Indian Reorganization Act (IRA)

The Indian Reorganization Act at 80 years

Year

At Pine Ridge, daily controversy surrounds the Indian Reorganization Act (IRA) of 1934. Congress enacted the IRA on June 18, 1934. However, the voting requirement was drastically altered just three days prior. This amendment (H.R. 7781, 49 Stat., 378) dated June 15, 1934, lowered the overall voting bloc from "majority of all eligible voters" to "30 per centum of all eligible voters." Although similar voting laws have been voided by the Supreme Court (Baker v. Carr), this reduced voting requirement is legal, and Pine Ridge elections still adhere to this law. On Pine Ridge, the IRA was put to a public vote on October 27, 1934, with only 28.7 percent participating. The current Constitution and By-laws of the Oglala Sioux Tribe was accepted by the members of the new Oglala Sioux Tribe via referendum vote on January 15, 1936.

Native Nations
Resource Type
Citation

Star Comes Out, Ivan F. "The Indian Reorganization Act at 80 years." Native Sun News. Rapid City, SD. October 14, 2014. Opinion. (http://www.indianz.com/News/2014/015347.asp, accessed October 14, 2014)

Indigenous Land Management in the United States: Context, Cases, Lessons

Year

The Assembly of First Nations (AFN) is seeking ways to support First Nations’ economic development. Among its concerns are the status and management of First Nations’ lands. The Indian Act, bureaucratic processes, the capacities of First Nations themselves, and other factors currently limit the ability of First Nations to add lands to reserves or to use their lands more effectively in productive and self-determined economic activity.

As it confronts these issues, AFN has been interested in how Indigenous land-management issues are being addressed by Native nations in the United States. What is the status of Indigenous lands in the U.S.? Do Native nations in the U.S. face similar challenges to those facing First Nations? Are Native nations in the U.S. engaged in practices that might offer ideas or lessons for First Nations?

There are substantial historical, legal, and political differences between the situations of Native nations in Canada and the U.S. But there also are substantial similarities. In both countries, land has been a pivotal issue–in many ways the pivotal issue–in the history of Indigenous-non-Indigenous relations. In both countries, despite massive land loss, Native nations retain remnant land bases with varying potential for economic development. In both countries, Native nations fiercely defend their remaining lands, seek to expand them, and are determined to exercise greater control over what happens on those lands.

This report addresses the status of Native lands in the U.S. It is divided into two parts. Part 1, “Overview of the U.S. Context,” reviews the history of Indigenous lands and provides an overview of current Indian land tenure and jurisdiction. Part 2, “Meeting the Land Management Challenge,” specifies the primary challenges facing Native nations in the U.S. as they attempt to manage their lands in ways that meet their own objectives and summarizes some of the innovative practices currently in use or being developed by American Indian nations. It identifies what we believe are key features of those practices. It also summarizes some of the relevant research on the relationship between control of Native lands and socioeconomic outcomes. Finally, it offers some recommendations based on the U.S. experience...

This report is featured on the Indigenous Governance Database with the permission of the Assembly of First Nations.

Native Nations
Resource Type
Citation

Cornell, Stephen and Miriam Jorgensen. "Indigenous Land Management in the United States: Context, Cases, Lessons." A Report to the Assembly of First Nations. Grogan|Cornell Consulting. Tucson, Arizona. December 2011. Report.

Broken Government: Constitutional Inadequacy Spawns Conflict at San Carlos

Author
Year

This article, published in 1999, examined the governmental conflict taking place at the San Carlos Apache Tribe. It explored the historical constitutional roots of the conflict, specifically the ineffectiveness and culturally inappropriate Indian Reorganization constitution and system of government imposed upon the tribe by the U.S. government in the 1930s.

Resource Type
Citation

Record, Ian. "Broken Government: Constitutional Inadequacy Spawns Conflict at San Carlos." Native Americas Journal. Spring 1999, 10-17. Article.

Permissions

This article, which appeared in the now-defunct Native Americas journal, is featured on the Indigenous Governance Database with the permission of author Ian Record.

Good Native Governance Break Out 3: Tribal Constitutional Revitalization

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Melissa L. Tatum, Devon Lee Lomayesva, and Jill Doerfler discuss constitutional reform efforts. Melissa describes the purpose of consitutions. Using her own Nation's experience, Devon discusses the Iipay Nation's constitutional reform process. Dr. Doerfler talks about the White Earth Nation's recent consitutional efforts.

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

Citation

Tatum, Melissa L. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Lomayesva, Devon Lee. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Doerfler, Jill. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Joan Timeche: The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Joan Timeche (Hopi) discusses how the Hopi Tribe continues to wrestle with an Indian Reorganization Act constitution and system of governance that runs counter to its traditional, village-based system of governance and that currently does not represent a significant percentage of Hopi citizens.

People
Native Nations
Resource Type
Citation

Timeche, Joan. "The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"My tribe has 12 villages that were autonomous before the federal government came in and they didn't want to talk to not just those 12 village chiefs, but we have a very complex religious...religion and cultural ways that we have multiple societies, there's chiefs of them, of all these societies, we have ceremonies, there's chiefs of those functions and basically they didn't want to have to deal with all the multiple chiefs. They said, 'We need...we want one person.' And a lot of...and we see that...we've heard of this in a lot of other nations where they really wanted to get to the resources of those people and they wanted to deal with one person, one chief who could put their fingerprint on those documents because they didn't want to have to deal with too many chiefs.

And so in this case, when our constitution was established, it's an IRA [Indian Reorganization Act] constitution, in 1935, we had four of our villages who never willingly accepted that form of government and today have no representation on our council. They consider themselves to be traditional. One of those villages constitutes about 25 percent of our population. Can you imagine that? And then so we have...and now we're going through some political turmoil still and now we have only about five villages who are making decisions on behalf of the entire nation. So we have that hybrid that exists there. You have outside to...anybody on the outside sees the Hopi tribal council as its form of government. But internally, in my village and many other villages, we know all the decisions get made at the village level and the council has not much to say over the land base or what happens within the villages. So you see the hybrids that still continue to exist throughout even today."

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

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

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

Andrew Martinez:

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

Audience member:

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

Andrew Martinez:

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

Audience member:

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

Andrew Martinez:

"Hindsight's 20/20."

Audience member:

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

Andrew Martinez:

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

Audience member:

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

Andrew Martinez:

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

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

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

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

Robert Hershey:

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

Audience member:

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

Andrew Martinez:

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

Audience member:

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

Andrew Martinez:

"Thank you."

Robert Hershey:

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

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

Audience member:

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

Robert Hershey:

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

Audience member:

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

Robert Hershey:

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

Audience member:

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

Robert Hershey:

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

Audience member:

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

Robert Hershey:

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

Audience member:

"Thank you."

Audience member:

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

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

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

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

Robert Hershey:

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

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

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

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

Audience member:

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

Andrew Martinez:

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

Robert Hershey:

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

Thomas Beauty:

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

Robert Hershey:

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

Thomas Beauty:

[Inaudible]

Robert Hershey:

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

Thomas Beauty:

[Inaudible]

Robert Hershey:

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

Terry Janis:

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

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

Robert Hershey:

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

Terry Janis:

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

Thomas Beauty:

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

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Robert Hershey:

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

Audience member:

“It’s calico.”

Robert Hershey:

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

Audience member:

[Inaudible]

Robert Hershey:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terry Janis: The White Earth Nation Constitutional Reform Process

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Native Nations Institute
Year

In this lively and far-reaching discussion with NNI's Ian Record, Terry Janis (Oglala Lakota), former project manager of the White Earth Nation Constitution Reform Project, provides an overview of the citizen education and engagement campaign that preceded White Earth's historic vote to ratify a new constitution in November 2013, and specifically the role he played in that process.  

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

People
Resource Type
Citation

Janis, Terry. "The White Earth Nation Constitutional Reform Process." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. St. Paul, Minnesota, February 6, 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 Terry Janis. Terry is a citizen of the Oglala Sioux Tribe in South Dakota and for the past year he has served as project manager for the constitutional reform process of the White Earth Nation in Minnesota. Terry, welcome and good to have you with us today.”

Terry Janis:

“Thanks, man. It’s nice to be here.”

Ian Record:

“Yeah, it’s good to see you again.”

Terry Janis:

“Yeah, yeah.”

Ian Record:

“So I’ve shared a few highlights of your personal biography, but I’m sure I left some pertinent things out. So why don’t you just tell us a little bit more about yourself.”

Terry Janis:

“From Pine Ridge, came over here to Minnesota, went to McAllister. From there went to Harvard for a master’s in education, University of Arizona for my law degree and several jobs since then -- kind of a balance between international Indigenous rights, land rights issues and broader national policy issues as well. So that kind of education -- law, law reform, policy development -- was a good fit for this particular job.”

Ian Record:

“So we’re here today to discuss constitutional reform”

Terry Janis:

“Right.”

Ian Record:

“a big topic across Indian Country and specifically, the work you’ve done on behalf of the White Earth Nation over the past year or so. As the White Earth Nation has worked to develop and then ratify, recently ratified, a new constitution, but the process has been underway there at White Earth for quite awhile.”

Terry Janis:

“Yeah.”

Ian Record:

“And can you sort of talk aboutcan you begin by talking about where White Earth was in the process when you came on board because as I mentioned, this thing had been underway for quite awhile before you joined the nation and its effort.”

Terry Janis:

“Yeah, they really started this effort of drafting a constitution in 2007 and it took them a couple of years. By 2009, they had had four constitutional conventions and came up with this draft. The number of delegates that participated in that process, voted on itthe idea was to approve a draft of this constitution that would then be moved to a referendum. That drafting process was completed in 2009 and it kind of sat there for a bit; I think part of the dynamics are complex. It’s difficult to move a constitutional reform process forward. The drafting process is critical and very difficult, but every stage subsequent to that is equally difficult and part of the issue was funding. And so a grant from the Bush Foundation helped them to move it to the next phase of really engaging in active community education process, move it then to a referendum, and then start to think, after that referendum depending upon the outcome -- and this one was positive -- to then look at the implementation process.”

Ian Record:

“Based on your understanding, of someone who is charged with helping to lead and implement that community education effort, what prompted the nation to go down the reform road to begin with?”

Terry Janis:

“I’m not from there, and because of that I don’t have the kind of personal insights or the personal biases that a person that’s from there would have. What I observed and the stories that I’ve been told is, like a lot of tribes, they went through a governmental crisis, a profound foundational crisis in the ‘90s with the 'Chip' Wadena administration; his conviction of embezzlement and how broad that was throughout their whole governance system. In reacting to that, not only did the people stand up in order to reassert an effective governance, but they really looked at the genesis of that: how did it get to that stage? And they immediately turned to the constitution.

And the conversations that you heard from that period of time, that were told to me when I got there, was how the constitution is so centralized in its power structure -- that the people, in power, can be dominated by a single person. And that kind of absolute power, in their experience, did corrupt absolutely. And so without any kind of way of balancing that they, as a reaction to that, they immediately moved to this kind of conversation of, ‘What can the constitution do to create checks and balances, to really have an independent judiciary and do those kinds of things?’ But I think that was the genesis of it.

So they actually started a constitutional reform process in ‘94, ‘95, ‘96. They drafted a constitution at that time as well and attempted to take that out into the communities. The stories that I’ve heard, both from the people that were doing it and the community members themselves, is there was just way too much tension still. They had gone through this amazing crisis. The communities were divided -- not just in two factions, but multiple factions -- so every time they brought this idea of a new constitution out into the communities, those factions and emotions really dominated the story line and it was just too premature. So they waited the 10 years. In 2007, brought it again and that’s where we stand.”

Ian Record:

“So you mentioned there was this profound governance crisis, if you will, that culminated in this high profile scandal. So they go down this reform road and in developing and ratifying, now ratifying, this new constitution system of government. What are some of the main things the nation is hoping to address? You’ve made quick allusions to them but”

Terry Janis:

“And I think that comes out of those crisis points. And what you see in this new constitution is a very clear separation of powers: a legislative body, an executive body and a judiciary. They clearly put a lot of time into that. Also the value of me not being in that drafting process, I wasn’t there, but you can see from the text itself that those parts of the constitution are clear, clean, deliberate and well drafted; that’s what they put their heart and mind and time and energy into. So there’s a very clear separation of powers, there’s clear establishment of an independent judiciary, they also put a lot of time into thinking about what it means to have a traditional government, something that’sin looking at separation of powers, you really harken back to the U.S. Constitution, which hearkens back to the Haudenosaunee constitutional form of government, but what you really get caught up in is it’s an American style of constitutional government -- the separation of powers, how they frame it, how they reference it -- but the way they do it is quite unique in the way of establishing mechanisms with language that tie it back to Anishinaabe traditions -- using Ojibwe language as a part of the constitution preamble and frame of governance, making sure that their judicial system isn’t just about punishment, but really emphasizes restorative justice -- engages the kind of most foundational aspect of the constitution in a way that depends on the people themselves to organize governance. So a range of different things that are quite unique that is really, I think, less controversial and more easily understood.

They also took on this huge issue of defining membership, citizenship. We all know or we should know about the way the federal government used blood quantum as a part of a military and colonial strategy to subjugate us. The ultimate result of that was our disappearance and that’s still on the books. And so they tackled that though with a very broad and dynamic rejection of blood quantum and move to lineal descendency. And that was a thing that came out of those conversations in 2007, 2008 and 2009. It’s part and parcel, very simple, very straightforward in the way the constitution defines it and it ended up being one of the most controversial aspects of their conversation.”

Ian Record:

“I think you’ve touched on some of these already, but from your vantage point, what do you see as some of the fundamental differences between the old constitution system of government, basically an IRA [Indian Reorganization Act] model, and this new creation?”

Terry Janis:

“I’ve talked about this new one. You got -- in order to make a comparison -- you’ve got to read their oldall of the IRA constitutions, but the MCT [Minnesota Chippewa Tribe] Constitution is even worse. And I’m not knocking MCT; they’re some good people, they’re trying to do good work with a bad system. But you’ve got to understand the history of the Indian Reorganization Act, its shift away from allotment; it ended the allotment process, which on its face is a very positive thing, but what this country was at that period of time, after the Great Depression, just before World War II, was all about assimilation. It wasn’t about recognizing the strength and sovereignty of Indian nations, it was about making Indian people white.

And the constitutions that came out of the Indian Reorganization Act, this model constitution that they had, the primary purpose of that was to make things easier for the Bureau of Indian Affairs -- their colonial objectives, their oversight, their kind of attitudes of superiority in having a trust responsibility towards Indian people actually owning Indian land, and Indian people having to ask for permission for using everything. These constitutions have at least a dozen, the MCT constitution has almost 30 specific places where before the tribe can do anything, they have to ask for permission from the Bureau of Indian Affairs and it’s in their constitution. And so that’s their starting point.

And it establishes a mechanism where, for example, even though White Earth has the majority of the population, they’ve set up a governance structure in the Minnesota Chippewa Tribe where each of the separate bands is represented by two individuals on their governance structure. And so White Earth has over 50 percent of the population almost; they only have two votes out of 12. It is completely unrepresentative. There is no government in the world that would allow that kind of unrepresentative form of government and they accept it. It’s what they were forced to take up. The Bureau of Indian Affairs wrote their constitution for them. There’s no story or history or genesis of the language of this constitution coming out of Indian minds. It was the Bureau of Indian Affairs that wrote it, put all of these tribes together under one body so they didn’t have to build relationships with six separate tribes. They only had to deal with one entity.

So this is as colonial a system as you can imagine and me coming from the outside, I’m shocked honestly that they find a way to make it work, every day. But that’s where it’s coming from and having that conversation, and engaging that conversation as a part of this conversation, was a part of everything that we put together as well.”

Ian Record:

“Let me follow up on that. This is not part of our original questions, but this is something that I see come up in so many tribes I work with on the issue of constitutions and constitutional reform is...you’ve just shared with us a pretty deep knowledge of the genesis of, until recently, what was the law of the land for the White Earth people. And so often when these tribes struggle with this issue of, ‘Our constitution is inadequate. We pretty much understand we need to change it.’ It’s a whole other question of, ‘How do we do it?’ But a lot of folks contemplate reform without a full working knowledge of, ‘Where did our specific constitution come from? Did our own people have any meaningful say in its creation? Did they have any meaningful sense of ownership in this apparatus that they now use to make decisions and try to live as a nation?’ And how important is it for other tribes -- if people are going to look at White Earth as an example -- how important is it for other tribes to understand that historical context when they tackle the question of, ‘Do we need to change our current constitution and how?’”

Terry Janis:

“Honestly, I don’t think it’s all that important. At the end of the day, it’s relatively irrelevant because when you get to this scale of change, what you really have to have a deep understanding of is politics, power and change.

Politics is important. Who has what political source, where does it come from, how did they engage and develop it? In order to engage at this scale, you have to have a deep respect for politics, you have to understand the politics that’s happening in that community at the local level and a broader level that affects it. When you look at process of change, you’re going to recognize that some people are gaining, are benefiting from the current system and other people will gain or benefit from the change. And so you have to recognize where those tensions are going to come from, where’s the push-back going to come from, and you have to respect that and honor that and deal with it in a very real and dynamic sort of way.

And then that’s the process of change, the engagement of it. Whenever there is a compelling reason for change, like in White Earth -- the constitutional crisis in the ‘90s, history of where the constitution that they’re working under comes from, and how it contributed to the disaster that they just went through -- is an important part of what pushes and sustains. And that’s important, that has to be there, but in order to actually for change to actually occur, you’ve got to deal with the reality of politics and power and that is all a part of the conversation. Some of it is one-to-one information sharing education process, others are very practical sitting down and trading realities. ‘You’re going to lose this. Your people are going to gain that. How important is it that your people gain even though you may personally lose in certain ways?’ And you just deal with that in a very real sort of way.

The leadership at White Earth, at Bois Forte, at all of the MCT bands, are the same as the leadership in any other Indian nations; they’re practical, they’re very realistic and they’re in it as a life issue. And I didn’t say life and death. They’re in it as a life issue. Our leaders are politicians from that life perspective, but whenever you start to challenge them to give up, or this is going to be taken away -- this thing that has benefited you and your family -- that has to be an open conversation. It has to be a real conversation and you have to honor their integrity, their respect, and their ability to come to a decision that not only helps them to deal with the practical realities, but also fits with their integrity.”

Ian Record:

“In the point you just made, doesn’t that argue for tribes ensuring that they develop a reform process that is distinctly theirs and that distinctly attends to their own local dynamics, as you laid out?”

Terry Janis:

“Absolutely. You cannot do it any other way. And there’sin this situation -- having me as an outsider come in -- there’s value in me being able to say, ‘I don’t care what you do. I didn’t draft this thing. I have noof my own self into it at all. What matters to me is you, as the people, make your own choice. Do you realize the power that you have? That’s what matters to me.’ So me coming in with that kind of outsider perspective, and also coming in with the history of really fighting for and having some losses and successes in supporting tribal sovereignty, that was the base. And we can have those conversations, and they could insult Erma Vizenor or the elected leadership and everybody else, and I’ll sit there and I’ll nod my head and I’ll let them give voice to that, and then we’ll try to turn to a deeper understanding of what this constitution says and the changes that it incurs. And without that conversation, without having the ability to sit through the emotions, and the local history that’s there, and understand it and take it in, and then incorporate that into a conversation about, ‘Look at the text of this language.’ And so all of those things are local, they’re about that local community, they’re about the people that are there and their personal histories and stories.”

Ian Record:

“I want to follow up a bit on this issue of power and politics that you mentioned. My sense in working with a number of tribes on reform is that yes, that is a huge dynamic that you have to wrestle with and that the approach that you develop in response to that has to be local, it has to be unique to that tribe, and it has to attend to those unique circumstances, but isn’t part of it also dealing with the reality and developing a process that deals with the reality? That, in many times when you’re dealing with fundamental sort of foundational change like constitutional reform, often entailsif you’re going beyond pro forma type amendments and really dealing with substantive constitutional change, you’re often asking the people of the nation to put up a mirror in front, and [to] look in the mirror not just as an individual citizen, but as a collective group and say, ‘Who are we, how do we want to govern, and what do we want our future to look like?’ And often that involves confronting a lot of colonial trauma, a lot of historical trauma, and that tends to contribute to a very organic and sort of messy process that you have to be ready for, does it not?”

Terry Janis:

“Right, absolutely, absolutely. And the fact that I can tell you with some of the folks that I’ve had conversations, how far spittle travels between you and that other person because that’s how pissed off they are and emotional, and that kind of anger and anguish and frustration and fear is very real. Me coming into this as an outsider with absolute respect for the sovereignty of an Indian nation -- and when you’re dealing with the fact that this constitution is going to move to a referendum vote -- that sovereignty lies within each individual. And so my job is to absolutely respect where that person is and where that person can move to. I can have a conversation with somebody about the colonial dynamics of the MCT constitution. If they say, ‘I cannot accept the idea of defining me as a 'citizen' or defining the White Earth Tribe as a 'nation,' we are a 'band,' I am a 'member,'‘ they insist on that over and over and over, my job is not, as an academic, to know better than them and say, ‘You’re wrong.’ My job is to say, ‘Okay. This is your choice. You are the sovereign here. Your vote is all that matters. Your decision and your opinion is all that matters. I respect that a hundred percent.’”

Ian Record:

“So then didn’t your challenge then become, in respecting their ability to choose, and that’s ultimately what self determination’s all about, that your job then became, ‘how do I make sure that they, when they do choose, that they’re making as an informed choice as possible in that they understand fully what this constitution says and more importantly what this constitution will do in terms of structuring how the government actually works and how it makes decisions, how it carries out decisions, etc.’?”

Terry Janis:

“Yeah, yeah. If you think about how Indian people come together and we talk, we learn things as much from laughter as from serious conversation. We learn things as much from getting into a fight and getting a bloody nose as we do by reading a text together side by side. And so that is a multi-faceted dynamic of the process, Indian people coming together and learning this kind of document, this kind of resource materials, this kind of system, systemic construct, it’s really complex.

The White Earth constitution is amazingly complex, how they all fit together and flow together; you are not going to achieve full understanding, period. What I realized is that each person is going to need a certain level of understanding in order to come to their own decision point and that’s my job, is they know how much they need to understand and I’m going to keep pushing everything at them with every vehicle and mechanism that I can. Whenever we came in and designed the educational strategy, there wasn’t going to be just one event in every community and the national symposium. We were going to have dozens. We ended up having over 50 across every single community, a national symposium, multi-media resources, videos, radio turned out to be incredibly important with Niijii Radio and other radio interviews and individual conversations, follow up with thousands of individuals, taking the time to have all of those conversations in as many ways as possible, talking with folks over dinner, over breakfast, in their houses, on the street, wherever. And so that’s just how we are. We as Indian people, we learn in a certain way and if you’re comfortable with that, if you can engage that, if you can get with that, then there’s the potential that you’re going to make the offerings and people are going to come at them in the way that they can come at them.

I never expected to find perfect understanding. The more I got into it, the more I realized I don’t have perfect understanding. There are so many nuances to this stuff that a relationship between this person and that person as a drafter, as an editor, as a voter was a much more complex and real sort of dynamic as well, but having respect for the sovereignty of the individual to make this decision because that’s where it really lies in a referendum, as well as the learning process of us as Indian people. It’s personal and being able to do that and willing to do that and enjoying doing that.”

Ian Record:

“Was part of your challenge trying to sit down in a community session or via multi-media and the many different tools and strategies and approaches you took, but was part of the challenge getting people to care about the role of the constitution in their lives? To say, ‘Okay, basically this current constitution we have, this is how it impacts you as a citizen. This new constitution we’ve drafted, this is how it will change the nation, this is how it will change the, potentially change the community, this is how it will change the role that you can play in the governance of the nation.’ And you talked about making it personal -- is that not part of the challenge?”

Terry Janis:

It’s definitely part of it. It’s not so much how do you get them to care. Again, it’swe’re Indian people, and in my experience, we care deeply; we just do. The question is, ‘What do we care about?’ And so that was the issue, trying to figure out what this person cares about or if it’s a group of five or 20 or 100 or 200, what is the sense of what they care about and then how do you take that and share the information about the text of this constitution, how it changes things and what it will mean? How do you then tie that into what they care about because it is tribal politics, and so much of that is personal? It’s going to be, ‘This person is an elected leader and I hate him or her. She did this or he did that,’ and that is a very real sense of care and is very personal and it’s got nothing to do with me, but it has everything to do with this educational process on this constitution. And so people that are working within their own tribal communities and try to engage an educational process about constitutional reform, you have to respect that, that somebody cares about this thing and that does tie into their ability to learn about the constitution. And as an educator, that’s what makes a quality teacher is finding a way to tie that in so that you’re using that person’s energy, what they care about, to help learn about this thing. Every teacher, every quality teacher that is perceived of as being a good teacher, that’s what makes them good. It’s just normal education. This is not new stuff. This is not unique stuff. In order to do this well, you need good educators and you need people that are grounded in tribal sovereignty.”

Ian Record:

“And ideally grounded or at least understanding of the community, right? As you mentioned and sort of the dynamics and the”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“So you made reference to this a little bit earlier in discussing the new constitution and how different it is from its predecessor and how different it is from anything that the United States government would ever conceive of. From your perspective as an outsider, can you share with us some of the things that are contained in this new constitution that are distinctly Anishinaabe, that advance Anishinaabe values, that reflect Anishinaabe culture, governance principles? For instance, you made reference to restorative justice and the use of language and things like that.”

Terry Janis:

“I’m not Anishinaabe and I can’tI cannot communicate that from that perspective. What I can do is say that the preamble uses Anishinaabe language and that is referenced throughout the constitution. The judicial system places a very real emphasis on restorative justice rather than the punishment model of a judiciary. That language ‘restorative justice’ is not in Indian language, but the heart of it, the substance of it, that is all Indian, whether it’s Anishinaabe or Lakota or whatever, that is about that community and the way they’re going to implement it is going to be all Anishinaabe, it’s going to be all Ojibwe.

Whenever you look at...the constitution allows or provides for, requires, three advisory bodies, formal advisory bodies that have direct advisory responsibility to the legislative council and the office of the president, an elder’s council, a youth council and a community council. The constitution establishes them specifically and it states specifically certain aspects of Anishinaabe culture and tradition that that elder council is responsible to give advice to the legislative body and the president on. You don’t see that in other constitutions, period. So it structurally establishes a mechanism for that to be in there, but it also, at the same time, is an advisory body. So it’s not a full shift over to a traditional model of governance where the chiefs are making decisions in that process. It’s a unique sort of mechanism in that regard.

The last one that I think is most unique is if you think about a governance, you’re really talking about the ability of a representative to truly represent their community. That’s where so much of the gap is. In this country, what is the percentage of American population, voting age population that actually votes? It’s a huge gap because the representatives that we can vote on to represent us don’t represent us. Here, in this constitution, the people themselves organize their own voting districts. They are responsible for organizing those voting districts and if they’re the ones that have to carry that burden, there’s a greater potential that they’re going to organize the voting districts that actually mean something to them and if it does, then they’re going to select a person to represent them and then there’s that connect. That is f*cking awesome. It really is. And it is so problematic. How do you actually implement that? Nobody’s ever done that before.”

Ian Record:

“But I would argue that that is righting one of the greatest wrongs of, in particular, the IRA system, which”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“It either corrupted, or displaced entirely, these traditional governance systems that, as you mentioned earlier, centralized power. And really what are you talking about when you talk about power? You’re talking about decision-making responsibility and basically where in most, if not all, traditional Indigenous societies everyone had a valued role to play, everyone was expected to contribute to the governance of the nation in some respect, and it wasn’t called the governance of the nation back then, it was called something else, but basically that’s what it was: young people, old people, elders, everyone had a role. And now from what you’re saying is that White Earth has made a conscious decision to return some of that decision-making authority directly to the people so that they can once again have a valued role.”

Terry Janis:

“I think that if you really apply this accurately, this is the whole ball of wax. If this constitution is going to be effectively implemented, the people themselves are going to organize their own voting districts. That’s the only way it’s going to move forward. And in order for that to succeed, they have to be engaged much more broadly, much more actively, much more dynamically than they have now. The strategy for full ground up, bottom up community development to implement this, requires that kind of engagement for them to really understand that and to organize their own voting districts so that it means something to them. And the constitution provides that they can organize it based upon population centers, historic associations, clan systems and their understanding of that, ‘What does that mean?’ is what defines it. The constitution uses these broad, open words. They have to be defined and the only one that can define them under this constitutional form of government is the people of White Earth and that’s just exciting.”

Ian Record:

“That’s cool. So I want to turn now to the process and that’syou were involved with the process because, as you mentioned, you came on board after the constitution had been drafted, and your job in part was to work with citizens that had been designated by the tribe, employees, etc. to figure out what’s the best approach to actually teaching the people about what this constitution says, what it does. Can you give us a brief overview of the campaign, the comprehensive citizen engagement, citizen education campaign that you guys launched and continue to implement?”

Terry Janis:

“Yeah. We went over it just in the fundamental way. On a most basic level it has to be personal. In order for it to be personal, you have to engage in multiple venues, multiple formats, multiple times. And so small gatherings, unique gatherings, having as active and dynamic a calendar that if they miss this one, there’s going to be another opportunity and another and another. And so really playing that out so that it’s personal in that regard.

Secondly, if you’re going to do this, it really has to engage multiple medias. The majority of the population does not live on the reservation and so we had events not only on reservation, but in the Twin Cities, in Cass Lakes, on the Iron Range and other places where major populations are, but we didn’t go outside of the State of Minnesota, and there’s a huge White Earth population outside of Minnesota as well. And so having the website, having different resources and materials on the website, videos. We did the whole training, a whole two-hour session over each article of the constitution and posted that on the website as well, and then having a symposium that was live streamed on the website; accepting the offer of another entity, Truth to Tell, to host an event on the reservation. The chairperson, the primary drafters of the constitution, all came together and participated on that and had a raucuous good time. It was like really intense.”

Ian Record:

“I watched it -- very intense. I’ll ask you a follow-up question about that.”

Terry Janis:

“And it was real. And so just multiple mechanisms for doing that and making sure that number one, it was personal. Number two, that there were multiple mechanisms for doing that. And then number three, there was absolute certainty that we were neutral, that we presented the materials with, as best as I could, with no offer of an opinion one way or another, good or bad, up or down, a complete respect for the sovereignty of that nation, which in this process meant the sovereignty of the individual to come to their own decision, to make up their own mind with their own process. And my job was to provide as much resources for them to do that as possible.”

Ian Record:

“That Truth to Tell forum, which was live streamed, that was quite athat was on our ‘Must See TV’ list for quite a while. I remember watching it and then saying, ‘You guys got to watch this, you got to watch this.’ And they hadI know they posted the first part first and then there was a little lag and then the second part and we were all waiting with baited breath. And it was interesting the conversation that we had internally because some folks among us said, ‘Oh, man, look how crazy this was. Look howlook how ugly it got at times with people beingraising their voice and calling people out.’ And I made the point, I said, ‘Having watched enough tribes struggle through constitutional reform, seeing some succeed and some fail, that this to methe beauty of this forum that you guys had and the way you did it and the fact that it was so open and it was so transparent,’ I said, ‘to me, that is the most important thing is because --aside from what’s being shared in that forum -- the nation and the project in particular are sending a message to the White Earth people that ‘we want to be transparent in this process, we are doing our part to make sure that everyone’s voice is heard.’' And isn’t that the most important thing, is that you’re giving everyone in the community every possible opportunity to make sure that their voices are heard so at the end of the day nobody can say, ‘I didn’t have a chance.’”

Terry Janis:

“And the reality is, whenever you get to learn of a community, after you’re there for a while, you realize people gather at this one place on a regular basis. If I had known that, I would have incorporated it into our strategy and done that. So being very open to the possibility that somebody else is going to come. This was not organized by me, or the tribe, or anybody else. This was organized by Niijii Radio with Truth to Tell and TPT; they did all the structuring of it, they paid for it, they put it all together, they decided on the format. I contributed a lot in conversations with them about the participants and everything else, but to accomplish their goal, having a balance between people that were supportive of it and people that were opposed with strong voices on both sides, even though we didn’t necessarily have strong voices in every situation. Some people didn’t feel comfortable in that environment, but it was their agenda and their show and their program and that kind of transparency is what the tribal council and Chairperson [Erma] Vizenor and Secretary Treasurer Robert Durant committed themselves to. They never interfered with our process at all and were very supportive of that.”

Ian Record:

“I’m glad you bring that up because with another nation we worked with over the past decade or so, they went through constitutional reform about seven or eight years ago now, and they attribute the success of their reform effort to, first and foremost, the fact that they went to great lengths to ensure that the process maintained what was termed an ‘aura of independence.’ Meaning that yes, the politicians, the elected leadership have a role to play and whether it’s funding the process, setting up the body that will lead the process to see it through, but once that’s done, it’s imperative that the politicians take a back seat, that they don’t come to dominate the process, or at least appear to be dominating the process, because it’s imperative that the process itself espouses the kind of principles that you’ve been talking about, which is, ‘It’s not my job to take sides, it’s not my job to champion this, it’s my job to make sure you understand what’s in it.’”

Terry Janis:

“There were people thinking about that in the hiring process. And as many times as I was attacked for not being Ojibwe, this outside guy -- especially a Lakota guy, we’re enemies -- coming in and taking one of their jobs, as many times as I was attacked there was somebody in the audience always who said, ‘This is the best way to do this. There’s no other way we’re going to have an objective look at this and give at least that a chance.’ And so even for the people in the hiring process and the selection committee -- you have to ask them what they were thinking exactly -- but I heard it over and over and over in the community as well.”

Ian Record:

“You talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people about this process, you talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people, individually and collectively. I’m sure not everything went according to plan. You’ve talked about some of the things that you didn’t anticipate when you first set out. Can you share what, from your view, were and are some of the biggest challenges to both, I guess, the process leading up to the vote and then now? And then, what did you do or what are you doing to overcome those?”

Terry Janis:

“On the one hand, you deal with the situation that you have and you create the best strategy you can realizing that you’re going to change it as you get into it. So all that being said, they finished the drafting in 2009 and had quite a few years of not a lot happening. If they could have done a level of this kind of process starting in 2009 leading to a referendum vote on November 19, 2013, that would have been awesome, but they didn’t. And so havingnot having that gap in time -- because you have to make up a lot -- the kind of impetus of coming together and drafting a constitution and then nothing happens and people forget, you lose momentum, you lose context, you lose memory, you lose priority. And so that had to be dealt with and energy created and generated in order to get interest and get everybody back on the same page as far as, ‘This is a priority,’ and ideas and tactics for doing that. That’s what we had to deal with. If something could have been done differently, it would have been changed in the past and have some process engaging from 2009 to the referendum vote.

It also is a really complex document and we put a lot of energy into reading it, working with educators, curriculum developers, the education department at White Earth, Joan Timeche who is the director [of the Native Nations Institute] -- she was really helpful in all of this -- my experience with curriculum development, etc. and thinking through, as adults, what sort of resources and tools can we bring to the table to help somebody work through a hugely complex document. And so reorganizing it, simplifying the language, creating summaries, creating a workbook, getting the text out, really emphasizing the text itself that even though this summary is a summary it’s in a useful way of introducing yourself to it, really being willing to sit down there and go through it word by word as well.

If there was something that we could have taken from that and learned from that, I think it might have been a broader range of stuff. Where if there was more time, really do a pre-K through full adult, develop an educational resource mechanism and tools and strategies to cover that whole broad range because developing a coloring book for a pre-K kid is going to help an adult with that education process as well. And because you’re doing it for a pre-K kid, it’s not insulting to that adult that is actually going to benefit from that. You see what I’m saying? But because we didn’t have that much time, we didn’t develop that full scope and full range of educational resources and tools and have the time to implement it at that scale.

But dealing with a very complex document that is the genesis or basis of a very complex system really would have benefited from more time, a broader-scale approach that engaged non-voting age members and voting age members in an equal sort of basis because everybody votes frombenefits from all of those resources being available to them. That’s just the reality of it. We didn’t have that time. We didn’t scoperamp it up to that scale and that scope of it right away just because of the timing issues. But if we were going to do it over again with more time, especially not losing momentum from the initial 2009 completion of the draft drafting process, I think that’s how it would have gone.”

Ian Record:

“Isn’t that couldn’t you argue that that’s the challenge now before the White Earth Nation is, ‘How do we now actually live this new constitution?’ And isn’t part of that challenge, of figuring how to live it, is this tribal civics challenge?”

Terry Janis:

“Oh, absolutely.”

Ian Record:

“of engraining in our people young, old”

Terry Janis:

“Absolutely.”

Ian Record:

“of all ages not only what the constitution says, but this is who we are, this is how we govern, this is how we make decisions, this is the future we seek for ourselves?”

Terry Janis:

“Yeah, and whenever people think about this kind of constitutional change, one of the easiest things to think about is, if you understand what an IRA council is, an IRA constitution and the tribal council and business committee that comes out of it, their kind of authority to make decisions into the most minute things. ‘Oh, you can’t fire that secretary’ or ‘cut their pay,’ or whatever. The council is integrating themselves in every single decision because that is the scope of power that they have; there is no limits on authority or separation of powers. And so for the new legislative council, once it gets organized, to really learn what it means to legislate, to legislate; for the office of the president to really know what an executive authority and role is, the limits and scope of that; for the judiciary to really believe that they’re fully independent. In order for that to happen, the training and education process have to happen from today. As we get resources and tools out there or White Earth gets resources and tools out there to help the people organize their communities, their voting districts, that education process has to happen at that scale.”

Ian Record:

“And doesn’t it also have to be. you mentioned. White Earth has to be sure that the chief executive, whoever that may be, whether Erma or someone else, that they fully understand”

Terry Janis:

“Exactly.”

Ian Record:

“what their role is under this new constitution. The constitution and the limits of that role, where it begins to get into thatoverlaps into someone else’s role and where they need to think twice and vice versa the legislative side.”

Terry Janis:

“And whenever the kids in the community and the people that aren’t going to run for those elected offices, if they understand it.”

Ian Record:

“Well, I was just going to say, that’s critical because they’re the ones that apply pressure, healthy or unhealthy, on those people”

Terry Janis:

“And who are organizing those voting districts and the representative that comes out of those voting districts is going to be one of them. And so they’re going to be selecting somebody based upon an understanding that they have. It’s a true ground-up, building-a-nation process that depends upon education at that broad scale.”

Ian Record:

“I want to switch to one of the strategies that you guys employed and, I think, were more aggressive, I would say, than we’ve seen with other nations that have gone down the reform road and that’s the use of multimedia. And you mentioned that you guys -- and I’ve seen the videos you’ve done. The website is very robust. It has a series of videos featuring you and some other folks talking, sort of, as you mentioned, breaking down the constitution, making it accessible, talking about constitutional, often very legalese-style language and breaking it down and talking about it in very accessible, laymen’s terms for somebody with a 10th-grade education, for instance, trying to make it make sense to them. How did the community respond to that, to that particular strategy of, ‘Here, we’re going to tell you a story about this particular aspect of the constitution and we’re going to use this visual media to do it’?”

Terry Janis:

“The only way that I can really respond to that is the few positive responses that we got. ‘I watched it. It was great.’ All of that was good. I think more importantly though is we put a lot of energy and thought into not just having a strategy and design for doing it, but doing it, constantly, persistently and not only in creating these multimedia things and getting them out there, but doing the community events, but also being absolutely responsive to everybody that called, everybody that walked up, everybody that wanted to talk, that responsiveness -- so returning 20 phone calls a day and having 40 -- and so that kind of response. I think it was the whole thing. And so from day one, building that on an increasing basis, feeling the tension ramp up because there was a growing interest and a growing desire for more information, a growing process of people actually making up their mind and caring about it and getting aggressive about it, and trying to convince their friends and their relatives and other people about their position, that’s all we wanted, that’s all we pushed for. And the only way that I definitively noticed success is when I felt people get more impassioned, more opinionated, and more aggressive about it. The more fights we had, the more I was excited.”

Ian Record:

It’s interesting you bring that up because on one hand you would think, ‘Oh, going into this, I want to avoid anxiety, I want to avoid tension,’ but”

Terry Janis:

It’s just the opposite actually.”

Ian Record:

“You want the opposite.”

Terry Janis:

“It has to build.”

Ian Record:

“Because you want passion and interest and you don’t want apathy.”

Terry Janis:

“Exactly. Exactly. And that’s how we knew we were being successful is because it did grow. And by the time it came to the referendum vote itself, it was a crescendo. It was so intense. It was like, ‘Ah!’”

Ian Record:

“So where does constitutional reform at White Earth stand today, if you can just give a quick snapshot?”

Terry Janis:

“A quick snapshot is passed in the referendum vote; the current process of deciding what the relationship is between White Earth and the Minnesota Chippewa Tribe. So what the elected leadership at White Earth decided from day one of my participation there, my contract there, was that they want to remain a part of MCT, if at all possible, to organize under this new constitution, if it gets approved, and negotiate with MCT to remain part of MCT. So that’s what they’re doing right now, a good-faith effort on their part to have conversations with MCT. And because the changes in this new constitution compared to the MCT constitution are quite profound, and how that’s really going to happen, one of the initial thoughts is to request from MCT to sponsor a secretarial election that would change the MCT constitution that would allow each Band to establish their own constitutional form of government, and there’s other options for negotiating that as well. So those things are happening right now. They’re pretty tough; MCT doesn’t want to change. I described to you a completely unrepresentative form of government. The smaller bands that are benefiting from that, why would they want to change? They’ve got their own issues internally within their own governance. The system that they have benefits their current leadership. There’s going to be changes, etc. So it’s a broad dynamic. Whether that succeeds or not and how long White Earth commits to those negotiations is a decision of the elected leadership at White Earth right now, and they haven’t given up yet.

If it moves away from that, then you’re really talking about withdrawing from MCT and issues of secession. One of the issue points with the Bureau of Indian Affairs is this is their baby –- MCT -- and they set up this broad infrastructure to maintain and sustain this thing that they created. BIA initially doesn’t want to see this thing changed as well. They can see the arguments for it and against it, etc. There’s a very clear sort of distinction. One of the concerns that the Bureau of Indian Affairs is naturally going to have, as a broad bureaucracy, federal bureaucracy is, what is the ripple effect? So if White Earth withdraws from MCT, the federal government is supportive and recognizes their right to do so and establish their own form of government. Does that open the door for another entity to do the same thing?

San Xavier as a district on the Tohono O’odham Nation, Sandy Lake at Mille Lacs, situations where there isn’t the history of treaty recognition and treaty establishment, for example, White Earth and the federal government. San Xavier necessarily doesn’t have that kind of relationship, or maybe they do, I don’t know their story that well, but there are some things about this that distinguish it in a very real sort of way, not only the treaty relationship between White Earth and the federal government, but at every level, legislative, judicial, executive that recognizes White Earth as a distinct, federally recognized tribe independent of MCT and treats them that way and operates that way. So that kind of historical and practical federal recognition that exists in MCT and doesn’t exist in other places can argue or should argue that there’s not going to be the slippery slope sort of situation that is going to cause a problem to the Bureau of Indian Affairs, but the reality is, it will and those are very practical realities for the Bureau of Indian Affairs. So that’s the other thing.

A bottom line for the elected leadership at White Earth right now is they are not going to do anything that jeopardizes the relationship, the federal recognition relationship between White Earth and the federal government. They are not going to do anything that would jeopardize their funding, their relationship, or their status. So that’s got to be resolved before they actually withdraw from MCT. That’s a pretty sticky situation.”

Ian Record:

“Yeah, it’s uncharted waters. It’s hard to find another parallel in the United States.”

Terry Janis:

“There’s none. MCT has no parallel in the country, period. And you can make an argument for that and I can call youI can describe 10 times as many reasons why it’s distinct because it is.”

Ian Record:

“So let’s turn to your own tribe for a second. As I mentioned at the outset, you’re a citizen of the Oglala Sioux Tribe, often cited as one of the poster children, if you will, of IRA, the Indian Reorganization Act in that”

Terry Janis:

“I thought you were going to say something else, but I actually”

Ian Record:

“Well, no, in that there’s been a lot ofthere’s been books written about IRA formation at Pine Ridge and the process and you’re quite passionate about IRA, a lot of people are, and I’m wondering, you’ve beenyou’re working with a nation that just basically jettisoned -- or you could argue based on what you just said is still in the process of trying to jettison -- their IRA system, and your own nation still operates with one.”

Terry Janis:

“Yeah.”

Ian Record:

“And being that you’re sort of in this unique position, in that you’re sort of a student of your own nation and its governance system and then you’ve come to learn so much about another nation and their governance system and how they’ve changed it, I guess, if you can sort of try to meld those together and, I guess, what does the White Earth experience say to you about Oglala Sioux and its own governance system and potentially what the future of that could hold?”

Terry Janis:

“The political history of Pine Ridge has had a fairly consistent policy of holding the Bureau of Indian Affairs accountable for its trust obligations. That’s a stronger way of framing this idea and that has been the position of Pine Ridge virtually my whole life. I have argued with them about this a lot, that Pine Ridge should be contracting every function that we can...taking over all obligations, responsibilities, and if it costs us more money, we’re going to do it 10 times better than the federal government will. But the policy position of Pine Ridge is to not let them get away with doing a bad job, to hold them responsible to their trust obligation. That’s how their positioning it. I’m hoping that if they continue with that position that will actually change the Bureau of Indian Affairs and the federal government because that’s what it’s going to require. In order for Pine Ridge to succeed with that, they’re going to have to change the Bureau of Indian Affairs and move it away from a colonial, paternalistic structure to a service entity. That change is not coming any time soon that I’m aware of.”

Ian Record:

“I would agree and looking more internally though, because basically what you’re getting at is that they’ve taken a very staunch position, and I agree with you based on my work with them that that’s my impression as well, but looking internally, this sort of deep self examination that White Earth has gone through in terms of looking at their own governance system, do you feel inspired or encouraged by the White Earth experience to think that Oglala Sioux will engage in that full examination of their own governance system and perhaps identify a better way?”

Terry Janis:

“No, only because Pine Ridge is Pine Ridge and White Earth is White Earth. We as Oglalas are going to chart our own course. For me it goes back to, ‘Do I respect tribal sovereignty or not?’ And I do. And Pine Ridge, Standing Rock, any other reservation has an obligation to assert their sovereignty and make that decision for themselves. I think that Pine Ridge is wrong in that position in regards to the trust obligation and their ability to really change the federal government. I think it’s a lack of recognition of what the federal government is vis-á-vis Indian nations and that relationship, but given that that has been their position and the strength of it -- that’s why I don’t speak in weak terms in that regard and I speak in strong terms -- that it is the policy of the Oglala Sioux Tribe to require the federal government to live up to its trust obligations, period. That is a strong statement, an assertion of tribal sovereignty and it puts the obligation for improvement and reform on the federal government and the Bureau of Indian Affairs in particular. And that’s the best I can do with that.”

Ian Record:

“Final question. You’ve been immersed in the White Earth constitutional reform process for about a year. What, and I understand your point that every tribe is distinct in the way it chooses to express its sovereignty is unique, but aren’t there lessons from the path that White Earth has traveled and is traveling right now that other nations who are feeling like their constitutions and their system of government aren’t up to par, that aren’t reflective of who they are, aren’t there lessons that they can learn from the White Earth experience?”

Terry Janis:

“Absolutely. The bottom line is, White Earth is doing it. You saw the Truth to Tell; you saw the level of opposition to this thing. White Earth is doing it and the vote that the referendumI was sitting there when the count came in. I was completely shocked. We had a registration process that had a larger percentage of registering voters than has ever turned up to an election before, over double the normal turnout and of that, 80 percent of them voted for it. I was stunned. I didn’t expect it to be that large. Given thatand one of the things that you, if you have a conversation with the folks at Osage, for example, the kind of opposition that you saw in Truth to Tell that I saw every day out there, that they saw at Osage as well, whenever you’re thinking of a fundamental and profound change like this, there is going to be opposition. There has to be. You have to accept the reality of this colonial history and that people actually benefited from it and they’re not going to give that up without a fight, period. And that fight is going to be intense and you’ve got to stick with it and you’ve got to make it happen and see it through and let the people decide in as full and honest as a vote as you can get. And if they reject it, that’s great because that then leads you to another conversation and to draft a constitution that they really do want. That’s all that means.”

Ian Record:

“I’m glad you brought that up because I’ve heard a number of folks who’ve been directly engaged in constitutional reform say, ‘There’s no such thing,’ or something along these lines, ‘there’s no such thing as a failed reform effort.’”

Terry Janis:

“Exactly.”

Ian Record:

“For instance, Lac du Flambeau just went through a referendum vote on some pretty important amendments and they were voted down. And I think that if you talk to the people that led that effort, they might be discouraged a little bit, but they’re not giving up and I bet you they would say that, ‘We came out of this process with a greater understanding of what’s at stake and what the role of the constitution is in the life of the nation than we did before and that’s a good thing.’”

Terry Janis:

“And that’s the bottom line that I take from this experience. White Earth is doing it, an Indian nation, a tribe that wants to define their own governmental system. You don’t accomplish that without doing it. Whether it succeeds the first time or the 20th time, it doesn’t matter because each time you do it, you’re informing your population, you’re engaging the conversation and you’re building that base and that is nation building.”

Ian Record:

“Great way to end. Well, Terry, we really appreciate you taking some time to share your thoughts, experience and wisdom with us.”

Terry Janis:

“It was a pleasure. It was good seeing you again, too.”

Ian Record:

“Yeah, good seeing you. That’s all the time we have today for Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us."

 

Terry Janis: Citizen Engagement and Constitutional Change at the White Earth Nation

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Native Nations Institute
Year

Terry Janis (Oglala Lakota), former Project Manager of the White Earth Nation Constitution Reform Project, provides participants with a detailed overview of the multi-faceted approach to citizen engagement that the White Earth Nation followed as it worked to educate the White Earth people about the nation's proposed constitution in advance of their November 2013 referendum vote on the new document. He also shares some lessons learned from his experience at White Earth, and stresses that those engaged in constitutional reform efforts always respect the opinions of all of those people who have a direct stake in the outcome of those efforts. 

People
Resource Type
Citation

Janis, Terry. "Citizen Engagement and Constitutional Change at the White Earth Nation." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

"So my name is Terry Janis. I'm Oglala Lakota from the Pine Ridge Reservation and I worked for the last year at White Earth Nation, which is in northern Minnesota, which is an interesting thing because historically Sioux people, Lakotas, are enemies with Anishinaabe people, Ojibwe people. But they hired me, so what can you say? And it was a fun year. I'm a lawyer; I came to the University of Arizona for law school. I've known Rob Hershey forever and the other people that are here. And this kind of presentation for me here today is not so much going to focus on the White Earth Nation constitution per se, but on our educational process.

By the time I got on the scene, in the 1990s like a lot of places there was a huge governmental crisis, indictments, convictions, etc. In '97, very soon after that was resolved, they realized that it was the IRA [Indian Reorganization Act] constitution that was really at the core of those issues. Whenever you engage and bring together all the power and decision-making authority in one small body, the likelihood of abuse and corruption is fairly high and they very quickly turned to this idea of reforming their constitution. They tried it in '97, but because of that recent history there was still too much division like in a lot of situations. I'm from Pine Ridge, we have plenty of examples of this where you get into a fight like this and you get factions and you have a hard time letting it go. So they waited for 10 years and then in 2007 did a process for drafting a proposed constitution.

There's important issues -- and we can engage in a long conversation about their drafting process because there's a lot to learn from it -- but the idea of an open and free opportunity for input, transparent drafting and revision process, opportunity for compromising consensus, the question of whether all of that is there in your drafting process is critical and there's going to be plenty of chance...Red Lake is doing an amazing job of really trying to engage that in a very real sort of way and a number of tribes are as well that are right in the drafting process.

But when I came on the scene, they had already completed that process and they had a proposed constitution. It was completed in 2009 and when I came on, my job was to start a dialogue, start a conversation amongst the community about this proposed constitution and then move it to a referendum vote so that the people themselves would decide whether they wanted to accept or reject this proposed constitution. And the other caveat that I had is that they were not going to allow any more changes, that the document that they created from 2007 to 2009 is the document that they voted on in November of 2013.

And I was brought on about a year ago, so in April of 2013. We had from 2009 to April of 2013 not really much going on, not a lot of conversation about it, some publications in the newspaper, but that was the challenge that we had ahead of us of how to pick this thing up, communicate to folks about what the delegates at the convention as well as the current council decided to do in moving this proposed constitution to a vote. And so I came in, we pulled together a team and started thinking about how do you engage an educational process with the community, how do you do that so that the people themselves are informing themselves and have opportunity to inform themselves as much as possible.

And so we looked at these three kind of ideas as a starting point and we realized that you really have to have multiple venues in multiple formats. You can't just hold one big seminar and expect that to meet everybody's needs. You can't just hold community meetings and expect that to meet everybody's needs. You have to have a range of different things: going door to door, talking to people in their kitchen, organizing community meetings that are part of the infrastructure that's already there with whatever that is, community councils, church groups, elder groups, whatever that is, utilizing all of the infrastructure that's already there and holding meetings and informational sessions with them, working with that infrastructure to bring people together, utilizing their networks, utilizing their relationships, utilizing their own feelings about this.

Formats as well. You know how the educational process is. Some of us learn best by looking and by hearing and by talking. Some of us learn best by reading, others have to write things out. Oftentimes for me, it's a combination of things. When I'm talking to somebody, when I'm listening to somebody, when I'm writing notes, when I'm reading it, it's that combination of stuff that does it for me. And so we try to engage all of those different formats and try to create situations where whenever we brought people together, we had all those formats there as well, recognizing everybody learns in their own way, especially as adults. Most of you are adults. We learn in different ways and hopefully we know how we learn best so we can bring those resources to ourselves.

So we tried to do that, a lot of meetings and types of meeting, utilizing the infrastructure that was already there, having a lot of printed materials, having a lot of visuals, having a lot of opportunity for conversation and debate, putting together a workbook where they could draw out and write notes and make it their own. And so we tried to create all of that functionality, all of that process.

The other thing that we really tried to do...and actually was the good thing about me being a Lakota coming into Ojibwe country is I wasn't involved in the drafting process; historically, I'm their enemy. I could be neutral. I didn't have anything invested in this document that they created. I didn't really have a strong feeling one way or another and I could maintain that idea that I was coming in to help people get the information that they need in order to make up their own mind -- that idea of neutrality. It was also strengthened by the kind of career that I pursued as well, that I could say in a very clear and honest sort of way that my interest in this is that the people make up their own mind, that the people have the authority and the information and the tools that they need to come to their own decision. Because as a Lakota man from our traditions, the sovereignty of our nation resides with each individual man and woman and then it moves from there to the family and to the tiospayes and then to the nation. And in our tradition, our sovereignty rests with each individual. And so that was my focus, that was the base of my assertion of neutrality, and I told them that story over and over and over and over. And so there's value in that -- of having an educational and informational process that's not tied to one family or one political party or pro or con. It's a group of people that you bring together to provide the resources for information and education that emphasizes the fact that sovereignty in this decision lies with each individual person. That's what was important to us, not what they decided or which way they went. So that idea of neutrality.

And then we went into it just thinking like Indian people. How are Indian people, how do they decide stuff, the use of humor, the use of respect and integrity, respecting everybody's position, everybody's history, everybody's ideas, connecting the materials to their interests. For me as an Indian person, if I have a conflict with my tribal government or some other thing, I may oftentimes -- or any of us might oftentimes -- put off this idea that we don't really care, but just the opposite is true. We as Indian people care deeply, almost always. And so the trick in an educational process is how do you connect these resources to the things that we as Indian people care about and thinking about who the people are, what their history is, what they really care about, and how do you present the material and information to them in the way that lines up with the things that they care about. That is what any good teacher will do -- whether you're teaching math or science or history -- is how do you line up the information that you're teaching with what the students care about and then how do you engage it with them from that perspective? So that's basically all we were trying to do.

The final thing that we came in this with...with this idea of respecting the politics of the community. Any time you're dealing with a constitutional reform process, regardless of how narrow or broad, it's a political issue, it just is. And if you're going to engage your community to help that community, to learn about it, come to their own decision and respect their decision, and you're going to do it in a way that really has good educational pedagogy and groundwork, that's not going to be enough.

In any reservation community, you're going to have to deal with the politics of the situation. You just have to. You cannot avoid it. You cannot wish it away. If somebody's mad, one family is mad at another, you've got to deal with that. You've got to find a way of dealing with it. If one group hates the elected leader -- which in White Earth they really, really do -- you've got to deal with that. You've got to go into communities maintaining your neutrality, maintaining your emphasis on this idea that the people are the source of sovereignty and it's important that they make a decision and that's why I'm here and that their hatred of the chairperson, their hatred of the secretary-general...or secretary-treasurer or anybody else is important, it's valid. Not that I'll agree with them, yes or no, but that their feelings, their political base is valid, it has value.

It's not my place as an educator on these issues, on these highly political issues, to argue with them about the rightness or wrongness of their politically held positions. My job is to see them, to understand them and to respect them and to make room for them. In an educational process, if you're going to have a conversation about the content of a constitutional reform and help people to understand what that reform is, you're going to have to make space for those political issues.

So that was our starting point and we went through six months of almost 60 different community education sessions, hundreds of small-room conversations, thousands of phone conversations, an all-day seminar, eight radio interviews...there's a community radio station that we used a lot...internet and web-based streaming formats of all of the training sessions, all of the seminar materials and other stuff, everything available online. Even the ugly conversations, we put it up on the web. The whole world was able to see if they wanted to how intense and vibrant this thing was. And that was our goal. We put all of this stuff up and there's a few things that we learned. [I've got a few more minutes.] These are the things that we learned.

Politics and power in the community must be respected. I ended that previous slide with it and I began this final slide with that. This cannot be overstated. You have got to make room for the politics of that community. You've got to. A constitution is inherently a political document and people have got to see it and engage it. If they're not engaging it, if they don't have...and remember what I said earlier, we as Indian people, we care. There is not one of us that lacks for caring. Even if it's the only thing we care about is drugs or something, we as Indian people care deeply about a lot of different things. And whenever you combine that with a political issue, especially if you're dealing with membership and citizenship, which the White Earth constitution did and moved from a quarter-degree blood criteria to lineal descendancy; a hugely, hugely volatile issue for the entire community. And we realized that coming off the history of that community, coming off what this proposed constitution was proposing that politics and power in the community must be respected. And that process is not easy; it requires you to deal with sometimes very extreme emotions.

I can tell you, when somebody's really angry and you know how spit'll comes out of their mouth sometimes, I can tell you exactly how far it goes so I put myself right at this space so it doesn't hit me. That was the nature of it. You just...you've got to be okay with it and it may not come to that, you can do a number of things that try to engage it in a way that defuses it, but sometimes you're not going to be able to.

The truth for me, I found, that what I wanted was an escalating interest and that is going to show itself in a variety of ways. Sometimes people are going to get more excited and more positive about it. Other times people are going to get more excited and more negative about it. We want an escalating amount of interest in this thing because we had a timeframe moving to November 19th to a vote. We wanted an escalating amount of energy, an escalating amount of dialogue, people taking positions and arguing for their decisions. I said this over and over and over, "˜Don't be quiet. Talk to every family member, go to the tribal council meetings, talk about these things as much as you can.' I wasn't at the council meetings so I didn't care, but that was my job.

The second thing is the importance of emotion and passion, which we basically just talked about, but it really does work, this idea. And in some ways it was just happenstance, something that you stumble across, but it was something that my elders told me. Once I was deciding to go to law school and stuff like that, we started having these conversations about sovereignty and where it comes from and what's the traditional base of it amongst Oglala Lakota people, and those are the things that they taught me. And I used what they taught me from that traditional base to have these conversations in the White Earth community, that there's value and reality in the individual holding the base of that sovereignty and making those sovereign decisions for themselves, taking that responsibility, carrying that burden and making that decision. So that results in emotion and passion, that results in interest and care, that results in decision-making and advocacy, and I think that's what you want. You want your people to be interested and from that perspective, there's no win or lose. Whether the constitution passed or not, we created interest and care and passion about it.

Timing and place for building momentum. Do not put yourself in a situation where you complete a drafting process and then wait three or four years before you do anything with it. It's a tough deal, if you're going to actually go through the process of drafting it, and what I'm learning about Red Lake and other places that are engaging the drafting process, do that in a deliberate way where you have plenty of opportunity for feedback and compromise and engagement. Engage an educational process without a bunch of delay. I think it's fine to make a decision -- once you have to draft -- to move it to a vote without further change, I think there's value in that, but if you have a huge delay like this, like we had, it's kind of fishy, it's kind of weird. How important is this thing really if you're going to do that? So keep that in mind.

You really do want to build momentum. You want to build this process where there's participation and engagement in the drafting process, that there's time and debate on people...allowing people to come to a decision. This is a pretty important decision, whether it's a small constitutional amendment or a complete reform of their constitution. Each one of those is critical and if the people are going to vote, then it's important that they be a part of that or at least have an opportunity to participate in that drafting and then give them time to really come to a decision, fight with each other, engage with each other, debate. And then a process for a vote.

Maintaining a firm principle in neutrality -- and again, some of this is just fortuitous -- but not only was I given the opportunity to do this as a Lakota in Ojibwe country, but the elected leadership, the tribal council, the chairperson, the secretary-treasurer were consistently supportive of that idea as well. Not because of me -- and I'm sure they had their own political reasons as well -- but when the council also supported our educational efforts and our education team, gave us the space and the resources to engage, didn't interfere. They still had their own opinions, they were divided just like everybody else was, but they emphasized the desire that the people themselves would decide and that the educational process would engage in a neutral fashion, that we would not promote one direction or another. There is real value in that. If you engage in an educational process and you're pushing it one way constantly, it's just going to fail. I think it's going to push against you and I think you're going to end up with a bad result. And so there was real value in that.

The final thing that we really learned as much as anything else -- especially when you're engaging a very broad reform like we did and on very highly controversial issues like from blood quantum to lineal descendancy -- you're going to get some pretty intense opposition and some of you have experienced that. Almost every other tribe that I've talked with that have engaged this, they come up with words like "˜the local Taliban' or the kind of intense kind of argument and debate and opposition. It's really important to just do it, to maintain your focus, to stay your course, and that attitude of doing it has to be a commitment from your educational team that does it with respect, respecting all of those people that would give voice to the strength of their opinions regardless of what that opinion is. But also the elected leadership, the elected leadership cannot back away. They have to maintain a principled approach to this and that was the value of White Earth's elected leadership as well. Their position -- whether they supported it or opposed it -- consistently, "˜We want it to go to a vote, we want the people to decide and we'll respect the decision of the people.' So those kind of principles and those kind of ideas help you as a team to stick with it, to stay with it and bring it to a referendum vote or whatever the eventual process is.

So those are the key principles that we engaged in our educational process. They're very simple. There's a lot of other details. Whenever you start into it, you want to think about the educational process, what is a learning process for adults on your reservation? They're going to be fairly consistent. We learn through different formats. We have to learn by seeing it, by coloring it, by writing it, by hearing it, by arguing it, by watching a movie, by going to your grandma's house or whatever it is. That's how we learn. You're going to have passion with it. So the general educational process in the pedagogy of your people, adult education; this is not new stuff, none of this is new stuff. This is understood.

As Indian people, how do we learn? Humor, everything else, food, it's got to be there. And the passion. The passion is there. We as Indian people, we are passionate people. We just are. We care deeply. How are you going to connect these sometimes very technical things, constitutional reform? We're going to go over some of those technical stuff, the legal side of this this afternoon as well. How do you connect that to what people really care about and have those conversations and take the time. It takes time, evening, morning, whatever that timeframe is that people think the best. I've set up sessions at 5:00 in the morning because that's when that guy thought the best and we did it. This is what it takes and it's doable and it's fun in a lot of ways. If you care about education, this combination of education, grounded in tribal sovereignty. That's what we learned as the keys to having a successful education and information process."

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."