constitutional amendments

John Borrows: Revitalizing Indigenous Constitutionalism in the 21st Century

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In this thoughtful conversation with NNI's Ian Record, scholar John Borrows (Anishinaabe) discusses Indigenous constitutionalism in its most fundamental sense, and provides some critical food for thought to Native nations who are wrestling with constitutional development and change in the 21st century.

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Borrows, John. "Revitalizing Indigenous Constitutionalism in the 21st Century." Leading Native Nations interview series. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 4, 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 John Borrows. John is Anishinaabe and a citizen of Ontario’s Chippewa Nawash First Nation and he currently serves as the Robina Chair in Law, Public Policy and Society at the University of Minnesota School of Law. John, welcome and good to have you with us today.”

John Borrows:

“It’s good to be here.”

Ian Record:

“Before we dive into our conversation, I was hoping you’d just start out by telling us a little bit more about yourself.”

John Borrows:

“Yeah. So I’ve been a law teacher about 20 some odd years now and really have enjoyed that being in different schools. I’ve spent some time in U.S. schools -- ASU [Arizona State University], Minnesota obviously, Princeton; also taught across Canada, University of Toronto, Osgoode Hall Law School, UBC [University of British Columbia], and University of Victoria. So I’ve got around in my career.”

Ian Record:

“So I wanted to start out by getting a little bit more of a perspective on your scholarly work. In preparing for this interview, I talked with a lot of your legal colleagues -- including some of them here at the University of Arizona in Tucson -- and they said you’re really one of the innovative thinkers and scholars when it comes to Indigenous law and I think differentiating that from federal Indian law but Indigenous law, and can you just provide a quick nutshell about why the focus on Indigenous law, why have you dedicated your career to this particular issue?”

John Borrows:

“Yeah. I think it started growing up. A lot of the standards for judgments in our family were often taken from what we were seeing around us outside our door and we had lots of conversations about what our obligations were in relationship to one another and the world around us. We had a treaty that my great-great grandfather signed back in the 1850s and that was also a part of the conversation. So when I began my legal career and my graduate work I actually wrote an LLM thesis called The Genealogy of Law, where I took the seven past generations of my family and looked at what the criteria was that they used to be able to respond to the challenges they were encountering as they encountered the Canadian State. And I noticed in each one of those encounters they drew upon a deep wellspring of our own sense of what the appropriate standards were as to how to deal with the War of 1812 or the Royal Proclamation or the signing of the treaty, whatever it might be. And so what was exciting to me as I then started my legal career was a recognition that we have a lot of sources of authority that we can turn to to answer our questions. And so I think it grew from that place to just continue to drive my research and my interests in my work today.”

Ian Record:

“So you’ve spent the last two days participating in the Nation Nations Institute’s Tribal Constitution seminar both as a presenter and also as an observer. And I’m curious, what from the proceedings of the last two days as they’re still fresh in your mind really struck a chord with you?”

John Borrows:

“I think I like the examples that I saw that were practical and on the ground, that had a lot of deep thought behind them. I think when people come to seminars like this they might expect they’d encounter a process, but in fact what they see is a lot of work that’s done over a period of years that’s been cultivating of the different traditions and understandings that people bring to what constitutionalism is. And so I was impressed by the hard work that underlies and is behind many of those presentations. And while there are lessons that we can generalize, you did a great job I think of pulling out those generalized lessons, more fundamentally was context matters and paying attention to the specific context that a nation comes from seems to be the message that I took from the seminar.”

Ian Record:

“One of the first things we tackled on day one of the seminar was starting at the beginning and really defining what in the most fundamental sense a constitution really is and that can take many forms. It can be a written constitution, an unwritten constitution, and I’m curious, given that you spend so much time thinking about these things and writing about these things and doing research about things around this idea of constitutionalism I’m curious to get your perspective on what that is and maybe your definition of what that is.”

John Borrows:

“Yeah. So I think of constitutionalism as a conversation and a set of practices around living tradition. Sometimes when people think of constitutions they just think of pieces of paper, but really what a constitution is is a verb, it’s a way of constituting a people through time. There’s a past and a present and a future tense as a part of how they might relate to one another. And so for me constitutionalism is this living, ongoing, breathing set of understandings, customs, procedures around trying to create a better life, a more orderly set of relationships between the people. The Anishinaabe have lots of different words for constitutionalism. [Anishinaabe language] is one of those words. It means 'the great guided way of decision making.' This idea of [Anishinaabe language] is almost the process of the creation of a tradition as you move from generation to generation. But there’s another word in Anishinaabemowin that communicates constitutionalism, which is [Anishinaabe language]. The root of that is [Anishinaabe language], which means 'old time, a long time.' So there’s this other strand of constitutionalism, which is you draw upon a long time way of doing things and you continually place it in a present context so that it can speak to the future.

And I think the tension there between those two different ways of looking at constitutionalism is important. One of those ways of proceeding is seeing this constitution as ongoing, living, breathing, continued in its development. The other one is a process of creation anew. That is, there’s an idea in constitutionalism that you would always have new starting points, that it’s never done, it’s never over. Like I said, it’s an ongoing conversation. That sense of constitutionalism isn’t something you just find within an Anishinaabeg or Indigenous peoples as well. In the United States, we have a constitutional tradition, which is called 'originalism.' And so you try to figure out what the meaning of the constitution is by going back to some magic moment, 1787, and you draw on the intent or the public meaning of what the founders said at that time.

We have another tradition within U.S. constitutionalism, which is called 'living constitutionalism,' which is yes, history is important, but we’ve developed as a people through time and while we take guidance from the history, the history is not determinative and I think within Indigenous constitutionalism we have that same kind of tension that’s present. Some of us want to go to that original moment, a creation story, a treaty, some kind of drafting of a document and you would find that people argue vigorously that the constitution can only mean what was said when that creation happened or when those people signed that document. In the U.S. constitutional context, you have [U.S. Supreme Court justices] [William] Rehnquist and [Antonin] Scalia that kind of take that way of proceeding though you have this other strand, living constitutionalism where you would look to what the people now understand the constitution means 200 or some odd years later and you would allow for that to occur.

In the Canadian context, we call this 'living treaty jurisprudence.' In the 1930s, the court was asked to consider whether or not women could be seated in the Senate because at the time that the constitution was drafted women were not political citizens and in the court...in looking at that they could have taken an originalist approach and said, ‘Well, at the time women didn’t mean persons, therefore they couldn’t be seated to sit in the senate,’ but the court took another approach. They said that the British-North America Act had placed in Canada a living treaty, which was capable of growth through the ages and that its roots continue to extend out branches that have new obligations that the people would encounter and so therefore the dominate mode of constitutionalism in Canada is living constitutionalism as opposed to originalism. Again, within a Native context you see those tensions very much present. Some want to look to that initial moment and find all the meaning in that moment. Others see it as a tree, they see it as more organic, living, growing, breathing through the ages.”

Ian Record:

“In some sense, doesn’t the constitutionalism of any nation and particularly Indigenous nations given all that they’ve experienced in North America in particular over the last 200, 300, 400 years that it must be able to adapt to the times, adapt to the changing circumstances, the new challenges, growing populations, all sorts of things?”

John Borrows:

“That is definitely my understanding of how constitutionalism proceeds in most Indigenous nations. I certainly see that within my own nation as well, though there are people that would differ. They say when the old people put us in the four corners of these sacred mountains they set up a way of being that we cannot mess with and that we have to ensure that we live in accordance with those original instructions. And to the extent that you start to take in influences from United States or Canada or just whatever the context you are in today, they would critique that and they would say, ‘That is polluting, that is compromising, that is not being true to what the founders said that we should abide by.’ And so while I do agree with you that a constitution needs this definite grafting on, growing, organic way of being in the world, there are people that would take a different approach and I think at heart some of the debates that happen throughout Indian Country around constitutionalism are that very debate, the worry that we’re departing from something that’s original that was given to us and that by trying to adapt to the present situation we’re just assimilating or swallowing some other kind of complicit line.”

Ian Record:

“Let’s talk a little bit more about the Anishinaabe and prior to colonization -- I’m curious, you’ve learned -- I think first and foremost through your own upbringing and then in the research you’ve been doing since getting into the academic realm -- a great deal about what the Anishinaabe constitution looked like traditionally and where it was found, where it lived and where it breathed. Can you shed some light on that?”

John Borrows:

“Yeah. So I think one of the main influences on Anishinaabe constitutionalism is the environment that we lived in and live in today. And so we would take from the Great Lakes area and that watershed that surrounds it and the plants and the animals and the birds and the clouds and the rivers and we would see that behavior that was taking place in the natural world and we would learn from it. And when we saw things that were positive and uplifting and sustaining and nurturing and nourishing, we would try to analogize those behaviors to our own sets of ways that we should be. Or if we saw something that was troubling in nature, we would then take a lesson that we shouldn’t behave in that fashion. And so our constitutionalism is very much in the ecological type of principle.

In U.S. and Canadian constitutionalism, when you draw analogies, you often do so from the cases that are there, the stories that have been told by judges through the ages. Our analogies were first of all the stories that were told to us by the plants and the animals and the rivers and the trees and then it was the stories that our elders, our wise ones told us about the animals, the plants, the rivers and the trees and so our case law became stories about how the skunk got its stripe and how the robin came to sing like it does and why the trickster is intervening in the creation of the beaver dam in that place. And so for Anishinaabe people that constitutionalism can be labeled [Anishinaabe language], which is you look at everything, [Anishinaabe language] and you take the lessons from what you’re seeing. Another way of thinking about that is [Anishinaabe language]. [Anishinaabe language] is the Anishinaabe word for 'earth,' [Anishinaabe language] is 'to point towards.' [Anishinaabe language] then is this concept of you point towards the earth and you learn from the earth and you apply those teachings from the natural world around us in creating our sense of obligations to one another. It’s the similar word to our word for 'teaching,' which is [Anishinaabe language]. So to practice this way of constituting ourselves is to understand what the earth is trying to teach us.

I remember going to a seminar with an elder, Basil Johnston, back in 1996 when I was a newer law professor and we had convened at Cape Croker, [Anishinaabe language], to talk about our constitution and I was surprised. I shouldn’t have been but I was surprised that we began with the creation of the earth and the first formation of the rocks. And then after the rocks, we had stories about how the water came into place and after the rocks and the water we would start to talk about the first little crawlers in the ocean and on the lands and what they did in relationship to one another. And then the plants and there were stories about how we got corn and how we got cabbage and all these other things and then this went on to animals. We had all of these stories about the natural world for maybe four or five hours. Humans came along in the afternoon after lunch. And I realized in listening to that that Basil was trying to teach us that Anishinaabe constitutionalism is how are we constituted as human beings in relationship to this wider order that we see around us. And I’ll never forget that and it’s become one of the guiding lights for me in thinking about the practice of Anishinaabe constitutional law in a present day.”

Ian Record:

“It’s interesting you bring that up because one of the things as a student of tribal constitutions who often...in my role with the Native Nations Institute, we’re asked to come in and help tribes wrestle with their current constitutionalism and wrestle with a deep...often a deep conflict between their sense of who they are and their sense of right and wrong with this whatever written document they have, whether it’s an Indian Reorganization Act constitution here in the U.S. or an Oklahoma Indian Welfare Act constitution or up in Canada it’s wrestling with the Indian Act system. And what you often see in reviewing these written documents is a lack of explanation of the people’s relationship with place and I use the word 'place' very purposely because you often will see references to, ‘Okay, this is our territory and we have jurisdiction over this territory,’ but it doesn’t evoke anything about the relationship between people and place, the reciprocity between people and place, exactly what you’re talking about with Basil Johnston. Do you see that as one of the big challenges that tribes face is, how do we evoke that and perhaps revitalize that relationship with place and then be nourished by that process of reciprocity that has sustained the people up until this day?”

John Borrows:

“Yeah, I definitely see that. One of the things I worry about in some of the contemporary constitutionalism that’s happening amongst Indigenous peoples across North America is that they de-contextualize who they are and their relationships to one another. By 'de-contextualizing,' meaning there’s something of a universal nature that appears in these constitutions as if all time and place can be subsumed in the wording that’s contained in the document. And yes, there are generalizations we can make, of course, but those generalizations have to be rooted in a particular set of relationships that a people have to a place. If not, the constitution’s actually not going to work. What you see in looking at constitutionalism in a non-Indigenous context is there’s many pretty documents that are in place in Central and South America or in some Asian countries, but that’s all they are is pretty documents. They don’t get connected or rooted to the place and the people that have to live in relationship to them. So you get nice words and maybe even good decisions from the court, but the decisions of the court, the words on the paper mean nothing unless people are also internalizing their constitution as well. And that’s why I started out by saying that a constitution is an ongoing set of conversations and practices about your tradition in a particular place and if the constitution is not doing that, you’re not really internalizing the ways of being and of course if you’re not internalizing a constitution, it’s someone else’s document. It’s the people’s or the place, the land, the animals, the plants, constitution there. So I think maybe, and I’m not sure it’s our biggest challenge, but one of our biggest challenges is to make sure that the constitutions that we’re dealing with actually reflect the place that they’re coming from.”

Ian Record:

“So what are some of the other challenges? Obviously you sat through a lot of different discussions over the last couple days and heard a lot about some of the challenges and I’m sure came into the conference well aware of some of the other challenges that Native nations in the U.S. and Canada and elsewhere, Indigenous peoples face when it comes to their constitutionalism and reconciling the past with the present and outside forces with internal ones and so forth. What are some of the other challenges you see?”

John Borrows:

“Yeah. Well, I think one of the biggest challenges in relationship to the creation of constitutions is having hope, having faith, having trust, to having love for one another. If we’re going to really internalize our constitutionalism, we have to think about those values at that level. When the U.S. was drafting its constitution, it put big words out there, 'life' and 'liberty' and the 'pursuit of happiness,' and there was the sense of freedom and association and forming a more perfect union. These big ideas were a part of what the aspirations of the people are and were and I think that sometimes we sell ourselves short by borrowing those words and not actually thinking about what our own aspirations and words are. For me, it would be what can we do in living together that would facilitate greater love, greater respect, greater honesty? There’s something called the Seven Grandfather/Grandmother Teachings of the Anishinaabe and those, I think, could be legal terms of art as well as spiritual and cultural and other types of ways of relating. We have a hard time when we put big words out there, then define them in a constitution. We’ve had no end of disputes through the years about what does freedom mean in the First Amendment? What does equality require in the 14th Amendment? But just because we have difficulty with the big words and we can’t quite pin them down doesn’t mean that we leave them behind. In fact, it increases our expectations of what those words might do for us. And so I would love to see Anishinaabe and other Indigenous nations start to...what do we want to create, what’s our equivalent of freedom and equality? If it is things like in Anishinaabemowin, [Anishinaabe language], thinking about love or [Anishinaabe language]. There’s different meanings of love that I’ve just given you. One’s kind of a stinginess, the other one’s kind of a compassionate way of being in the world or likewise around trust and honesty, [Anishinaabe language]. There’s a lot I think that we need on that ground. So I think that’s the biggest challenge actually.”

Ian Record:

“And you’ve discussed those things, those Anishinaabe values, those Grandfather teachings within the context of citizenship and identity and that’s a huge issue right now. I think in the nations I’ve worked with, there’s typically two considerations that tend to dominate. One is that if we continue with the criteria that we have...and I think most people understand where those come from and although I do think that some people still need to understand where those come from, but there’s two tracks. One is that if we continue this criteria we’re going to not be around because there’s not anyone that will be...that will qualify to continue to be citizens. And another is around basically what you were talking about, that we need to address what the criteria is doing to us in terms of our unity, in terms of our relations, in terms of how healthy our relationships are and how revisiting this might strengthen that in some way. How do you see that challenge today and what do you think nations who are wrestling with that issue need to really be thinking about as they in particular engage their community about this critical topic?”

John Borrows:

“So again, context is everything and each nation would have to pay attention to its own way of framing these larger ideas in relationship with the particular challenges they face around membership or citizenship. But what I would say is that we need eyes wide open to both of these concerns. One is that we have been overrun as a people and so there is a need to be able to create a set of criteria that would say who is Anishinaabe and who is not and those kinds of line-drawing exercises are very, very hard to do. Unfortunately, what I think we’ve done is we’ve drawn those lines in a very cramped and stingy and closed way and I’m not sure that that is consistent with that other stream that we need to be taking account of which has to do with all our relations, with our responsibilities, with the hospitality ethics that have been passed on through the generations within many Indigenous peoples. So I do think that lines have to be drawn somewhere, but I think we should be much more generous and open and liberal and large and gracious and hospitable in that regard. And when we do so, I think what we’ll start to do is not see the government as the source of authority and the source of resources that would help fund the future of a nation because when you start opening up the opportunities for people to participate who are connected to the nation, what you get is a huge infusion of what in some places is called human capital, but in just of speaking plainly of creativity and possibility.”

So when you see a broader-based conception of citizenship, what you do is you tap the potential of many sources of innovation and I think eventually that will create a broader base of resources for nations through time. And I think that’s going to contribute to our freedom as peoples, that we won’t be tied to a colonial government in the United States or Canada, that our freedom will come from our relationships with the earth, our relationship with one another writ large. The Anishinaabe word for 'freedom' is [Anishinaabe language]. [Anishinaabe language] means 'to own something.' [Anishinaabe language] is this idea of owning our relationships, freedom being this sense of stewardship and responsibility to others. This isn’t necessarily the ownership concept that you would get in kind of western property law that we would alienate others or land and therefore have a sense of possession. This is the idea of ownership that comes through responsible stewardship and relationships. The word for 'citizenship' in Anishinaabemowin is [Anishinaabe language], literally freedom is owning...citizenship is owning our responsibilities with one another and our relationships. So yes, lines have to be drawn, but we I think can do much better in thinking beyond what the colonial criteria for that is and looking to our own legal traditions and then doing the analysis around what economically and socially and politically could be possible if we saw ourselves in that broader light.”

Ian Record:

“It’s interesting you bring that up, the need to be more inclusive and that being an Indigenous value. We’ve seen a number of Native nations that, two that jump to mind, are Citizen Potawatomi and also Osage Nation in Oklahoma who’ve taken a more inclusive approach and they’re starting to see the benefits of that because they have gained this...regained this huge reservoir of human capital, of people who have things to contribute. They have skills, they have assets, they have ideas, they have creativity as you mentioned to contribute to the life of the nation and it’s starting...you’re starting to see a real shift in the ability of the nation to actually live as a nation. On the flip side of that though, isn’t it incumbent upon, as nations engage this issue of redefining citizenship criteria, of looking at their current criteria and saying is this...does this really work for us, isn’t it critical that they understand that this criteria of blood quantum is not cultural because we see that...we’ve seen because it’s been in place in a lot of communities for so long, we see some people embrace it as some sort of cultural value, that this is how we equate our identity and also that in that criteria there is a lack of civic obligation, of civic responsibility because the mentality is that, ‘As long as I have the blood I qualify and my work is done.’ Is that important to this conversation do you feel?”

John Borrows:

“It is. What I think it does is it identifies where our traditions may be harmful. That is, this is not something that was a historic tradition prior to the arrival of Europeans to set blood as a criteria for membership. Anishinaabe people could take in Potawatomi or Odawa people, sometimes Haudenosaunee people who were enemies became Anishinaabe so there’s that fluidity there prior to the arrival of Europeans. But you’re right, some people now, as a result of introductions from the Canadian and the U.S. government think that blood is the thing that marks out our identity and it’s a very, very...it’s a proxy for belonging, but it’s a very poor proxy for belonging because it doesn’t engage our traditions. Largely we’re talking about the plants and the animals and the...there’s just something that is then short circuited by that criteria. Again, I understand the need to be able to draw lines and some where you’re going to draw a line, I don’t think blood should be the way that we draw that line. There are other kinds of criteria that we could take that would form a gate-keeping function if that’s what we’re concerned about, but hopefully that gate keeping then would be around conceptions of civic responsibility that flow from an Indigenous legal perspective and the gate keeping is not the U.S. government’s worried about their obligations of having to fund 10 extra hospital beds if we increase the numbers of people in the tribe.”

Ian Record:

“So let’s turn to...back to this issue of constitutional challenges. As I mentioned at the beginning, you’re from the Nawash First Nation up in Ontario and the nation works...operates using an Indian Act government and I’m curious, what do you feel are your own nation’s largest constitutional challenges here in the year 2014?”

John Borrows:

“Yeah. So just a little thing about constitutionalism more generally in Canada, we don’t have one document that sets out our constitution. In fact, the preamble of our 1867 British North America Act is that we’ll have a constitution that’s similar in principle to that of Great Britain. Great Britain does not have a written constitution. It means that Canadian constitutionalism is not distilled into one written place. There’s an ongoing tradition in Canadian and British constitutionalism that extends back 1,000 years and then there’s little markers along the way like this 1867 document or 1982 document, but they never purport to spell out what the entire relationship of the people will be through their constitution. If I could draw an analogy here then, Anishinaabe people have a constitutional tradition that goes well beyond 1,000 years back into the mists of time and that tradition is what we’ve been talking about today. And then we’ve got the Indian Act, which is one moment of constitutionalism, which is an imposition from the Canadian government and what I would like to see is similar to what we have in the British context that that’s not the be-all and end-all of constitutions and that you can overturn that, that you can go back to some of the things that were there in the past, graft on other things today, but I don’t think the people see the Indian Act in that way. I think they see the Indian Act in somewhat a similar way to how some might regard something like the U.S. Constitution. It’s written in stone, can’t be changed, it can never be put aside and this is a matter of the heart and the mind so our challenge is to see the Indian Act for what it is -- anomalous, a drop in time. Yes, a very powerful set of Trojan horse-like laws that have run into our community and tried to take us over, but nevertheless have not. So when band decisions are made today at Cape Croker under the Indian Act, it is true that when you make a by-law, in order to have that approved you have to submit it to the Minister of Indian Affairs, if you don’t hear back in 40 days then it becomes the law of the community. But that exists in the midst of a wider tradition of people still trying to consult with family, still watching the land, still looking through the language, taking account of the deliberative structures that flow from the clans and the chiefs, etc. In other words, our constitutional tradition is not limited to that Indian Act imposition. It’s there and what we need to do obviously is peel out and pear off and get rid of that Indian Act oversight just as people try to get rid of secretarial approval in the IRA style of constitutions in the United States. And when we do that, it’s not as if there’s a legal vacuum that’s present because even under the Indian Act there is a set of traditions that have been flowing through our community that come from the past, but are the present and have something to speak to the future. And so when we peel that Indian Act out we’re not starting from scratch and then what we need to do is identify, have conversations, fight, discuss what are those things that we’re doing now that we can distill for this moment, not for all time and place again, but for this moment that would help us further remove ourselves from the Indian Act.”

Ian Record:

“So you’re probably well aware that in Canada there are a growing number of First Nations that are working to get out from under the Indian Act. They’re developing their own constitutions and sometimes it’s through the treaty processes that are going on in British Columbia and elsewhere, sometimes it’s through the development of custom election, what’s called custom election code approaches, and down here obviously in the U.S. there is a tremendous amount of activity going on, some successful, some not. And I’m curious -- we’ve been talking a lot about context and historical context and you just sort of related the historical and cultural context within what your nation tries to reconcile, wrestle with the Indian Act in your reserve and sustain your Indigenous Anishinaabe legal traditions and ways of doing, ways of constituting with that system. How important is it for nations who are engaging in this reform effort to really fully understand their traditional Indigenous legal tradition, their traditional Indigenous constitutionalism and also the origin story of how they came to have what they have now with often an imposed system? And when I say that, I’m speaking specifically for them, for their community, for their nation in particular because yes, for instance, all First Nations in Canada, most of them have the Indian Act, they work under the Indian Act. In the U.S. yes, most or a great number of tribes work with an IRA system or something akin to it, but their specific histories are very distinct. How important is it for nations as they engage this constitutional change prospect to have that cultural context, to have that historical context?”

John Borrows:

“Yeah, it’s huge and what you need is a lot of storytelling that can occur from the elders and from the teachers that might be there in the community, but you also need storytelling that’s good social science, research that has economic analysis and looks at the political system structures, you need education that’s also of a more public nature through Twitter and Facebook and media, YouTube, etc., putting those altogether, having people understand what are the different streams that are flowing into the present way that we’re constituted. Some of those streams are colonial, they come from the Indian Act and how does that...what is...how is blood quantum one of those streams, it’s actually polluting us right now, and identify that history and those streams and then also say, and yet there’s this other stream that we continue to pull upon. Why is it we begin with prayer at the beginning of our council meeting? Why is it that we do a lot of our business going in home to home to home? That’s not written in the Indian Act anywhere, but there’s a sense of people and clan and place still being involved in that. Why is it that my head councilor goes out and owl calls as a part of what he does with people in the community? And putting that all together and saying, ‘These streams are not so healthy, but these streams are continuing to be vibrant.’ Without that context, without that history, without both traditional and social science research you’re not in a place to do a good analysis about where you are and where you could possibly go from here. And I know that’s hard to do because there are just so many other pressing needs that a community has to encounter. You’ve probably heard that analogy before, often there’s people that are falling off a cliff, what ends up happening is the councilmen come over, ‘We need to get these people that are at the bottom of the cliff and make sure that they get help and healing.’ And so where all the time people are falling over the cliff in our communities and they’re bruised and bloody at the base of the cliff and we’re just dealing with the crisis of the moment instead of taking the time to put the fence at the top of the cliff and show where the boundaries might be so that we can cut off that flow of trauma that’s happening in our place. And so yes, there are those every day-to-day needs, but those day-to-day needs will eventually be attenuated if we could take that longer term approach and put systems, structures, fences in place that prevent us from falling down and really seeing the damage that’s a part of us.”

Ian Record:

“So a lot of what we’ve been discussing focuses on one of the key research findings of the Native nation building research that both the Native Nations Institute and the Harvard Project on American Indian Economic Development have been engaged in for the past 30 years and that is cultural match. Basically the match between...what is the match between the people and the governance system they use to thrive, survive, move forward as a people? Perhaps you can share your perspective on that, because it sounds like that’s really at the forefront of your mind when you think about the issues around constitutionalism and other issues as well.”

John Borrows:

“Yeah. So I’m really celebratory of many of the findings that come from the Native Nations Institute and the Harvard Project because I think they’re right -- we do have to pay attention to cultural match, that we need to find greater fit between the context of a particular people and their own then constitutional expressions and that is not occurring and that message needs to be loud and clear and just repeated over and over and over again. But there is a caution in taking that approach, which is constitutions also have to challenge the culture of the people. It’s not just about matching the culture of the people. So let’s take an example just looking at the U.S. context. There was a tradition of slavery in the United States that of course was harmful to the people that were caught up into it that led to a civil war and the constitution, when it was first drafted, tried to paper over the differences that were there between the peoples and how they were living culturally in the North and the South, etc. Fortunately we found in the U.S. constitutional context that there was the ability of the 13th, the 14th and the 15th Amendment as they eventually were drafted or through the Brown vs. Board of Education case that the constitution itself became a challenge to the tradition and a challenge to the culture and without that challenge we would have continued to reproduce prejudice and racism and policies that are harmful to people that we should be in better relationships with. And the same thing could be put into any context. You think about the British constitutionalism, it of course is by and large a product of matching cultures of the people and their place, but that constitution also has conventions that says to the king, ‘You can’t just do what you want.’ It says, ‘If you want to act, you have to do so through a legislature,’ and there’s a lot of conventions that are found in British constitutionalism that go against the flow basically. And when a tribe designs a constitution, again the message that must be the overriding message is cultural match. We don’t have near enough of that. But as we do so, just be careful that we don’t get carried away because we need to think about those who might be a minority amongst us. That could be families, it could be clans, it could be non-Native people that are associating with us in our place and unless we have ways to also challenge our own traditions and have things that would go against the flow of the way we’re living, we will reproduce our own abuses and we will create conditions that diminish the dignity of people that live amongst us. And so it’s going to be a hard thing to do because you want the popular sovereignty of the people to largely guide your constitutions, you want people’s voices to be by and large what guides the day, but it’s worthwhile considering the trickster, which is an Indigenous tradition, by what is contrary there, what’s going on in another moment that we need to take account of and if we heeded our traditions of the trickster, that is contemplating at the same time things that can be harmful and helpful, kind and cunning, charming and playing mean tricks, our constitutions need to do that too and if we’re just all about a celebration of match and neglect those elements of push back that are within the community, we are not going to be living well together.”

Ian Record:

“Well, John, I think our listeners and viewers have learned quite a bit from you and giving them a lot of food for thought and we really appreciate you taking some time to sit down and share your thoughts and experience with us.”

John Borrows:

“Thank you. It’s been fun.”

Ian Record:

“Thank you.”

John Borrows:

“Great.”

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

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

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

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

People
Resource Type
Citation

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

Colette Routel:

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

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

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

[applause]

Vanya Hogen:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

Vanya Hogen:

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

Matthew Fletcher:

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

Vanya Hogen:

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

Colette Routel:

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

[applause]

Vanya Hogen:

"Thank you."

Richard Luarkie: The Pueblo of Laguna: A Constitutional History

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Ian Record:

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

Richard Luarkie:

“Thank you.

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

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

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

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

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

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

Ian Record:

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

Richard Luarkie:

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

"Yes. sir. You're welcome."

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 2)

Producer
Native Nations Institute
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses the critical role that intergovernmental relationship building plays in the practical exercise of sovereignty and the rebuilding of Native nations. He shares several compelling examples of how LTBBO built such relationships in order to achieve their strategic priorities.

Resource Type
Citation

Ettawageshik, Frank. "NNI Indigenous Leadership Fellow (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 13, 2010. Interview.

Ian Record:

"So we're back with Frank Ettawageshik. This is a continuation of the interview from April 6th. Today is April 13th and we're going to pick up where we left off, which was talking about constitutions. And I want to essentially go back to the very beginning on this topic and ask you for your definition of what a constitution is."

Frank Ettawageshik:

"The constitution is the method by which the people inform their government how they want the government to serve them and the government is a tool of the people to achieve what they need to achieve in terms of relations to other governments, in terms of relation to how things are going to work internally. The people themselves maintain the complete power. And then they can either give or take back certain powers to the government through the constitution. The constitution also establishes the mechanism for how the tribal government, the tribal nation will deal with other nations. It sets up the parameters for how you are going to do that, "˜which branch of government has which authority?' and all of those types of things. To me the constitution is a tool of the people for how they are going to manage their government."

Ian Record:

"What key ingredients do you feel constitutions need to have in order to be effective?"

Frank Ettawageshik:

"Well, constitutions...to me, there's a legislative function, there's a judicial function, and an executive function, and these need to be acknowledged and then the interplay between them is what the constitution does. Some tribal nations have constitutions where all of those powers are wrapped up into one body. Others have clear separations of powers, but even ones that have separation of powers the balance of those changes from one to another. So really those are important functions, I think another thing needs to be clearly you have to have an amendment clause on how you are going to amend it. You need to have some basic statements. I believe that it is extremely important to have like a bill of rights built into it. I think that's very important because those things need to be part of what our people come to expect in terms of how they are going to relate with their government. And when the people are telling the government how it's going to function they need to reserve for themselves certain rights, certain ways to protect themselves. I look at a constitution in a way as the people trying to protect themselves from their own government and I think that not only does it say how it's going to function, but it also limits how it's going to function, and guides it so that it will...constitutions that are poorly conceived or poorly written or ones that the community, the tribal nation has grown beyond, they can hamper how things will function. They can be difficult. For instance, constitutions do not require, nor does federal law require that they be adopted by secretarial election. Nor do they require that amendments be done by secretarial election, yet many constitutions throughout Indian Country require secretarial election by their own words, and so I think an important function there would be to not have that in your constitution. To me, you are either sovereign or you aren't, you are not part sovereign. And as a nation, tribal nations, sovereign tribal nations are constantly negotiating the exercise of that sovereignty with the other sovereigns around them. We may be with another tribe, another tribal nation close by, having some disputes about whose territories is whose or what...in economic development, there's room for competition and some issues. There could even be citizen issues regarding membership or citizenship. And we need to...the documents need to sort of deal with those things that are coming up."

Ian Record:

"I wanted to follow up on something you said. You talked about a number of Native nations growing beyond their constitutions. We hear that sort of refrain, particularly in the discussions of tribes who have Indian Reorganization Act systems of government that were adopted in the 1930s. They had a very different conception of the scope of self-governance, if you will. Is that something you've seen in your line of work, working with tribes both as chairman and now as executive director of the United Tribes of Michigan?"

Frank Ettawageshik:

"Every tribe has its own constitution or its own, either written or not written, in terms of how the government's going to function. Most of the tribes I've worked with have written constitutions and they're all different and they have...there are clearly times when you move beyond something. The United States has amended its constitution a number of times, and not always successfully. Witness Prohibition for instance, and the fact that there's one amendment that brings it in and another one that takes it out. So the fact that a government might need to amend its constitution is not unusual. Some amendments may be more far ranging than others. Some amendments are a sentence here, or two. Other amendments might be more drastic than that, but I would think that, think of it rather that the constitution is an organic document that is evolving as the nation evolves."

Ian Record:

"I wanted to pick up on a specific aspect of the Little Traverse Bay Band of Odawa Indians' constitution, which was adopted in 2005, and it gets at this issue that you mentioned in the outset when defining constitutions, which is international or diplomatic relations. And explicit in your constitution is an acknowledgment of other sovereign nations and their inherent powers presuming that those sovereign nations, in turn, recognize and respect the sovereignty of your nation. Can you summarize what that clause says and give an overview of perhaps why your tribe felt it necessary to include that?"

Frank Ettawageshik:

"Well, when you, like I said, when you acknowledge that sovereignty in yourself and in others then you have to exercise or negotiate that sovereignty with your neighbors. So what I think is here is that you're constantly working with those other sovereigns, but you need to figure out how to decide who you are dealing with and who you aren't. And so the most basic way of that is that if somebody else acknowledges you, well you can acknowledge them, but you have to have some sort of a process for that. What this clause in our constitution does is it establishes a basis for some office, or staff person, or somebody that would be akin to a state department for instance, where there's an international relations office that deals with negotiations with other sovereigns and those types of things. Those negotiations, those other sovereigns might well be the United States and the laws that they are passing could have an effect on the way we exercise our sovereignty, but the fact that, for the most part, what we have done in Indian country is that we have federally recognized tribes deal with federally recognized tribes and I think what that does is that sort of...we're letting the United States decide who we're going to have diplomatic relations with, and I don't think that is a good idea. But we have the right to make that decision ourselves, but then along with that right comes the responsibility to do it in a way that you are doing it reasonably. So then what do we do? Do we have a whole acknowledgement process, each one of us? How do we go about doing that if we're not going to sort of let someone else vet the potential list of people with whom we'll have relations. I think the whole federal acknowledgement process doesn't grant sovereignty to those tribes that make it through, instead it acknowledges that they have it and that's what it's all about. So what that means is that the non-recognized tribes also are sovereign, and the state recognized tribes are sovereign, and the federally recognized tribes are sovereign. Tribal governments have inherent sovereignty and no one gives it to them. They have it because it comes through being in this creation. Well, you still have the responsibility to do it, to do it wisely because not everyone who claims to be a tribe is a tribe and that's the difficult thing. There are examples of people who have formed...recently, there have been some prosecutions here across the United States of people who have had various money, get-rich schemes, that involve pretending to be a tribe and issuing cards and charging people for it. Those are things we have to look out for, but then that's the responsibility of a sovereign nation is to not just look inward, but look outward because threats come from outside as well as potential good things come from outside and we have to be able to recognize them and deal with them."

Ian Record:

"You mentioned or we've been discussing the constitutional mandate within your tribe's constitution to essentially engage in international relations. It places a high value on that process. Since the 1980s, there's been an incredible growth in intergovernmental relations between Native nations and various other governments and I'm curious to learn from you, what do you think is driving this growth?"

Frank Ettawageshik:

"A recognition that we need to look outside ourselves and work together. I mean if you look at what has happened across the world in this time, the European Union is formed and variety of very nationalistic individualistic nations realized the value of working together. While they still have their independence and unique in their own countries, at the same time, they have a centralized currency and other things that make for a good sense. Tribes have the same kind of thing. We know that there is strength in numbers and as a matter of fact back there in the revolutionary time here in the United States, many of our leaders spoke to the Continental Congress and to the early [U.S.] Congress about the strength of working together. As a matter of fact, there is a famous speech about 13 fires being stronger than one that was given and these are the kinds of things that come from us and our understanding and we often formed alliances of some sorts with us coming together, the Haudenosaunee Confederacy for instance is one, the Three Fires Confederacy is another, and there are others all across the country where different tribes have worked together. So what kind of things have we done?

One of the examples of working together is the formation of the National Congress of American Indians back in the '40s. It was formed to combat the national trend towards not recognizing the tribes, tribal governments or saying, "˜alright the tribal governments have progressed far enough, now we can terminate our relationship with them.' And so the whole Termination era came through and NCAI, that was one of the big pushes for NCAI. One of the things that we found as we were doing some studying and I still have more to do on this, but not only was there the non-profit corporation created that is the National Congress of American Indians, but at the same time there was also a treaty written and was signed by a number of the nations that acknowledged each others' sovereignty. I mean, it's a very...it showed and demonstrated in writing, the understanding of the tribal nations that they were and still are independent sovereigns and no matter what other people may think about it. And so, I think that that was one example, NCAI.

Other examples of working together I'm going to put up, more recently, we in the Great Lakes signed an agreement called the Tribal and First Nation Great Lakes Water Accord. This was done because the states and provinces were working on the issues of bulk ground water and diversion of water from the Great Lakes and how are they going to work together to deal with those issues as they came up and there had been a succession of agreements, finally one where they would agree and create binding agreements and then it was in the creation of these binding agreements that they started work and we got wind of the things. They talked to us a little, but they always talked to us as stakeholders and we felt that that wasn't correct. They needed to talk to us as sovereign governments within the region because we had court-adjudicated rights within that region. We were the only government with government-to-government relationship through treaties and that was important that we be apart of it, so when we weren't part of it and they did treat us as stakeholders we went out and called a meeting of all of the tribes and first nations in the Great Lakes Basin. There is about 185, some are together and some are not, and so when I say about there is a couple different ways of looking at it, but it's over 180 tribes and First Nations in the Great Lakes. We ended up having representatives -- either individually or either through consortia -- we ended up with representatives of 120 tribes and First Nations at a meeting with just a few weeks notice, which we negotiated and signed this water accord. Within one day, we were at the table, invited to the table to negotiate with the states and the provinces and what they planned on signing at about a month, it took actually almost a year before it was ready to go and we managed to strengthen those documents in a way that they will help protect the environment and the waters because we plugged holes that were there that were wide open because tribes and First Nations weren't there. We also took offending language out; they managed to negotiate language to come out of these documents that didn't acknowledge tribal property rights or tribal treaty rights. So in the end there's an interstate compact that's agreed [to] by all of the governors signed it with the tribes had to agree. And then the governors all had to get the state legislature in each of eight states to pass the identical wording which was no easy trick and they got that done and it went to the U.S. Congress where there was a lobby to push this through. If the interstate compact is approved by Congress it becomes law of the land and it's a provision within the U.S. Constitution that allows it.

So this interstate compact, there was a strong lobby trying to fight it because they thought it didn't go far enough. One of the key things it didn't do is it didn't bottle water in containers, 5 gallons and less is considered a consumptive use as opposed to a diversion. A lot of people felt that it should have been a diversion if that water was bottled and shipped outside of the Great Lakes aquifers. And so nevertheless it ended up passing at the U.S. Congress and it became law, then it was an international agreement that was signed between the eight states and the two Canadian provinces, Ontario and Quebec. With parallel language, but the two provinces weren't able to sign onto the interstate compact so they created this other document that has that in it. It at least deals with issues when there is a permit for a withdrawal of a lot of water from the ground that will be vetted through a process. The tribes and First Nations agreed that we would have a parallel process to the states, rather that all be a part of one process. So we are still working on how that is going to be set up, but nevertheless we've all agreed to it. Since that was signed there have been another 30 nations sign on, tribal nations and we now have about 150-160 that have signed out of the 185. So that is an example of an international agreement working between the tribes and working across what the United States calls an international border between it and Canada. And there are others, League of Indigenous Nations is another way we're working with, not only First Nations and tribes, but also with the Maori and the Aborigines, potentially with the Indigenous folks throughout Mexico and Latin America and other places. So we're looking at what kind of things are there that we all have in common. And Indigenous intellectual property rights, our medicines and stories for instance...issues of climate change and there's substantial things that we all have in common, trade relations with each other, the ability to trade not just in goods perhaps, but to trade in ideas and thoughts. Those are things that are important."

Ian Record:

"You've been discussing international relations primarily between tribal peoples, between tribal nations. Little Traverse Bay Bands of Odawa Indians has also been very active in the arena of intergovernmental relations between your band and other local governments, state governments and that sort of thing. I'm wondering if you could discuss in what areas is your nation currently engaged in that arena? I know, for instance, you have cross-deputization agreements with two counties. Maybe talk a little bit more about what your tribe is doing in that area."

Frank Ettawageshik:

"And we've come a long way from the point...quite a long time ago as the chair, I received a letter from a local prosecutor who indicated that our police were impersonating police officers and they couldn't be on the roads with their lights and they couldn't have car with emblems and most importantly they couldn't have radios with those little chips in them that allowed them to pick up police frequencies and that I had 10 days to deliver them to them. So we wrote them a letter back and said "˜You know where those cars are, you are welcome to takes those anytime you want, but as soon as you do be prepared for a visit from the U.S. Attorney.' So we called the U.S. Attorney and had a nice chat and that same person ended up signing off on a limited deputization agreement within about a year and a half after that and then we have full deputization that has been signed since then with two different counties. We worked on trying to have seamless public safety within the community. We didn't want to be a haven for people who were breaking the law on one side of a line and then crossing the other and then thumbing their nose at the police or things like that. So we worked hard to make sure that when there's a search and rescue for instance that is going on, our officers are trained and a part of the team and can help. And the public safety of the community is enhanced because they have this additional training. In addition to that, we have crowd control issues. Our officers have worked on part of the security detail for the governor when the government does the Mackinac Bridge Walk every year. And every year it's a five-mile span. Every year on Labor Day we walk the bridge. It's a huge crowd and frankly, they pull in different local people and our officers as well. We also work closely with the county and state police. One of the stories from this inter-cooperative agreement kind of thing that we've been able to do: we had the U.S. attorney general come to visit at Little Traverse. And we had all kinds of security things and there's all kind of things you have to do. We, of course, had to have a bomb dog to sweep the whole building and they have this and that and all kind of things. And as he was leaving after this meeting, and he was meeting with all the tribes in Michigan, and after he was leaving, he pulled out from our grounds and drove by Little Bear Cave and saw that there was a state trooper, country sheriff, a city policeman, and tribal police all standing together chatting right there. And we got a call from the FBI in the car with him. He got a question, 'How did we do that?' But that was part of what we tried to do, we tried to build that relationship. We also, if they come on our territory unannounced, we're not against making sure that they know that they're not supposed to do it. So if we had an investigation going on and they forgot to call us or something, we'd let them know. But likewise, if we did something that they didn't like, they'd let us know, so we developed, what we did is we built in safety valves in our relationships so that they were there if there was an issue, we had a way to deal with it right away. And so it's been a cooperative venture when the sheriff of both counties and his deputies show up and they stood before me as the tribal chairman and took an oath to uphold the tribal constitution and all of our laws, that was a pretty big step."

Ian Record:

"This case is interesting because it calls to mind this perspective or mindset you used to see more in Indian Country than you do now, but the idea that, well if you enter an agreement or develop a formal relationship with a local municipality just off the reservation, or a county or a township or something like that, you're somehow relinquishing your sovereignty because those are minor-league governments and we're sovereign nations. That -- from what I can gather -- that perspective is being replaced gradually by the perspective that when a tribe chooses to engage those other governments, in whatever way they see fit, that it's actually an exercise of sovereignty. How do you see what your tribe's been doing in that area?"

Frank Ettawageshik:

"Well, that's exactly the way I'd put it, it is an exercise of sovereignty. An example of an exercise of sovereignty working locally is if you have someone slip and fall at your casino and they hurt themselves and they sue you, of course you've got the insurance company, but if the insurance company turns around and claims sovereign immunity every time somebody sues what are you paying the insurance for? So an exercise of sovereignty, one that helps us protect us and our customers would be [what we did] is to waive our sovereign immunity up to the limits of our insurance policy so that someone could sue and be taken care of if they needed to be, therefore getting what we were paying for when we bought our insurance. Well, that's an example of an exercise of sovereignty that works well. And governments waive sovereignty on a regular basis for things. I mean they waive their immunity but never waive sovereignty, let me correct myself there. And that exercising your sovereignty through a waiver of immunity is a responsible thing for a government to do towards its own citizens and towards the citizens of other nations with which we deal: our customers at the casino, our guests at the gas station, the customers coming by, and we have a hotel and we have conferences there, we have lots of people coming through. We have to deal with the issues of...I mean, one of the issues we ran into was within Indian Country it was illegal for anyone to carry a firearm unless there was some law that was passed that allowed it. So in the absence of it, it's illegal to have it. Well we had guests; we had the outdoor writers coming as an association. They were coming to our hotel and one of the things they were going to do was a rabbit hunt and they had all brought their guns and it was going to be illegal for them to have them in their room, to have them in their car in the parking lot, and so we had to pass a law that allowed how this set up, how this was going to happen. It was one of those responsibilities of being a sovereign that it became important to work on."

Ian Record:

"And so what you're saying is it's not just international relations, it's not just a sovereign challenge involving other governments, but involving individuals who are citizens of those governments, individuals like these sports writers and the casino patrons and so forth."

Frank Ettawageshik:

"Well, ultimately it actually is dealing with the other sovereign, it's just that the other sovereign has citizens. And so as you interact with those citizens, you're interacting with that other sovereign government and you have to figure out how that's going to be done. So those are just some examples of things that we had to do that I felt are important. And ultimately, these things were things that our tribal council passed as laws and our tribal courts have worked to enforce and for the police and the courts to go through this. And so this is our tribal government at work in the process of making laws, being responsible, and exercising sovereignty."

Ian Record:

"I wanted to follow up a little bit more on intergovernmental relations. And obviously the water accord that your nation participated in is one example of many that your tribe's been engaged in developing over the course of the last several decades. And I'm curious to get your thoughts about taking collectively all those relationships that you developed, all those formal agreements you forged, how do those collectively work to advance your nation's rebuilding efforts."

Frank Ettawageshik:

"Well, the prior administration to me, actually it was a four-year time period when I was not in office and during that time period, our tribe was one of the tribes that worked with the governor of the state in a tribal-state accord in which the State of Michigan acknowledged sovereignty of the tribes, pledged to work together and establish certain things that they would do. We...I came back in office, we were preparing to have, I think one of the first meetings where we'd all get together following that. And as we were preparing for that meeting, I just don't like to go to meetings where the outcome of the meeting is, "˜Well, we'll have another meeting.' I'd really like to actually have a product from the meeting. And I spoke about that and wanted to do that, other people agreed, and as a collective we developed a water accord with the State of Michigan. So this was how the tribes and the state would deal with the collective, our collective interest in the waters of the state. And the accord itself was one that's right about...it's on the heels of our tribal and First Nations water accord and it's all this, this time period is all sort of involved in the same effort. But with this one, instead of the tribes pledging to work together, we pledged to work together with the state and establish twice-yearly meetings, staff-level meetings, not elected-level, but staff-level meetings where we would deal with the issues of what came up relative to water. And of course water is part of the environment, so certain environmental things started coming in. Subsequent to that, we came up with another agreement that we put together creating an accord on economic development. And then we came up with an addendum to that, creating, establishing an agreement to do and economic development fellows program that would say, half state, half tribal –- state folks and tribal folks –- that would work say, over a couple-year period to get a cohort of participants on the same page relative to the issues of economic development in Indian Country. Well this has been a little slower to take, but it's been one that's been brewing and we have a meeting coming up in just a couple weeks from the day we're doing this interview that, where we're going to be furthering some of those issues with the Michigan Economic Development Corporation.

Well, those are some of the things that we did and then, we also have signed a climate action, climate accord, dealing with climate change issues, also establishing twice-yearly meetings. I served on the Michigan Climate Action Council. I was appointed by the governor to be part of that council that helped create the plan for the reduction of the emission of greenhouse gasses and all the different issues surround climate change. And we turned in a report to the governor, and part of that report recommended that the tribe, that the state negotiate and sign with the tribes a climate accord. And the reason for that is because tribes are not political subdivisions of the state and it made, it would've been really difficult to incorporate us into the state's plan, but part of the state's plan was to sign an accord with us to work out common issues. And also part of the state's plan was to work with tribal organizations to further the issues. So for instance, they send a rep to the National Congress of American Indians' meetings relative to climate change, and to NTEC, the National Tribal Environmental Council, other meetings to make sure that they're, the state is sort of on sync with those things. So that's part of how we do with that accord. So when you look at each one of these accords, you put all this together, the tribal-state accord and the water, the economic development, the climate accord, you put all that together in terms of how we've related to the state, we've...I guess I should mention a couple of other things.

We also signed a tax agreement with the state. The state realized that we probably could go to court, which other tribes had done and that it was going to cost both of us millions of dollars and the outcome was uncertain. The uncertainty was there enough for the state that they felt that it was worthwhile trying to find a way to negotiate. So we ended up with a tribal-state tax agreement that is negotiated as a whole, then signed individually with the tribes and there's slight variations in each of them, but they're all pretty much set up...the system and then that also establishes an annual meeting where we get together to talk about the issues related to the taxes in the state. And sometimes our meetings, we've actually had a couple meetings that were over in 20 minutes. We had the meeting, we all got there, and we said, "˜Boy, it's really nice not to have anything to talk about.' So we chat with each other a little bit, reacquaint ourselves and eat a donut or two and we're done. Other times, we are actually in very long discussions and I've been in both of those kind [of meetings]. But the tax agreement was basically how the state is not going to collect taxes that it can't collect and what the mechanism is going to be for that. Well, these are other things that helped establish things. So we did this without having to go to court over the issue. And we believe that we got things that we wouldn't have gotten had we gone to court, but we also perhaps didn't get some things we might have gotten. So the question is, the state, both of us benefitted and we think that it furthered our interest by doing this."

Ian Record:

"I mean, I guess overall, overall from what you're saying, is that by consistently, continuously engaging in these sorts of efforts, you send a very clear message to the outside world -- whether it's the feds, the states, local neighboring communities to the reservation -- that, "˜We're big league governments. We're sovereign nations for real.' And then there's the message that you send to your own citizens. Isn't there a strong message that these sort of actions can send to your own people?"

Frank Ettawageshik:

"Yeah. Well they, I think that and one of the other agreements that we did was we settled U.S. v. Michigan fishing rights case and as we worked on that the original case had been filed years ago and then it was bifurcated. The inland portion was sort of put on idle and the Great Lakes portion proceeded through court and we won the right in court and there have been a 15-year and then a 20-year consent decree that have been negotiated on how we are going to exercise that right on the Great Lakes and so we continue to work with the five tribes in the state that are involved in that. Well, the inland portion eventually got to the point where it eventually where it was heating up and looked like it was getting ready to go to trial and we actually hired our witnesses and expert witnesses and we had done depositions and we were moving towards court, but we at the same time worked and a couple opportunities came up and we moved ahead in some negotiations and we thought we try to negotiate. We successfully negotiated a settlement in the inland portion of the U.S. v. Michigan fishing, hunting and gathering rights case. Unprecedented. I believe it's an exceptional agreement in that the tribes gave up things that we surely would have won had gone to court, but those are things that we already were not likely to want to exercise ourselves and one of them was commercialization of inland harvest and also putting gillnets in inland streams and rivers. Both of those were things that we didn't think were too wise, but we could have won those rights and probably would have if gone to court.

However, the state stipulated without going to trial that our treaty right existed perpetually. It's a permanent consent decree and so this was a big deal to us. The second thing was is that they ended up agreeing that we could exercise that right on property that the tribe owned whether they had just purchased it or whether it had been purchased years before and or whether it was a part of the reservation, whatever. They also agreed to do this on private lands with permission and this is way more than we would have won had we gone to court. So we think that we got a lot of things that are very important to us and gave up things, while they are important, they also were worth it in the deal and this is without spending millions of dollars and continuing to spend. It would have been appealed; it would have been a 10-year case by the time it went on. This was a success.

Well, what did that do in the end? At the end when we got this agreement, together we had the state DNR [Departemtn of Natural Resources] touting the agreement and holding classes and seminars around the state to let their citizens know about this agreement and to say why it was such a great idea and we had tribes doing the same thing, but on top of that we also had the various sportsmen associations and the lake owners' associations that had been advising the state on the case and had been working with the state and they called it, the term was "˜litigating amicae,' which I understand is a term that the judge may have made up, I don't know at the time, but they were parties to the case and to that extent -- not parties, but they were amicae. Well, we had these groups, the Michigan United Conservation Club, the lake owners' association, and they were all promoting this so that instead of...result of this and in other states have had to call out the National Guard when they were dealing with this issue when they have really potential dangerous things going on and in Michigan when we got this settlement, everybody realized that it was going to protect the resources and it worked with minor exceptions here and there. I mean there were some tribal members that were upset and there were others. I mean we had some folks just as soon die on the sword, they would just as soon fight and lose rather than negotiate. There was more honor in that. And to me, I look at it, I wasn't worried about my honor or I was worried about that, what I was worried about is the long term. What are our great-great grandchildren going to be doing? And now in Michigan, they're going to be exercising treaty rights."

Ian Record:

"That's a great story and we're seeing more and more of those kind of stories across Indian Country because, I guess, this realization that negotiation, if done right and if done for the right reasons, can bring you much greater outcomes in both in the present and in the future than litigation. Because litigation, even if you win the case, there's this issue of enforcement can be very costly and then there's this issue of litigation begets more litigation. And then, on the flipside though, I mean you have negotiation where it sounds to me like this served as a springboard from improving relations between traditional adversaries, improving relations or perhaps dampening hostilities that had long been there. And, I mean, do you foresee this consent decree as perhaps serving as a springboard for other forms of cooperation in other areas."

Frank Ettawageshik:

"Well, it's important that we sort of keep it alive. One of the things there is from this is there's an annual meeting, executive council, where all of the parties come together to deal with issues. And we have issues; we have issues. We'll have members who push things a little bit. We'll have state game wardens push things the wrong way a little bit and then we'll have to, we have to work through all those things. We'll have disputes about what actually was meant by a sentence and there will be differing views on that and those are things that have to be worked out. But in the process of doing that, we have regular relations; we worked hard and we developed a level of respect for each other and trust that we could achieve, that we were working together on an issue. It wasn't just working against each other. There are times, believe me, out of these...these were tough negotiations, these were not easy. I mean every one of us at the table, every one of the tribes, the state, I mean everybody at the table at some point or another was the one who walked away, and then came back, but everybody got upset. You don't have forty-some people negotiating every three or four or five weeks or two or three days at a time...that takes a long time. So some of those days were long days. We had some 10-12 hour days we were doing this. And so it was tough, but in the end we got something good, and these kind of agreements, building these relationships help because our tribal citizens...I'm a member of Farm Bureau for instance and I look at...we have other people that are members of Trout Unlimited and all the other groups. We have people, lake front owners that are part of lake owners' associations. So our citizens are actually a part of all these other groups with whom we were dealing and we need to strengthen those things. We need to let people know. So now when we do a fish assessments, it's just as common to have the tribes and the state out working doing the assessment fishing on a lake all together because the state's in a budget crunch and so are we, we have our equipment, when we all work together we have enough to do a big job, but just by ourselves none of us really could do that big job all by ourselves. So when we're doing the shock boat and the fish assessing and trying to explain to people that we're not killing the fish, the mortality rate is less than one percent with a shock boat that we have, those are good things and it's good to be working together on this stuff. In the end, what we're doing is we're all working toward similar goals. We aren't always going to agree, but then that's part of governance. In fact, if everybody agreed, that's a little dangerous. You need to have that, a little bit of tension in there to make sure you're doing things right."

Ian Record:

"So you mentioned the hard work that's involved with establishing, cultivating and maintaining these relationships. I'm curious, based upon your extensive experience in this area, what advice would you give to Native nations and leaders for how to build effective, sustainable governmental relationships?"

Frank Ettawageshik:

"Patience. One of the, probably the biggest thing I learned and one of the things that guided me is that eventually, eventually comes and that you need to work towards things. You need to be willing to work a little piece at a time. You need to have a sort of longer-term vision about where things are. I was out walking the other day on a path, and I was, I was looking up at the mountains and to my detriment, I tripped on something right in front of me. But if you look in front of you all the time, you never see the mountains, you never see the other things around you because you're paying so much attention right in front of you. You have to -- without endangering yourself -- have to be looking up as well as in front of you. I think that that's a part of the whole thing about this patience. You have to have a longer-term vision and the government itself needs to work through and think about those longer-term visions."

Ian Record:

"And doesn't that involve educating citizens because leaders? As you've often said, leaders are transitory, they come and go, and some of these efforts are multi-year, if not multi-decade to get the outcome that you've been seeking at the beginning and doesn't that require, I guess, a certain level of understanding and approval by your own people that this is a priority of the nation?"

Frank Ettawageshik:

"Yes. I mean, it's really important for people to understand what...like I said in the beginning when we looked at the constitution and I said the constitution is the method by which the people inform their government how they want it to work. The people need to always be aware of and remember that that is what that is and that they...so they need to understand where those things are when you have a constitution that has a focus on international relations. They need to...when you have your budget hearings, there need to be...someone needs to stand up and speak up and support that budget line item that's going to involve some international travel, some travel that needs to be done. When you have...you have to have...people need to be aware of how things work to know how to allocate resources and how to support that or detriment. One of the issues that I see across Indian Country that I think is...it's a big issue and that is that leaders who do a lot of this international work with other tribes or that are working in a basis across the country often are away from home a fair amount and that needs to be supported. But too often people think that those of us who are traveling are wasting tribal resources, that we are out having a good time, that we're enjoying things at the tribe's expense and that there is no need to be doing this anyway. And so when people are traveling often there is quite a pressure or a candidate becomes vulnerable because of being gone and traveling. So you have to balance that domestic program within your nation with the international program and you have to find out how to balance that, but with the people themselves, there needs to be an acceptance. I was recently -- after I had left the chairmanship -- I attended a conference and elected leaders were taking it on the chin pretty high at the conference over the days because most of them...there were very few elected leaders at this conference. It was almost all other folks: individual activists and former elected leaders, but lots of people were very involved in working on environmental issues, but...and so I, towards the end of the conference I got up and set my regular program aside and I said, 'Listen. You've been...you're sort of upset because elected leaders aren't here.' I said, "˜When's the last time you ever thanked your leader for attending a national meeting like this. When the last time you went to a budget hearing and demanded they put more money in there in the line item for travel so that the leaders could afford to go? When's the last time you wrote a letter or stood up and supported this outside external activity at a community meeting or in conversations in your family or things? You need constantly, if you want leaders to do those things, you can't complain because they don't. You need to actually support them when you do, that way it becomes a priority and if that's really the priority for our nations to make sure that we have this balance between domestic programs and international programs.' We have to have a populace that actually understands and supports why that is necessary, and it becomes necessary. Going to Washington, D.C. is critical for leaders because the U.S. Congress passes laws that effect...while they can't, their laws don't limit our tribal sovereignty, they certainly can limit how we exercise our sovereignty. They limit how Health and Human Services can deal with us. They can limit how the justice system deals with us. And so because of that, it's important for us to pay attention to those laws and it's important for us to know what's going on and to have the relationships necessary there that when we speak, we're not going just to build a relationship. We're going and we already are known so that we can carry through on the issues that support us. And there are plenty of people that are going there on a regular basis who are detractors of tribal sovereignty and don't support tribal sovereignty and who want to do everything they can to do away with it or limit it or whatever. And so we have to constantly be on target and work on these things and that's a very important part of that international because we're dealing with tribal nations to the United States, that's an international arrangement. We have to be very careful on how it works. So it's essential to do that kind of stuff. We also have to do that with our state government because a lot of the funding that tribes get comes from federal government, but it's funneled through the states, even though we'd like them to all have set-asides and deal directly with...so that the tribes deal directly with the feds on those things. There's a number of programs that go through the state and the manner in which the state chooses to set up its programs, how they choose to write their programs or write their proposals and their agreements with the feds can limit how they deal with tribes. So you're constantly having to pay attention to that. And you have people who, once again, would be supporters and other people who wouldn't, but for the most part you also have people that just don't know. And so it's constantly our responsibility to make sure that they do. And whatever mechanism, whether it's the tribal leader going or whether there's an ambassador, I think that we could... I think there's a time coming as we're evolving our tribal governments that we're going to actually have people that ambassadorial function may well be through an ambassador at large. Some of the tribes already have these. And I believe that this relationship with the other governments with whom we deal, we need to have staff people that can deal with that. I use an example, the recent arms treaty signed, where the presidents of Russia and the United States were together to sign the treaty. You know that the two of them did not sit down and hammer that treaty out. They had staff that were working for years on this to work together how to deal with it and may have met a couple times to iron out a point or two, but for the most part, their major thing was to have the photo op of them signing it and shaking hands to sign the treaty and that was the top of the executive functions there. And then of course it's got to be ratified, yet. Well, these are...our governments function in the same way. We have those same kind of interplay of things and...but we need to make sure that we have built in the ability to deal with other governments and that it's a very important role for our tribal nations."

Ian Record:

"I wanted to switch gears, one last question before we wrap up this interview, to tribal justice systems and specifically ask you a question about the Odawa Youth Health to Wellness Court, which your tribe established several years ago, which by all accounts has proven quite successful. I'm curious to learn more about why did the tribe establish this program? How is it structured? And how has it benefitted your community?"

Frank Ettawageshik:

"Well, we clearly have a problem that other communities have, other tribal nations have. As to why we have it, I guess that's another whole other story, but the fact that we actually have this problem with drugs and we have problem with the youth and there are individuals who just don't seem to be able to respond to parental controls and/or other societal controls and end up being in the court system; and the court system is basically a win/lose kind of system. We've tried to develop other systems that are options and this is an option and can be chosen by someone who is before the court, by the youth and this particular thing is based around that wrap around concept where we have staff from a lot of different departments. I think there's 10 different departments, but they are all working with one youth and their parents and all focused on one case. There's responsibilities on all their parts by bringing a multi-disciplinary approach to this wrap around concept we're able to see success with individuals we had not been able to see success with other programs. This has gotten so successful that we have actually had offenders that are before the local county court who they've offered the option of coming to our program and actually people who they didn't have to assign to the program at all, the local judges have sent people to our program and has been because they recognize the success of it. So this is another way of building an intergovernmental relationship, building community relations with various institutions with whom you have to deal in the community."

Ian Record:

"And this, from what I understand, this health to wellness court is not so much focused on punishment, but on restoring health and harmony not only to the individual defender, but also to their family, to their community at large. Is that true?"

Frank Ettawageshik:

"Yes. And I think that that part of the approach, restoring balance is important. And I think that's true in a lot of our programs, that's one of the things we try to focus on. And we have, when you follow our traditional teachings, that whole thing of being in balance is your goal, it's the center, it's what you try to achieve, where you're not at any one extreme. No matter how that extreme may seem, as you move towards that, you're pulling away from being in balance and so something else gets out of balance. So the whole goal is to try to maintain that calm center in order to achieve that. In our traditional ways, that's one of the teachings. And so when we apply those teachings to, trying to apply them to court systems, trying to apply them to our various other social programs, frankly I'm working on how we apply the teachings of the medicine wheel to our budgets. How do we take a budget and determine whether that budget is in balance? And I think that the way we spend our money, the way we allocate our resources, can be just as out of balance as any other thing and it can be symptomatic of we might be having problems in our tribal community that are inexplicable to us. And it could be because the way we're choosing to allocate our resources is out of balance. And so, to me, this is something I'm working on and particularly now that I'm no longer the tribal chair, but I have time to reflect on these things. I want to work on that issue and try to see how that can be, that idea can be furthered."

Ian Record:

"Well Frank, I really appreciate your time today. I've learned quite a bit and I'm sure our listeners and viewers have as well."

Frank Ettawageshik:

"Thank you."

Ian Record:

"Well, that's it for today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute's website: nni.arizona.edu. Thank you for joining us."

Anthony Hill: Constitutional Reform on the Gila River Indian Community

Producer
Native Nations Institute
Year

Gila River Indian Community (GRIC) Chief Judge Anthony Hill, who served as Chair of the Gila River Constitutional Reform Team, discusses the reform process that GRIC followed, the current state of GRIC's reform effort, and what he sees as lessons learned from Gila River's experience.

Resource Type
Topics
Citation

Hill, Anthony. "Constitutional Reform on the Gila River Indian Community." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

"Last year I came here and I want to thank the Native Nations Institute for inviting me back. Apparently, I didn't embarrass them too much so they had me come back. When I was here last year, I talked a lot about the nuts and bolts of constitutional reform: what to do, what not to do, things like that. This year I'm sort of taking a step back and maybe looking at the whole picture. I'm still going to try and talk to you about the beginning and all the way to the end, but maybe we look at it from a wider standpoint because as Ms. [Angela] Wesley's presentation shows, you can successfully achieve constitutional reform, you can engage your citizens, you can make them excited about this endeavor. I don't want to be the 'Debbie Downer.' Have you ever seen that character on Saturday Night Live? ‘Wah, wah, wah.' I don't want to be that character, but sometimes things don't go right. The best plans fail. The people that are excited at the very beginning are often the first ones to drop out at the end and that's probably where I'm coming from and that's the perspective that I'm going to present to you because Gila River did engage in constitutional reform and it's something that we have been looking at for quite some time.

Our community has and I'm sure as a lot of you have, we have a 1960 IRA [Indian Reorganization Act] constitution. It has only been amended once in that time and that was when the voting age was lowered to 18. And basically, since the ‘80s there's been a movement to try and change the constitution to make it more flexible, to adapt to the times that we're living in because many people felt that, of course, having an IRA constitution imposed on you is against the idea of sovereignty, but in addition to that, our community was growing. Our community is engaged in gaming activities and with that comes economic development, comes the growth of the size of government, comes the dependence on the government. So we needed a more flexible form of government than the IRA constitution could provide. And there were attempts in the ‘80s, there were attempts in the ‘90s to revise our constitution. Those unfortunately did not go anywhere. And again, the community decided to pick up where they left off in the ‘90s.

And so about the middle of around 2005, the council, our tribal council, started talking about the idea of constitutional reform. And they decided to pursue it again and they entrusted constitutional reform to a panel of eight citizens from the community. Now you're probably wondering, where did we get the number of eight citizens? Our community is divided up into seven we call them districts, basically those are geographical areas that council people represent. So we have seven districts in our community. The eighth member was from the community members living off the reservation in Phoenix. So the council felt it was important to include them because they are members of the community and they are governed, again, under our constitution. So the community council decided we need to include them as well and they came up, the group they come up with is the Tribal Constitutional Reform Project. And our project was very well-staffed. Not only did we have the eight members of the task force, we also had a lawyer, an outside lawyer that was brought in. So we didn't have that conflict of in-house counsel, which represents the current government, also representing the task force, which was seeking to change the government, because unfortunately that does happen a lot and unfortunately it happened in the end and I'll get to that. But we had an outside lawyer, we had outside counsel. We actually had a project manager who was experienced in constitutional reform. They brought him in and put him under contract. And we had an administrative assistant. So we had a pretty good team set up.

And when the members of the task force were brought onboard, there was a seven-phase they call action plan that we were to follow to achieve our constitutional reform and the action plan was drawn up by the project manager. So that was in place before the task force members got there. And that is our action plan or that was our action plan. Some of the titles that were given to it, I certainly didn't choose these titles for the plan, but as you can see there's a lot of emphasis on reaching out to the public, just as Ms. Wesley's group did, that's what we tried to achieve as well. And the ultimate goal was to reach the Secretarial election. To revise our constitution I'm sure as you know we needed to have a Secretarial election. So that's the goal we were going on. And there's sort of a timeline for you. It took a lot longer than we expected it to and perhaps that's the first thing everyone needs to keep in mind. We had a strict timeline and with this strict timeline we should have been done I think in 2010 and we obviously didn't achieve that. So the best-laid plans do not work out and your plans...hopefully you'll have a plan when you go back and you decide you want to revise your constitution you will have a plan on how to do that. And yes, your plan will include a timeline and I'm not sure whether it's going to end up like our timeline where we are still what seven years out and we still have really no new constitution.

In January 2011, we did submit the final draft of our constitution. And I didn't put it on there because I actually couldn't fit it in, but what happened is not only did they accept the final draft, but at the same time they dissolved the reform project team. Now they didn't tell us they were going to do this, they just did it. ‘Thank you. We appreciate your help. The door's over there. See you later.' But if you recall, the phase, the seven phases would have included the reform project carrying through all the way until after the Secretarial election. So the action plan that the council passed itself, they decided to change it themselves, and they showed us the door and I think we were standing outside the council chambers saying, ‘Did that actually...? Did they say what I think they said? So we're not having a meeting next week?' ‘No, I think we're done. Go home. It's over with.' So we submitted the final draft in January of 2011 and it has sort of sat there for almost two years. What has happened to it is, when we submitted the final draft we submitted it with wholesale changes. What the council decided to do was to pick one change out of it, which is to take the Secretarial election out of the constitution and leave all the other changes on the back burner. So as far as we know, we will be having a Secretarial election this coming spring, but it will only be on one question, whether or not to remove the Secretarial election or keep it in there. The council tells me, and they reassure me, and I have friends on the council, and I believe what they say, that they will put the other revisions back before the people very, very soon. Are they telling the truth or not? Time will tell. So this is a to-be-continued story, which comes...I come to my first point.

Our constitution or our draft constitution, I guess, came out of a crisis and that's not the best way to approach this endeavor. Our community was going through a lot of things. There were some leadership tensions between the council. Our executive is called the governor. There were some tensions between the governor and the council. There was a lot of infighting. There was attempts to suspend the governor, to remove him from office. And what happened is they were planning the constitutional reform before this fighting started, but by the time they got around to approving the reform it sort of came out of this crisis, if you will, and unfortunately that tainted, I think, the whole project. So if you are looking at constitutional revision as a way of addressing a crisis or a breakdown in the government, I would probably ask you to step back because you don't want your project to be colored by this whole crisis. And during the whole time we were working on this project, the council would come in and say, ‘You know what, we want you to do this,' and then the governor would come in and say, ‘I want you to do this.' Well, who do we listen to? They entrusted the task force with revising the constitution yet they were...we were not at arm's length as we should have been. And I guess that would be my suggestion to those of you who are elected officials that if you create a task force, let them do their job. Now that doesn't mean that they're to run roughshod over everything; hold them accountable, by all means. If you're going to invest resources and you're going to invest the fate of the community with that group, you should hold them accountable. But do not use that group to fight...as a proxy to fight out your battles with one another because I think in the end that's what happened. Our task force was used to battle the other branches of the government because they didn't want to do it themselves. So remember that when you go...and I have a quote there from John F. Kennedy, ‘When written in Chinese, the word crisis is composed to two characters. One represents danger, the other one represents opportunity.' In our case, that crisis came with danger and we probably should have saw it because this brewing battle was the backdrop for our constitutional reform. Your crisis should never be the driving force behind your constitutional reform. Now a lot of people will say, ‘Well, what if the crisis is because we don't have an adequate constitution?' And a lot of the problems come because many Indian communities do not have adequate constitutions. Again, I would just go back and say, things change, leadership changes, councils change. Let things settle down, let the dust settle, then start with the clean slate on your constitutional reform.

The other problem we had because our constitutional reform was born out of crisis, the changes that were made to the constitution were changes that were designed to deal with the crisis. They weren't designed to deal with the public interest in the future. They were designed to deal with things now and as Ms. Wesley pointed out, your constitution should last beyond the people that wrote it, beyond the people that are governed by it. It should go into the future and I know when we started out with this project that's what we were looking at. We were looking generations down the road and one of the examples and whether you like it or not, you look at our own United States Constitution. It has lasted over 200 years and it has served our country pretty well, with the exception of the amendments that have been added. And that's something that I think all of us in Indian Country would try to strive for is a constitution that looks into the future. But our constitution when we revised it, it was shortsighted because it was designed to deal with the crisis. And so we shortchanged our future because we weren't looking ahead far enough.

In our constitution, the blood quantum is in there and I'm sure many of you have blood quantum requirements for your membership. Despite all...there was a great emphasis on changing the blood quantum or addressing the blood quantum, but because we were so busy looking at everything else, at the end of this nearly five-year project we didn't even touch blood quantum. And that was a great failure on our part because the membership of a community is the most important thing. It is literally the lifeblood of a community and if you can't decide on who should be in your community, you're not going to have a community in the future. So that was a failure on our part because we didn't address that issue because we were so busy addressing the crisis that we...the time we were living in.

My second point to you was not only are we revising our constitution, but we're also starting a conversation with the people, and as Ms. Wesley pointed out very correctly, it's a time to engage our community because all of us know that we don't communicate enough with our community members. For those of you who are on council, even myself as a judge, I live in the community of the people that I'm supposed to be judging, but I don't communicate with them as often as I should and there's a lot of reasons for that. We're all very busy people, there are pressing issues that we have to deal with. So the revision allows for a conversation with the people. It allows us to look at, to start talking about how is our government now, and what kind of government do we see in the future. We had to do what we call -- and I think Ms. Wesley, you also pointed it out as well -- we had to do a 'Constitution 101.' That's just basically we as a task force, we had to go out to the community and explain to them, first of all, that we have a constitution. A lot of people didn't know we even had a tribal constitution. It was the first time they had ever seen that document and we went through it and we explained to them the genesis of the 1960 IRA constitution, we explained how the constitution worked, and we explained or we asked them, ‘What would you like to see changed about this constitution?' And just as Ms. Wesley's group did, we had exercises; we had surveys that we filled out. We even did exercises on blood quantum. We asked people to use their own family members and we put hypotheticals before them. What happens if we change the blood quantum to eight-percent Indian blood or something like that and we actually had them map out how it would affect their family. You'd be amazed at how much people are drawn into the conversation when it affects their own family because if we revised the constitution and set the blood quantum at a certain rate, some of their family members might not even be eligible. So it has a real-life impact on people's lives and that's one of the things I hope that when you go and revise your constitution you'll let them know that, that this document, as stale and as old as it is, it has a direct impact on the lives of the people, especially if your membership requirements are in that constitution. You have to have an open and honest conversation.

I have been the subject of many conversations in my community and some of them are not good, that's just life in politics in Indian Country. We actually have -- and I'm not going to tell you the website or anything -- we actually have a Facebook page where people talk garbage about people in our community and that's a little more open and honest than I would like to get -- I'm waiting for my name to show up on that web page -- but an open and honest conversation about our community about the state of the government. And for those of you who are elected officials, when we talk about open and honest conversation, that includes talking about you as well and some of you maybe don't like to be talked about. If you're in politics, I don't know why you would not like to be talked about, but some of that conversation is going to be about you. So please don't be too uncomfortable when the people have that conversation because they're going to look at it through your eyes and they're going to look at it through the people that are in those positions now. So be prepared for a little criticism.

When you're revising a constitution, you will have many audiences. You will have the body that you report back to -- the council -- you will have to report to the people, and you will have to report to some of the key players that are involved. In our case, those key players include the Bureau of Indian Affairs, because any revision has to go through the Bureau. So we had to keep them in the loop. So you have to make sure that, at the beginning of your revision, you make sure that you touch base with everyone that's involved because it's more difficult to pull them in later than when you do it at the beginning. Communicate with the decision-makers, and when I say decision-makers, most likely that will be your council or those in elected positions. As a task force, we routinely reported to the council on our activities. Part of the action plan that I referred to earlier, we had to get permission from the council to go from phase to phase because they wanted to make sure we had accomplished all our goals in that one phase before we could move to the next. So we kept the decision-makers informed. Communicate with the people -- that should be a given, that should be your primary goal. You have to do it from the beginning and I'm pleased that our group did that. From the moment the council authorized the revision of the constitution, we deployed out to our various constituencies and reported that this project is coming up, please keep a lookout for it, please become involved and please give your opinion. And be creative in your methods; you see the usual ways of communicating, through the Internet, through mailings. What we actually did is our community's enrollment office allowed us to have the mailing address of every adult member in the community and we mailed them out information because a lot of people don't have the internet or a lot of people are not tech savvy. They get a lot of information through the mail. So we communicated it through the mail. We have our community newspaper; we put articles in there, we put special sections of the newspaper in there. Then we communicated through our meetings. We have what we call district meetings, community meetings where we reported to those people who showed up.

If you have populations, large populations that are off the community, off the reservation, include them. Half of the people who are enrolled in Gila River, they live off the reservation. So there is a big component of people off the reservation and while we're near Phoenix, we had some of our best input from community members who lived in Los Angeles and San Francisco. And we actually went to go see them and we had meetings with them. And you know we had more people attend the meeting in Los Angeles than we did in some of our own district meetings on the reservation. So reach out to them and identify, where are they and reach out to them. And again, communicate with the key players. Again, as I mentioned, the key players in our case were the Bureau of Indian Affairs officials, our superintendent. We constantly kept her up to date on what we were doing because eventually that whole document will be going to the superintendent and she will look over it and she will have to forward it down the chain of command in BIA. So she was always aware of what we were doing so nothing was a surprise.

Productive public meetings: sometimes meetings drag on like I am now, on and on and on and on and you're safe because I have one minute. You always want to educate your community members 'cause as I said, when you do Constitution 101, your community members may not even know you have a constitution and they may not know what is contained within the constitution. But a bedrock principle that you need to communicate to your people is, what is a constitution? What is it, why do we need it? And that's the foundation on which you're going to build your education. You're going to educate your people. We had exercises as I mentioned earlier, the exercise about blood quantum, survey exercises that we had, feedback. Just as Ms. Wesley's group got feedback from her people, we got feedback from our people. Some of it was negative, some of it was positive, but all of it was helpful. And then catalog your results. It's interesting because when we submitted our final draft to the community council, we showed them the results of our survey and I have hundreds and hundreds of pages of survey results so they could see what the people were saying. We cataloged each and every comment, written comment that we received. So you could comment by the email, you could comment on paper and the council got a copy of each and every single comment that was made during the course of this whole five-year project. Those are the results that you want to accompany your draft constitution. Time, just as I know now, time is not a luxury. The timeline that you work out, it may not work like ours did, but you kind of have to know when to put a cap on things. Know when to stop. I think what happened is we had planned, we had followed the timeline, but we kept going back out and getting more survey results, over again and again and again. We had to put a stop to it, so don't get caught in having meetings after meetings after meetings.

The final point is sometimes we're short of the goal line, sometimes we don't make the touchdown and that's the one regret that I have about the exercise that we went through, the revision that we went through. The momentum can be difficult to maintain. People are excited about this project, they think that we're going to go back, we're going to change our constitution, rah, rah, rah and it's a long process and people sort of drop away as time drags on. So the momentum is difficult to maintain. Always keep your communication lines open with the people, that's so important. And then at the end of the day, all the hard work that you do revising your constitution, you're going to hand it over in most cases to your elected officials, to your tribal councils and we did that. This is the final report that we gave to the council. I have a copy. I keep a copy of it and I keep a copy in my office all the time. So elected officials, tribal council members, when you get this from your task force, your constitutional revision team, don't just put it aside, because a lot of people worked very hard to put this material together. Your own people gave of their time and their effort, their voice so that it could be put in front of you. And don't do what our council did and just set aside for two years and hope that it would maybe go away because it's in your hands, you're supposed to represent the people not your own interests, not in keeping power for yourself. You're supposed to represent the people. So if you do task an outside group with constitutional revision, make sure that you do reach that goal line, cross the goal line, make the touchdown; change the constitution. And I hope maybe if they have me back here next year I'll have positive news to report, but that's where we are now. And I don't mean to paint our elected officials with the same broad brush. There are a lot of supportive people in our community; there are a lot of people who care about constitutional reform, who still wish that it would go ahead. So it's a story whose ending we do not know, but I know that my time is out and I thank you for your attention."

Winnebago Tribe expands member definition

Author
Year

Members of the Winnebago Tribe of Nebraska have overwhelmingly voted to expand their definition of tribal membership.

Previously, the tribe required at least one-quarter Winnebago blood relationship to qualify as an enrolled member. Now, those who have a parent or grandparent that belongs to the tribe can count blood relationship with other federally recognized tribes to meet the one-fourth "blood quantum" criteria...

Resource Type
Citation

Dreeszen, Dave. "Winnebago Tribe expands member definition." Sioux City Journal. February 07, 2009. Article. (http://siouxcityjournal.com/news/state-and-regional/winnebago-tribe-expa..., accessed October 25, 2013)

Mandan, Hidatsa & Arikara Nation: Constitutional Reform

Year

Days after certification of the Secretarial Election, positive comments were coming into the office of the Constitutional Revision committee. Donna Morgan and Ramona Two Shields began receiving flowers and calls from tribal members happy with the results.

Both Two Shields and Morgan say it was the tenacity and commitment of the late, former North Segment Council Representative Titus Hall who kept them going. Titus Hall served as Chairman of the Election Board and believed it was past time to take our government back...

Resource Type
Citation

Baker Embry, Glenda. "Mandan, Hidatsa & Arikara Nation: Constitutional Reform." MHA Nation News. September 17, 2013. Article. (http://www.mhanation.com/main2/Home_News/Home_News_2013/News_2013_09_Sep..., accessed October 7, 2013)

Rethinking Rewriting: Tribal Constitutional Amendment and Reform

Author
Year

This essay examines the recent wave of American Indian tribal constitutional change through the framework of subnational constitutional theory. When tribes rewrite their constitutions, they not only address internal tribal questions and communicate tribal values, but also engage with other subnational entities, i.e. states, and the federal government. It applies that framework to a study of tribal constitutional amendment and reform procedures. Focusing on the processes of constitutional change produces insight into tribes' status as “domestic dependent sovereigns” in the contemporary era of self-determination, a status reflected in the opportunities, and limitations, inherent in tribal constitutions. In so doing, this essay aims to highlight an aspect of tribal constitution writing that enables successful reform and communicates the significance and goals of constitutionalism within the tribal context.

Native Nations
Resource Type
Citation

Hipp, Jason P. "Rethinking Rewriting: Tribal Constitutional Amendment and Reform." Columbia Journal of Race and Law. Vol. 4:1, 73-95. 2013. Article. (https://academiccommons.columbia.edu/download/fedora_content/download..., accessed October 18, 2023)

A Guide to Community Engagement

Producer
British Columbia Assembly of First Nations Governance
Year

In this third part of the BCAFN Governance Toolkit: A Guide to Nation Building, we explore the complex and often controversial subject of governance reform in our communities and ways to approach community engagement. The Governance Toolkit is intended as a resource for First Nations leadership. It provides a conceptual framework for engaging the citizens of First Nations on governance and the challenges of decolonization and moving through the metaphorical "post-colonial door."

Native Nations
Resource Type
Citation

Wilson-Raybould, Jody and Tim Raybould. "A Guide to Community Engagement." Part 3. British Columbia Assembly of First Nations Governance Toolkit: A Guide to Nation Building. West Vancouver, British Columbia, Canada. 2011. Tools. (https://www.bcafn.ca/sites/default/files/docs/BCAFN-Governance-Toolkit-Part-3-A-Guide-to-Community-Engagement.pdf, accessed, April 3, 2023)