lineal descent

Ian Record: Constitutional Reform: Some Perspectives on Process

Native Nations Institute

Dr. Ian Record, NNI Manager of Educational Resources, provides a broad overview of the inherent difficulties involved with constitutional reform, the different processes that Native nations are developing to engage in constitutional reform, and some of the effective reform strategies that NNI is encountering through its work with Native nations in this area. He also discusses the appropriate roles that attorneys and legal advocates should play in the reform process.

Resource Type

Record, Ian. "Constitutional Reform: Some Perspectives on Process." Indigenous Peoples' Law and Policy Program, James E. Rogers College of Law, The University of Arizona. Tucson, Arizona. April 15, 2014. Presentation.

“The reality is that in the era of nation building, the era of tribal self-determination, what we’re seeing is a growing number of nations realizing that if they want to fully exercise their sovereignty, if they want to fully exercise their jurisdiction, if they want to be serious about tribal self-determination and self-governance, they have to look first and foremost at the constitutional basis of their governance systems and once...when they do that, what a great number of them are finding is that the constitutions that they have for a variety of reasons aren’t theirs, were imposed upon them by outsiders, typically the federal government through the Indian Reorganization Act, through the Oklahoma Indian Welfare Act and other types of legislation and acts. And what they’re finding is that they don’t own them, they’re not theirs, they don’t make sense to them culturally, and also in many cases, they don’t meet the challenges of the day. They’re very structurally weak, they’re ill equipped to enable Native nations to achieve their goals, to negotiate the complex governance challenges that they face in the 21st century.

And so what we do at the Native Nations Institute is we spend quite a bit of our time working directly with a growing number of native nations, in particular in the region of North and South Dakota and Minnesota in this realm of governance reform and specifically constitutional reform. So often we are called to come in, and at the very beginning of a process, when the nation may just have come to the decision that we’re going to tackle this constitutional reform challenge. And often we’re brought in after a reform process has failed. Often we’re brought in to help a nation design a citizen education campaign around a new constitution that they’ve already created. So what we’ve been in the great position to do is to really see at various stages of the constitutional reform process what is working and what isn’t.

So what I wanted to talk about today, to spend a little bit of time on, is what we’ve learned when it comes to not so much what kinds of constitutional changes that tribes are making, but more how they’re doing it. Because fortunately or unfortunately, what we’re seeing is there’s a lot more nations that recognize that they need to make constitutional change happen than are actually doing that constitutional change because it’s an incredibly difficult process. And it’s often difficult for the very reasons that I already talked about, these legacies of colonialism, which I’ll get into in a little bit.

So here’s some of the outcomes that we see, and this is sort of done in conversational style, but we see a variety of outcomes when it comes to nations engaging in constitutional reform. Some actually succeed. Some actually succeed to the scope and to the degree to which they actually embarked upon.

So they say, ‘Well, at the beginning of the process we’ve decided we’re going to get rid of this constitution we have because for the reasons I put out it doesn’t make sense to us, it doesn’t meet our needs and they actually succeed in developing an entirely new constitution. Other say, ‘Well, yeah, I guess you could say we succeeded, but we only did minor changes. We didn’t do nearly as much as we had hoped to do because perhaps some of the bigger changes were too controversial, our people weren’t ready to really accept what a major change in a particular area was going to mean so we kind of...we did the easy stuff. We did the more pro forma stuff.’

Sometimes we hear tribes say, ‘Well, we completed reform but our citizens didn’t really have a full sense of ownership in the process and they didn’t really care what the outcome is and things are sort of proceeding as they did before.’ And that’s a real dangerous place that you don’t want to be in as a Native nation.

Sometimes we see tribes say, ‘Well, we completed reform, but the community is now only more divided than it was before. We engaged in this process because there was division within the community, there was a lot of factionalism going on, we felt that at the root of that factionalism was our governance system and the inherent inadequacies in it, but this reform we’ve engaged in has actually made things worse.’

Often we hear this, ‘Our process started and then it stalled.’ And there is a variety of reasons we see for that. I’d say the biggest one probably is the political turnover challenge. Often, in these nations that are wrestling with constitutional reform, if you look at for instance the standard boilerplate IRA (Indian Reorganization Act) constitution system of government, you have two-year, non-staggered terms of elected office. So if you think about that, you have a very small window. If you have a group of leaders that decide, ‘We want to push constitutional reform, maybe that was the platform we ran on our campaign and we really feel like we’ve got this short window to do this,’ and if you’re thinking about two-year, non-staggered terms, you’re looking at maybe 12 months of real meaningful work that you can do before it’s time to get ready for re-election and try to run on some sort of platform of progress.

And then often we see, ‘We can’t even get the process started.’ And in these instances typically what it is is there’s widespread recognition in the community, there’s widespread recognition among elected leadership, there’s widespread recognition among people working in tribal government that, ‘The system we have is not working. We can’t make this work, we can’t move forward as long as we have it, but we can’t seem to get off the mark in terms of figuring out how to actually change it.’ So these are just some of the common outcomes.

So why is it so difficult? Constitutional change is difficult everywhere. If you look at a lot of the examples coming out of Africa for instance in the last 20, 30 years, if you look at those former Eastern European Soviet Union block countries that got out of the Soviet Union when the Soviet Union fell apart, they’ve been struggling for the past 30 or so years trying to figure out, ‘What’s going to be the constitutional basis of our government?’ And there were a number that simply pulled one off the shelf and they very quickly found that, ‘It’s not working for us. We’ve got to develop something that is ours, that makes sense to us.’ So it’s difficult everywhere.

The legacies of colonialism complicate it. Often the very policies that nations are trying to get out from under by engaging in constitutional reform are the actual things that hinder constitutional reform, things like I just mentioned, these short, non-staggered terms of elected office. Often in these nations you have a lack of separations of powers, division of responsibilities, so you can have one leader or a couple of leaders just say, ‘If we’re not buying into this process, we can derail the whole thing,’ because they have that much power and authority. So the legacies of colonialism complicate it.

Time is often short. I mentioned that. And I wanted to share this example with you and this is in your packet here. This is...I actually took this screen capture. This is from an email that we got from a tribe that we’ve been working with on and off for the last several years. They were basically emailing us asking us to provide them assistance and this is what they laid out as their timetable for starting a constitutional reform process and actually having a new draft constitution in hand, upon which time they could have their citizens vote on it. This is a nation with more than 13,000 citizens, spread out all over the place. More than half of them live off reservation.

So they had it in mind, the particular elected leader who was leading this initiative, had it in mind that between early May and mid-June, roughly six weeks, that they would initiate a constitutional reform process with an initial training of their leadership followed by a community forum to discuss and review the current constitution, a team meeting to draft the new constitution, a community forum to review that draft and offer any feedback, and then the presentation of a petition and proposed revised constitution for signatures at general council to basically put it up for election. All this they were going to do within six weeks, an entirely new constitution.

And what we responded to them was, we said, ‘You need to take a step back and take a deep breath and think about what you’re trying to accomplish. You’re trying to essentially revolutionize your entire system of governance in six weeks, a system of governance that your people has lived with for the entirety of most people’s lifetimes on the reservation and you’re going to give your community, your citizens, one opportunity really to express their will about what they want to see in a constitution and then one opportunity to respond to how they think they see their will captured in that document. And also they have to be physically present and there’s only going to be one chance each time. So if you’ve got a schedule conflict that day, too bad, you had your opportunity.’

So this is the sort of thing we sometimes see nations struggle with because this elected leader says, ‘If I don’t get this done during my term in office, then it’s not going to happen. So I’ve got to sort of build this artificial timetable that does not allow for the people to gain ownership in the process.’ And often really that’s at the root of the problem in many of these constitutions is the people don’t own it. They don’t feel it’s theirs, they don’t believe in it and they don’t believe in the system of government that the constitution creates and so they tend to try to rip off that government for everything it’s worth instead of actually supporting it and supporting the elected leaders who are elected to lead it. So time is often short, that’s a huge challenge.

Cultural match, which is one of the NNI research findings. That is often very difficult to achieve because it’s very difficult to go back to the way things were 150, 200 years ago. What I often stress when I work with tribes in this area is you need to go back and understand how your nation governed itself before the legacies of colonialism began to have an impact, federal policies began to have an impact. What was your nation’s constitution, written or unwritten? What was it? How did the people actually organize to get things done, to sustain the life of the nation? And then also how did your nation’s current constitution come to be? Because those are tools, those are informational tools that nations need as they begin engage this question of reform.

And then another challenge of why reform is so difficult is that you’re not reforming your constitution sort of in isolation. You’ve got to do it with some thought about, ‘How do we relate with other governments? How do we relate with the United States government?’ And what’s really cool is what we’re seeing is we’re seeing a growing number of nations for instance that are removing any reference to the United States in their constitutions, they’re removing any reference of the U.S. Secretary of Interior and their ability to approve changes to the constitution within that constitution. So it is a difficult challenge.

So here’s some other reasons that we’ve encountered. There’s not enough citizen education. And this is really an inherent issue that is larger than simply the constitutional reform process that many nations try to engage in. Often they’re starting at a deficit because they don’t...there isn’t in the community a tribal civics education taking place where young people in the community are learning about how their people governed themselves traditionally, how their current government works, what their current constitution says, they’re not learning that. And so you’re sort of starting with a knowledge gap in many Native communities that is difficult to overcome and really takes a lot of forethought. And that sort of is a bigger challenge than simply saying, ‘Okay, we want to change the constitution.’ If you’re engaging your people about that question, first they have to understand, ‘Well, what are we starting with? What are we starting with? You’re asking us to consider changing something, we don’t even know what that something is.’

So often that’s an issue. Often there’s not enough citizen participation and ownership. It’s that example I just showed you. ‘Eh, we’ll give our citizens one shot at the apple and after that we’ve at least given them the opportunity and then we’re going to move forward.’

And then there’s this question of politics. Reform has to start somewhere and typically it’s going to start with one group of leaders, elected leaders, who are saying, ‘We think this is important. We think if the nation’s going to move forward we’ve got to go down this constitutional reform road.’ No matter what, there’s going to be some in the community that’ll say, ‘Well, this is their political agenda. They’re not doing this on the nation’s behalf. They’re doing this for their own political gain.’ So there’s sort of an inherent distrust and often it’s, again, this is one of the many ‘Catch 22s’ in this area, often the distrust of government in many of these communities has been exacerbated over the decades by the fact that they have a weak constitution. And so when these nations or these leaders say, ‘Well, we need to strengthen our constitution,’ that’s when that distrust tends to rear its ugly head.

And then there’s just simply fear of change. Fear of change. Like I mentioned, in many communities there’s a widespread recognition that the constitution and system of government they have is not adequate, it’s not appropriate, but at the same time a lot of those people feel very comfortable with the way things are. It’s not the best it could be, but they’re comfortable with it, they know how it works, they know the system and if you come to them and say, ‘Hey, we’re going to turn this thing completely upside down on its head and we’re going to create an entirely new governance reality,’ that’s pretty scary for folks.

And there’s parallels around the world. Just look at like the Affordable Care Act. That was a major change in terms of how the government, how the U.S. government serves the U.S. citizens. Basically saying, ‘We’re getting into the health care field. We’re going to get more forcefully into this area.’ That was a huge change and a lot of people still aren’t satisfied with it.

So here are some strategies we’ve come across. We’ve seen tribes tend to be more successful with constitutional reform when they think really hard at the outset about who is going to be in charge of the process. Who is going to be in charge of the process? And we’ll get more into that. They think long and hard about, ‘What are the best ways we can educate our nation’s citizens,’ and this is really critical. That ‘s’ is underlined for a reason. Tribes tend to be more successful when they develop a multi-faceted approach to citizen education and engagement. So basically they do much more than that example I showed you where they just said, ‘Well, we’re going to have a community meeting. We’ll make sure it’s well publicized. Whoever shows up, shows up and whoever doesn’t show up, you had your chance.’

Well, we’ve seen nations like White Earth for instance, who recently went through the development of a new constitution up in Minnesota, who said, ‘We understand our people. We understand the different ways they learn. We’re going to try to develop multiple pathways by which our citizens can learn about and contribute to the development of this new constitution. It’s going to be several cycles of community meetings held in different locations where we know our people live, whether it’s on reservation or off. We’re going to have a website specifically dedicated to this process where we have things like explanatory videos that discuss key aspects of the new constitution, etc. We’re going to be active on social media because we know that’s how young people access information.’ So a multi-faceted approach to educate and engage the nation’s citizens about this critical topic.

And then culturally appropriate methods, culturally appropriate methods. So for instance Ysleta del Sur Pueblo, a Pueblo nation in Texas that I’ve been working with, they’ve incorporated, they don’t have a written constitution, but one of the things they’re engaged in is redefining their citizenship criteria, which you could argue is a major constitutional change because they’re changing how they’re constituting themselves by looks like they’re going to be abandoning blood quantum and moving to lineal descent. So that’s a major constitutional change.

Well, what they’ve been doing is they’ve been incorporating their citizen education and engagement strategies into their existing cultural activities. So for instance, I think it’s every three months they have what’s called a ‘Pueblo Junta,’ which is basically a large gathering of all the community members and that’s where they’re updating citizens on what they’ve been learning about -- the surveys they’ve been doing of community members, engaging them, getting their feedback and so forth.

So where we see nations really say, ‘What’s appropriate for our people culturally?’ For instance, ‘If we’re really serious about engaging our elders, what’s the most culturally appropriate way to do that? What’s the most culturally appropriate way to get their input on what we want the new constitution to look like?’ So we’ve seen that bear some good fruit.

Where we’ve seen tribes stumble is when councils dominate the process. It gets back to that politics challenge. You don’t want your elected leaders seeming like they’re at the helm of the reform process. That’s not to say they don’t have a critical role to play in sort of setting up the process through, for instance, enabling legislation. They could pass enabling legislation that actually formally creates a constitutional reform body and then make sure that that constitutional reform body has a life that transcends any single administration or any single term in office. But it’s really a supportive role. Where we’ve seen tribes be successful is when they set up an independent constitutional reform body. It can be a commission, a convention, a committee -- whatever you want to call it. The name doesn’t really matter. It’s the independence that matters, the independence of that entity that matters.

And we’ve seen tribes take a variety of approaches to this. Tribes are really being innovative in terms of how they’re making sure that this constitutional reform body is representative of the entire nation because they understand that at the end of the day, if this reform process is going to be successful, it needs to have the trust of the people and the ownership of the people or else the outcome won’t matter. And so they’re saying, ‘Well, how do we achieve that?’

Well, for our nation it might be, ‘Let’s do it by district. Let’s do it by political district because that makes sure that...that ensures that we have...every district will have representation.’ Or they might say, ‘Well, let’s do it by demographics. We want to make sure we have a young person on there. We want to make sure we have an administrative, bureaucrat type from tribal government on there who can sort of bring that perspective. We want to make sure we have an elder on there. We want to make sure we have an off-reservation citizen on there. We want to make sure that we have somebody who’s a descendent of a tribally enrolled citizen, but may not actually be a citizen of the nation because one of the things we’re thinking about doing is reforming our citizenship criteria and if we do that, that person would then become a citizen of the tribe. So we want that perspective as well.’

So there’s a variety of ways that nations are approaching this representation issue, but ultimately what it needs to be is independent. It needs to have that sort of stand-alone...that stand-alone persona in the community where the average Joe Citizen will look at that reform body and say, ‘Okay, this is not the creature of the council or this particular elected leader. This has its own force to it that is independent and distinct from the current holders of political authority.’ And it’s got to be well funded and it’s got to be respected.

What we’ve seen in some instances is nations will do a really good job of this kind of stuff, the independence questions, the representation question, and then they get down here and they say, ‘Well, we didn’t really have a lot of money for this.’ When what we’ve seen, where these efforts tend to be successful, they take two, three, four, five, six, seven years. They take an extraordinary amount of research, meetings, sometimes travel, sometimes these nations are sending delegations to other tribes who’ve undergone reform and learning from them. So this can get pretty costly and a lot of it depends on how big the tribe is, how many of their citizens they’re trying to reach and get engaged in this.

And then it has to be respected. It has to be respected. Unfortunately what we’ve seen is in some instances tribal leaders will pay lip service to the fact that, ‘Yeah, we’re for constitutional reform. We’ve set up this commission,’ and then they’re out at the powwow and they’re chatting up their buddies, they’re bad mouthing the commission’s work and basically that begins to derail the process because people begin to think, ‘Well, if the leadership really isn’t truly behind this, why should I be?’ So that issue of respect is absolutely critical.

I kind of covered this already about this question of legitimacy of this reform commission, of this reform body. One leader of a nation we’ve worked with in this area said, ‘We went into this process with the very explicit thought in mind that we wanted to have this commission maintain an aura of independence,’ was the term they used. An ‘aura of independence.’ That it’s separate and distinct from sort of the normal political back and forth of the day. That this was going to be about the nation and not about faction A versus faction B.

So here’s some just responsibilities that we see these members, whoever ultimately serves on this commission, what we see as some of their key responsibilities. One of the things we really impress upon tribes... And again, it’s hard for tribes to get outside of their own box, to kind of get their head out of their own issues, their own constitutional problems and say, ‘Well, what could we learn from other nations?’ And so what we really impress upon the nations we work with on this is, ‘Go out. Learn from other tribes. Yeah, we can tell you a little bit about what Tribe A did and Tribe B did and Tribe C did, but you could learn a lot more yourself by going and learning from them directly.’ And it’s not to say you go out and you meet with them and you learn from them and you just simply take everything that they’ve done and you implement it wholesale in your nation, but you may learn a lot of valuable lessons about process, you may learn a lot of valuable lessons about the particular types of constitutional changes that those other nations made and why they made them, and are they working or are they not working. But again, that kind of thing takes funding so you’ve got to think about that up front.

They developed drafts of constitutional changes for feedback and this is critical -- drafts plural, drafts plural. The constitutional drafting process is not a one-shot deal. We’ve seen tribes tend to be more successful when they go into it thinking, ‘We’re going to keep drafting and redrafting and redrafting and redrafting until we get this right because it gives us an opportunity to continually, again and again, solicit the citizens’ thoughts, capture their will on this issue and then incorporate it into this document.’

And part of the...I touched on the citizen education challenge a little bit more, but where we see tribes focus a lot of their energy is trying to help the people understand the answers to these questions. They need to understand that the average Joe Citizen who’s maybe a single mom with three kids, just struggling to put food on the table, get propane in the winter, that kind of stuff, you’re asking them to care about the constitution. You’ve got to make the argument, ‘This will improve your life. This will improve the life of your children and their children.’ And you really need to then educate them about what role does the constitution play in the lives of the people, because if you’re not making that argument, then you’ve lost them even before you get out the door. And then you’ve got to say, ‘Well, if we change the constitution, here’s how we think it will benefit you. Here’s how we think it will strengthen your role as citizen of the nation.’ And here are some of the things we see them focusing on in terms of explaining the purpose of this to the people.

And we see them adopt a number of really interesting strategies. We’re seeing...I’ve been working a lot with the tribal colleges across the country in getting them to use our online curriculum and what we’re seeing is a proliferation in recent years of tribal government classes, of history classes specifically about that nation’s government and that nation’s constitution. We’re seeing some tribes really use their media outlets, whether it’s their newspaper, their tribal newspapers, their tribal radio stations, they’re using them to great advantage.

For instance, one woman I know, she’s from one of the Dakota tribes and she’s got a radio show and she’s on the constitutional reform committee. And so each week she does about 30 minutes on the nation’s constitution and she interviews people on the constitutional reform committee and has them provide updates on where the conversation is on the new constitution and so forth. That’s a really good example. And there’s a lot of tribes that have their own radio stations or at least have access to airtime on radio stations that they don’t own.

Youth councils is another emerging trend we’re seeing. Nations really thinking, ‘This challenge of rebuilding our nation, it’s not going to happen overnight. It didn’t take us a year to get to where we’re at. It’s not going to take a year to change things for the better, so we’ve really got to view this as a long-term proposition. And if we’re going to be serious about nation rebuilding, about making...building a stronger government that is more culturally appropriate, we’ve got to start young. We’ve got to start with our young people.’ So just here in Arizona, there’s some of the most innovative, award-winning tribal youth councils anywhere in Indian Country. Gila River, Tohono O’odham, some really good examples there.

So here’s what we sometimes see and this is an unfortunate thing. And again I think, as we move forward, I’ll talk a little bit more of where we see the role of lawyers, of attorneys, in the constitutional reform process. But this is something really important to keep in mind that you really have to have the citizens on board before the constitutional reform train leaves the station or you could end up with a situation where reform fails and you have your citizens even more apathetic about government, even more alienated, and that’s not where you want to be. Particularly when you embark on constitutional reform, it’s often to improve or strengthen the relationship between citizens and government. Often constitutional reform is attempted precisely because people in positions of authority and of leadership realize that ‘our people are completely disengaged and at the root of that disengagement is this inadequate constitution we have.’

So here’s some reasons why people won’t participate and why the citizen engagement challenge is so difficult. I’ll talk about this. I sort of touched on this. Often people just say, ‘I’m too busy. I’ve got too much going on. I don’t have time to deal with this.’ And so where we see tribes succeed is where they recognize early on that, ‘We can’t expect the people to come to us; we’ve got to go to them. We’ve got to go to them.’ As the leader of one nation that we work with said, ‘If your entire constitutional reform process is predicated on the flyer approach, then you’re dead before you even begin because where you’re simply posting flyers saying, ‘Come to this meeting about constitutional reform,’ nobody shows up and you said, ‘Well, they had their chance,’ that’s not good enough. You’ve got to go to them.

‘It’s not my constitution.’ I don’t know how many of you guys read on a regular basis or Indian Country Today. I don’t know how many of you’ve been following the saga up at Blackfeet. But they are...I was just reading a story today and that refrain was coming out again and again and again. ‘Why are we even dealing with this constitution? It’s not ours. Why are we even abiding by these rules? They’re not ours.’ And so I think again that’s where that history piece is so critical, is people need to really understand sort of the detail of that. ‘Well, yeah, you understand it’s not yours, it was something that was imposed upon you, but what does that mean? What does that mean for how you actually go about changing it? And if it’s not yours, then what would be yours?’ Because often, there’s not a lot of conversation about that. There’s a sense of, ‘Well, we know that’s not our government, we don’t believe in it and we understand that’s at the root of our dysfunction,’ but there’s less conversation about, ‘Well, what is ours? What is our constitution if this is not our constitution?’

‘It doesn’t impact my life.’ You could ask any average American citizen that and that would probably be what they would say about the U.S. Constitution. ‘It doesn’t impact my life.’ Sure it does, just not in a way they can readily see. So again, that’s part of the citizen education and engagement challenge is you’ve got to educate people about how it does in fact impact their life.

‘I don’t trust the process. I don’t trust the process.’ And I want to focus on two things here. Sources of mistrust, one of them is commonly dominance of lawyers in the process. How many of you guys like reading constitutions? Come on, raise your hands. Ray, you like reading constitutions? Nobody likes reading constitutions, right? Even you lawyers to be, not really a lot of fun to read constitutions. Imagine your tribal citizens, your average tribal citizens who may have a tenth-grade, twelfth-grade, maybe a tribal college...a couple years of tribal college education. When lawyers tend to dominate the process, the accessibility of the conversation about constitutions tends to be way above their heads. And so we see a lot of mistrust bubbling up when the lawyers are sort of front and center in the reform process from start to finish.

I’ll give you a good example of this and I may have shared this at the seminar. I was actually teaching with some of my colleagues at an executive education seminar with a tribe who has sort of the boilerplate IRA constitution, system of government-style tribe. We had these lawyers show up to this seminar during the second day and they said, ‘If you have some time at the end of your agenda, we’d like to have the floor so we could talk to the elected leadership and community members and some of the key decision makers,’ that were assembled there in the room. And so we did and they actually got up and they said, ‘Well, we’ve been working on this new draft constitution for the tribe and we got it all done. Here it is. It’s all finished. We want to just give you a quick overview of it.’ And before they got more than about 20 or 30 more words out of their mouth, they got shouted down by the people in the room because nobody knew they were even working on this draft constitution. And so there was no ownership in it and the people that had assembled in the room didn’t even care what was in it, it didn’t matter because it was sort of a done deal. And the feeling was, ‘Well, you’re showing us that this constitution’s a done deal and we weren’t even consulted on it. How dare you.’

And so the ways to overcome, some of the ways to overcome that mistrust is transparency, transparency and transparency. You have to expect that the lawyers are going to respond to the community needs and concerns instead of expecting the community to follow the lawyer’s lead. And what’s absolutely critical is that you create a safe environment for real dialogue. And again this comes back to the role of elected leaders. If you’ve got your elected leaders at every single community meeting about the constitution, about the drafting of a new constitution, and you’ve got a bunch of people that care about this new constitution and they really want to share their thoughts and feelings, but the last time they did it in front of an elected leader they lost their job or something like that, you’ve got to question, ‘Do we really have a safe environment for real dialogue?’ And the elected leaders have to think, ‘Well, me even being here, not even saying anything but me even being present at a community meeting about a new constitution, is that appropriate? Is that going to stifle real dialogue? Is that going to stifle frank input from our citizens who we really need their input if we’re going to have a constitution, a new constitution that is going to have the ownership of the people in it?’

So I want to spend a couple more minutes about some of the things I think that you as attorneys to be need to think about when it comes to tribal constitutional reform and the process by which tribes engage in constitutional reform. Because I would imagine that at some point in your careers -- as I mentioned at the outset -- at some point in your careers you’re going to get involved in a constitutional reform process or you’re going to be engaged on a constitutional question or you’re going to be asked to review the constitutionality of something, of a tribe’s constitution, and that could be in the constitution, it could be in its codes, it could be in resolutions or something.

And I thought this...I wanted to share this quote with you because I thought that it’s very telling. One of our colleagues was having a conversation with the leader of a nation who was engaged in reform and he said that, ‘The law comes from the constitution, therefore the lawyer should come after the constitution.’ I thought that that’s a very telling quote because what you want to think about as an attorney and as a lawyer is, ‘What is my role in assisting a nation in developing a constitution, implementing that constitution, living with that constitution, interpreting that constitution,’ it needs to be a supportive role. It needs to be an advisory role, not so much a creative role.

So one of the things to think about in terms of the appropriate role of lawyers in the reform process is to become an expert on tribal constitutional reform. And there’s a couple threads here that I think you should think about. The first is, have a sense of the landscape. What are tribes doing in the area of constitutional reform across Indian Country? What are the major trends that they’re showing as they develop new constitutions, ratify constitutional amendments, etc.? Where are they focusing their activity, their energy? Things like separations of powers, which is an Indigenous concept. Re-instilling that back into their governance systems. Things like removing the Secretary of Interior approval clause from their constitutions, where if a tribe wants to change its constitution, amend its constitution, it has to go get Secretary of Interior approval to do that. A lot of tribes are just saying, ‘Let’s get that out of the equation. We’re going to amend our constitution to take that out.’

It’s things like strengthening justice systems. And as lawyers who are going to be probably dealing in that realm quite a bit of tribal justice systems, it’d behoove you to know, what are tribes doing in this area to strengthen their justice systems? How are they doing it? How many tribes are bestowing upon their appeals court or their supreme court the ability to review the constitutionality of legislation that the tribe ratifies, that the council passes? So become an expert in tribal constitutional reform. And I would argue also become an expert on...if you envision yourself -- whether you’re an attorney general or maybe you’re a lawyer that’s on retainer with the tribe or maybe you’re consulting a number of tribes -- become an expert on what’s the oral history, what’s the record of that nation’s constitutional reform and that nation’s current constitution because often there’s a lot more in the back story to that nation’s constitution than what’s written on the page. Because you might read a provision that says, ‘Well...’ that articulates a separation between the executive and the legislative and it may be a bit innovative in how it words it, but that doesn’t give you enough to go on. You might need to understand, ‘Well, why did they decide to take that approach to that separations of powers question?’ And so learn what you need to learn to understand how that constitution and specific provisions within it came to be.

Help to fine-tune the final constitutional language. So for instance, there’s one tribe we’re working with right now and what they’re moving towards through their citizen engagement process on constitution reform is they’re envisioning, ‘At the end of the day we’re going to end up with basically a terms sheet.’ It’s basically going to be in very layman’s terms, ‘Here are the dozen or maybe two dozen key things we want to see in our new constitution. We want it to protect the language and preserve the language of the people, the native language of the people,’ or something like that. ‘We want a clear and distinct separations of powers between the executive branch, the legislative branch,’ whatever that might look like, whatever it might be. So there might be sort of layman’s terms-style provisions that then need to be taken by a lawyer who understands the legal language that might...that might be the role for you is, ‘How do we fine tune this?’ Another thing is to provide advice as to the legality of the new constitutional amendments. Because often constitutional amendments, if they’re not worded correctly, they might conflict with other laws that the nation has on the books. They might conflict with the actual constitution. An amendment might actually conflict with the rest of the constitution. So that might be a role that you as a lawyer could play.

Help the nation navigate the secretarial election process. So for a lot of nations, as I mentioned, who have that language in their constitutions that says, ‘If we want to change our constitution, we have to have the Secretary of Interior approve it.’ You actually have to go through a secretarial election. It’s an incredibly complex, thorny process and that’s where an attorney can play a role to say, ‘Okay, how do we navigate this process. Maybe there are other nations who’ve recently gone through this. I can call up their attorney and say, ‘What worked for you, what didn’t? How do we streamline this process? Are there certain people at the Bureau that I need to talk to who will be responsible on this thing so we can move this thing forward so our people aren’t waiting 18 months to get an election on something they already agreed to at the tribal level”?’

One of the key areas is you’d advise a nation on, ‘How do you actually implement this constitution?’ Because often these new constitutions or these constitutional amendments will mandate the creations of bodies of law by which those constitutional provisions are then enacted and it might be your role to say, ‘Okay, well, here’s how we actually implement these changes. We need to create laws for this and laws for that. We need to reconcile these conflicting laws we have or else we can’t fully enact this particular provision.’

And then you have to understand how the changes that the nation is either contemplating or the ones they’ve already made, what is it going to mean for how the nation can now exercise its jurisdiction and sovereignty? Because often if you look at some of these IRA constitutions, they’re very, very limited. They have a very limited conception of the nation’s sovereignty and suddenly when that nation then creates a new constitution, it really argues for a much broader, much fuller expression and exercise of sovereignty. So in your role as legal advisor, you’ve got to think, ‘Well, what does that mean in terms of how we deal with other governments, how we deal with private parties for instance? How does that...what does that mean we have to develop in terms of law? Does this mean we structure our contracts differently?’ So there’s this huge ripple effect that comes from constitutional change where the attorneys are going to be front and center.

So here’s some other things we’ve seen when it comes to constitutional conventions and public hearing processes. I’m not going to spend a whole lot of time on this of the things I wanted to mention briefly is that it’s important for nations who are going down this constitution reform road to not automatically treat it as a one-shot deal. Often because of those political pressures, often because of the short-term windows, there’s a sense of urgency, there’s a sense of...and often it’s because of responding to crisis. There’s this sense of, ‘We’ve got to get it all done at once. We’ve only got one shot at the apple on this. We’ve got to collapse absolutely everything into this constitutional reform process that we’re currently engaged in. It’s basically an all-or-nothing proposition.’ And where that can really handicap tribes is almost invariably there’s going to be one issue or a couple of issues that are so divisive, that are so controversial that at some point they’re going to threaten to derail the process altogether. Often it’s things like citizenship. ‘Do we want to reduce our blood quantum criteria for citizenship? Do we want to get rid of it altogether?’ I can guarantee you that’s going to be controversial. It can be things like elections, it can be things like terms of office, it can be things like, ‘Do we want our elected officials to be fluent in the language of the people, the first language of the people?’

I worked with one tribe where that blew up the whole thing. They agreed on a bunch of other stuff, but the reform committee was divided right down the middle over that question and instead of saying, ‘Well, let’s set that one aside and proceed with what we agree upon,’ they said, ‘No, because we understand we’ve only got one shot at this, that’s our thinking, then it’s all or nothing,’ and it turned out to be nothing. And I read their draft constitution, it had some amazing things in it, some amazing things that only would have come from them. It is not something that any federal government bureaucrat would have ever dreamed up. It was definitely unique to them, but all that was lost because of disagreement over one thing that probably could have been tabled and an innovative solution could have been crafted over time and it could have been voted on separately.

And then when we’re seeing tribes abandon the Secretary of Interior approval clause and basically saying, ‘We’re going to leave it up to ourselves to determine how our constitution is going to be amended moving forward,’ a lot of thought needs to be given to that because you don’t want amending the constitution to be too easy because then it can be subject to the political whims of the day, the political, internecine fights of the day. You want to make it pretty difficult to change. Not impossible to change, but pretty difficult to change.

Another thing that more and more tribes are considering are older cultural solutions. If you look at some of the new constitutions that are being developed up in Canada by First Nations who are developing new constitutions either by abandoning the Indian Act or often they’re developing them in conjunction with these treaty processes that they’re going through with the provinces up there, some amazing innovative efforts to re-integrate governance principles, time-honored governance principles that are Indigenous to their own cultures. And it’s really fascinating and I think often we see First Nations in Canada looking to the tribes in the United States to learn from them about how do you engage in nation building, how do you engage in governance reform? And I think what we’re starting to see is that tribes in the U.S. have a...can learn a great deal from First Nations in Canada when it comes to constitutional reform and re-integrating culture. And not just culture in sort of the abstract, but culture in the ways that Indigenous nations lived traditionally, in the ways they thrived traditionally, the sophisticated governance mechanisms they had developed and honed over centuries and millennia to ensure their survival, ensure their prosperity. They’re bringing those things forward and they’re sort of tweaking them, they’re adapting them to meet the challenges that they face today in the 21st century.

So just some more information about some tips on the referendum process and again I think as attorneys this is where you’ll likely play a role. There’s the question of the secretarial election process, which is a federal election and then there’s the tribal election process where the tribal citizens come together and vote on this new constitution. And I won’t go through all these, but here’s an overview of some of the emerging best practices we’re seeing when it comes to the process of constitution reform.

And the one I added here is that when nations, and in particular constitutional reform bodies that they set up, have this conscious thought in mind that, ‘At the foundation of the work that we engage in on constitution reform and in the process of engaging the people about reform, we really need to set it up around two litmus tests of success and that’s trust and ownership.’ And basically the thinking is that, ‘We’ve got to do...we know the people, we’ve got...we know what the deterrents will be to them fully engaging this process. We’ve got to figure out, 'How do we overcome those obstacles, how do we engender in them a sense of trust in the process, which over time will ultimately lead to ownership in the result?’ Trust in the process and ownership in the result, and if you don’t have those things, you’re going to end up with that outcome where it was worse than what you started with."

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

Native Nations Institute

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

Native Nations
Resource Type

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

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

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

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

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

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

Carlos Hisa and Esequiel (Zeke) Garcia: Ysleta del Sur Pueblo: Redefining Citizenship (Q&A)

Native Nations Institute

Carlos Hisa and Zeke Garcia from Ysleta del Sur Pueblo (YDSP) field questions about YDSP's current community-based effort to redefine its criteria for citizenship, and they provide additional detail about the great lengths to which YDSP has gone in order to document the origins and history of their current criterion for citizenship (blood quantum) in order to make an informed decision about whether/how to change it.

Native Nations
Resource Type

Garcia, Esequiel. "Ysleta del Sur Pueblo: Redefining Citizenship." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Q&A session.

Hisa, Carlos. "Ysleta del Sur Pueblo: Redefining Citizenship." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Q&A session.

Ian Record:

"We have about 10 to 15 minutes for question and answers before we break for lunch and we have microphones set up here on the...just in front of the panelists here and then there's also one... Steve's got a running mic there in the back. He's quite swift, so here we go, Terry."

Terry Janis:

"Yeah, I'm Terry Janis working with the White Earth Nation on these issues for the last year. First of all, I commend you on getting the information to your tribal members. That's huge if you're going to make a solid decision on this and be a part of it. Two basic questions: one is [audio cuts out for a few seconds] ...conversation that is more about limited resources, right? We have limited resources. If we double the population, will the system take more away from us? How much of that is a part of the conversation and how do you resolve it? And then the second question is have you started thinking about the verbiage of the language of how this phase is going to be laid out? Is it just going to be straight moving to descendency or is there going to be more of a process as was discussed earlier of dislocation, engagement and involvement on the part of being enrolled into citizenship?"

Carlos Hisa:

"To your first question about whether it's a concern about the services we're providing and the cost-benefit or will we really need to adjust, like Zeke said, we did send out a survey and I was astonished with the responses. The descendants don't want to be a burden. They want to do what they need to do for the Pueblo. They want to do their part. We have mentioned to the community that the biggest impact is going to be in health care because in the other areas we have been providing for descendants as we recognize them when it comes to education, when it comes to other things. It's just health care that's going to be the big one and in my conversations to the youth, the descendants out there, they're willing to give that up, for our elders, for those that really need it. So it's not...the discussions haven't really been focused on the benefits we're going to receive by the federal government to more as, 'We're Tigua now, we're going to be recognized as such.' So that's something's unbelievable to me because that's the way I was raised, and for a period of time I thought that was fading away, but it's obviously there. We planted that seed and it's still there. The second question..."

Esequiel (Zeke) Garcia:

"What was the second question?"

Terry Janis:

"It's more about what sort of language are you going to utilize to define citizenship, just straight lineal descendancy language or is there going to be more language on involvement, participation, understanding of community, etc.?"

Carlos Hisa:

"That is the beauty of getting the community involved and having this board because the board consists of elders, people that have been there before in council, individuals that are outsiders that live out of town, descendants. So it's a good group of different aspects. So when the discussions are coming, those questions are brought up. What is a Tigua? To me -- and that's what I always tell my daughters, 'No document that's out there, no blood quantum requirement is going to identify who you are as Tigua.' I said, ‘It's what you do for the community. Your involvement spiritually, emotionally and physically is what identifies you as such.' But that's just me, the way I was raised. We need to hear from everybody.

But those conversations are being held when we have our meetings as a board. I, in the beginning, stepped away and said, ‘I want this board to function on its own.' But I was quickly dragged back into it because it is a sensitive issue and there's a lot of opinions and very...people are very passionate about it, so they're wanting to go out there and implement these type of things. If you want to be a Tigua, this is going to be your responsibility. Like I said, we don't have a constitution. We are governed by oral tradition and the way it's been taught to us in the past is we don't want to put it in writing per se because if you want to know it, you've got to live it. If you want to stay away, well, stay away and once you come, we're always going to embrace you, come over, the doors are always open. But when you start living this way of life and understanding, you understand the essence of what we have in place, you'll feel it, you'll know it. But again, that's just me. That's the just the way I've been taught.

Things have changed, but those conversations are being held, and together as a community I know we're going to come up with something strong, something that's going to stay there for a long time. At the same time, it's not going to be sketched in stone. If there's something that we need to change and learn from, it's all going to...we're going to be able to have that flexibility, but again it's going to have to involve the entire community as a whole. I hope I answered your questions there."

Audience member:

"...And how do you...what are some of the strategies to meet that goal and to say it's the will of our people so that we need to make this decision?"

Carlos Hisa:

"I see the point. What we're trying to...what we're doing, we're in the process of doing is getting all the information together. First, what our people see as identity like he said, one of the things we had on there. Okay, we're going to identify who we are. These components identify who we are as a people. Those are being identified. The survey we have, we're getting that information on there. That's being put together. We don't have the complete report; hopefully by the end of this month we'll have it. The other thing is looking at...showing the community as a whole what the impact's going to be financially. We want to get all that information together and create a...I guess a final decision...resolution to be able to present to the community and say, ‘After all the research that we've done, this is what we see as a council [is] the right way to go,' and present it to the community. And like Zeke said, we have quarterly meetings, and you call them like town halls, where we invite the entire community to come and make decisions on things like this. We will present the information and make a couple of, I guess, suggestions on how we can move about and we'll allow the community to vote on that decision. Again, that's something that we're going to put together and recommend to the community once we have all the information in place."

Ian Record:

"If there's no other questions at the ready, I had a question and it's sort of a leading question because I've been involved with this effort in a very peripheral way, but...and it really speaks to what John [Borrows] was bringing up with basically imploring folks to think about your own histories as you engage this issue. And what I was really struck by in working with Ysleta del Sur last summer is the lengths to which you guys have gone to capture the history of this issue in your community. The number of interviews that you guys have done with the people who are in the decision making roles within your nations back when that blood quantum requirement was first initiated and the sorts of pressures that were being exerted upon the Pueblo at that time because...and I think that's very important and I was just hoping you could speak to that because one of the things we often see as we work with communities, particularly on this issue, is there's a feeling I think, and often I think it's misplaced, that we own this, that this criteria that we're currently using is somehow ours, it's somehow cultural when if, when you go back and do the history like you guys have done, you realize often very quickly that it never was cultural."

Esequiel (Zeke) Garcia:

"When we were doing the research, we had to go back and realize that our presence in El Paso, Texas, was in existence in 1682. There was no blood quantum back then, there was no enrollment number, no enrollment card issued or anything like that. And we had to go back that far to understand where we want to be at. Right now, because of federal monies, enrollment cards are required. Some tribes require a blood quantum as a requirement and we needed to let our community know that, ‘Okay, the ball is in our court. What do you want? Do you want a blood quantum? Do you not want a blood quantum? Do you want to just go through descendency?' And this because of the 1984 act, a lot of our way of thinking was that that was the norm, our blood quantum and some of our tribal members kind of...we kind of accepted that and we felt that we need to continue that. That's why initially we were just reducing our blood quantum and we came to a point when we said, ‘Well, does really a blood quantum determine if you're Tigua?' And that's one of the things that we're facing with right now and our community members are becoming aware. The ball's in our court. What do we want to do? Do we want to continue with that, do we want to change it? And that's where we're at."

Carlos Hisa:

"And in addition to that we...our history is well documented. We have a set of archives and we realize that there was a census back then. We have enrollment documents that date back to the 1800s that have family members from the past on there. But again, there is no blood quantum on there. It just says that they're Tigua, they are part of the community and they kept a list. So a census I think is something that we do need, but it shouldn't be restricted is what we're saying."

Ian Record:

"So I think we have time for one more."

Audience member:

"...I think it's interesting to see the level of...go into the engine that's giving you this conversation. One of the experiences we had in Pueblo Laguna, a couple years ago....constitution...on enrollment was prior to engaging the community about the most substantive issues of what...who is a tribal member, we had to first have a conversation of shifting the thinking of how should we think about this issue because easily these decisions can lead to resources, the lack of resources, power and how we're going to be stretching our resources thin but we realized that as we had this conversation, what is the core values of our people? Are we inclusive or are we exclusive, because our elders didn't have...they hadn't seen the impacts of blood quantum for whatever reason for generations out. Well, we're seeing the impacts of grandchildren who are participants in the culture but they did not have the blood quantum...that door of blood quantum of the tribe or another...down the road. So how to engage the conversation then...first question, how do we...this? We have clans that...Certainly that blood quantum was the issue there and certainly our people didn't...So it's a constant reminder when we had to engage the community in this discussion of let's shift our thinking first and set the foundation of how we're going to think about this. We have to be inclusive of people. That is our way, that is our values and we have to go forward with this citizen discussion with that mindset. So I think that was critical for us to engage the community because it was when we decided to go that direction of monetary resources, well, if we have more people, this is going to mean we get less per capita, whatever. But there was the that are we pushing away the prosperity of people if...close the doors, are we closing off the blessings...responsibilities? So I think it's important to ...that level and focus it as shifting the mindset of how..."

Carlos Hisa:

"I agree. That was something that we were afraid was going to happen so we did the impact study, we did all this research on everything and we still need to present that information to the community we feel, but our community is leaning more towards being Tigua and what we need to do to continue to exist. The real battles I think were back in the day. Right now our battles are not as devastating as they were back then, but this is a battle that we have to face and it's going to determine our future and who we are as a people. And again, and I tell my daughters, I said -- and this is something that's been implemented in my family is where, 'When the Pueblo is good, you do your part. When the Pueblo is struggling, you have to sacrifice, you do more.' And that's what I'm seeing is still something that's very, very strong in our community and it makes me very proud and happy at the same time and gives me just more encouragement to keep pushing forward to get this done. But I agree with what you had to say. Thank you."

Ian Record:

"Well, let's do one last round of applause to our panelists. I think we've learned a lot."

Carlos Hisa and Esequiel (Zeke) Garcia: Ysleta del Sur Pueblo: Redefining Citizenship

Native Nations Institute

Carlos Hisa and Esequiel (Zeke) Garcia from Ysleta del Sur Pueblo (YDSP) provide an overview of the approach that YDSP is following as it works to redefine its criteria for citizenship through community-based decision-making. They also share the negative impacts that adherence to blood quantum as the main criterion for citizenship has had on the Tigua community.

Native Nations
Resource Type

Garcia, Esequiel. "Ysleta del Sur Pueblo: Redefining Citizenship." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

Hisa, Carlos. "Ysleta del Sur Pueblo: Redefining Citizenship." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

Carlos Hisa:

"[Pueblo language]. Good morning, everyone. Like they said, my name is Carlos Hisa. I'm the Lieutenant Governor for Ysleta del Sur Pueblo. I've been sitting in this role for 14 years, started when I was 12. But our issue didn't really start off as a citizenship issue. It started off more as an enrollment and blood quantum issue. I guess I can start by giving you a little bit of a history of where we come from and who we are as a people. Back in...we're Pueblo people. We're originally from the Albuquerque area. We're one of the furthest of the Pueblos [from] Albuquerque and New Mexico.

Back in 1680 there was a huge revolt. It's called Ysleta...Pueblo Revolt, where the Pueblos united and fought against the Spaniards. During that battle we were relocated to what is known as El Paso, Texas right now. It wasn't by choice, but we were captured and we were relocated down there so our Pueblo has been there since the 1680s. Throughout that time, a lot of different things have happened. I'm not going to go into a huge history, every tribe has their history. I'm just going to touch on the points on why we are where we're at today. The State of Texas became a Confederate state, so during that time the feds were not allowed to come and check on us and see how we were doing so they wrote us off as being extinct, that we weren't in existence anymore. But our people thrived. We were still in the location; we were still being a community, being a tribe, and living our way of life. Because we were identified as extinct, we had to fight for our tribe to get recognized again. In 1968, we were federally recognized, but the trust responsibility was given to the State of Texas. The State of Texas was struggling financially. So in 1987, they went ahead and passed us back to the federal government. The responsibility was shifted from the state back to the federal government. But throughout that time, the State of Texas learned a thing or two about working with tribes and in our case dealing with us.

In order for us to get recognized -- and this is something I believe through the stories that I've been told through my family and other past leaders -- is that the state forced us to get recognized, but with certain limitations and requirements, two big ones. Gaming, we cannot engage in gaming was put in our restoration act. So when we were recognized as a tribe in [1987], we were forced to agree not to have gaming in our lands. Second one was a blood quantum requirement of one-eighth. Our leadership at that time accepted that and we went ahead and operated under that criteria for many years, but soon after this was forced upon us, our leaders realized that the blood quantum was just a way of sort of pushing us out of existence. It wasn't going to work for us so they started many efforts throughout the years to try to change this law by lowering...

The solution back then was lowering the blood quantum one-eighth to one-sixteenth. When I came into office the struggles were...and I was familiar with the struggles because I was involved. I've had different roles in the community. I've always been there so I knew what the issues were. When I came in these efforts were continued and became a priority to the tribal council that I was working with back then. So we pushed the same language that was created back there to lower the blood quantum from one-eighth to one-sixteenth. You've got to remember, El Paso grew around us and so we were...our blood quantum was fading away pretty fast. So when these efforts were being pushed we weren't successful, but one day for some reason me and a tribal attorney got together and said, ‘Why are we asking for one-sixteenth? Why don't we push it to the limit? And we need to be a sovereign nation, we need to practice our rights as a government and let us determine who should be a Tigua. What is going to be that criteria?'

So the language changed from...changing it from one-eighth to one-sixteenth to letting the Pueblo determine who is going to be Tigua and what we're going to set in place to determine who's going to be Tigua. In 2012, President [Barack] Obama...well, we managed to pass it and in 2012, Obama signed the bill where it allowed us to go ahead and determine who our citizens are going to be. We were getting calls from everywhere. The pressure was mounting on council because people thought that as soon as that bill passed that they could come in and be part of the community and be recognized as Tigua. But we sat down as a council and said, ‘We've got to do this the right way.' We have a history of enrollment issues, even from enrolling individuals that weren't tribal. We had to come back and disenroll them and those individuals became part of the family already so we didn't want to go through those struggles anymore. So council said, ‘Let's do this the right way. We want community involvement. We want this to...we want to hear from them to see how far they want to lower the blood quantum, what are going to be the responsibilities of being Tigua, what are responsibilities of the community to the people?' So it became a whole project of identifying citizenship now and determine that criteria. So that's where we're at right now.

When we look at the blood quantum and in my generation and what was going on, we created different classes, a division amongst ourselves, and it was terrible. I'm just going to give an example. I've got three daughters. I started when I was 12 as well. I have a 20-year-old right now, a 16- and a nine-year-old. All three of my daughters have always been involved. They are proud to be Tigua. They're there with me. I think they've done a lot more for the community at their young age than some of the elders that have more of a blood quantum recognized by the federal government, but yet my daughters refuse to take part in the summer programs that we have available to the community, after-school programs, Easter giveaways and stuff like that because the individuals in their age bracket would always tell them that they weren't Tigua because they didn't have the blood quantum, they didn't meet the blood quantum requirements. So that forced my children to stay away. And that wasn't just with my children, that was something that was going on within the community. So it's something we needed to address and end and stop because that's not who we are. As a people, as a community, we need to embrace everybody and provide for everybody and not have that separation. So that motivated us more to try to get this bill passed and it became more of a priority and then to have this change implemented.

So as a council, we got together and we decided to go ahead and have the community involved in this. We also wanted to make this a community decision. We didn't want it to be a tribal council decision, because we hear the stories about individuals being disenrolled from their tribes because of political reasons, per capita reasons, that type of stuff and it's scary and it's out there and exists. So as a council, we decided to make this a community decision. We're going to have a vote. We need to hear what they want, how they want it done and we need to let the community vote because we believe that the council shouldn't have this power to go in there and determine and make changes on the rolls overnight. It needs to be brought back to the community and we need to make changes. So that's what our goal is and that's what we're trying to do.

This is where Zeke [Esequiel Garcia] was tasked with the responsibility of this project that he named Project Tiwahu, and he'll show a slide of where he goes and everything else. And we asked him to go out there and get feedback from the community to see where the tribal council needs to go out and make the changes so we can start enrolling our tribal members. And when this project was assigned to Zeke, he came back to me and said, ‘One of the things we need to identify is what is going to be...who's going to be a citizen. What are the roles of a Tigua?' So it changed more from enrollment criteria, from a blood quantum thing, to more of a citizenship. Where are we going to go from this? What does the community want? And he has started the process. We're moving along. [I'm pretty sure...did I move too fast? How much time do I have? Five minutes. Okay, well I'll donate them to Zeke.] So this is where I'm going to introduce Zeke and let him take over so he can show you what we've been working on, how we're doing it to get the input from the community so we can move forward on there. But, Zeke, the floor is yours. Thank you very much."

Esequiel (Zeke) Garcia:

"Good morning. Our efforts down at the Pueblo, as the Lieutenant Governor was saying, in 1984 we did...we're not a constitutional tribe, we're oral tradition, but in 1984 when they restored our federal recognition we did inherit some very restrictive language that was within that restoration act and it had to do with enrollment. Soon after...for many years we had been submitting bills. In 2011, when we submitted HR 1560, which is the bill that was enacted in August of 2012, the council called me into their office and they said, ‘We need a plan of action. We need to have a way of how we're going to proceed from here forward.' So we put a plan of action, it's not my plan. It's a plan that's inclusive of our council. The first order of business that we ended up doing was -- and it's in your packet -- we passed a tribal council resolution. And in that resolution we set objectives, specifically what Project Tiwahu -- even being sensitive to our culture termed it with a cultural name -- and we set those objectives, what we were setting out to do.

One of the objectives was to establish a board. It wasn't an appointed board, although there were some appointed members, but we did go to the community. We sent out a letter to community members living on res as well as out of the state, and we got a good response and some of those community members were selected.

The second objective was to, of course, knowing that the enactment of HR 1560 and doing away with the blood quantum, we knew we had to do revision to our enrollment policy so that was another objective that we put in our resolution. Most importantly -- as the lieutenant governor was saying right now -- was to garner community input. This wasn't going to be my decision -- although the responsibility fell on the enrollment office or tribal records office, it didn't fall under the tribal council office as well -- but it needed to be a community decision and that was one of the biggest things that we set out to do.

Not because the lieutenant governor is sitting next to me do I want to score brownie points, but one of the things that I really admire about our current council, as well as previous councils, is that in no way did they relinquish power, authority by handing this over to the community and making a decision. If anything, they incorporated a team effort or inclusive in reaching out to the community. So that's one of the things that I really admire about our leadership.

The other thing was...the other objective that we set out was to assess our tribal programs. As he was mentioning earlier, we receive federal monies and those federal monies are there to serve an enrolled population and we have a descendant population of course, those that were less than the one-eighth. For many years we have...our office has been tracking that information. Our Pueblo has this practice on an annual basis for our enrolled members to come and update. When they do their update, we give them a questionnaire and we get information: education, financial, household compositions -- we just get a lot of information from them and what we lacked was the descendants. So in 2010, even before our bill was passed, it blew me away, our leadership sent out an executive memorandum to my office and said, ‘You need to start issuing out descendant ID cards to our descendant members.' And with that, that was our way to capture the information on our descendant members.

So in assessing our tribal programs, we need to determine what needs were out there, what services we were providing to our descendants, what services we weren't able to provide because of restrictions within those federal monies to an enrolled population. And we...actually not we, I wasn't even...well, my office indirectly was a big part of it in providing the information that I was collecting, but Linda Austin and her efforts and the council put together a budget impact and that budget impact is also on your packets there. And what we were able to determine there is if we were to project the numbers that we had on our descendants and we were to enroll them and begin providing services, what impact would be on our budget, our current monies for each of our programs. So that was very instrumental, that budget impact. It really opened up our eyes; it opened gave us a better understanding of our descendant population. For instance, we were able to determine that we had a younger population within the descendants as opposed to enrolled members, which were much older.

The other objective that we resolved on the resolution was a citizenship campaign, and because we were dealing with descendants -- that as the lieutenant governor mentioned that had distanced themselves, even those living within the res, those that were living out of state were much more disconnected because of course maybe annual visits, they would come to the reservation during our feast days. We had to do a...our board and the facilitators that were helping me out, we understood that we had to have some kind of citizenship campaign, an awareness, an educational component to it to where we would give them information.

One of the results from that was this informational guide. I believe this informational guide is in your packet. And through this guide we were able to educate both our enrolled members as well as our descendant members, what this whole citizenship...the process that we were going to take. We were able to give them historical information regarding the tribe, how we came to be if you will, and also a portion of the budget impact was also given out. We wanted to give them the statistics on our blood quantum, how many numbers, how we were being reduced, and all that good information.

Within that citizenship campaign, we also conducted internal research -- the facilitators, myself, Linda and another intern that we have within the tribe. We were able to conduct interviews to have a better understanding of what had transpired in our enrollment office, what resolutions had been passed since the restoration act, what issues our enrollment was faced with and that was a very eye opening experience for us. As we conducted interviews with key individuals that were involved with the federal recognition or restoration, we would hear the same things from each one in a different perspective and it really opened up our eyes to better understand again, we're looking at making a decision for our future, we need to understand what we did in the past and that was a great thing that...that was very important and instrumental and now that as we go forward and we're looking at making these decisions, it gives us a better understanding on how to proceed.

The other thing that came with those interviews was an internal report. It's not in your packet. Like Ian [Record] was saying, it's kind of lengthy, but that internal report was...Linda and myself were able to work on that and that was more of a the lieutenant governor was giving you the story, we also felt we needed to put it on paper and more or less educate our membership as to our history, how we came to be since the early years of 1682 that we got established there in Ysleta, Texas.

These are some of the steps. Where are we at right now? This past December, we issued out a Pueblo-wide questionnaire, a survey, and this is where we're getting the input from the community. Right now currently, we're in the process of analyzing those results, but that survey, of course it's not in your packet because it's a lengthy survey, but it's a very...these are basic questions. We have four parts to it. The first one was identity. How do our tribal members identify themselves as Tigua? Is it the services that we rendered or is it something...your culture, your practices, if that's what it makes them.

So we asked those questions. We asked questions about enrollment, whether we wanted to keep a blood quantum, whether we wanted to get rid of a blood quantum, whether we wanted to reduce a blood quantum. In 1984, a very important issue, when the base roll was created, there were some people that were left out and now this day and age how do we want to deal with that issue? Do we want to extend enrollment to them? And this is what we need to...the kind of feedback that we need from our tribal community. That survey is very instrumental. It also...because of if we do extend enrollment to descendants that means that our population would double. Right now our enrolled population at Ysleta del Sur is 1,732 and our descendant population is just right there. There's just an eight different...and they're out there. I know they're out there because for whatever reason they haven't made their way into our office. So I can more or less estimate about another 200 individuals that are out there.

So our descendant population has already surpassed our enrolled population. And how are we going to proceed? If we do enroll these people, if we do enroll our descendants that would mean that we have more people. According to the bill that was signed, we were in agreement that we're not going to receive any extra funding from the federal government to provide services, so how do we manage that? And this is what the community needs to know as well. We that work within the tribal government, we have a good grasp of what it entails, but our average tribal member out there, they may have an idea, a slight idea, or they may not have it. We want to make sure that we convey that information to them because ultimately it does impact us that are enrolled and it impacts those that would be enrolled as well.

Those are our efforts that we're doing right now at Ysleta del Sur. I'm very pumped with this whole issue. I have seen nothing but support both from our council and from our community members. You have to keep in mind that this topic has been a big issue since our restoration back in 1984 and people, our tribal members, are willing to talk about it. When we have our quarterly Pueblo juntas that we come together as...a town hall meeting, if you will, and we come together as a community, we've talked about those issues and now that this bill was filed and now that we have this Project Tiwahu underway, tribal members see them more giving their input and wanting to share and it's a hot topic right now within our tribe and we just look forward to coming to some resolution by this year. If not, we're in no rush. That's one other thing is that the bill was enacted in 2012; we're in 2014. The whole thing here is that we're going back to the community, we're informing them, we're letting them know what's going on and whenever our grandfathers feel that it's a good time to make the decision, we'll make that decision and we'll proceed."

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

Native Nations Institute

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. 

Resource Type

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'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

William Mitchell College of Law in conjunction with the Bush Foundation

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.

Resource Type

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."


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 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 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 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 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 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."


Vanya Hogen:

"Thank you."

Lenor Scheffler: The Lower Sioux Indian Community's Approach to Citizenship

William Mitchell College of Law

Lawyer Lenor Scheffler (Lower Sioux Indian Community) provides an overview of the Lower Sioux Indian Community's approach to defining citizenship, which is predicated on residency within the Lower Sioux reservation's boundaries. She also discusses how eligibility for tribal social services is tied to residency. 

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

Resource Type

Scheffler, Lenor. "The Lower Sioux Indian Community's Approach to Citizenship." 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:

"Good afternoon everyone. My name is Colette Routel and I'm also one of the co-organizers of this conference along with Sarah Deer. I teach at William Mitchell College of Law. For our afternoon, we're getting started with a panel on other citizenship requirements. After spending the morning talking about the choice between lineal descendency or blood quantum, we now have two speakers that are talking about things such as residency requirements, tiers of citizenship and adoption. I'd like to call up now the two speakers, Lenor Scheffler and Sarah Deer.

Once again, their full bios are in the program, but I would like to highlight just a little bit about each one of them. Lenor Scheffler, who's sitting here to my immediate left, is a partner at Best & Flanagan, where she runs their Indian law practice. She's a member of the Lower Sioux community and she was born near Morton, Minnesota. She is a 1988 graduate of William Mitchell College of Law. She's actually on our school's board of trustees, and she was the first Mdewakanton attorney that we know of anywhere in the United States. After she left William Mitchell, she began her private law practice and like I said she works at Best & Flanagan, which is one of the larger law firms in downtown Minneapolis. She's been very active in the Minnesota American Indian Bar Association and there's a list of her long accolades as well, too, in the bio.

Next to her is Sarah Deer, who you've all heard from this morning. Sarah is a citizen of the Creek Nation in Oklahoma. She's been teaching at William Mitchell College of Law since 2009 and before that she worked for the Tribal Law and Policy Institute and for USDOJ [U.S. Department of Justice] doing grant work for them. Sarah's main area of expertise is actually on violence against women. She was instrumental in helping Congress draft and get passed both the Tribal Law and Order Act in 2010 and then the reauthorization of the Violence Against Women Act much more recently. Sarah's going to talk about her recent scholarship on her own tribe and their constitutional revision process. I'll turn it over to them. Thanks."

Lenor Scheffler:

"Thank you. Good afternoon everyone. Good to see you. Hopefully the food was good and you'll stay awake. If not, we'll have to jump up and down or something. [Lakota language]. I wish you a good day. Glad to be here with you. I am going to talk a little bit about my experience and I have a councilman here who can correct me if my information's a little off. But Gary Prescott, one of our councilmen at Lower Sioux, I'm proud to have him on our council and here today. At Lower Sioux, we rely on a residency requirement and so I'll be talking about that, but generally I just wanted to make a couple comments.

In my practice, which I've been working in Indian Country now it'll be 20 years next year, which is like, 'How did that happen?' And when I work with my tribal clients and they're talking about constitutional reform, the one issue that is the...or the biggest issue of stumbling block after things like land and jurisdiction maybe, but is membership. How do we define who we are as a tribal person, as a First Nation person? Everybody -- depending on whether you were born on the reservation, off the reservation, depending on your age and how much blood you have, your background, your experience -- everything comes together about how you define yourself individually as a tribal member of your particular tribal nation and also how your tribe looks at you and how the outside world majority society looks at us. So it's very complicated, confusing, emotional, challenging -- all of the above -- and so I'm really glad that there's this conference where we can have some discussions and conversation and hopefully you've been able to share some good ideas about this very important topic.

The Lower Sioux, when I was born, under our constitution, which was an Indian Reorganization Act constitution, you had to be born to a member who resided on the reservation and you had to be able to identify your descendency from the 1886 rolls. And so when I was born, my mom lived on the reservation and we can trace our ancestry back to 1886 and beyond. But then, over time our lives have changed, chunks of us have moved away. One of my other councilmen told me that we have approximately over 1,000 now members at Lower Sioux and there's a certain number that live on the reservation, and we also have a service area that we identify or recognize so many miles outside the reservation, and we have then also large numbers of our tribal members who live outside even that service area. And our membership ordinance has privileges and...membership and privileges. I can't remember the exact title now. I should have looked at it before I came here. But residency...if you're a resident of Lower Sioux or in the service area, and in this case now it's up to five years, then you are eligible for certain privileges that are set out in the ordinance and if you have...if I would choose to move back -- which was one of my desires was to retire at Lower Sioux -- I would have to establish residency and there may be some other, if I recall, some other categories. But when you have those privileges, those include the health benefits, the voting, the land assignments, those sorts of things, because our constitution also says when you get a land assignment or a land lease, you have to develop it and reside there and if you abandon it for a certain number of years, then you have to relinquish it back to the community.

So it's been a very interesting experience in my lifetime to watch my community. We all knew who each other was even though, as you know, when our censuses were made by the United States government over the years they were not always accurate and we knew who actually was the child of that couple or who the real mother was and we also know there are examples that people happened to be visiting Prairie Island when they took the census and so a Yankton person might be counted as a Prairie Island person. So we know there are flaws in the records that the government has provided saying who we are in each of our communities, but we as tribal people, we know exactly who our people are, in my opinion. That's my personal opinion.

And so watching at Lower Sioux...and most of us at one point stayed there. Some people left for jobs, some people left for education because there wasn't much there. What I remember is the gravel pit and the gravel roads when I was a kid and then it changed and we had gaming and that brought a whole different experience. I think of childhood as rather idyllic and sheltered living on the reservation. It wasn't perfect, but it was pretty wonderful in my mind and a great place to be, but I knew I had to leave and others made those choices. To watch going from everyone being included, everyone knowing each other to having the influx of workers and relatives who grew up in the Twin Cities or relatives who grew up in other parts of the country because of relocation, people coming back because they're retiring, people are wanting to come back, our community changed. And as those things changed, choices were made about, 'How do we define ourselves?' And as a lawyer, I will defend a tribe's sovereign right to say who their citizens are. And I've also seen when that sword of sovereignty cuts the other way and people are disenrolled or people are harmed by what I would defend as a lawyer, but as a tribal person may have other opinions.

So over the years, our tribe has made choices. How do we account for the people coming back? How do we account for the people who have been here on the reservation their whole life? So we have some benefits. How do we share those benefits and how do we weigh those values and choices that people have made and how do we...because in our Dakota, Lakota, Nakota we are all related. We want to be a relative, we want to live among our relatives and so how do we make choices when we are all related? And so I think it's not been easy for my tribal people to make those choices and sometimes it was in a good way and sometimes it may have been a challenging way, but I believe that they did the best and they do make the best decisions they can.

So residency has been really has helped the members who live there, who choose to live there, who may not be able to leave. The benefits that come with residency makes great sense. I don't mind it that I don't have the benefits, but I...what's so important to me is that I am a member, that I have roots, that that is my home, that is where I come from. So regardless of what label somebody puts on me or says what I get or don't get, I'm individually a person, it doesn't matter. My parents taught my sisters and I that education was everything and to work hard so that we could take care of ourselves whatever we did or wherever we were because my dad said, "˜You're a woman, you're a minority, and the only thing people can't take away from you is your education.' And so we made different choices and so residency to me individually is not as important, but I have other relatives who have retired, my aunts and uncles for example, and it's been very nice because they've not necessarily had 401Ks in their lives where they've lived. I have one uncle who lived in Oregon for most of his life on the Warm Springs Reservation, another auntie who lived off the reservation, and it's been nice to see them to come home with what little retirement they do have, but they get some privileges now and in their old age they have a place to be and to connect and so I think that has great value.

So residence...and it just depends on your opinion, because I also have had my dissident period, I will admit, in the "˜90s, and...where there was about 200 we counted of members of Lower Sioux and descendents and came together and some of us wanted just to be able to vote whether we lived on or off the reservation and others wanted to be able to take advantage of the privileges that were happening at that time -- per capita and other benefits -- regardless of whether you lived on or off the reservation. And so ultimately there was actually a lawsuit. A number of us just dropped out because I wasn't that dissident-like. I don't shake up things that much so we dropped off, but others...actually a case went to the Eighth Circuit, the Maxim case, about privileges and benefits and caused some changes. So it's been an experience that it just depends on where you're sitting as to whether having a residency requirement for the benefits is a challenge or not. But to me the most important is that is...the important thing is that that is where I'm from and where my family's from -- Prairie Island is actually where my grandmother and my great grandmother and Santee is where my grandfather, great grandfather is from -- so it's that connection in place that seems to me most important.

The tiers of citizenship, I've heard of that and maybe that is an option because it is such a hard question to decide who gets to be in and who gets to be out. I have clients who are full blood from other tribes and they say, "˜I do not...,' the chairman of one of my clients from Wisconsin said, "˜I do not want to sit at a council meeting some day and look at the next chairman and he's got blonde and blue eyes. That makes me crazy.' Or I talk to my friends at Prairie Island, my relatives at Prairie Island and they have...they have some descendency and they do have folks that don't necessarily look like majority society says all of us Indians should look like. So I guess my comments are just to give examples and a perspective that, be thoughtful about how you define yourself and find a way...we...gosh, people, we have survived since time immemorial, we should be able to figure out this citizenship piece. We put our heads together, we be relatives with each other and to each other. It seems to me we should be able to figure this out. We can survive this long...I don't believe that we will all waste away because of how we define our citizenship. I think we will figure out a way to do it, but I think it just takes effort and respecting your past, respecting your values, talking to each other and listening to each other and then having the courage to make a decision and then live with that decision and work with it. I think that's another thing maybe...because of all my tribal judge work in my lifetime, too, I'm not afraid of making a decision and just dealing with it, but I think that's what our people have done.

I did a law review article through William Mitchell Law Review in 2012, my perspective on the 1862 uprising or conflict or war -- whatever you want to call it -- and I focused on membership and the challenges that we as Dakota in 1862 faced because we had our people who were already assimilating, cutting their hair, wearing majority society clothes, sitting in wood houses and trying to farm and assimilate, and yet we had our people who were saying, "˜No, we are going to hold on to our traditions and we shouldn't have to do this and we should be able to be who we are.' And contrast those experiences and the complexity of those relationships not only with the United States government and majority society but among ourselves. I contrasted that to a lawsuit that was called Wolf Child v. United States, which was a trust case that had been around for the last almost 10 years now and that was a case again about trust responsibility and a group of plaintiffs having lawyers and they were from our community, Lower Sioux, and saying the government had a trust responsibility to these 1886 descendents, those "friendly" Dakota which is a good and bad term: you either 'hang around the fort Indians' or whatever you wanted to call those folks. And so the case was talking about that issue and whether those descendents...that we should have the benefits that come from those 1886 lands, those lands that were set aside by the federal government for those friendly Mdewakanton Dakota.

And so I contrasted what was happening in 1862 and what was happening with this lawsuit, because that lawsuit brought out the best of us and the worst of us in that having to show your descendency caused people to reconnect with their roots, find out where did great grandma...where was she baptized, was she baptized, where was she born, trying to show that you were descended from those friendly Dakota. But it also divided families that, 'This isn't right, we shouldn't do this litigation.' I'm not a litigator and so I have a theory that litigation gets us nowhere usually, but it does sometimes. But I don't like litigation. You don't have control over what's happening or what the decision's going to be. And so that litigation also, I think, divided us because some families...people who had been in exile from 1862 went to Canada or other parts of the U.S. saying, "˜We want to come back, we want to have land, we want to be members in our communities from where we were born...where we descended from.' And so those...that was dividing in similar ways in my mind as what was happening in 1862. But unfortunately, at this ripe age of, my membership card probably says I'm an elder now, but and after 20 years of practicing law I still don't have an answer about the citizenship and what we can do about it or to take care of or resolve some of those issues from 1862 to today except that the faith that I have in our people and what we've learned and the hope that we can keep moving forward. So those are my perspectives." 

Sarah Deer: The Muscogee (Creek) Nation's Approach to Citizenship

William Mitchell College of Law

Sarah Deer (Muscogee), Co-Director of the Indian Law Program at the William Mitchell College of Law, provides a brief overview of the Muscogee (Creek) Nation's unique approach to defining its citizenship criteria, which essentially creates two classes of citizens: those who run for elected office, and those who can't. 

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

Native Nations
Resource Type

Deer, Sarah. "The Muscogee (Creek) Nation's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"What I'd like to talk about just very briefly is...first of all, I'm a citizen of the Muscogee (Creek) Nation and I the way I look, you can tell I'm a lineal descendent as opposed to having a high blood quantum. And I want to talk a little bit about that because one of the things I think -- especially in Oklahoma -- they kind of joke about us. I'm not Cherokee, but they joke about the blonde-haired, blue-eyed Cherokees, and one of the things I think that's really important for someone like me to acknowledge is that I have privilege because of the way I look. I can walk into a store and I'm not treated as an Indian because people don't see me as an Indian.

And when I was talking to one of my mentors, an elder who works to help me try to learn my language, she talked a little bit about that with me recently, about...when she grew up in rural Oklahoma in the 1950s, the level of painful racism in her memory is still very palpable, being treated as second class because of her skin color and because of her name and so today when she sees people who can pass, who don't acknowledge their privilege, who say, ‘I'm a tribal citizen, but I'm just the same as you,' when I didn't go through the experience of racism is painful. And I think we have to talk about that when we talk about lineal descendency because I get the privilege of passing. I get to tell people I'm Indian if I want to and if we don't acknowledge that painful history, I think we're going to continue to have a lot of controversy about what this means to potentially open up citizenship. So I wanted to say that at the outset.

And the other thing that I think is interesting is that I'm asked often what much Indian I am, my blood quantum. But the only people who tend to ask me that are non-Indian people. What Native people ask me is, ‘Who is your family?' So it's...the blood quantum itself is something that is of interest to people, but in my experience that's usually coming from outside the tribe.

Now, what I wanted to talk about was one particular facet of my own tribe's constitution when it comes to governance because we have two classes of citizens. One class is full citizens and the other class is citizens and I want to talk about the difference between the two in just a second. But typically, when we think about American citizenship, the American government really doesn't do much in terms of distinguishing between citizens. All citizens are treated the same. If you're naturalized, you have the same rights and privileges as people who were born here. The one exception that I think became I think a focal point of the election in 2008 was that the president must be a natural-born citizen and so to be the President of the United States you have to have been born here in the country.

So let me tell you about how this Muscogee constitution developed. We have a very complicated history as most tribes do. In Oklahoma in particular we governed...we had really no acknowledgement of our government between 1906 and 1977, 1978. We were still operating as a government, but the federal government didn't recognize us pursuant to the Curtis Act. So when we were able to fight and get recognized as having continuing governance throughout that time period, the federal court actually ordered a constitutional convention, which was interesting and sort of ironic that in terms of re-recognizing the tribal government, the federal judge says, ‘And we will tell you how to do this.' But we did end up ratifying and passing a new constitution in 1979, which governs us today, and citizenship in our nation is determined through lineal descent [from] the 1906 Dawes Roll.

One of the things that's interesting about that of course is that in 1906 during allotment, many traditional people refused the Dawes Roll. They refused to go and sign up for their allotment on principle because they never consented to breaking up the reservation and so you have a lot of traditional people in Oklahoma today who are not enrolled in any tribe because their ancestor stood their ground. So that's another interesting facet.

But what I want to talk about specifically is how the constitution distinguishes between full citizens and citizens, and this comes from Article 3, Section 4 of our constitution, and explains that full citizenship requires the one-quarter blood quantum and those folks are known as the 'full citizens.' And then all citizens who are less than a quarter blood shall be considered citizens and shall have all of the rights and entitlements as members of the Muskogee Creek Nation except the right to hold office. And I'm still doing some research to figure out exactly how this decision was made or what the dialogue in the community was, but to hold office under the constitution you have to have this quarter-blood requirement. So I can't run for office.

And so one of the things that happened is how do we interpret that language? So I just...I present this sort of as a cautionary tale as you're thinking about potentially designing language that would provide this kind of distinction, the kinds of ambiguities that can develop. So what does it mean to hold office? And this became the subject of a dispute in 1986 and the question of what is the right to hold office. So citizens of the nation elect a principal chief, a second chief and a tribal council. And justices and judges are appointed by the principal chief and confirmed by the council so they're not elected positions.

So in 1986, there was a district court case in our tribal court and the party who lost the case appealed to the Muscogee Supreme Court arguing that the judge, the district court judge in that case was not a quarter blood, he was an eighth and so the losing party challenged that decision saying that the judge was not qualified under the constitution because he was holding office with less than a quarter blood. And so what the tribal supreme court then had to do is to interpret what the constitution meant by hold office. And they ended up determining that the constitutional requirement for full citizens or quarter bloods applies only to elected officials. So in other words, the judge and the justices do not have to be full citizens under the constitution.

Now after that case, the Muscogee Tribal Council passed a law that required judges and justices to be full citizens. And this has never actually been litigated, although I suppose someone could challenge that as a question of whether or not the constitution saying hold office trumps the statute that says judges and justices are included in that. So we don't know for sure how the court would have ruled on that particular statute. But slowly, in recent years, I think what has happened is that the body of qualified judges and justices has somewhat shrunk in the sense that there's not a whole lot of quarter bloods practicing law in our tribal courts. And so how do you then find a judge or a justice who's qualified to sit on the court?

So in 2010, the tribal council passed new laws stating that the judges and justices must be full citizens unless there's a waiver passed by two-thirds of the council. And in 2012, they amended that again and now you must merely be a citizen of the tribe, which means there's no blood quantum requirement for the court, but still the quarter blood quantum requirement is for principal chief, second chief and council. So I can be a judge for my tribe, but I can't run for office is basically how that plays out for me; being not in Oklahoma, I suppose that I would not be in a position to run for office at any level.

So there's one other thing I wanted to say about that. Oh, so the other thing that may be important in thinking about this is that to be a district court judge or a trial court judge in our tribe you have to be an attorney. You have to have a JD, you have to have a license to practice law, and you have to have at least four years of experience practicing tribal law. For the justices of our Supreme Court, there is no requirement that you have a legal degree, you merely have to be appointed by the principal chief. And so we have elders on our tribal Supreme Court who are not attorneys and I think that's a really intriguing development where I see a mixture of attorneys and non-attorneys on the supreme courts of tribes where you can blend then traditional knowledge with sort of contemporary western legal traditions.

So I just wanted to give that as sort of a tale of being careful when you draft language, because I'm not sure that everybody agreed on what 'hold office' would have meant, but now it's pretty clear that judges and justices are exempt from the full citizenship requirement.

One other thing I just wanted to raise because we talk about the Veronica case and the Indian Child Welfare Act. One of the things that's interesting about ICWA is that it applies when a child is a member or eligible for membership. Can a tribal government distinguish between citizenship and membership? The reason I bring this up was partly based on a comment made this morning about the clumsiness of the English language and how the English language around the terms like 'citizenship' and 'members' is really incomplete or a mismatch for culture. But there is an English distinction between 'member' and 'citizen,' at least they're two different words, and so one of the questions that I would just pause at -- and I don't know that I have an answer to this is, could a tribal government distinguish between citizenship and membership specifically thinking about ICWA and expanding the body of children in which the tribe would have jurisdiction over? So that was just one piece that I wanted to leave you with and I think that's what I have to say. So thank you."

Jill Doerfler and Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy (Q&A)

William Mitchell College of Law

Panelists Jill Doerfler and Matthew Fletcher fields questions from the audience, and several participants offer their heartfelt perspectives on the complicated cultural and social dynamics surrounding citizenship and identity in their respective Native nations and communities. 

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

Resource Type

Doerfler, Jill. "Defining Citizenship: Blood Quantum vs. Descendancy (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Fletcher, Matthew. "Defining Citizenship: Blood Quantum vs. Descendancy (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"At this time again we'd like to open it up to questions and comments. We have a few minutes before lunch and we'd like to have some dialogue based on what the speakers had to say.

Audience member:

"Has there been any talks with the state level officials or any federal officials on how they view what an Indian is and at what point...or what do they expect of Indian tribes? We've been talking about funding, we're talking about land being taken back. Okay. I know in Wisconsin we had a meeting with a state representative and he didn't even know we had 11 tribes in the state of Wisconsin. He knew that all the tribes in Wisconsin were per cap Indians. That was his perception and he was from the southern part of the state. And so a lot of times when we...we struggle with this blood quantum issue is the end game that what does the federal government and Chairman Bugonaghezhisk hit it right on the head though. At some point they don't want to pay no more. And of course I speak for myself that they can never pay us enough for what they've taken from us. And I notice that when I look in the appropriations inside the Department of the Interior. Parks and Services get more money than the tribes do and why is that? And so these are some of the questions on the other side of the line is what does the government...what is their end game? The gentleman here talked about...Mr. Fletcher was talking about that at some point all they want to do is wipe the slate clean and mainstream us into society with no debt to the Anishinaabe people."

Dana Logan:

"Hi. My name is Dana Logan from Grand Portage. My question regarding the lineal descent is if the government has wanted to, like you said, wipe the slate clean, get rid of Indians? So if you are going to go to...are thinking of going to lineal descent and I'm going to use the Cherokee Nation, going to lineal descent and I've seen their blood quantum as being at one-3000th. So at what point if tribes go to lineal descent are we no longer going to be identified as Indian tribes and we're going to be so what the government might say is diluted, there aren't no real Indian left? And so that I worry about a little bit in identity and what the government thinks of us. Myself, I'm enrolled in the Chippewa tribe. I have children who are Northeastern Oklahoma Indians enrolled there at a ome-eighth requirements. They're half, my husband is a full blood Indian. Now, look at their CDIB, they're Grand Portage, they're Canadian on my family's side, they're Cherokee and they're also part Shawnee and Eastern Band, and then in the Cherokees, split you up on what kind of Cherokee you are. So you have all of these things that we do to ourselves but yet we have to protect ourselves as a group of people...I don't like to say a racial group either, but we do need to keep our identity so that the American government doesn't say, "˜You people aren't here anymore and you don't matter.' Thank you."

Matthew Fletcher:

"I'd like to just toss out something. I think the way that the self-determination policy has worked in the last couple decades along with the Supreme Court has looked at Indian identity is to really rail and recognize a tribe's decision as to who is a member, who is not. So if you look at a lot of statutes that Congress and state legislatures have passed prior to the "˜80s really, they all talk about blood quantum, they talk about half blood, quarter blood, who's an Indian, who's mixed blood. The U.S. and most state legislatures even have moved away from that. And so for example a year or so ago the Department of Justice, Fish and Wildlife Service in the U.S. government said, "˜Well, we're going to recognize anybody who's a member of a federally recognized tribe. Blood quantum is irrelevant. Whatever they decide, they are able to with their citizenship card they can carry an eagle feather. We're not going to give them any crap for that.' So that was the policy floating around. What it means is, they talk about tribal membership. Whatever blood quantum is, it's up to the tribes and I think that's a really good development. But that's the politics right now. 50 years down the road, maybe John Roberts type people, and he's the one who asked the question in the Baby Veronica case, "˜Hey, the last time that this kid and dad had a full blood Indian was during the time of the American Revolution in their ancestry.' It was important to him and so maybe that will change over time. But right now, now is where the federal government is deferring to tribal prerogatives on tribal membership, whatever that might be, and I think it's a good time to take advantage of that."

Jill Doerfler:

"Yeah, and there's lots of prevailing arguments as well that blood quantum and this racialization was meant to destabilize politics. The U.S. and native nations have a nation-to-nation relationship. It's not a relationship between a nation and a race and so there's also lots of arguments there that treaties that form a big part of that government-to-government relationship there primarily are not racially based. They're governments making agreements with other governments. The U.S. government racial...the race of Americans is changing over time. We're going to start to see the white race decline and we're going to start to see white people becoming a 'minority' in the U.S. Does that mean if the race of America changes, does that mean that those political agreements are null and void? Most people would argue no because it's still the same political system that's in place. The makeup of the people might be changing, but you still have that government structure."

Audience member:

"So I guess to touch on another one of those stories that we carry with us from our relatives, one of the things that I was taught was if you wonder about who you are, think about yourself when you're done with this world and who is it the ones that's going to take care of you to help you on your journey to the next place. And sometimes that is the defining characteristic, because when you're left by yourself and you're completely dependent upon the people who are supposed to take care of you, sometimes that defines who your identity is. What we have based on these discussions is a converging of social, cultural, political type of discourse -- I guess for lack of...for a more intelligent English word -- but...and how that convergence comes into play. I mention these things and the things that come from me that I work with when I work with my people in my tribe is we never lose that connection we have to our relatives. And that's difficult sometimes, especially when they're adopted away and they're taught these different types of...different ways of doing things.

And so when I was in school there was people who were sympathetic, these non-tribal people who were sympathetic, but they wanted this and they always said, "˜Well, how do you...' -- I used to joke with them and tease them because there's some things you don't share with people you don't know -- I said, "˜Well, if you want to know who's Indian, go ask them what happened to their grandparents,' because almost always you can find a story about the boarding schools. My tribe and my relatives all have the same stories about where our grandmothers went and grandfathers and how we can't stop in...when we travel back and forth and Janesville with my grandma.

And so one of the things that I'm proud of as Ojibwe and as Anishinaabe is the treaties that we have going back to American or Federal Indian Law 101 is the four purposes of why treaties are made. Well, there's a fifth treaty, too, that helps define the contents or reserve the rights of your own identity. And for us, for the Ojibwes and among the Lake Superior Band, our 1847 treaty -- one of them gets overshadowed because that was Bugonaghezhisk's allotment that he got over by Wadena -- but the other part of that 1847 treaty is a separate one, which was the recognition...forcing the United States to recognize that Ojibwes did not recognize mixed blood or half breeds or whatever they called us back then and that all of the people who were among our communities from wherever they came from were considered part of our family. And that's a teaching that we have that...we have these cultural bonds that go across there and so a lot of my [Anishinaabe language] are non-tribal. And for those who don't know what [Anishinaabe language] are, it kind of translates to like 'godmother' or 'godfather' or 'god-relative' that is supposed to help you take the place or help assist your parents in raising you or your family in raising you. And then as we include them as our [Anishinaabe language], we also name them so that the Creator can understand them in the Ojibwe that is the predominate method on how we're conducting ourselves. And so even though we use this more dominant language or English to kind of define our interactions and to articulate these views, I still from the time I was born until the time I pass and I sit there with my grandmothers again and my grandfathers and tell the story of my life as part of our teaching. Ojibwe is the means that identifies us because it doesn't set parameters, it gives you the method to teach you how to come back home. And so that is...the prevalent thing that comes through this is the language. We call that...that's the gift from the Creator. Our work is the land that was given to us or the responsibilities that attach us to the land.

But there's still, I guess, and I'll finish this real quick I guess, but the other part that kind of makes our blood boil and all of that is when we have the people who create these manufactured senses of identity of what it is to be Indian and then they come back and they bring these different concepts. Even though I'm a lawyer and trained just as Professor Fletcher is in speaking English in terms of interpreting our laws, the constitution that we have is probably one of the most detrimental and damaging things that we've done as a tribe because it tries to codify what the idea of a good government is or how to run your to organize your people to do certain things and that gives a tool then for those who disagree with our ways of life. Our grandmothers have prominent places in our society, but it's not recognized in the constitution or when people identify their laws and say, "˜Well, you're not a member because the constitution doesn't say that,' even though my [Anishinaabe language] grew up on the reservation and has done as much for me as anybody else, she's not from Lac Courte Oreilles.

It's a dangerous double[-edged] sword that I think that -- and I'm going to get slapped by Robert here if I'm not careful how I say this -- there's people who take this idea of spreading democracy as President [George W.] Bush had said when he was justifying these incursions and sending among others some of our Native youth into Iran and...or I mean Iraq -- whew, there's a Freudian slip -- in Afghanistan and to these different countries is they're trying to spread democracy back to the tribes in that they want to change their constitutions so that they have these things that are not...don't necessarily arise from us, but they come from this idea that we're going to have participation, that we want representation from different areas and the model that they use is the United States, but yet how can that be a positive model when we have something like the Tea Party that's disrupting the government or we have the idea of democracy and we've got the idea that corporate citizens are now or corporations are now people. And so that makes me nervous and I think it's the responsibility of those who really want to be part of that community to be diligent, to hold true to what your ideas are and to not...if you're going to bring something else in there, bring in also with the open mind of coming into the community and listening to what that is.

I know that there's criticisms split between on reservation and off reservation and it shouldn't be that way because the reservations were something that was given...that was forced on us by the American government because we're actually in the area -- and this is going to get me probably slapped by the Dakota in the room -- this used to be Ojibwe country and there was an 1825 treaty that kind of demarcated this line. It wasn't ours like in exclusion of other people. It was our shared responsibility to take care of this land and take care of these resources. And so this idea of possession is something that got forced into us so that the dominant society could figure out a way to kind of [figure out] who to talk to instead of having to talk to everybody, they picked who they wanted to speak with. And so when they come back with these people with these ideas of changing the constitution so that it incorporates more people, I think that's such a dangerous topic because you're incorporating it under the wrong premise. There's other ways that could be done and that needs to be incorporated into that. If we're really going to have binding, logical extensions of ourselves codified in the constitution, it should be in the language, it should be in the way that those words were intended and it should be representative of the practices of who we are.

My grandma told me -- and my grandma told me a lot so I could go all day -- she told me, she says, "˜When you pass, one quarter of you doesn't go somewhere else, one quarter doesn't go to this other spot. It goes to where you think your family is because that's the teaching that the Creator gave to you. And so when you go up and you say your name, your name is like one slice of your life over the time that you've been given this time on this earth. And so when you hear that and they ask for you, you know where to go to.' And I don't mean to disparage people with different beliefs because I've seen people who are strong in their beliefs and I believe them. The major tenet of me and my lodge is you respect all ways and it just...sometimes though when we respect all ways the first way that seems to get diminished or get erased is the Anishinaabe way and we just...I can't allow that. [Anishinaabe language]."

Robert Durant:

"I won't hit you. I want to shake your hand. Again, my name is Robert and I just want to talk a little disrespect to all the efforts that White Earth is going through and I'm on the council in White Earth. I too, I have always been afraid of this. The new constitution that's been written, I feel there's so many things that take away from the future and also removing the past on where we're at and what was done and closing the door on so many other issues. And then when there's issues that are talked about, how are we going to deal with this here with programs -- whether it be housing, whatever -- and all the other issues that comes along with that and maybe being censored from working one way or working another way if this thing passes? Then it's said that, "˜Well, we'll tweak it out.' Well, tell you what, that's not what people are kind of voting for. I'm not going to say 'yes' to where you're going to change it anyway so what good is it? Things like that, it really gets to my heart. And then when we talk about to opening these doors to rewrite a constitution that's taken decades of interpretations and decisions and ordinances and then to me it's really sad, because to me it's like the modern day of being fleeced by using enrollment. I get afraid of that. I'm afraid of that. Remember the stories of our tribal nations being fleeced? And then sometimes when we talk about the enrollment laws...I remember listening to some old men talking about [Anishinaabe name] or 'Hole in the Day.' He only would...during the removals come to White Earth, he talked about only the half breeds could come with him. We all know he was killed, but there's a lot of other histories, I read about other leaders they wanted, for reasons, whatever that was. And that's what I think about, but they disappeared in life and who was always behind it, it was always the government. So it's really difficult for me...when I think about this, I'm doing it right now, I'm shedding a tear because what are we doing to ourselves and what are we allowing to happen to us? It's not easy, but everybody is not being taught.

We sent out as a lesson for everybody, White Earth sent out...there's 18,700-and-some members under the last roll that we took. That list was used to mail out a constitution. I asked, "˜Well, if you're going to mail that out, at least have some fairness and mail out the one that we've been dealing with that was revised in the "˜60s.' Well, no it wasn't done because I was intercepted and it wasn't done, so it wasn't fair because people on both sides ain't getting a chance. So when you go for this here in other nations, realize that because we're stepping into something that we do not know and it's scary. I can say that because my children, they're tribal. But I can understand they may make a choice not to be with another tribal or their children, but the thing is I need to have that responsibility to show them who they are too. But I made that choice. Why am I tribal? There's a lot of teachings.

I want to tell you a little story, too, before I quit here because it really gives me an insight. I got a gift, again, there's a lot of gifts. I received a packet of writings done by tribal members; I'm going to share that with you Jim. They wrote manuscripts of...100 years ago they wrote this. I had my administrative assistants type it all out because the paper was frail and it was written beautifully. And they told the stories of what it was. They told stories. Imagine 120 years ago someone 84 years old saying...writing the story of the modern Indian. It makes me angry when I read that, but it was the truth. This topic is really tough and I'm not the only one that feels that way. These are lessons we listen, lessons from our elders, real lessons. Not just a story, but this time as being told...these were handwritten. [Anishinaabe language]."

Sarah Deer:

"I think we have time if you want to respond unless someone else in the audience wants to make sure we get you on record. There we go."

Sam Strong:

"It's not really a response. [Anishinaabe language]. I think for me it wasn't actually in any response to Terry's comments there, but basically when I think about being Anishinaabe, when I think about being Ojibwe, when I think about being from Red Lake, what does that mean to me? It means a way of life. It means living that [Anishinaabe language]. It means being a part of a community that has been centuries in the making so it's understanding that you're a part of that history. That's something for me that I'm very proud of. I'm an enrolled member. I'm very proud of that. I'm very proud of my heritage. I'm also proud of...I'm mixed. I'm proud of everything that made me and that's part of being Anishinaabe, that's part of being Ojibwe is understanding who you are and being comfortable with that and then living that lifestyle in all facets of your life.

I think about the past, I think about Red Lake and one of our first leaders, once we started with treat making and all that, his name was Peter Graves and he actually wasn't a Red Lake member. Our first real leader wasn't even a member. He was an Ojibwe person that had moved there. He was mixed, he was half, and you think about the contributions that he made to Red Lake. We consider ourselves unique. I'm sure all tribes consider themselves unique. But we're a closed reservation. We're the only tribe that never ceded control of their land. We're proud of those aspects of who we are, but at the same time you look at today what people they're living and what's going on in the communities and we're disconnected from who we are. So I think it's important to identify that in looking at citizenship. Your community is going to look at where you're at today. What does it mean to be a Red Laker today?

Our chairman always tells this story as kind of a fearful indication of where the community is at. He was at a meeting and one of the was a forum for an election or something like that and one of the kids stood up and he took his card out. He said, "˜This ID card, what does it mean for me?' And everyone's like, "˜Well, what do you mean?' And he said, "˜Where's my check? Where's our per capita? We have all these casinos. Where's my money? What does this card mean for me?' I don't think that's the prevailing thinking that most of the community members have, but it's out there. That's kind of how the BIA [Bureau of Indian Affairs] would want it. They would want to see us as dependents. They would want to see us as people that our identity is putting our hand out, but that's not who we are and I think understanding that there is...there's that divide. What we have created and who we are are so different from one another.

You think about the teachings and the people that I listen to and that I learn about myself and my culture and some of these people, if you met them on the street, you might think they were Caucasian, but the reality is these people are carrying on the culture and the language. They're not all enrolled members, but these people have dedicated their life to understanding our culture, our language, our traditions and they're carrying that on for our tribal members. And you think about all these people that have helped us get to where we're at today and all these community members that have contributed and it has nothing to do with the percentage of blood that you had. It never has and it never will, but the reality is our communities have become dependent upon the resources from the BIA, from the federal government, so on and so forth and people have started to look at membership as what's going to be put in my hand for free?

And I think the only way to change that -- we're looking at constitutional reform right now -- and you pose this question to Red Lakers, you're going to get a lot of angry people. We're a closed reservation. We've maintained control of our land, so what happens when we open up to lineal descendancy and we have people that are totally disconnected from our land base? Would they potentially put us in a position where we would lose ownership of the land, where the tribe would make a decision to sell it? I don't think so, but at the end of the day, these are the fears that the tribal members bring up when we talk about changing our enrollment criteria. How do we address those?

And to me, it's one of those's obviously mathematical genocide. I think all of us can agree that the current system doesn't work, but how do we move forward in a responsible way, in a way that allows for the people to also grow and the only way to really do that is through teaching your people about your culture, your language, doing all the things that we're talking about here, but it's not a one-day change. Even if you were to make the change from lineal descent or whatever it may be, that's not the important piece. It doesn't matter what the criteria are if your community isn't carrying on the values and the traditions of who you are. That's the way it was always taught to me is that the way you live is who you are.

Another teaching that I always was told is, coming into today's world you see the troubles of today with the environmental degradation and all the social ills of the communities and our elders say that our ways are the ways that are going to bring this world back into a better place. That's been our teachings. And how can we do that if we can't even include people that are living in our communities in our traditional ways? You have to think that...what's the long term? The long term is obviously that we need to be inclusive and teach our ways and share those values, but in the short term we have to focus on ourselves. We have to get to a point where our own people understand who they are and their lifestyles. Without that, it doesn't matter how you identify yourself. In 100 years what will our communities be? So to me it's...without the identity the rest's almost impossible to even solve that so it's not to make the...and we're going through the same process so I ask this of all the members of our community when we go out. We have a constitutional reform committee and so they're asking these same questions as well. But the reality is, I don't think it's a one-year thing, I don't think it's just change the criteria, it's what are we doing as a nation to hold onto our identity, to create a better quality of life in our communities and to create for...something that everyone can buy into, not only our people but all Ojibwe people.

I always brag about Ojibwe people because I consider us to be the largest tribal nation. I think from a land base perspective you could make that case pretty easily. But today you see tribal nations that are 100 miles away from one another that are fighting with each other. You have racist communities in between that we just ignore and then we have what you would think would be supportive nations down the road and we're not even on the same page. So who are we as a nation even? Have we forgot who we are as Ojibwe people? Have we forgot who we are as Anishinaabe? When I say 'Anishinaabe,' I mean all Native people. I was hearing some of the speakers earlier and they were talking about what that word meant and for us in Red Lake it means free people, people that live in a good way and I think when you think about what we all...all of our ideals as Native people, it's very similar. So why haven't we come together? Why haven't we come together as a people, as a nation and even as Red Lake Nation? So you've got to start somewhere, but at the end of the day...I think sometimes we focus on all these issues and we forget about where the people are at today. For me, living in Red Lake and seeing it and seeing the suicide, the drug use, the...all the social ills of my community, you would just hope that we would focus on the things that would start to change that and create that pride in who we are and all the other stuff will fall into place. But without that, all the rest is for naught, in my eyes at least. [Anishinaabe language]."

Sarah Deer:

"Thank you. Thank you very much. This has been an incredibly rich and deep conversation, and I'm very grateful for all of the participants." 

Stephen Cornell: Creating Citizens: A Fundamental Nation-Rebuilding Challenge

William Mitchell College of Law in conjunction with the Bush Foundation

NNI Faculty Associate Stephen Cornell discusses how colonial policies have distorted and corrupted Native nations' conceptions of identity, citizenship and nationhood, and stresses the need for Native nations to forge a strategic vision of their long-term futures and then work to create among their people "citizens' committed to and capable of creating those futures.

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

Resource Type

Cornell, Stephen. "Creating Citizens: A Fundamental Nation-Rebuilding Challenge." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"Well, thank you all for being here. And I want in particular to thank the Bush Foundation and the School of Law, the Mitchell School of Law for putting this together and also acknowledge the first peoples of this piece of country, this piece of this magnificent continent. [I see I'm not yet quite there.]

I have found the discussion we've had already very interesting and I think it's unfortunate what's happened to this discussion of citizenship. And I think Bethany [Berger] did a really nice job of showing us the intrusion of outsiders' ideas of what citizenship should be and mean and the way that that has come to dominate the discussion of citizenship so that you -- whose citizenship and lives are at stake -- end up talking about blood quantum and other criteria which I don't think were ever -- as John [Borrows] has really shown -- were ever part of the way you thought about who you are. But that now dominates the discussion and the intrusion of the notion of boundaries. Gee, you either are or you aren't part of a people. How do we know? Because I went to court and the judge said. Is that really the way things should be? And then the counter to that intrusion and that transformation, that demand that you think about who you are in a particular way, then John presented a very different notion of citizenship as an expression of who you are as a people, of what kind of people you want to be. Not just what kind of people you were, what do you want to be? And that's a very different discussion, and I think it's unfortunate that a lot of the discussion of citizenship now is really bogged down in that first set of ideas and it needs to move to that second set that John really articulated for us. That said, my job, I was asked to...I want to do a couple of things here. I want to say something about what's happening across Indian Country in this area, and that's going to be just exactly the sort of criteria that have unfortunately come to dominate this discussion. And I want to say a little bit about some of the issues to think about as you wrestle with those criteria, but then I want to...I want to come back to what I think is important and that's something I'll talk about called 'creating citizens.'

So I'm going to give you some data. And unfortunately, this podium is beautifully placed so that half of you can't even see this and probably the other half can't read it because it's too small. But this is some of the citizenship criteria in Native nations. Now it turns out it's not easy to get a comprehensive view, maybe Matthew Fletcher or someone else knows of a place where you can find out all of these criteria. The best source I've come across was actually work done by Keith Richotte back in about 2007, when he went through a lot of tribal constitutions to track what they say about citizenship and how that's changed as constitutions changed. Tracked really some of the processes that you all are involved in and the point of this chart is really just to show you that today it's incredibly diverse out there from various kinds of blood quantum and what I've done is give you the criteria on the left and some examples of nations within the U.S. who are using those criteria or some version of them. And that list down the left, which matters much more than the examples begins -- for those of you who can't quite see it -- blood quantum; lineal descent from a base tribal roll; lineal descent and blood quantum in some sort of combination. We've got lineal descent and residency, that is, you have to show lineal descent and either your or your parents had to be a resident; a minimum percent of tribal or Indian descent–Bay Mills sets a percentage and says this is what you need to be a citizen; patrilineal descent; matrilineal descent; parental tribal residence at birth, that you don't see as much anymore, but there's still some nations that use that; participation in tribal affairs. I actually thought that was kind of an interesting one. Colville: you want to be a citizen, you better be involved, be engaged. Council discretion: Hey, we'll make up our minds, decide whether you are or not. General council discretion: open to a much larger body of already recognized citizens to decide. Comanche has special rules for minors. Nez Perce, Warm Springs allowing for adoption and naturalization.

In other words, there's a very diverse set of criteria currently existing out there. Which ones are the most common? Well, most include descent from a tribal member or citizen. Some include no further requirement. About 25 percent of tribes according to what Keith Richotte, Carole Goldberg, Ian Record, and others have been able to come up with, about 25 percent of tribes in the U.S. require descent from a tribal member, period. Parental tribal residence at birth still is a fairly large number, about 20 percent. One-quarter blood quantum is over 20 percent. One-half blood quantum less than 10 percent today. A quarter-blood quantum plus parental residence at birth less than five percent. One-eighth blood quantum, one sixteenth -- there are other criteria involved but the percentages get much, much less. They are getting rare. So while there's enormous diversity out there, there are dominate patterns and these are the things you see. What's the pattern of change, emerging trends? Reducing blood quantum, everyone's wrestling with the intermarriage question. If my nation requires one-half blood quantum, it's not going to take more than a generation or two before my children -- unless I marry someone else who is also a citizen of my nation by that criterion, or ideally someone who's full blood -- before I can't enroll in my own children in my nation.

I was talking to an Apache...a citizen of one of the Apache nations the other day and he was saying, 'My children are Apache, but I married outside the White Mountain Apache Tribe.' I can't remember whether it was Jicarilla or San Carlos Apache or who, married another Apache but not of that tribe, and as a result, he said, 'My kids can't be enrolled in my nation. They're as Apache as I am.' That's the result of this intrusion, this creation of boundaries that slashed their way right across peoples and said, 'Okay, you've got to set some criteria and then you've got to abide by them,' and now a lot of tribes are reducing blood quantum because as the generations pass they're starting to disappear so you've got to reduce the blood quantum in order to keep people within the boundary. Replacing blood quantum with lineal descent -- that's happening at a lot of places. From tribal blood to Indian blood, that is, we require Indian blood but not necessarily tribal blood. Growing attention to off-reservation representation and how you keep people not only as citizens, but engaged as citizens off reservation.

I don't know how many of you are familiar with the Citizen Potawatomi Nation's council. They recently redid their constitution. Any citizen, enrolled Citizen Potawatomi citizen, can participate in tribal affairs whether you live in Los Angeles or in Shawnee, Oklahoma where the tribal headquarters are. Their constitution, they have I think it's a 16-seat legislature. Eight members of that legislature have to be resident in Pottawatomie County, Oklahoma and the other eight can be resident anywhere in the United States. So they do their council meetings with video screens on the wall so that the councilor in Los Angeles -- where they have an office and who was elected to the council -- can participate real-time in the debates, vote, etc. And their argument is, 'We want to keep our people part of the nation, not just by saying yes, you're a citizen, by actually engaging you in what it means to be part of the nation.'

Dual citizenship: we're also seeing some tribes saying, 'No dual citizenship.' I don't know where that one is going. Unique sets of citizenship rules, that is, Grand Traverse is breaking away from some of the general patterns and creating its own rules. And of course we're seeing some of this extremely controversial and I think extremely dangerous phenomenon of disenrollment. What we're beginning to see now in California is people who've been disenrolled demanding that the federal government step in. That's the last thing tribes need is the federal government stepping in and saying, 'Okay, we'll decide who's a citizen.' But that's what's going to happen if it keeps on because there's going to be a large enough group of disenfranchised people saying, 'Who else are we going to appeal to? We'll appeal to the feds,' and there goes some of your sovereignty because the feds say, 'Okay, we'll take over this issue.'

So those are some of the things that are going on out there. As I say, the work that Keith Richotte did is about six years old. Carole Goldberg at UCLA has done some work on this a little more recently, but it's actually very difficult to find out exactly what's happening across the country, but I think this gives you some idea of some of the things that are going on. These things have real-world effects. When you change these things, and I think this is what...for some nations, I think the move to wrestle with citizenship criteria comes from some crisis. Either we get people demanding, 'I want my children enrolled,' so okay, we better fiddle with the citizenship criteria. Or there's a court case or there's a settlement and there's fighting over the benefits of the settlement or something like that. And very often, councils are under pressure to launch some kind of rethink of citizenship criteria without really sitting down and saying, 'What are the consequences of this action across the board?' And of course, some of these things are obvious. I think there's a consequence on numbers, that's perhaps the most obvious one.

As you loosen criteria, the numbers potentially increase; as you tighten them, the numbers potentially decrease. Does that matter to you? It's certainly got impacts on things like tribal capacities. Excluding someone is excluding a body of knowledge, a body of experience. Incorporating someone is bringing in knowledge and experience. What impact does the change in citizenship criteria have on your nation's capacity to do the things it wants to do? Political influence may be affected by this and not just by numbers, but in a sense you' you're viewed by outsiders may be affected by changes that you make in citizenship. The defense of sovereignty -- that's part of the disenrollment issue. What impact is this likely to have if we spin out the consequences of action? What impact is this going to have down the road on our ability to control what may be one of the most important aspects of nationhood, defining who we are? That should always be in your hands, not in someone else's, but you may take actions that make it harder to defend that sovereignty.

Compliance with federal regulations: there are federal programs, for example, including programs on which some of your citizens may depend to get through the winter, to survive, to meet the needs of their kids, where the federal government imposes regulations that your citizenship criteria may come into conflict with. On the unity and social cohesion of your people, on culture, and I think on self concepts, rigid technical and legalistic criteria versus the sense in the community of what it means to be a citizen, of those things that John just talked about. And I actually think that may be the most important of all these effects: What is the impact of the decisions you make about citizenship on your people's sense of what it means to be a citizen?

John mentioned some of what's happening in New Zealand. In August, I was teaching a course at a tribal college in New Zealand and for a group of Maori working tribal professionals who are working for their tribes in New Zealand. And I was struck by the fact that a couple of people were talking about their, who I would think of as the citizens of their tribes, as beneficiaries. They were beneficiaries of settlements; settlements over land claims and claims to fish into the four shores of New Zealand. And I asked them, 'Do you all really talk about your people as beneficiaries?' And they said, 'Well, that's kind of how the New Zealand government talks about them.' And we ended up talking about, what does it mean to be part of a tribe if you think of yourself as a beneficiary? I get something. It's like listening to radio station WIIFM, What's In It For Me? I'm a beneficiary. That's a limited conception of what it means to be part of a people, and I thought a really unfortunate conception of that. We need to find a balance somewhere between citizenship as rights and benefits and about me as an individual and citizenship as obligation and contribution and participation and as an expression of this collective consciousness, this collective understanding of who you are as a people. And what you do in citizenship is going to affect both ends of that continuum, but when I heard that term 'beneficiary,' I thought, 'Well, I know where at least those few people are. They're way over at that end.' Bad place to be for the future of a people.

And I don't know how many of you know Oren Lyons. I had an interesting conversation with Oren Lyons about seven or eight years ago. Oren is a traditional faith keeper of the Onondaga and a remarkable man, one of the architects of the U.N. Declaration on Human Rights, and we were talking about this term member and Oren, I thought...He said to me, 'Tell me something.' He said, 'Are you a member of the United States? Are you a member of the State of Arizona?' He said, 'At Onondaga we're not a club. We don't have members. We're a nation. We have citizens.' And I thought that's an important change in how you think. To be a member of something, what do I get? I get the magazine, I get a discount at the store, I get all these goodies because I'm a member. But if I'm a citizen, that raises questions about what do I give, what am I part of? It's about the thing itself, the nation, rather than about this flow of benefits to me.

I think the biggest challenge is not deciding eligibility criteria. You're having to do that, you live in a political and legal context where that's demanded of you. So you have to do it and you have to be smart about it and you have to think very carefully about what the consequences are of your decisions. But I think there's a much bigger challenge in this whole area of citizenship and I call it 'creating citizens.' Do you think about what it's going to take to create the kind of citizens that your nation needs? And I think that's really a strategic question. It has to do with what kind of community or nation do you want to be 25 years from now, 50 years, seven generations, whatever the time horizon is that makes sense to your people? What kind of community do you want your grandchildren to grow up in? What kind of citizens do you want your grandchildren to be? So when I talk about creating citizens, I'm not talking about adding to the roles or increasing your numbers. I'm talking about creating that future by creating people who can live it. If you know what kind of future you want, what kind of citizens will that require? Do you know? Have you thought about that and about how you'll create those citizens? And I think of that as something that...

In the work that I, and some of my colleagues, have done, we talk a lot about nation building, or as Oren Lyons says, 'nation rebuilding,' and I actually think this business of creating citizens is a fundamental part of it and it raises this question of, do you have a plan for creating citizens? And that would include things like language, culture, ceremony. The Cherokees investing...scavenging money from tribal programs so they can get their kids into immersion classrooms where they will learn their language and creating a school system where the teaching will all be in Cherokee. That's part of creating citizens.

History: I'll use the Cherokees again because I think this was another creative thing they did. Every employee of the Cherokee Nation -- whether you're a citizen or not -- has to take a history course on the Cherokee Nation's history and the chief of the nation -- the Cherokee, they call the top guy the 'chief' -- the chief of the nation said, 'We do this because we want to be sure everyone understands what's at stake here, what we've been through, what we lost, what we kept. When you work for us, what grand purpose are you serving? So we teach our history.' That's part of creating citizens.

Tribal civics: some of you know Frank Ettawageshik from the Little Traverse Bay Bands of Odawa, and Frank talks about tribal civics. He says, 'My kids know the capitol of this state, they can tell you the major rivers in the state, but they don't know anything about tribal government. They don't know what it's about because none of our schools teach any of that stuff.' He says, 'We need a tribal civics course that teaches you why we have a government, what it does, what nationhood means. That ought to be in our school system.' That's creating citizens. What's the role of elders in creating citizens, of youth, of tribal leadership in creating citizens? And do your citizens know what citizenship actually means? Maybe that's a discussion -- which, as you go through some of these processes of rethinking citizenship -- maybe it needs to be a community discussion not about legal criteria or technical details, but about what citizenship means or what you hope it will mean 50 years down the road.

I was reminded...I was chatting with a good friend who's from one of the more traditional Pueblos in New Mexico last week and we were talking about...I had mentioned that I was going to be at this discussion of citizenship and we were actually talking about the fact that this Pueblo still practices banishment. It happens very rarely. In fact, he told me it hadn't happened in probably a dozen years but I thought it was interesting, banishment means excluding someone from the Pueblo, and I guess the legal version of it in some places today would be disenrollment, but what I thought was interesting was the discussion about what happens. Banishment doesn't have anything to do with whether you're descended from the tribal roll, it doesn't have anything to do with blood quantum in this Pueblo, it doesn't have anything to do with any of that. He said, 'The question is, can you live as a responsible citizen of our nation.' And he said, 'We have some people who engage in behavior that is unacceptable among our people and we have a process...' It's not written down. This is a nation with no written constitution, it governs in a very old way. He said, 'We have a process. You correct the person. You sit them down, you talk to them, you say, "You are not behaving the way we expect of our people," and you give them a chance to correct that. And if they continue to show that they can't do it, you do it again. You do it with elders, you do it with their relatives. You do it three times and if after three times they still demonstrate that they cannot live as a responsible part of our community, then they have to go because they're a destructive force in the community.' And he said two things I thought were interesting about that. He said, 'We can't think of a more extreme punishment because what you're saying to them is, "You can't come home again, ever." But it's not about blood quantum, it's not about descent. It's about, 'Can you participate fully and responsibly in our notion of what it means to be a citizen?' And maybe that's more the discussion that we need to be having when we talk about citizenship. Thank you very much."