membership criteria

Hot Topics in Tribal Governance: Citizenship + Blood Quantum

Producer
Native Nations Institute
Year

As the Director of the Oneida Nation's Trust Enrollment Department, Doxtator used the skills he honed as a financial analyst to examine the current state of the nation's enrollment criteria and illustrate what that meant for the future of the nation. Since Oneida was still relying on Blood Quantum (BQ) to determine enrollment eligibility, the future of the nation's enrollment numbers looked grim. The unfortunate reality was that, if nothing was done to amend the nation's enrollment criteria, it would mean the extinction of the Oneida Nation in just a few generations.

In this presentation during the Native Nations Institute's 2022 Remaking Tribal Constitutions Seminar, Doxtator uses population pyramids and one very compelling animation to explain the issue with BQ as a determinant for enrollment -- a lesson that could any Native nations wrestling with questions about BQ and enrollment.

 

Resource Type
Citation

Doxtator, Keith. "Hot Topics in Tribal Governance: Citizenship + Blood Quantum." September 19, 2023. Presentation. Native Nations Institute.

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

What Makes Someone American Indian?

Producer
National Public Radio
Year

Who is Native American? It's a complicated question that has tripped up, among others, Massachusetts Senator Elizabeth Warren. The Democratic presidential hopeful recently apologized for identifying American Indian as her race more than 30 years ago. It was around that time that the U.S. census saw a surge of people identifying as American Indian. NPR's Hansi Lo Wang explains why.

Resource Type
Citation

Lo Wang, Hansi. What Makes Someone American Indian? National Public Radio. February 17, 2019. Retreived from https://www.npr.org/2019/02/17/695536896/what-makes-s... February 21, 2019.

Leroy Shingoitewa: Self-Governance with Hopi Values

Producer
Native Nations Institute
Year

Leroy Shingoitewa, member of the bear clan, and served as chairman of the Hopi tribe and since January 2016, has served as a councilman representing the village of Upper Moenkopi.  He recalls the intricacies of governing while maintiang Hopi values and traditions.

Native Nations
Resource Type
Citation

Shingoitewa, Leroy, "Leroy Shingoitewa: Self-Governance with Hopi Values," Leading Native Nations, Native Nations Institute, University of Arizona, Tucson, AZ, March 01, 2016

Verónica Hirsch:

Welcome to Leading Native Nations. I’m your host, Verónica Hirsch. On today’s program, we are honored to have with us Councilman Leroy Shingoitewa, who is a Hopi tribal citizen and a member of the bear clan. Councilman Shingoitewa previously served as chairman of the Hopi tribe and since January 2016, has served as a councilman representing the village of Upper Moenkopi. Councilman Shingoitewa received his bachelor’s degree from Northern Arizona University in Flagstaff, Arizona, earned his master’s in Educational Leadership and Administration from Penn State University and has over 30 years of experience as a teacher and principal within the Arizona public school system and Bureau of Indian Education schools. He served as the first Native American principal for the Flagstaff Unified School District, helped establish the Hopi tribe’s first tribal grant school and currently works with school boards, schools and their staff and tribal organizations to find, develop, and train effective leadership. Councilman Shingoitewa, welcome.

Leroy Shingoitewa:

Thank you, it’s an honor to be here.

Verónica Hirsch:

I’ve shared a little bit about who you are but would you please begin by telling us a little bit about yourself?

Leroy Shingoitewa:

Well, I’m from the Hopi tribe, live in Moenkopi, was born and raised on the Hopi Reservation at Keams Canyon, Arizona. Grew up knowing and living in the traditional Hopi way with my father, my mother, and my grandparents, and all of my extended family. I’ve lived away from the reservation as well in the outside world so I’ve learned how to become balanced living in both cultures. I feel that whatever experiences that I’ve had hopefully will be of benefit who may hear today’s interview.

Verónica Hirsch:

Thank you. I’d like to begin by asking some basic questions regarding this topic of Native nation building and my first question is, in your opinion, how do you define nation building?

Leroy Shingoitewa:

I guess there’s two forms to me of nation building. First of all, there’s your own tribal affiliation like me with the Hopi. I believe that in building of the Hopi tribe there needs to be strong partnerships with the 12 villages we have, partnerships among the tribal council of men that serve, and strengthening the way governance is operated on our reservation. That’s a quick synopsis of our local government. On the other side in the United States and probably in other areas like Canada and Mexico, in order for tribes to become strong, we need to start to learn how to work together. In other words, we can belong to our individual tribes, when it comes to national issues we need to band together to show strength in that area of concern or issues that will affect all of our tribes. To me, this is called nation building. If we do not come together as a nation, we become individualistic and we lose out on a fight that has died before our people.

Verónica Hirsch:

Thank you. I’d like to ask a little more in depth question regarding part of your answer of what nation building entails for the Hopi tribe, and what does it entail?

Leroy Shingoitewa:

For the Hopi, it pushes us or makes us think more realistically going beyond what we call our traditional form of governance. We’ve adopted a way of governance in 1936 when the Indian Reorganization Act was passed. It made it so that as a tribe we were able to have a relationship with the United States government on a government to government relation. Our role is a find a way that we can effectively operate in that manner without pushing ourselves to a point that we, as the 12 villages are, would become individualistic in what we want to do. For us in the Hopi tribe, it is very difficult; we have 12 different villages, each individually with their own form of government in their villages with operation of their own village. With a tribal government, we must then consolidate all 12 villages, bring them together and become one of mind especially on the ordinances or laws or issues that face us. It will protect and save all the people involved. In a lot of ways, governing as a group takes a lot of effort. You may have an individual who serves for their village but also once he comes to college he must also change his mind set to serve all the Hopi people.

Verónica Hirsch:

Thank you. I’d next like to ask, in your opinion, what do nation building leaders do? By that, I mean how do they conduct business both on a daily basis and with a long term perspective in mind?

Leroy Shingoitewa:

This is a challenge for both since I served as a chairman and now as a councilman that you have to have a vision of what you’re looking for. Once you have that vision, you find a strategy on how to achieve that vision with the help of all the other members of council. In turn with that you must also not forget the people you serve. You must be able to go out and search and talk to people away from the tribal government, asking of their opinion, asking if the vision you’re looking at is going in the right direction. On a daily basis, you must be willing to listen to people; You can’t go out and say, ‘Well, this is the way it’s going to be.’ Not only that, you’re going to have to love what you’re doing. If you don’t love serving people, then you shouldn’t be in the service of a councilman or chairman because it’s just a title, it doesn’t make you all everything. In order to be the most effective, you have to be willing to allow yourself that flexibility to listen and once you’ve listened, form a plan on how you’d like to go forth and get that plan completed. I think a lot of times you have to forget the title you have and become part of the group that you serve and that way when you talk to them you’re on equal levels. Many times, even today, a lot of people are still a chairman because serving that capacity but on the other side because I’m not in the position they approach me very differently and say, ‘Well, you’re one of us now.’ In many ways every day is a challenge. Every day when you wake up, the first thought in your mind is ‘Ok, what can I do today? Who will I go see and who will I talk to?’ Your daily basis – as a councilman, you serve on a daily basis and I’m talking 24/7. You can’t take your hat off on the weekend because you’ll always be approached by somebody. Anywhere you go, you will be approached and someone will have something complimentary or they may be concerned about issues. To me, serving in that capacity, if you do it with enthusiasm and with a zeal of accomplishing something, it’s a good way to go.

Verónica Hirsch:

Based upon your experience, what are the unique challenges of serving as an elected councilman? You mentioned a moment ago about how people might still approach you and bearing in mind your former capacity as Hopi tribe chairman but are there any differences between your former position of chairman of the Hopi tribe and your current capacity as councilman representing the village of Upper Moenkopi?

Leroy Shingoitewa:

There is a big difference. As a chairman, people look at you as being the leader of everybody. You are showing the face of the Hopi people, when you go out to meetings you are the representative of the Hopi people. When you go out to the counties or the cities or the state or even the national level you are the one they will ask questions of. What you end up doing is you have to project what Hopi is and to go out and become an individual that says, ‘Well, now I’m the chairman and I can say whatever I want’ and that’s not true because you learn to become very selective in what you say and you have to think about it before you speak your mind because in that capacity anything you say to some people says. ‘Ok, here is what the Hopi people stand on.’ Now as a councilman, I’m a little more of an individual, I speak for our village at Moenkopi so I’m probably a little more specific on what I say. I’m not fearful of saying something in a meeting because as a councilman I’m one of 22 people and I have an opinion. I can express my opinion and I also have a vote in a decision. As a chairman, you don’t have a vote. There’s a misconception that the chairman is the chairman so he is the government of all; but in our system of government, the tribal council is the decision making body. All of the councilmen have a vote and the chairman doesn’t. The only time the chairman votes is when there’s a tie in the council, he breaks the tie. In that respect, there is a huge difference in the capacity and responsibility of what the chairman does but his main role is to serve and show the true face of the people he serves, in other words the Hopi people.

Verónica Hirsch:

Thank you. I’d like to ask you now a question reflecting back on your experience as Hopi tribal chairman and then also your current capacity. What do you wish you knew before you first began serving as an elected leader of the Hopi tribe?

Leroy Shingoitewa:

I wish I knew that it was hard to serve young people. If anything, that was something I came to a quick realization. Also, I felt that sometimes you have to be able to be aware of all the things that’s happening around you, all the issues that occur. You have to be ready to explain immediately when somebody asks you a question especially at the state and national level. I find that if you surround yourself with resources, with expertise, with people who are experts in those areas of concern; they will feed you information so when you go in you’re ready to answer the questions you’ve been asked. I find that those who are not ready for this begin to look like, ‘Wow that person doesn’t know anything’ or ‘He’s fumbling for words.’ The biggest thing that I learned quickly was that you have to study the things in front of you. You can’t just go and say, ‘Ok, we’re going to talk about this today,’ and if you don’t have the understanding of it you have to be careful that you don’t look like you don’t know anything in front of all the people you’re going to be there with. As a councilman, it’s still the same way. When we have issues with land, with water, housing, with a village it concerns…all these have the same bearing that you have to be willing to go out and understand and learn the issues that are in front of you. In the long run, the positives are that once you learn, you build on those reserves that you’ve found that you have the knowledge of. Example, all those things I learned as chairman now as a councilman, all those things that I learned are now coming out to help with the present issues; water, land. Example, a thing called the Snowbowl Ski Resort in Flagstaff. Learning about the issues of the local towns. These are the things that I found for me were very positive because now I’m probably a lot more knowledgeable now than I was when I first went in to serve my people. I’ll tell you the greatest joy was being able to serve my people, being able to and say, ‘I did this on behalf of my people.’ For me – see there’s a history with me – my father was a chairman in 1940 and ’41. In some respects, I grew up with the knowledge of what our Hopi people were hoping to learn and have. For me, maybe it’s a different type of commitment because I saw my father go through these; I saw my father when he was a first member of the tribal council, first secretary, first interpreter for the tribal council, law enforcement officer – all these things had a bearing on my commitment to come back and serve my people.

Verónica Hirsch:

Thank you, thank you for sharing the legacy of your family’s involvement with service to the Hopi tribe. I’d like to now transition into discussing what Hopi traditional governance looks like and my first questions is, what does the Hopi – and I’ll call it “indigenous constitution” – or traditional form of governance look like?

Leroy Shingoitewa:

Well, like I stated in Hopi we have 12 villages and traditionally the Hopi villages each had a leader that was trained and was appointed by the leaders of that village…chosen, trained, and nurtured to take over that role which became a lifelong position. It wasn’t just for one or two years; once you were put in that position, you stayed there until you moved on from this world. That was the traditional form of government. Because of that, when the constitution came in there was a discussion, probably among our people, that how do we make these two governments work together. What I hear from like my father and my grandparents and those other older leaders that I knew, that the traditional form of governance state in the village that whatever way they were going to govern, they chose to do so in their village. In that form, the kikmongwi was the leader in that village but around him he also had a council – if you want to call it – of religious leaders who sat with him, who provided him with information when there’s issues in that community that came up in that village, they would discuss it and come to a consensus. At that point, the leader then would make his decision but also that community as whole, as a village, involved the people themselves. That was the village form of government and that form of government is disappearing from the Hopi. At this stage there are probably two villages that try to possess that type of government and right now leadership is chose by the few who still try to practice the way of life. Again, that type of life is slowly disappearing because out of the 12 villages, 10 of the villages have their own board of governors – board of directors if you want to call it – maybe a governor or maybe a chairperson of that board who then makes decisions on behalf of that village as a whole. As you see, we’ve moved from what traditionally we lived by on a daily basis to now a more modernistic type of government, which we learned from the outside world.

Verónica Hirsch:

You mentioned that some of the format that you described of Hopi traditional governance –  that it has diminished in more contemporary times. My next question is to what extent does it operate today? You mentioned two villages in particular have made consorted efforts to operate in the very same way, do you see elements of traditional government apparent in the other 10 villages?

Leroy Shingoitewa:

In watching them, they internally – and they really try to separate them but sometimes they’ll combine them and some of their decision making – but in the long run there is still an attempt at the separation of church and state. In the villages, they will have their decisions in a village board meeting then it comes to a traditionalism type of activity that transitions to what we call a kiva. That’s where all the men gather, that’s where ceremonies take place, that’s where religious activities take place that are based on our Hopi way of living; our values, our traditions, our beliefs. Even within the villages there is a separation but when it comes to issues like water, like housing, like land, that takes place in the village board of directors meeting.

Verónica Hirsch:

Thank you. You mentioned, Councilman Shingoitewa, briefly about how in traditional context leaders would be identified and trained. I’d like to ask you a little bit more about that point and ask, traditionally, how were Hopi governance roles and responsibilities allocated?

Leroy Shingoitewa:

Well, depending on which village it was, there were certain clans that were identified in the leadership role. I think some tribes throughout the United States also have that type of structure. An example is in certain religions; the bear clan was considered the clan that was on the top. They were believed to be the leadership of the Hopi people and traditionally they are considered to be the father of all the Hopi people. An example, that’s what I believe in myself as a Bear Clan; my responsibility is to the people and therefore I believe in my mind that I am a father of the people so therefore my commitment goes to serving the people. That doesn’t necessarily mean that I become the kikmongwi or the chief of that village; its only upon the fact that if they find me worthy enough that I were to be designated with that role that I would play that role. There are other clans within the tribe that hold certain roles and responsibilities that they must fulfill in the religious portion of daily life or in their role of serving the people. Again, each of the clans play their role. To give you an example, my father’s Sun clan; his role was to protect the people. He believed he was there to protect our people from harm and he was – I guess the other word would be a soldier – his role was to just be out there, stand guard, and make sure nothing bad happened to the people and that if he didn’t do it right, he would’ve failed in his role. So we in our way or thinking and our values structure believe that our clanship plays a huge role in the way we conduct our life. But as time goes on and our younger generations have grown and are growing, sometimes we forget to train our young people what their roles are as clan individuals. Now, the dominance of tribal governments – that seems to be taking a little more stronger role than what the traditional governance once was.

Verónica Hirsch:

Thank you. You mentioned how among villages there might be some differences in terms of how leaders might be identified or what specific roles might be ascribed, for instance, to particular clans, but I’d like to ask you perhaps a general question, and if you have examples to offer, we’d appreciate hearing from you. How were Hopi leaders traditionally identified and then held accountable?

Leroy Shingoitewa:

Well, of the village that I came from – Mishongnovi, which is one of the traditional villages that are trying to exist the way they were – there was a clan that would look and find an individual who they found worthy. When I say worthy that means the way they conducted themselves, their personality, their way of looking at things, patience, a listener maybe…different values they would look at. Then the present person who was in that leadership roles would say, ‘This person looks like he’s an individual who I think could take over this position.’ Then they would let that individual know and say. ‘You’ve been chosen to step in when the present kikmongwi, or chief, passes on so therefore we’re going to train you.’ They were not just put in there; they went through a regular ceremony in order to be designated to be that person. Again, they were selected with very particular values involved with them and once they were selected, they knew they would be in that position for life. The tradition commitment was life; it wasn’t just for one year or two years. Now, in the society that we live in, which is a tribal government, we’re looking at someone who fills the role for four years and a consulate for two years so longevity is very different from what the traditional form of government is. There are still religious leaders who have gone up through the ranks, earned their authorities as they moved up, and those are now in those positions in the religious and traditional way of life.

Verónica Hirsch:

Thank you. Councilman Shingoitewa, you mentioned some of these differences between the contemporary Hopi tribal governance structure and that of a more traditional context and I’d like to ask you two questions pertaining to that. How are governance roles and responsibilities defined in the Hopi tribe’s current govern acne system?

Leroy Shingoitewa:

Well, of course you got three forms of government. You have the executive branch, which is your chairman, vice chairman, your secretary and your treasurer, they form the one layer which is the executive branch. You’ve got your legislative branch which is your tribal council and what’s interesting is also even with that legislative branch, in our tribe the chairman and vice chairman are a part of that as well. Those two are the main groups that do that. The other form of government are all the other entities that are under that, the finances, the personal, all those form under the day-to-day type activity. The most critical ones in the tribal government is your two levels, executive and legislative. If you look at it, that’s how the government is formed in the United States and earlier we talked about the constitution. When 1936 came about, the United States government gave us a generic constitution and said, ‘Tribes, this is a constitution that you will form and use.’ So, if you’re going to go to many other tribes a day you’re going to find that their constitutions are very similar; the only thing was that they put the different tribe’s name in there. When they came to the Hopi tribe, ‘The Hopi tribal government and constitution will be…’ Well, the same one could be for the Lumbee, the same one could be for the Jicarilla Apache, etcetera. When we came into existence as a government under the United States, we were given a generic constitution to use. In today’s present government, it comes down to those two layers of government that now form how we operate.

Verónica Hirsch:

You mentioned the two layers of a three-branch system, what is that third branch?

Leroy Shingoitewa:

I was just trying to think and it completely left my mind. I knew that was going to come up…where did it go?

Verónica Hirsch:

Does the Hopi tribe have a court system? A judicial branch?

Leroy Shingoitewa:

Oh, that’s right, judicial system. You got it. We do have a judicial system. We have both the appeals court and the trial court. I think one of the greatest things that occurred was that when the United States government allowed us to change our law and order code. The Hopi tribe became the first tribe that changed its total system where the judicial branch now has BAR attorneys, they have to be barred in the state of Arizona. The judges, all of them, have to be certified barred attorneys and even those practicing in the court have to be attorneys. Part of it is because it allowed us to also – instead of waiting for the Bureau of Indian Affairs judicial system, the government system to come in and do felonies and misdemeanors – the Hopi tribe now gets to do it. We get to do longer sentences for felonies that are committed on the reservation. This has helped us. I think with the three branches of government that we have, the one that has to stay the most neutral is the judicial. They have to separate themselves completely away from the other two so they can be as fair as possible with the people that come through their system.

Verónica Hirsch:

You’ve mentioned the importance of the various branches of the Hopi tribe’s government structure and I’d like to ask, within that structure, what roles and responsibilities did the 12 villages possess?

Leroy Shingoitewa:

The roles that all 12 villages have is first of all they come in representing their villages. When they come in, their role is to serve that village that elected them. Notice how I used the world elected. Two of the villages at this stage or one other village has not elected their officials, they’re still appointed by their leader. The rest of us, we are all elected by the people of that village so our roles and responsibilities are to the people, not to governor of the village, not to village consul…we serve the people. When issues come up that will affect our village we are usually very adamant about protecting what is rightfully ours. We can come in there individually as a village but when it comes to a total issue of the total governance body of the tribal issues as a whole, we then have to know how to play the role and take our hats off. Not only are we just a village issue, but now we take on the total tribe issue. We have to play the role of what’s going to be best be good for our people. I think that maybe this is part of the issues that I see in tribal council. Some of our councilmembers don’t know how to play roles; they don’t know how to switch hats. As a political body, which I’m going to mention now, even in today’s United States government, people switch hats all the time to fit the situation you are in. That is our role as tribal council members. We have to learn to switch our hats. When we come off the reservation we have to know how to dress, we have to know how to speak, we have to know how to act around people. We have to conduct ourselves in a way that’s best going to reflect who we serve. Those are things that you have to learn to do if you’re an elected official otherwise, as tribes, we get labeled with different things that aren’t the truth about our tribes. As an individual for myself, when I come here, for example with you, I am doing the best I can to reflect what a Hopi person is. My role is to let people outside of our reservation know that a true Hopi is one that thinks the best for the Hopi, believes that what we’re doing in the best to serve our younger generation as well as our older generation and also to play the role that says we want the best for our people and we’re going to do everything we can to get that.

Verónica Hirsch:

Thank you. Councilman Shingoitewa, you mentioned previously the 1936 date of the Hopi tribe’s written constitutional government and I’d like to ask you maybe a few more questions on that topic. You mentioned how the tribe’s constitution at that time was a type of boiler-plate document but could you provide us a little bit more information on the origin of the Hopi tribe’s written constitutional government?

Leroy Shingoitewa:

Well, the origin came out when the Indian Reorganization Act was passed. Up until that point, the Indian nations really had no way of dealing with the United States government and at that point I’m sure many of our tribal leaders were very frustrated with the fact that they were being ignored because we were the first people in this country and yet we had no say so. At that point, the United States government said, ‘You know what? Maybe we need to start treating Indian nations in a manner that will be protective for not only us but also our Indian nations.’ If you recall, the history was basically the lands of Indian country disappeared with the western movement of civilization and we were put into places that probably no other individual would want to live but they felt if they put use there we wouldn’t survive and therefore we would disappear. We didn’t disappear but voices continue to be raised like we are a nation; we want to have relationships with the United States government. At that time, the ruling body to be said, ‘let’s put something together,’ because they were watching us as wards of the government, they were providing us some things but never one where we could go one-on-one with them on a government-to-government basis. In 1936, they passed that act; it gave the right for every Indian tribe throughout this country to establish a government and so we did. Because of that act, in that act it says that we now have the right to be recognized as a sovereign government. We have the right now to negotiate with the United States government on issues that would affect our people. Somebody in their wisdom, our leaders of old, never gave up and because of their fortitude and strength and bravery it happened. Because of that, today we still have that right. We still have the sovereignty of how our future for our people will look like. We still have the right to demand of the United States government, under the treaties they served with us, that they have the right and responsibility to take care of the health, education and welfare of our people. Sometimes, I look at what took place and I hear people complaining about the fact that tribes don’t give anything back to the United States and how wrong the people of this country are because we provided soldiers, we provided people who gave up their talents, the history of this country, came down and our Indian people opened up their arms and welcomed people into this country. In reality, Indian tribes were the builders of this nation, it wasn’t the pilgrims that came here. Maybe if we’d thought about it, maybe if the tribes at that time had known what would happen we might’ve said, ‘Turn your boats arounds and go back home.’ It didn’t happen that way so in a lot of ways this is where my pride comes from. I believe that our people were destined to do what they’re doing today. I believe that is a time that our leaders of our tribe need to step up and live by the constitution that they have so our children can move forward and be a part of this country because we are the true leaders of this country and we do have a place in this society.

Verónica Hirsch:

Thank you. I wanted to ask a question again regarding the constitution. When the Hopi tribe chose to adopt this constitution in 1936, you had mentioned that much of that language was very similar to another native nation entirely.

Leroy Shingoitewa:

Yes.

Verónica Hirsch:

Were there any features that were unique in the constitution? For instance, was there any language that specified that the 12 villages would still maintain a measure of their autonomy or was that not mentioned at all?

Leroy Shingoitewa:

It was. Each of the 12 villages were given the right to choose how they wanted to be govern; it’s in the constitution which gives them to the right to exist the way they have. It gives them the right to also be responsible over certain things in their village by constitution. They also have the right to decide who can be a member of their village. It gives them the right to provide permission to do certain things. For example, if there’s an issue with children that village has the right to assign those children to someone else to take care of them. There are specific things in that constitution that are given back to the villages. They have the right to choose whether they want the traditional way of governance or the way it is now today with board of directors or governors or whatever; those are stated in the constitution. It also identifies them as individual villages. Instead of saying the 12 villages it says every one of them, Shitchumovi, Walpi, Moenkopi, Kykotsmovi so forth and so on. All the 12 villages are named and it gives the tribe to right to develop another community if they so choose and which they did. By using the constitution, they are able to make changes within their framework that meets the requirements of the constitution.

Verónica Hirsch:

Thank you. I’d like to ask you, in your opinion, what governance challenges exists within the current structure of the Hopi tribe?

Leroy Shingoitewa:

I think the challenges we have is how do we use this constitution to do a better job and what is needed for our people. There are some limitations; that constitution says you can’t do certain things. In reality, a constitution is like any document or instrument, there’s ways of working with that constitution to make the correct changes. I know that the constitution hasn’t changed much since we started; if anything, our enrolled membership of the tribe has changed in the blood quantum. At one point – an example of what changes were needed – traditionally only the women’s side were identified as being Hopi, the children of the women. But as time went, the men folk who were full-blood Hopi, but were maybe married to another tribe member and their children still had at least half of blood quantum, were not allowed to be enrolled in the Hopi tribe. Then the blood diminished because only the women’s side existed and if the women continued to marry a non-tribal member the blood quantum got less and less. In the wisdom of some of the leaders at the time, we said, ‘We can’t let the blood disappear; let us now redo our enrollment for the Hopi tribe.’ So at that time, they then passed a law that says, ‘We are now going to accept up to a fourth of Hopi Indian blood.’ With that, that is how tribal membership is now recognized. This is a critical area because it’s not just with the Hopi tribe, I think every tribe is running into this now because of inner marriage between us and other nationalities.

Verónica Hirsch:

Councilman Shingoitewa, you mentioned this blood quantum threshold of being one-fourth; now, is that regarded on both mother’s and father’s sides?

Leroy Shingoitewa:

Yes, yes it is. Yes, it is. Fortunately for me, right now, all my children are full-bloods but after them some of them have married other tribes so they have the choice to enroll in a Hopi tribe or maybe another tribe; but, I leave that decision to them. For myself and for my children, I chose to be married to a Hopi so therefore all my children are full-blooded Hopi. I tell you this because right now in the Hopi tribe, 60 percent of our members are not full-blooded tribal members. It is slowly diminishing. In some ways, that concerns me because how far down the road will that enrollment of full-blooded people exist? I predict that it’s moving quickly to the other side but then we have no one to blame but ourselves; we chose to do that. Those of us who see this as a concern, we are trying to tell our children, ‘you need to look at Hopi girls or Hopi men.’ But again, it’s a running topic within our families but as our children grow they have to make some decisions, they choose with who they want to be a companion with.

Verónica Hirsch:

Councilman Shingoitewa, I’d like to return to a couple more questions on the current Hopi tribal governance structure and I’d like to ask, what aspects of the current structure effectively work?

Leroy Shingoitewa:

I think in most cases, most of the constitution works. It comes down to how you use the constitution on a daily basis. Interpretation is always the major concern among us in the tribal council. Sometimes, we forget we have a constitution so when decisions are made we have to look and discuss whether or not our decision met the requirements of the constitution. But like with any government, if you’re going to have a structure, you must follow that structure. Otherwise, just like the with the outside world, we have courts that help us interpret the law and if we don’t follow the law correctly, that law can be overturned or that decision can be overturned. Interpretation, understanding what’s in that constitution, educating councilmembers, educating the chairman and the vice chairman that yes, we are the ruling body or the decision-making body, but we are also held to the laws and rules of the constitution and you have to know what you’re looking at in order to make the right decision. I guess we’ve learned you have to be cautious about how you make that decision because if you want it to be a good one you don’t want it to be overturned. Again, this is learning an outside form of government that we had not had but are now using predominantly in our lives with tribal governance.

Verónica Hirsch:

You mentioned how this outside form of government has very much impacted the structure of the current Hopi tribe’s tribal council system; but I’d like to ask, to what extent has the Hopi tribe intergraded aspects of traditional governance into this system? Or has it not? I believe you mentioned earlier there’s this desire – I don’t know if it’s recent or it’s been a long time – to have a separation of the church and state.

Leroy Shingoitewa:

I think if anything we bring back into our governance at the tribal level is the values that we have. We remind ourselves that here is the values and morals that we live by. As far as the traditional form of government, it’s tied very closely to our beliefs and our ways of life, our religious portion. That has no place in the tribal government. This is what we’re told by our elders, ‘That form of government in only in the village, only by those chosen to remind us to practice that way,’ but when it comes the tribal council, as I remember being told, that’s the white man’s form of government that we chose to follow; therefore, we will not take those things that we believe that are personal into the tribal government. But when it comes to values, we still have to remember our values. We still have to remember who we are. A quick example that we have to be reminded of is if you have an older person talking to you, you don’t go and argue with that older person. You’re supposed to respect that elder for the wisdom he has. That’s a real conflict for our younger people who are now getting more educated, they want to challenge some things that we may have to say, ‘Well, they have to play with that value.’ That’s why I say, I guess this is what you call roleplay; you look at what the situation is. If it’s called that you must state your own opinion, then you have to do it in a way that is respectful to the person you’re talking to…these are the values. An example, right now I am the oldest in the tribal council so every once and a while I use it to my advantage when somebody is getting carried away. I’ll say, ‘Wait a minute, you’re younger than I am; listen to what I say before you answer.’ I guess maybe I’m playing politics at the same time; I’m intergrading the outside world with our own values structure. This is where that portion comes back into the tribal council so there is a trying to separate the beliefs from the government portion of our tribal government.

Verónica Hirsch:

Councilman Shingoitewa, you’ve mentioned previously efforts to address change in realities within the Hopi tribe, so my next series of questions has to do with any changes that the Hopi tribe has engaged in regarding constitutional reform since the adoption of the Hopi Constitution Bylaws on December 19, 1936; have there been any efforts?

Leroy Shingoitewa:

There have been some efforts. Like I said, the biggest change is the enrollment. That went through, that was taken care of. The next biggest challenge was approximately seven years ago when there was a move to totally revamp the constitution. It took us approximately four years, meeting with people constantly, taking the constitution, listening to the people. Once we listened to them, we would make the changes in the proposed constitution. We did approximately 24 revisions of the constitution when we finally went to the tribal council and asked them to hold a referendum with our people. Before we could do that, we had to have the approval from the federal government to hold this referendum to change the constitution. It went to vote and got defeated. Right now, there is a movement that people, once that got defeated, they realized that there were some things we need to change in the constitution. I think with the latest movement they’re looking at specific areas rather than an overall revision of the constitution. This is left up to the people and there is a committee that’s been put together that it working on revising the constitution. Personally, I think the constitution needs to be revised to meet today’s needs and demands; otherwise, we’re behind the times and if we don’t make improvements we will get further and further behind as time comes.

Verónica Hirsch:

Are there specific areas that you think need to be addressed to meet some of the contemporary demands?

Leroy Shingoitewa:

I think so. I think this comes down to the villages; what is their authority and rights that they have? I think the area of elected people to the tribal council…I think we’ve talked – some people said they want some educated people on the tribal council. In some respects, that’s probably true. Out of the 22 that sits on council, there’s only four of us who are what you would call college-educated people; meaning, the council members have never really worked off the reservation, they’ve always lived on the reservation. They want some council members who are more exposed to what occurs outside of the reservation. They want to see a portion that says, ‘If the tribal council or the chairman or vice chairman are not performing their duties as they had promised to do, then there should be a recall.’ This is a portion that has been looked at. There’s also the portion where it says that we need to have the ability to do taxes on our reservation and who we can tax. So, there are portions in that tribal constitution that do need to be taken a look at, do need to be revised and also would benefit the new changes in modern society.

Verónica Hirsch:

Councilman Shingoitewa, regarding previous constitution reform efforts, what did you learn from those experiences? What were your takeaways?

Leroy Shingoitewa:

What I learned was that you really need to work hard at explaining what the reforms were, not only in English but also in Hopi. You need to be mindful of the people you’re talking to and when it comes down to producing the product that you let people know that they were all involved in this process. One of the things that came out was that people said, ‘Well, it’s just this group that put this reform together,’ and yet it was all the people who gave suggestions, gave opinions where they felt the main concerns were. To me, what I learned was that from the start to the finish you have the people involved constantly. Those that have worked on this, if it’s a reform that’s going to happen again, bring them back in so they can tell you what they felt that they ran into. This is what I learned. I learned that being patient, learning to really listen, really learning to understand what the concerns were. This is something that I learned and it’s been valuable to me because that helped me in my role as a councilman and has now helped me when I served as a chairman. Those were values that I held very dearly, even to this day.

Verónica Hirsch:

Are there now processes in place to amend the constitution if other people, maybe people who were involved in previous efforts or others, perhaps even young people might want to become involved in any future constitutional reform efforts; what processes are in place for that to happen?

Leroy Shingoitewa:

Well, I think that the council has been talking about. We have heard young people’s concern that they are not allowed to be involved with tribal government and part of it is…let me give you an example of one of those areas that has come up and that has concerned me as well. One is that you have to be fluent in the Hopi language. Among our young people, there are very few people that would be classified as fluent speakers because they don’t know the language that well. They can speak it, they can understand it but fluency – interpretation and fluency – prevents them a younger person from running for the chairman of the Hopi tribe or the vice chairman of the Hopi tribe or a councilman because that is a stipulation that is placed in the constitution. I think the young people are saying, ‘We want to be part of you but you have to allow us to be part of you.’ Right now, I think that’s a hindrance, to bring the young people in to help us with the operation of the government. We have people who work within the departments, we have people in the outside world who work like here at the University of Arizona, Northern Arizona University, ASU, who are ready to help out but we have not allowed them to open the door so they can come in. I think constitutional reform is needed in several areas and I think we can do it. I believe this is where the people who are now clamoring to be a part of it, we allow it happen.

Verónica Hirsch:

If the Hopi tribe does choose to reengage in constitution reform and wants to revisit and perhaps revise its written constitution, what challenges exist? Are there challenges based on current government structure? Do you think there are challenges in terms of, let’s say, community attitudes or concerns regarding what reform might mean or how it might impact the Hopi tribe?

Leroy Shingoitewa:

I think the biggest requirement is commitment. Those that choose to want to do this, they have to be committed. If you want to be on that committee, you have to understand that you will have meetings on a constant basis, maybe covering anywhere from two to four years to take a look at what we need to change. Then, you also have to be willing to take the time to travel to those places. When we talk about 12 villages, you’re looking at a span of 100 miles within which those villages exist. An example, if I live in Moenkopi and I want to help present over in First Mesa, I must be able to go 75 miles just to go visit and meet and stay there for maybe three hours and then drive home after a long meeting. If somebody lives in Flagstaff and wanted to come up to Hopi to help, the commute from Flagstaff to even the tribal headquarters is 90 miles one way. Commitment to get this thing accomplished, time, is what’s needed. Many of the people that were involved in the initial constitutional reform – which I was involved in; I spent easily three days a week meeting at various communities in Flagstaff, Phoenix, down here in Tucson – the commitment of time is really critical. Also, the tribal council must be able to provide some type of funds to cover the paperwork, the taking of minutes, recordings, legal counsel…all these things are needed. Those are critical areas of, ‘How do we get it done? Who is willing to do it and when are we going to do it?’ I think that the question now, when are we going to do it? Somebody needs to be willing to do it, somebody has got to be willing to take the time. I know the people who did the initial constitutional reform with me was a group of about eight to ten people who constantly worked on this and they were representatives of all the villages plus other community people that wanted to make this happen.

Verónica Hirsch:

Thank you. I’d like to now ask…my next series of questions is pertaining to how the Hopi tribe currently lives within its own governance structure. My first question is, how does the Hopi tribe ensures that its written constitution, as it is right now, is followed and upheld?

Leroy Shingoitewa:

Well, I think this is where many of us who have worked with this constitution, work very hard to remind people on a constant basis, ‘Here is what the constitution says.’ Within the government, it is the responsibility of the secretary’s office, the chairman, and vice chairman to be aware of what’s in that constitution because that constitution also defines the roles of those offices. Those other councilmen have some rules in there but they’re very generic, representing villages. It talks about the conducting of meetings, how many times the meetings should be held, when we make decisions, who makes the motions, what rules are we following when we hold meetings, how long do we hold meetings… you know, those are decisions that are tied into that constitution. For those of us that go into the council and those executive offices, we have to make ourselves knowledgeable about that constitution. We have to pick up the constitution, we have to look at it. This is how the tribal government lives within that constitution because our responsibility isn’t only the ordinances we pass, the laws that we pass, the judicial portion of our tribal government, the departments that we allow and give authority to act on behalf of our government…these are those things that we have to work with. That’s why the constitution is law. If we don’t follow the constitution and we break that law, the question is, who is responsible? Ultimately, the tribal council is responsible. We are the law making body and we can’t pass that on to anyone else. Therefore, why is it critical we operate within those bounds? If we don’t, the rest of the people can do whatever we want because they’re watching us. If we can break the law, why not them? That constitution must be followed and worked with as a tribal government and we must know what we’re working with.

Verónica Hirsch:

If there are any infractions of the constitution, are there processes in place – you mentioned that it is ultimately the responsibility of the tribal council to ensure that the constitution is understood and followed – but, what might happen if there was an instance of infraction? Are there mechanisms in place to address that?

Leroy Shingoitewa:

Very limited. One of the things that many governments will fall into – and I’m not just talking about tribal government, even the United States government – when the fault of the legislative body makes a mistake, they use the protection of sovereign immunity. ‘Oh, we’re protected, you can’t file suit against us.’ The question is, can we file suit against each of those individuals separately and are they held liable for breaking that law? Those are legal questions that are now affecting all constitutions. Can we always declare sovereign immunity? Because when we do this, we also limit ourselves in economic development. In order for tribes to, in example, do gaming. I speak of this only as someone who has watched them and has looked at some of the rules in gaming that a tribe will wave some of their sovereign immunity so they can be held liable for any mistakes they make. If we go into deals with other entities, our tribal governments now must weigh how much of our sovereignty can we give up in order to progress forward in making example business economic decisions. Lands outside of our reservations; can we purchase the land and use it for other means? These are the things that are in the constitution. That’s the reason I say, you need to know your constitution. That’s why I say we can only go so long continuing to carry, ‘I’m a sovereign immunity, you can’t file this against me,’ because it does limit us and it hinders us sometimes in some of our dealings with outside entities.

Verónica Hirsch:

Councilman Shingoitewa, how are written Hopi tribal laws currently made and enforced?

Leroy Shingoitewa:

Well with how the ordnances are made and laws are made, we run through legal consult anything we want to change into a law. What they will do is they will look at it to make sure the language is done correctly. They will then bring that action item to the council and with it is a resolution that is acted upon. It is brought before us, we discuss it; we ask for assistance from legal consults or any other group that is representing to this. An example might be having to deal with a water ordinance, the water department will be there. They will tell us why they are doing this and once we’ve had a discussion, we will take a vote on whether we approve or disapprove. If it is approved, we will have the chairman sign the resolution saying that we, as a body, approved this law. Once he signs it, it becomes law. The only way it will change is if we decide to resend the resolution somewhere down the line, then it becomes a non-ordinance or a non-law at that point. So, there is a process on how we approve our laws that we make for our tribe.

Verónica Hirsch:

What body bears the responsibility to make sure those laws are enforced?

Leroy Shingoitewa:

Once we’ve approved them, then depending on which ordnance is passed whether it deals with the land or whether it deals with law and order, whether it deals with the water portion of it, those departments are the ones who are asked to enforce those ordinances and laws. Now, I need to make very clear that these ordinances are only for the total tribe…but what about the villages? Within the villages they may pass their own resolution or law that abides only to their law, to their village. For the tribal council, when we pass a law it’s for all the tribal land that we own therefore enforcement becomes reservation-wide, Hopi land-wide. Therefore, the villages have to then fall within jurisdiction of that law. But again, like I say, within the villages they have the right to create their own laws but the laws that they write will not supersede what we have passed at the higher level. That is kind of the limits that the villages will have.

Verónica Hirsch:

Thank you. To what extent do unwritten Hopi traditional laws and morals impact current Hopi tribal council decisions? You mentioned an example of, let’s say a particular village would create a resolution that would apply to itself alone but that in no instance would that particular supersede a decision that might be worded differently or have different intent on the Hopi tribal council level. Perhaps using that as an example, how then do unwritten Hopi traditional laws and moral impact, or do they impact, current Hopi tribal council decisions?

Leroy Shingoitewa:

I think the only way it impacts current tribal laws and ordinances is that it’s something we grew up with so internally we know ourselves what it means but when it comes the decisions of an ordinance or law, we may discuss it but it doesn’t become part of a written law. We will discuss the value of it, we will discuss the reason why maybe our elders, our people before us, put it there for us to think about. Once the ordinance or the law is made, in order to put it into the English language is the most difficult part. If we make what we call an implied law into the ordinance, then we will explain it that way. But using traditional what our beliefs are and putting it into that, that’s a difficult portion for us to do. In the long run, what we will do is we’ll talk about an implied understanding of that law ordinance. For example, I’ll talk about water. Water is previous to the Hopi people. Where we come from, we’re very limited in water. When we talk about wasting water, you won’t see a grass lawn on the Hopi reservation because we don’t believe in wasting water. When we pass a law on water we will make sure that it states that this water is for the use of plants, of animals, and our families. We will make a reference that this is to not be used for things that are not part of our way of life which is grass. It’s not written in there but we already understand what we’re talking about. In that respect, that is probably how we understand the laws we make because the law is a Hopi law, it’s not intended to be with anyone else. On the judicial side, when we make laws that govern the reservation we also will then take those laws to be applied to also outsiders as well. Again, it’s a check and balance system we work with. Yes, it some ways we do think of those things we were taught by our elders, our parents, and we will use those in our thinking patterns before we finalize any law or ordinance.

Verónica Hirsch:

Thank you. Councilman Shingoitewa, my last question is, how does the Hopi tribe relate to other peoples and governments including perhaps other tribal nations?

Leroy Shingoitewa:

I always believed that one of the things that’s truly a word that implies or is used with everybody is the word respect. In order for us to work with other governments, tribal or non-governments, in order to be effective you must respect one another in order to understand what we’re trying to accomplish. When I go into someone else’s world; example, when I walk into Tohono O’odham; one of the first things we’ll do is introduce ourselves to each other and maybe the next thing out would be, ‘what clan do you belong to?’ If they say, ‘Well, I’m an eagle clan.’ My father’s clanship was Sun and of course related to that was Eagle. The first thing I say is, ‘Oh, you’re my father.’ That breaks that barrier of saying, ‘Oh you’re a visitor. Now you’re family.’ That’s where the respect begins to happen. When you go into another person’s house, you don’t go in there to criticize the makeup of that house or what’s in that house. You go in there to accept what they’re offering you by opening their door to you. For example, when I deal with other tribal governments, I walk in with the fact that I’m meeting another person who is a good friend of mine, whether I know them or not, he’s a friend automatically. Same way with the federal government when I meet with senators and the house people, congressmen. I walk in with the understanding that we’re getting ready to break bread, we’re getting ready to talk with one another. What I must do is respect the person who holds that office because he has a title. That’s why I say that’s the difference between being a chairman and a councilman is when you walk into anybody’s office, if you’re the chairman the first thing they say to you is, ‘Welcome Chairman, it’s good to meet you.’ That’s the respect we give to one another. I think when you work with other people, respect, understanding and willing to commit to sit and talk and discuss what is of concern with all of us. All and all the total package is that how can we be partners in solving an issue that effects all Indian nations? If I’m working in Indian country, I go in with the understanding of what we will do to support one another. I believe that one of the biggest obstacles that we have right now among Indian country is too many times we forget that we’re all one people. We might have different titles as tribes but we’re all one people. If we will do that together we will become a strong nation. I think that’s one of the questions you asked me, how do you build a nation? How you build a nation is with people who will sit and talk with one another, that will take care of each other and with the vision and knowledge that we are speaking for the future generations. I’m not speaking for myself anymore because my life on this earth is very short. I’m very fortunate to have lived as long as I have. Verónica, you know you think about it, I’ve been very blessed with all the people I’ve met. In the long run, if any legacy that I leave for my people is that, ‘He did the best he could to make it better for our people.’ That’s the way I look at life today. Life is but a fleeting moment, and then we move on to the next world.

Verónica Hirsch:

Thank you, Councilman Shingoitewa.

Leroy Shingoitewa:

You’re welcome.

Verónica Hirsch:

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

Verna Bailey: Making Self-Governance Work for Standing Rock

Producer
Native Nations Institute
Year

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

People
Native Nations
Resource Type
Citation

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

Danielle Hiraldo:

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

Verna Bailey:

Thank you.

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

How did they hold themselves accountable? By what means?

Verna Bailey:

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

Danielle Hiraldo:

How much of the structure remains today?

Verna Bailey:

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

Danielle Hiraldo:

The traditional form.

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

Had there been other amendments to the constitution?

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

Oh wow, really?

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

For the constitutional work?

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

No, no there was not.

Danielle Hiraldo:

Just government?

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

We have only until September to finish our work.

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Verna Bailey:

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

Danielle Hiraldo:

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

Ian Record: Constitutional Reform: Some Perspectives on Process

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Native Nations Institute
Year

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.

People
Resource Type
Citation

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 this...to 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 seemingly...it 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 Indianz.com 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 but...one 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: Blood Quantum's Impact on the Citizen Potawatomi Nation

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

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

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

Producer
Native Nations Institute
Year

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
Citation

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."

John "Rocky" Barrett: Citizen Potawatomi's Inclusive Approach to Citizenship

Producer
Native Nations Institute
Year

A 3-minute clip of an interview with Chairman Barrett describing how Citizen Potawatomi Nation created a government structure and constitution that worked for the nation's large and very dispersed population.

Native Nations
Resource Type
Citation

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

"We had to make some extraordinary efforts to bring our people back into involvement in the tribal government because we had some extraordinary historical events that dispersed our people, and there was a detachment from the tribal culture of 27,000 members. Nine thousand of them, basically 9,500, of them are in Oklahoma. The remaining are in eight, sort of, enclaves around the United States in California and Kansas and...well, here in Arizona there are about 1,500 in this immediate area. Where there are these groups of folks who have been two and three generations removed from Oklahoma, bringing them back into the culture and making the tribal governments something of value to those people that would make them -- or make them want to -- reassert their culture become a part of it. The tribe has to make itself of value to its people. And to accomplish that, you have to reach them first. And so this structure of government that we have now and that we have been evolving into since 1985 is unique in that it was, that was required because of the, this distribution of people of where our membership is located...The 2007 Constitution created a legislative body of sixteen, eight from inside of Oklahoma where we have approximately 9500 members -- a third of our population, but all of the tribes' territory, all of the tribes' assets, all of the tribes' revenues, and all of the areas, the territory over which it exerts governmental jurisdiction. And then two-thirds of our population are outside of Oklahoma, where we have for a 25-year period had a form of tribal consultation that we have promised would eventually be represented in the tribal legislative body, and have some input on funding and how the tribe performs its services. The concern on writing the constitution was how do you balance this territory, and assets, and jurisdiction with this population issue? The compromise was to put eight in the legislature from Oklahoma, eight in the legislature from outside of Oklahoma, and force a deadlock if the two can't come to a meeting of the minds. And that's basically what we have is a mandatory compromise between the interest of the larger portion of the population, and where the larger portion of the assets and the revenue is."

 

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

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

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

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

People
Resource Type
Citation

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

Colette Routel:

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

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

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

[applause]

Vanya Hogen:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

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

Vanya Hogen:

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

Matthew Fletcher:

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

Vanya Hogen:

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

Colette Routel:

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

[applause]

Vanya Hogen:

"Thank you."

Richard Luarkie: The Pueblo of Laguna: A Constitutional History

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Ian Record:

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

Richard Luarkie:

“Thank you.

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

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

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

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

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

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

Ian Record:

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

Richard Luarkie:

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

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

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

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

Ian Record:

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

Richard Luarkie:

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

Ian Record:

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

Richard Luarkie:

"Yes. sir. You're welcome."