked at it I was very confused, but I had to continue to go over it and go over it and through numerous Google searches I started to discover a pathway through it and that's what I'm here to clarify for you today.

So getting started I'm going to cover the objectives that I was given last semester to basically understand, once I'm going through this process, cover some background on the secretarial election process, specifically to remove the secretarial approval clause from the IRA constitutions, the Indian Reorganization Act constitutions. After the background, I'll step into the legal process in Section 82 and 81 of the Code of Federal Regulations hitting on the actual code and then also discussing tribal action that happens during that time. And these are basically observations that I've made from the tribes that have gone through this process. And I'll end with some documents that I feel that will be helpful for those of you who are undergoing this process right now and drafting your constitutions, and then also show you some more legal documents that Dr. [Robert] Hershey was talking about and open the floor up to questions. And if you would, I'll be asking my own questions. This is the first time I'm giving this presentation to an audience who really has experience in this process. So if you're willing to help me out here, help me understand the process that much better, that would be great.

So starting out, I was tasked with understanding the timeline, basically the framework that exists with the secretarial election process right now. There was no established timeline prior to 1988. That came with an amendment. I found out the amendment happened, looked at the timeline. My next question was, what brought on that amendment? Looked further, I found one case, Coyote Valley Band. Three tribes sued the United States, basically because they wanted to reform their constitutions, submitted documentation to the BIA [Bureau of Indian Affairs] agency, and got no action. One of the tribes waited a couple months; another tribe waited a couple years, no action at all. The ruling was in favor of the tribes and now we have the established framework that I'll be presenting today.

The second is to understand the interactions that happen within the secretarial election process, from the petitioning process, the tribal council interactions, the tribal membership and citizenship, even with the constitutional reform task force or committees that are initiated. And then once the official documents have been submitted to the local agency office, where do they go, how far up do they go? This is where I really started to get interested, and I have to say I got quite excited when I was able to find official BIA paperwork online.

So getting to the background. These points that are on the slide I pulled from presentations that were given during information sessions by tribes to their citizens. A secretarial election is not a tribal election, it's a federal election; therefore, you have to register separately. Second, it's authorized by the Secretary of Interior. That's what the language says. However, the paperwork only works up to the regional director unless there's an issue that needs to be clarified past that. And to clarify that, the Pueblo of Laguna who -- I think both of their representatives have left already, that's okay. Thank you for that. Thank you for posting that. That was very helpful for me, clarifying that it is the regional director that calls the election. And then why is it conducted? For the purpose of allowing tribes to reorganize under a federal statue, specifically the IRA [Indian Reorganization Act], to amend, ratify, revoke their constitutions, bylaws or tribal charters.

And I know that we have some representatives that are not from the U.S., so I put this in here to clarify the language. This is what the typical BIA constitution amendment section looks like and what a lot of us are hitting on today is removing the Secretary of Interior approval clause from that. As you can see, it's noted four times within this section. And this is the BIA template constitution. When you look at other IRA constitutions around the U.S., it looks very similar and when tribes are going through the secretarial election process now, this is the main concern, removing this so that they can put themselves into the driver's seat.

So getting into Section 82, the petitioning process. This is a lot of back-end work for the tribes. This is where the constitutional reform task force is formed. Sticking with the objectives that I was given, I'll only be hitting the points that discuss deadlines and interactions. Starting with 85, the official text of the Code of Federal Regulations notes that there will be a cutoff date once the petition has begun circulating, however it doesn't really specify that.

Filing a petition: Once all signatures have been collected, adequate amount of signatures have been collected, it's submitted to the local agency office by the tribal representative, they choose to make comments, return it back to the tribe, the tribe can accept or reject those comments and then it's returned back for the official filing date. Any challenges to the signatures on the petition must be brought within 15 days. This is the first...well, actually this isn't the first, but this is one of the many points where this process can be stopped, once these challenges are brought. Then, action on the petition. The area director or commissioner, regional director when reviewing has 45 days to review the documents and decide and also assess all the challenges that have been brought.

So tribal action during this point. The tribe will have identified whether it wants to reform its entire constitution during this process or simply hit one amendment or article. And I've seen successes and failures with the searches that I've done, the research, on both ends. Some tribes are successful, some tribes are not. Lac du Flambeau [Band of Lake Superior Chippewa Indians] just went through this process earlier this year, I think January or February, just to remove that approval clause, secretarial approval clause, failed. White Earth [Nation] reformed their entire constitution, passed. So there's no simple path to success during this process.

Again, Ian [Record] spoke about holding tribal education sessions, keeping tribal members informed, keeping them engaged and keeping them motivated. Make sure that they understand what's happening. Make sure that they understand their constitution how it is right now. Compile a membership list. I put that up there so that those who are actually going through this process specifically on the task force or constitutional reform committee, that they know the exact numbers that they have to hit, the adult members and the petitions, their signatures they need on petitions. And also consider, at this point you haven't submitted documents to the local agency office, consider at this point to who's going to serve on the secretarial election board once approval is given and I'll speak about that more later on. Circulate the petition -- 180 days to circulate the petition from the date of the first signature.

Now I pulled this date off of a document loaded to the BIA website. It's noted' DRAFT 2009.' Can anyone confirm this or deny this for me? Does anyone have any info? No? Okay. If anyone happens to come across any language that clarifies that, please send it to me. And then you will be submitting all documents to the local agency office.

At this point, setting tribally imposed deadlines, I think, is appropriate. Again keeping people motivated. Currently, Pascua Yaqui [Tribe] is going through this process. When I first gave this talk last semester to the managers at the Native Nations Institute, it was the week after they held their first education session. They continued to do this and one of the focus on amending one of the articles is removing the Secretarial approval clause from their amendment section. There are a lot of lawsuits that come out of this process. This is one of them and bringing the attention to the second point, the text of the proposed amendment was numbered rather than labeled alphabetically. Again, there's a lot of steps that can hang up tribes when trying to go through this process. If the petition or official documents once submitted are not deemed appropriate, the process needs to start all over again.

Now moving onto Section 81, Secretarial Election Process. This is once authorization has been given, official documents have been approved. Again, sticking with only the deadlines and interactions, picks up at 81.5 that 45-day period. At this now authorizing official is reviewing the documents. This picks up right after 82. If approved, the secretarial election board will be...will convene for the first time and set the dates for the election. This election needs to happen within the next 90 days and they will then set the dates for registration deadlines, absentee ballot voting if that's the case, and then also the posting of the official voter's list.

Once the secretarial election board is formed, they will convene, meet, set the deadlines at 30 days, no earlier than 30 days I should say, the election packets notices need to be mailed out to tribal citizens because at 20 days prior to the election the official voters list must be posted. That is so citizens can bring challenges forward to the official voting list to verify if the names on the...the names of the citizens who registered to vote are eligible to vote. If the tribe chooses to do absentee ballot voting, the absentee ballots need to be mailed out 10 days prior to the date of the election. And again, any challenges that are brought forth need to be brought forth three days after the election, date of the election.

And then the authorizing official, again regional director, will cover and assess challenges and rule on the sufficiency of the election. And really this was very confusing to me when I first looked into it, but then when I started finding the official documentation that was mailed out to tribal citizens it made it much more clear and for me referring back to certain sections, 82.5 and 81.11, you'll see these notices once you go through this process.

Tribal action during this period. Select representatives for the secretarial election board. Will you have the same representatives that are serving on your reform committee serving on the election board at that time? Do you have...consider the amount of districts that you have. Will you have a representative from each district serving at that point? Continue to hold education sessions, verify that registration's gong out on time, make sure that tribal members are registering and vote. I've seen a couple elections where they just didn't meet the numbers. They didn't meet that 30 percent criteria. So in that the election failed. Submit all absentee ballots on time. And then the election board, following the date of the election, will post the unofficial results and that's when the challenges can be brought forth by the tribal citizens.

So some of the found documents, and I got again real excited when I found these. This is a letter dated 2009 addressed to tribal leaders informing them of education sessions to note the changes that have happened to the IRA, specifically noting first that there's a timeframe established within that first bullet point up there. The second includes language clarifying that an IRA tribe may amend its constitution to remove secretarial approval of future amendments. There you go. There's your official language and the official document. And that led me then to the Native American Technical Corrections Act. I wanted to find out where that's at.

Section 103: Tribal Sovereignty. Each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section. You can remove the language, you're not going to lose your sovereignty, you're not going to lose federal recognition. Here's a document from Pueblo Laguna and if anyone has a chance and is going through this process and wants to see the official documents prior to submitting anything, check out their tribal website. It was actually very helpful for me because they have their documents still loaded from their 2012 secretarial election. This letter here, again, one of their articles that they were amending was removing the secretarial approval clause from their amendment section. This will not affect the status of their current standing as an IRA tribe. The Pueblo will continue to be an IRA tribe with a non-IRA constitution. Again, there it is for you."

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?”

Jennifer Porter: Cultural Match Through Constitutional Reform at Kootenai

Producer
Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Vice-Chairwoman Jennifer Porter of the Kootenai Tribe of Idaho explains what prompted her nation to enact several amendments to its constitution in the mid-1990s, and how its ability to govern effectively has been greatly enhanced by its decision to its cultural roots when it comes to how it elects its leaders.

Native Nations
Resource Type
Topics
Citation

Porter, Jennifer. "Cultural Match Through Constitutional Reform at Kootenai." Leading Native Nations interview series. Native Nations Insitute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 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 Jennifer Porter. Jennifer Porter is the former Chairwoman and now Vice Chairwoman of the Kootenai Tribe of Idaho. And we’re here today to talk about the Kootenai Tribe of Idaho’s constitution and some of the recent efforts they were engaged in to amend their constitution and how it’s working, etc. I guess we’ll just first I guess have you start off by just telling us a little bit more about yourself.”

Jennifer Porter:

“Okay. Good morning. My name is Jennifer Porter, Vice Chairwoman of the Kootenai Tribe. I’ve been on council for the past 17 years, I believe, so this would be my fourth term as a council member. I don’t know what else you want besides that. I could go in depth [on] family...”

Ian Record:

“Yeah, sure. Why not.”

Jennifer Porter:

“...I’m a mother to three children ages, 20, 14 and 12, recently a grandma. That was a big part of me stepping down from chair so I could have more time to just enjoy my life now.”

Ian Record:

“That’s good. You’ve got to have balance, right?”

Jennifer Porter:

“Oh, yes, and I’m loving it.”

Ian Record:

“And it’s hard to achieve that as an elected leader I know.”

Jennifer Porter:

“It is, yes.”

Ian Record:

“So we’re here to talk about your tribe’s constitution and you’re here in Tucson this week to serve as one of our presenters for our Tribal Constitution seminar. And one of the reasons that we focused on your tribe and on you in particular is because back in the mid-1990s, your tribe engaged in a referendum vote that ended up approving a set of amendments. And from what you were telling me yesterday there’s quite a back story to how all this came to be. And I guess we can start...if you could start just talking about where the tribe was in the mid-1990s, what sort of constitution it was working with, and sort of what prompted the tribe to go down the reform road.”

Jennifer Porter:

“Sure. It was pre-my term as a council, but I was of the age to understand, out of college. I worked in the accounting department and closely related to the council so I got to see what was going on and hear, read the minutes and such. And at that time and for a number of years prior to that, our constitution, it stated that it was a five-member council and one of those members was the hereditary chief and he had a seat on council. So every three years an election came, they elected four different council members, but the chief always had the residing seat on council. And that stemmed problems.

In our community, we are made up of three main families and three -- odd number -- there’s always one ousted. So every election they would elect two of those families to the council whoever the chief at that time was getting along with. And basically it came to where it was the chief and the chair that they would either be with each other or against each other and every time there was a discrepancy they would oust whoever the chair was or oust whoever the councilman that was going against whatever it was.

So at the time, my mother was the current chair and she said there was so much uproar all the time about decisions being made that whenever something was...a resolution was passed, an ordinance was made, she was just waiting for a petition from the tribal members. There were times where she went off to meetings and she would come back and she would be petitioned off the council and they would have to go through the whole system of putting her back on and it was just like that. It was just always...you just never knew what was going on at the time and it kind of...it stemmed from that where she just got tired of it. If they wanted her on council, if they wanted these four people on council for the three years then they needed to come up with some kind of agreement.

So what she had said, and I liked in yesterday’s...some of the, I forgot who that was talking, but he said that we need to go back into our old ways, our cultural ways, our customary ways of how we got together, how we determined where and how we’re going to move forward. Well, she went back to that and she went back to the elders and what she was told is that we would come together as families, the family heads would come together, the households, they would have council. And that’s what led her to her decision and she called all of the major...the three major families, the households, the people that she in the past had sat on council with. She called those people to the table. She also called some of the elders to the table that she knew that people listened to that made the difference, had certain wisdom amongst the community. She was able to gather them all at the same table. They talked and they came to an agreement. Some of them were for it, some of them were against it, but when they really thought about it, having districts...families having three different districts, then it was a win-win for everybody because no matter who was getting along, who wasn’t getting along, as a family you would always have two representatives on the seat of the council.”

Ian Record:

“So basically the solution was, ‘We’re going to do away with this system where...’ How did it work under the prior system where you had these five council members, one of which was a standing position with the hereditary chief, right? And that person sort of had a different status than the other four? Were the other four voted on at large by the entire community?”

Jennifer Porter:

“By the community, yes.”

Ian Record:

“So you could have a family who would not have any representation at all...”

Jennifer Porter:

“Yes, yes.”

Ian Record:

“...on the council. And so you moved to this system which makes more cultural sense and also ensures that virtually everybody in the community because they’re going to be from one of these three main families in some respect would have a voice in the decision making process. Was that basically the premise?”

Jennifer Porter:

“Yes, it was.”

Ian Record:

“So then in August of 1995, the tribe goes forward with these four amendments and this is to amend the 1947 constitution. I’m curious, what is your knowledge of that 1947 constitution? I believe that’s the first written constitution of the tribe.”

Jennifer Porter:

“That was the first written [constitution] of the tribe, correct.”

Ian Record:

“Do you have...do you know much about how that original constitution came to be and who sort of authored it and anything like that?”

Jennifer Porter:

“No. I was looking at the signatures of that and those were the people of the community, the past leaders, just some... the historians, yeah. And it’s interesting how it was written and as the chief had always a standing place on the council.”

Ian Record:

“So in August of 1995, as I mentioned, these four amendments are put up to vote and I’ll just roll through them very quickly. The first one deals with the issue of blood quantum and I would assume making a change to at least one-quarter...”

Jennifer Porter:

“Yes.”

Ian Record:

“...degree blood quantum in descendancy from someone on a base roll. Amendment D basically just is a name change. You’re changing the name from Kootenai Tribe of Indians to Kootenai Tribe of Idaho. Those turned out to be not so controversial, which you would...it’s interesting that the blood quantum one doesn’t turn out to be controversial because...”

Jennifer Porter:

“Right.”

Ian Record:

“...folks will understand why here in a second, that the second amendment deals with exactly what you said, this change to this family-based system of representation on the council, per the three main families. And then the third amendment deals...is a related one that deals with changing the quorum requirements in accordance with how this new council was going to be constituted.”

Jennifer Porter:

“Yes.”

Ian Record:

“So you guys hold a vote, you pass all four amendments, you send them to the BIA [Bureau of Indian Affairs] per your constitution, which says that the Secretary of Interior must approve of amendments to your constitution, which is typical language of tribal constitutions from that era. Then tell me what happens next.”

Jennifer Porter:

“So the first amendment was approved, the last amendment was approved, and just like you said they didn’t approve the districts and the idea of breaking the council up into the district families. So what does our council do? They...what we were told, the reason for that, I did find that out was basically because our tribe was very small at the time, it was maybe between 100 and 120 members, that BIA felt that it wasn’t...they were adhering to the U.S. vote of one vote, one person and since we were a small tribe they thought that not everybody in the tribe would have that vote if we broke it up. But we had the argument where each person would be represented though. They have the vote to their member, their family member being on the council. So I see that our council was very bold at that time, they were going in the direction of self-determination, exercising their self-governance. So they brought the 70 percent of the general membership, which I know there was way more than 70 percent at that time, came together because they wanted this to pass. They liked this whole concept and the whole idea. They came together and they voted to do away with the BIA approval. It happened, we sent that in and I believe that happened in ‘95 or ‘96 that BIA approved that. So less than a year later we instilled our own...the new amendment, too.”

Ian Record:

“So it’s been in place for close to 20 years now and I’m curious, you’ve been in a position of leadership within your tribe for virtually all of that time and you have a window into how divisive the previous system was. Can you compare how those two approaches to how the Kootenai citizens are represented in the decision-making process of the government and how those two have differed, how they compare and contrast?”

Jennifer Porter:

“Well, I was very blessed to be in the newer version of the constitution. I’d like to say I’ve never been petitioned off the council. I’ve never seen a petition since I started. Unfortunately, it was a loss of one of my family members is how I walked into our council. It was actually the first term of this new...the new constitution and he had passed away. So my family voted me into his...so I fulfilled the rest of his term, which was the three years. Since then it’s...I can only say good things about it. There have been no more petitions. Each member, if you go back home and you ask them, they all know who’s sitting on their family on the council. If they have an issue, the way the council works now is we ask them, ‘Have you talked to your family representative first?’ If they want something brought to the table, they have to go to their family representative. So it’s kind of like a two-point process. They can’t just come into a council meeting anymore. They have to have their family’s approval, they discuss it, and then it comes to the council. So as long as we know where they’re coming from, what kind of direction or what questions they’re asking.”

Ian Record:

“So from what you’re saying, I gather your governance system has become a lot more stable.”

Jennifer Porter:

“Yes.”

Ian Record:

“Because the leadership is...there’s continuity there and there’s not as much in-fighting or perhaps any in-fighting of note. And then there’s also an ability for people to get their needs addressed where it doesn’t consume the entire council’s attention. So I would imagine that frees you up to really focus...sort of be more forward looking and strategic in figuring out, ‘Okay, what direction do we want to head and what do I need to understand and learn as a council member or as a chair or vice chair in order to get us there,’ versus being distracted by constituent concerns that are better addressed at the family level. Is that accurate?”

Jennifer Porter:

“That is accurate. It seems like every family has their interest, like one family has a cultural interest, another is education, another is economic development so it kind of made it to where each family can invest more time with that, but also bringing it to the table and able to work together. We don’t have to deal with the, ‘Someone doesn’t like someone' or 'They did this to me years ago.’ Yeah, it’s just not dealt with anymore as on...they have to deal with that within their own district.”

Ian Record:

“So have you seen a shift in how the average citizen regards the government as a whole since this change was made? I would imagine with that back under the previous system if there’s a lot of infighting, if there’s a lot of petitioning to say, ‘Oh, let’s throw that bum out. He doesn’t agree with me,’ or whatever, that tends to feed among the people a very low regard for government and a very low regard for leadership in whoever’s holding that position. Have you seen a change in terms of how the people tend to view their government? Is there more pride in the system and saying, ‘Hey, we can do things. We can make decisions. We can implement those decisions. We can really move forward.’”

Jennifer Porter:

“There’s a tremendous change. There is that pride there. There is that respect that wasn’t seen there before. It took them a few years to actually get the concept of, ‘Hey, I can bring something to the council. All I have to do is go talk to my family rep,’ instead of feeling like nothing can be done until we get a family member in there. So now they do have that voice, they can make a difference. And right now it’s broken down to council each has their different interest in the area and it’s kind of like if they don’t feel comfortable going to this council talking to education they’ll talk to their family member and then that family member will go talk to that council. So it’s kind of...it works so much better. It’s more...even though it’s more family based, it works better for the community overall.”

Ian Record:

“So are there other areas of the constitution that the tribe perhaps is having a conversation about changing or strengthening or anything like that? Is there more attention being paid now to figuring out, ‘Okay, yeah, things are working well. Are there ways we can make it work better,’ or are things just sort of chugging along.”

Jennifer Porter:

“Things are working well as it is and I think it’s more if it’s working just let it be.”

Ian Record:

“Well, that’s great. I wish I could say this is a typical story coming out of Indian Country but it’s...I think what Kootenai has done with you would think on its face one simple change, but it sounds like the trickle down effect throughout the government has been very constructive across the board. I think it offers a promising success story and a promising blueprint for other nations to look at to say, ‘If we just look to our own traditions, we just look to our own values and how we did things before and try to bring that forward into the 21st century we can achieve our own goals, we can govern well, we can make decisions in a unified fashion.’”

Jennifer Porter:

“And it was a blend. I like the way it was presented yesterday about going back to your traditions and your culture and the way I seen it when he was talking is it’s a blend of the culture and today’s world, bringing those together and being able to make it work.”

Ian Record:

“Well, Jennifer, really appreciate you taking some time to sit down with us. I know it was a little bit short notice, but I thank you for agreeing to share your story with us. We’re always eager to learn about new stories of constitutional success and constitutional enhancement and self-determination in action.”

Jennifer Porter:

“Well, thank you. It was a determination of...I think you guys have been asking me for like four or five years to come and I finally had the time.”

Ian Record:

“Well, persistence pays off, right?”

Jennifer Porter:

“It does.”

Ian Record:

“Well, again, thank you and hopefully others will learn from Kootenai’s story.”

Jennifer Porter:

“Thank you."

Jennifer Porter: The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change

Producer
Native Nations Institute
Year

Jennifer Porter, former chairwoman and current vice-chairwoman of the Kootenai Tribe of Idaho, discusses how her nation moved to amend it constitution to change its basis of political representation, how the U.S. Secretary of Interior and the Bureau of Indian Affairs (BIA) tried to block the move, and how and why her nation decided to remove the U.S government from the constitutional reform equation in order to make its governance system more culturally appropriate -- and effective.

Native Nations
Resource Type
Citation

Porter, Jennifer. "The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

Herminia Frias:

"Okay, so we're right before lunch and we have two great speakers lined up to talk about the issue and the challenges of citizen engagement. And I'm sure many of you have many stories to talk about when it comes to citizen engagement. How do you host a meeting and actually have people come and show up or have people actually come and participate? So we have two wonderful speakers this morning and the first speaker is going to be Jennifer Porter and she's the Vice Chairwoman for the Kootenai Tribe of Idaho, and she'll be speaking first. And then she'll be followed by Terry Janis, who is the Project Manager...who was the project manager for the White Earth Constitution Reform Initiative. So if we'd...first we'll welcome Ms. Porter."

Jennifer Porter:

"So my name is Jennifer Porter. I don't know what's worse, going before lunch or going after lunch because everybody seems to be thinking when are we going to eat this afternoon, and after lunch you're all tired and want to go to sleep. So I'll try to make this brief, but touch on the aspects of it.

There were a few questions yesterday that were asked and it was a gentleman over here and he kept wanting to know, ‘Well, how do we do it?' He wanted to know about like...I felt like he was asking a question, ‘How has it been done in the past? Like who actually did this? Who reformed their constitution? And I just...you kept hearing people say, ‘Well, tomorrow we'll have that story, tomorrow.' Well, tomorrow's here and I'm one of those stories.

I'm a former chairwoman. I've been on the council for the past 17 years. Recently this past October, I stepped down to the [vice-chairman's position] just to have more family time and to enjoy my life. After eight years, I think it was about time. I have recently become a grandmother so I thought, you know, it's time to let the youth...it's weird to say that, but I just...I've hit that point where I can say the youth now are coming up and taking these positions.

So our story, like I said, the Kootenai Tribe of Idaho, we're in northern Idaho. It's about a half-hour south of the Canadian border. It started in the mid 1990s. Prior to that our constitution, it stated in there a five-member council with our hereditary chief at the time having a sitting position on the council. So every time they had a new council come in and seated, it was always that same chief. He never had to vie for that position. He was always had that position and it seemed to be creating problems all the time. You have this one position and in our community it's made up of three main families. So you see three's the odd number. Whoever's getting along at the time, they'll vote these two families in. ‘We don't like this family, so we're going to keep them off.' And it did that for so many years and you see how every...

At the time, my mother was the chairwoman and she sat on for maybe about 10 years at that time and she said there were times where she would come home and she didn't know if she had a job or not. There was petitions; she would go off to a meeting, she'd come home and there'd be a petition to have her taken off the council. So she would kindly clear her office, fight the council, come back on and they would have her on again. And we hear about that in Indian Country all the time, and it kind of got to where they weren't moving forward. They were always just doing this little 'jumble effect' with council, who's going to be chairperson this week, who's going to be chairperson next month, that kind of thing, and we hear a lot about that in Indian Country still today.

Well, she was tired of it and she was tired of petitions and just like one of the gentlemen was stating yesterday, she kind of...she went back and she goes, ‘Well, how did we...how did we work as a so-called government before constitution, before this was put upon us? How did our elders do it? How did our community work?' She talked to the elders at that time and being with the three main families, it worked. They didn't need voting, they didn't need a constitution, they didn't need a paper telling them how to work their community and how to move forward. So what she did is she got those three main families together. And it was hard. And I could imagine all the fights back then, but all the people that were on council at that time, all the elders that were within those families at that time, all the people that would like...write those petitions and take them around and getting them signed. She got them all together at that time and she said, ‘We need to stop. We're losing our young people. We're losing our old people. In order for us to move forward and to grow as a tribe, we need to stop this.' She can't do her job, nobody can do their jobs. So they came to that agreement.

They all sat down and they came up with something. She said, ‘We need some kind of system that all three families will be represented, that nobody will ever feel left out again. We can all get along at the table.' So what they decided was they were going to rewrite their constitution and all three families were always going to have a seat at the table. They rewrote it to where they took off the chief as the standing position. Each district would be allowed to vote in -- from their families -- two positions on the council.

So mid...it was about 1995 they proposed four amendments to BIA [Bureau of Indian Affairs]. Amendment One had to do with blood quantum and changing enrollment wording with our tribe. Amendment Two was a proposal of changing the district factors into the three main families. The third amendment was the quorum issue, changing the seating from the three [for] a tribal quorum to the four. And the last issue was the naming of the tribe because we didn't want to be known as the Kootenai Tribe of Indians anymore, we wanted to known as the Kootenai Tribe of Idaho. So BIA was okay with the first amendment, they passed that no problems. They were okay with the fourth amendment. We have the right to change our name. But they weren't okay with us changing our structure.

They said we couldn't change it from the five people to the six people. So I asked yesterday, ‘Why weren't they okay with it?' And the answer I got was because of the size of our tribe -- which we are a very small tribe -- at that time, we were a little over...maybe between 110 to 120 and BIA said they were opposed to it because they more or less went towards the U.S. vote, 'one person, one vote,' and they felt going to the three districts or the three different families not every person would be represented as a vote. But we argued with that because we said the way it worked in our past was as long as they were within one of those districts, which made up our whole tribe, they would get a vote.

So it didn't take my tribe long, and I always say they were a bold council back then, and they weren't going to let BIA tell [us] what to do, so they took it upon themselves, they got all the tribal membership, they got them all onboard saying, ‘This is going to work. This is how it's going to work but we need you guys to jump onboard with us. We need you guys to support us. So what we're going to do is we are going to vote that BIA doesn't have a say on how we govern ourselves anymore.' So all they needed was a 70 percent voting of the membership. They got more than that. I think they got about 90 percent of our membership to say, ‘This is right. This is how we're going to do it.' They sent that to BIA, BIA approved that. It's just funny how they had no question to that. They approved it. They couldn't tell the tribe anymore how to run our constitution or how to do our government.

So once that was approved, the tribe took it upon themselves to change the constitution. They didn't need those powers over them and we changed it. So running today, we are the three family districts. Everybody votes for two members and I believe it's been 18, 19 years since that [amendment] and it works today, still today. I was just asked this morning, how is it run? I've never seen any better form of government. I can say maybe I haven't experienced what it was before, but I've only experienced this and I've never been through a petition. It's always worked. I have...out of all of our tribal members -- you ask any of them -- they feel like they do have a word in the community. They can go to a family, whoever their district representative, their family representative is and ask for something to go to the council.

And the way our council works is we do come together, but if a family or community member is asking for something or wants to know what's going on, the first thing we ask them is, ‘Have you talked to your district representatives?' Because with us, it's their responsibility to take care of their family first before they come to the table. We don't deal with the ones who, if they're from Family A, jump over to Family C and want us to push and fight. We've gone away from that. If they do make friends with Family B or C, we said, ‘No, you still have to go through your Family A. We won't even address that issue until we hear from your family and how they deal with that.'

I know I was asked to speak a little about how the tribe decided to not allow BIA to determine where the tribe was going and I found it interesting yesterday that there are so many tribes that are still under that notion that they've still got to ask BIA for everything. They've got to have BIA approval. And I guess maybe it's the whole way of thinking, but today with self-governance and under self-determination, it's the tribe's right to not do that anymore. And we just were one of those tribes who moved forward and got it done and it's working great today.

Joan [Timeche] finally got me down here to speak about my tribe. She's been after me for a number of years since I shared that story, because at the time she said she'd never heard of that concept, she's never heard of a tribe dividing like that and making it work."