referendum

Kaw Nation: Initiative & Referendum Excerpt

Year

ARTICLE XII: INITIATIVE AND REFERENDUM

Section 1. The citizens of the Kaw Nation reserve unto themselves the power of initiative and referendum.

Section 2. Initiative. Any issue shall be submitted for an initiative election pursuant to this section upon receipt of a petition containing valid signatures of Kaw Nation citizens eligible to vote equal in number to at least forty percent (40%) of the number of valid ballots cast in the most recent General Election for Chair.

The petition shall be filed with the Election Board which shall determine its validity and sufficiency and whether its content fairly describes the subject of the initiative within ten (10) calendar days. Once the petition is certified as valid and sufficient by at least three (3) members of the Election Board, an election shall be called by the Chair for the purpose of presenting to the General Council the subject of the initiative. The initiative vote shall be held within sixty (60) days of the validation of the petition. The results of the initiative vote shall be conclusive and binding, provided that a majority of the votes cast are in favor of the initiative and at least two-thirds (2/3) of the eligible voters of the Kaw Nation shall have voted in the election. No initiative shall void, modify, or amend any properly approved contract.

Section 3. Referendum. Any enacted or proposed legislation or other action of the Tribal Council shall be submitted to a referendum vote pursuant to this section upon receipt of a petition containing valid signatures of Kaw Nation citizens eligible to vote equal in number to at least fifty percent (50%) of the number of valid ballots cast in the most recent General Election for Chair or upon written request of a majority of the Tribal Council.

The petition shall be filed with the Election Board which shall determine its validity and sufficiency and whether its content fairly describes the subject of the referendum within ten (10) calendar days. Once the petition is certified as valid and sufficient by at least three (3) members of the Election Board, an election shall be called by the Chair for the purpose of presenting to the General Council the subject of the referendum. The referendum vote shall be held within sixty (60) days of the validation of the petition. The results of the referendum vote shall be conclusive and binding, provided that a majority of the votes cast are in favor of the referendum and at least two-thirds (2/3) of the eligible voters of the Kaw Nation shall have voted in the election. No referendum shall void, modify, or amend any properly approved contract. 

Section 4. Whenever reasonable, any initiative or referendum vote should be held in conjunction with any general or special election.

Section 5. No initiative or referendum that has been submitted to the citizens of the Kaw Nation and rejected shall be considered again until the next regularly scheduled General Election.

    Native Nations
    Topics
    Citation

    Kaw Nation. 2011. "Constitution of the Kaw Nation." Kaw City, OK. 

    Miriam Jorgensen: Considering People-Made Law in Your Constitution (Presentation Highlight)

    Producer
    Native Nations Institute
    Year

    In this highlight from the presentation "Key Things a Constitution Should Address: 'How Do We Make Law?'," Miriam Jorgensen lays out some of the different ways that Native nations can provide mechanisms for citizens of those nations to make laws or change laws governing those nations.

    Resource Type
    Citation

    Jorgensen, Miriam. "Considering People-Made Law in Your Constitution (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

    "So what if a representative council isn't the only place you want that law made? Here critically I'm going to point out that there might be lots of decisions that you decide are perfectly appropriate to depute to a legislative council, to a representative council of some sort. But there may be certain kinds of decisions that you don't want to give over to them, that as a community, as a people you think there are certain kinds of decisions that you want to have broader agreement on and that's where a general council decision or a decision of the entire body of the nation, of all the voting age citizens or whatever, might be something that you want to make a provision for in your constitution.

    I will say this one caveat, which is the first point above there. If general councils are the only way you're making law, that every time you want to make a new decision and you take it to the entire voting public, most research evidence proves...suggests...I shouldn't say proves because all that research do is sort of say, "˜Here's the general trend that we see out there.' Most research suggests that if you take most decisions to a general council, all decisions to the general council, that's a recipe for instability. There's just in a sense too much authority given over to kind of who showed up in the high school gym on any given night. But very successful Indigenous constitutions or other kinds of non-Indigenous constitutions too do have certain kinds of decisions that they say, "˜Yeah, this needs to go to a wider public.'

    Now for a lot of native nations, one of the decisions that almost always goes to a broader public are decisions about land. So when you look across Native nation constitutions, Indigenous constitutions, and you see, okay, here's the powers of the tribal council or whatever the representative legislative body is, the congress, again, a council or a legislature, whatever it's going to be termed, there's still almost always when there are decisions to be made about purchasing land, selling land, changing the use of land, those go to a broader body, to a general council of some sort. So that's one way.

    Another newer kind of provision we see in some of the very modern tribal constitutions might be called referendum or initiative and these are not quite the same as a general council meeting, but it comes from sort of the, I guess, the progressive and reform movement where basically even in non-Indigenous nations people said, "˜Well, individuals should have a voice. Individuals should be able to challenge their governments not just at election time but should be able to challenge and say, 'Hey, my representatives on the council didn't carry forth a piece of legislation that I would have liked to have seen'.' And initiative and referendum provide an opportunity for people to get enough signatures and then push a piece of legislation forward themselves as a population. So some constitutions provide for that kind of effort as well. And I've provided some examples in the handout first of limited general council power.

    So here from the Coquille Indian Nation, where they've given the opportunity to the general council to make certain kinds of decisions, they're going to elect the tribal council, they can amend the constitution and they can make advisory recommendations. There isn't a listing here about land but again that shows you providing a general council with some limited legislative authority."

    Here's an example from Skokomish [Tribal Nation], where they have an initiative provision and I love this initiative provision because it basically says, "˜Yeah, yeah, we know that people may still want to come forward and make law and not just have the council do all of that for us,' but look at this, they say, "˜An initiative can't just be a way to destabilize government. You can't just use an initiative to go out there and say, 'Oh, hey, that council, they didn't do what I wanted. There, I'm just going to bring an initiative forward and make law without them'.' Skokomish says, "˜I recognize that I want people to be or we was a nation recognize we want people to be able to make law and to put it out there, but they need to have 60 percent of the number of people who cast ballots in the last election sign a petition for this initiative and then it has to pass by two-thirds of all persons who voted in that election.' So it's a pretty high bar, right? It says, "˜This is going to...you can pass people-made law, but it has to meet a pretty high standard before it...otherwise it's going to be too de-stabilizing to government.'

    Just a little aside, a lot of political scientists...I do economics and political science is my sort of academic degrees...a lot of political scientists look at California and say, "˜California doesn't do this well enough.' What do we know about California? Constantly they're having these referenda and initiatives and a lot of people said that California has too low of a bar, it allows too much of that disruption of the day to day flow of political business to go on by setting the bar too low. So it's too easy in a sense for the populace to kind of disrupt the government business by forcing these things forward.

    So as a tribal nation with an even smaller population, I think it's really important to consider, yeah, it might be nice to have people-made law and to have provisions for that in your constitution, but really take seriously this notion of which kinds of things are you going to depute to a representative council, which kinds of things are you going to depute to a regularly convened general council and which opportunities do you really want to give to initiative and referendum. So that's a set of allocational decisions you need to be making in your constitution."

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

    Producer
    Native Nations Institute
    Year

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

    Resource Type
    Citation

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

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

    Andrew Martinez:

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

    Audience member:

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

    Andrew Martinez:

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

    Audience member:

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

    Andrew Martinez:

    "Hindsight's 20/20."

    Audience member:

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

    Andrew Martinez:

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

    Audience member:

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

    Andrew Martinez:

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

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

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

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

    Robert Hershey:

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

    Audience member:

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

    Andrew Martinez:

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

    Audience member:

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

    Andrew Martinez:

    "Thank you."

    Robert Hershey:

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

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

    Audience member:

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

    Robert Hershey:

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

    Audience member:

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

    Robert Hershey:

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

    Audience member:

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

    Robert Hershey:

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

    Audience member:

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

    Robert Hershey:

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

    Audience member:

    "Thank you."

    Audience member:

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

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

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

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

    Robert Hershey:

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

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

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

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

    Audience member:

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

    Andrew Martinez:

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

    Robert Hershey:

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

    Thomas Beauty:

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

    Robert Hershey:

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

    Thomas Beauty:

    [Inaudible]

    Robert Hershey:

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

    Thomas Beauty:

    [Inaudible]

    Robert Hershey:

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

    Terry Janis:

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

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

    Robert Hershey:

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

    Terry Janis:

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

    Thomas Beauty:

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

    Julia Coates: The Process of Constitutional Reform: What the Cherokee Nation Did and Why

    Producer
    Native Nations Institute
    Year

    Cherokee Nation Councilor Julia Coates presents an overview of the constitutional history of the Cherokee Nation, and chronicles the process the Cherokee Nation followed to reform its constitution in 1999.

    People
    Native Nations
    Resource Type
    Citation

    Coates, Julia. "The Process of Constitutional Reform: What the Cherokee Nation Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

    "I will begin, it looks like. This is the second time I've presented at this conference, and I want to thank the Native Nations Institute for inviting me back. I really leapt at the opportunity this year, because we've had some interesting developments related to our constitution that occurred last year and as part of our recent elections.

    Just a few points about the Cherokee Nation first of all. The Cherokee Nation is not an IRA [Indian Reorganization Act] government and it is not an OIWA government, the latter being Oklahoma Indian Welfare Act, which is the IRA equivalent for tribes in Oklahoma who were exempted initially from the original IRA. So it's important to state that we're not organized in that fashion. We never have been, and that it's not required that a tribe be organized under either of those statutes. The second thing about the Cherokee Nation is that we actually don't have a reservation. We have never had a reservation. As many of you may know, in 1838 the Cherokee Nation was removed from the Southeast [United States] to the area that is now Oklahoma that was previously known as the Indian Territory, and as part of that removal we received a fee-simple patent from the United States, so essentially as a government we owned our land as private property. It was not land that was held in trust by the United States for the Cherokee Nation. It was land that we owned privately, so we've never had what is called a reservation, but at the time when allotments were made for us it was between the years of 1898 and 1906. The privatization to the government of our land base was smashed, and all of that land went into private individual ownership and unlike the allotments on reservations, that meant that it could be lost. Reservations have tribes with fractionation, or reservation tribes have problems with fractionation of their allotments right now, but for us, 90 percent of those allotments passed out of individual Cherokee ownership within 20 years after the allotment ended. So we only hold in trust or in restriction today about one third of one percent of our original land base to the government. So we don't have a land base per se. We have probably less than 100,000 acres that are in trust or restricted status. At this time, it's not contiguous. It's scattered out all over an area of 14 counties in northeastern Oklahoma. So what we have instead is called a jurisdictional service area, which is the boundaries of the old fee-simple land holding and we exercise jurisdiction for law enforcement purposes, for taxation purposes and things like that within that service area. There are about approximately 300,000 citizens of the Cherokee Nation right now. About 35 percent, 35 to 40 percent of those -- approximately 120,000 -- live within the boundaries. They are still a minority within the boundaries, albeit the largest minority. There are more non-Indians living in our jurisdictional service area right now, however, than there are Cherokees. And about 65 percent of the Cherokee citizenry lives outside of that jurisdictional service area. We are scattered all over the country and as a tribal councilor, I represent the approximately 170,000 people who live outside of the boundaries. There are only two of us out of 17 tribal councilors who represent that large at-large population.

    The third thing, just introductory fact I want to give you right now, is that the Cherokee Nation has been a constitutional government ever since 1827, so we're coming up on almost 200 years of constitutional government. Someone made a remark yesterday that many tribes choose to do this, and we were one that did. It was a strategy that we employed to try to defend ourselves politically and legally in the Southeast when it was apparent to us that military options were not there for us any longer, that we could not prevail in that fashion, and so we were looking for other ways to do it in ways that the United States itself would understand and sort of on their terms that we could defend ourselves. So our first constitution was developed in 1827, but it was a long process. I would say it was probably 40 years of struggle internally, even within the Cherokee people, to try to get to that point. There were ups and downs along the way, there were several fairly nonviolent revolts nevertheless that took place against that process, as people did not understand what the movement was for and it took awhile for it to catch on. I would say however by the late 1800s, we had three or four generations who had lived under constitutional government by that time and who were deeply, deeply invested in the idea that they were a nation of treaty, of constitution and of statute that they lived by. All of that was smashed in 1907, when Oklahoma became a state and the Cherokee Nation government was pretty much driven underground I would say. It was a government in name only for much of the 20th century. And it's not until the early 1970s that it began to emerge again, that the social climate, the political climate kind of opened up enough to be able to do that. And so one of the first efforts was to develop a superseding constitution to the one that had existed in the 1800s and which had become outdated by that time. So that effort occurred in the early 1970s and it involved the [Cherokee Nation] principal chief at that time, W.W. Keeler, going to a number of grassroots community organizations that were all together known as the Original Cherokee Community Organizations, the OCCO groups, and asking them as community groups to provide input as to what they would like a superseding constitution to look like. Those groups did so. Keeler, his attorney Earl Boyd Pierce, [and]some others were involved in putting together a superseding document. That constitution was taken to Washington in 1975 by the principal chief at that time, Ross Swimmer, for Bureau [of Indian Affairs] approval. We were told in 1975 that Bureau approval would be required of us, even though we had not organized under the Oklahoma Indian Welfare Act. We were nevertheless told that, and so that Bureau approval was required. In that 1975 document, we have an article in it that states that the Bureau also will approve any amendments to this constitution or any superseding constitutions that the Cherokee Nation might develop. The following year in 1976, the Muskogee Creek Nation, a councilor of that Nation, brought a suit against the United States, against the Department of the Interior and the Bureau of Indian Affairs, and one of the outcomes of that lawsuit was that the federal judge said that the five tribes -- the Cherokees, the Choctaws, the Muskogee Creeks, the Chickasaws and the Seminoles -- didn't need to have that Bureau approval, that they could develop new constitutions as exercises of their inherent sovereignty. And so we knew at that point that that article didn't need to be in our constitution as the Bureau had told us, but by that time it was in our constitution and so that was something that we were living with as a result. That '75 constitution also said that we had to have a constitutional convention every 20 years. We had to revisit our constitution every 20 years to keep it current, to keep it updated, to see what kinds of revisions we wanted to make. And so in 1995, that convention took place. I'm sorry, the convention didn't take place, the vote took place to hold the convention. But at the same time in 1995, there was a very strange sort of non-election that happened in the Cherokee Nation, where we had two candidates that were involved in a runoff, and one of the candidates it was discovered had been convicted of felony offenses. The conviction had been expunged and so he had run on that, but the question had gone to our court and our highest court had said an expungement did not mean that he had not been convicted and so they disqualified him from running. At that point, the third-place finisher in the primary, a man named Chad Smith, who later did become our principal chief, questioned the tribal court as to whether he could now enter the election against the other person in the runoff. The court said, no, he could not. And so effectively in 1995, what happened was that a man named Joe Byrd was, just catapulted into the seat of principal chief without any election, any real election actually taking place. So this had happened in that year, and during the term of Chief Byrd, between 1995 and 1999, the Cherokees entered into what has been referred to in our history now as a constitutional crisis. By our constitution, the chief, the administration, is required to provide budgets to the tribal council, which has budgetary authority. The chief did not do that, and so for three years we went without any kind of budget, the council not knowing where the money was, how much money there was, and so they went to the court to try to ask for, to retrieve records from the chief's office. The court issued that order for those records to be achieved and our marshal service, our law enforcement, enacted that court order in what the chief styled as a raid on his office but which was actually a court-ordered search. And with that the chief fired every single member of the marshal service, and he impeached the justices of the Supreme Court, something which under our constitution he didn't have the authority to do. So the Bureau of Indian Affairs police was now brought in to the situation because all of our tribal law enforcement had been fired by the chief, and the justices were barred by BIA police, by federal authorities, from entering their own offices at this point under this mock sort of impeachment that had taken place. This led to a situation where eight of the 15 tribal councilors now began to boycott the tribal council meetings in order that a quorum could never be established and no business could take place. So everything had ground to a halt by 1997 in the Cherokee Nation in terms of any business being done, anything like that.

    So, it was under these conditions that we were now going to hold a constitutional convention, and it was a very tough time period in which to do that because the animosities between the two sides in this conflict were becoming extremely entrenched at this point. Nevertheless the process -- which is what I'm really here to talk about today I guess -- was to take testimony, to try just as had been done in the early 1970s, to get input from the Cherokee citizens themselves as to what they would like to see in a very fundamental governing document. And we -- there were a series of essentially town hall-type meetings that took place in all of the communities of the Cherokee Nation, the larger communities at least, and very interestingly for the very first time the Cherokee Nation also sort of extended a hand to the majority of its citizens who were living outside of the boundary, so there were even several of these kinds of convocations that took place in other cities. I know there was one in Houston, there was one in Los Angeles, there was one in Sacramento, there was one that was scheduled to be in Albuquerque as well, but which got cancelled for funding reasons. But the reasons these areas were chosen is because they were areas where Cherokee citizens who lived there had sort of self organized into community organizations, so we had some kind of structure with which to interact in that process. Out of the people who provided testimony, the constitutional commission -- which had been formed by the legislation in 1995 -- selected about 75 delegates. Actually, there was a process where the judicial branch selected eight delegates I believe it was, the executive selected the same number, the legislative selected the same number, the rest were selected by the constitutional commission out of the people who had provided testimony. And I was one person who had provided testimony, and so I was one that was selected by the commission to participate. In total we had about 75 delegates that then attended a constitutional convention, which was held in 1999 just literally four months before there was to be a new election for principal chief. Now the constitutional commission had also drafted a document, a draft constitution out of the testimony that they had received from the people at these hearings, and clearly their intent was that these 75 delegates would come in over a weekend, that they would look at this draft document, they would kind of fine tune it and they would stamp it and we would have a new constitution. The delegates had a different thing in mind, however, as we might suspect, and they immediately hijacked the proceedings as the convention got underway. The commission had established a man named Charles Gourd to be the chairman of the convention. Now the problem for the delegates was that Gourd was also the chief of staff for the principal chief, for Joe Byrd, and so he was perceived as being very, sitting very heavily on one side of this conflict that was going on. So immediately the delegates replaced him with another man named Jay Hannah, who was perceived as a more neutral sort of individual, and from there it went on. They didn't just look at the document and fine tune it. They went line by line through every bit of that document, and what was intended to be a two-day process ended up being a nine-day process, 14-hour days oftentimes as the delegates worked very, very thoroughly through this document. We had a very mixed group. We had nine attorneys, all of them Cherokee Nation citizens, as part of the delegation. We had a number of community people who were part of it. We had people from the legislative branch, we had people who were from the administration, and we had about 20 delegates out of the 75 who were from what we refer to as the at-large citizens, those who lived outside of the boundaries. So it was a very good representation, I think, of real cross sections of the overall citizenry.

    Some of the things that we did -- and this was not part of process -- but we strengthened the matters of referenda and recall, because the crisis was proving that we did not have good enough mechanisms to handle a situation such as the one we were finding ourselves in. We expanded the judiciary as well from a system of three tribal Supreme Court justices to five. They were given longer terms. The council terms were staggered. We had term limits placed on the legislative and judicial branches. We established two councilors for the at-large people specifically. They did not have separate specific representation up to that time. And we tried to address some of the outside threats from other tribes and the Bureau of Indian Affairs that were coming at us. So these were some of the things that were taking place.

    Probably one of the most interesting things out of this document was the question of the little article requiring BIA approval, and the delegates at the convention removed that. There was just no discussion about it. It took about 20 seconds for everybody to say, 'No, we don't need to have the Bureau of Indian Affairs in our approval process.' So that came out of the 1999 document. But as we finalized this, the convention finalized this document, the next step was to send it to solicitors from the Bureau of Indian Affairs at the various agency offices throughout the United States, and as we did that, these solicitors began to sort of nickel and dime the thing. They looked at it said, 'We don't like this, we don't like that, we don't like...' And our chief at that time, who by then was Chad Smith, who had been elected to replace Joe Byrd, he essentially said to everybody, 'We didn't ask you if you liked it. We asked you if it would pass legal muster. That's all we asked.' And so with them sort of trying to nickel and dime everything, we quickly pulled it back from the solicitors, and what we did instead was that in 2003 we decided that we would put two questions on our ballot. We were having a regular election for principal chief again in that year and we added these two questions for the people to vote on. The first was to vote on one question, one amendment only, which would take the Bureau of Indian Affairs out of our approval process. And then the second question was to approve the overall 1999 document that the convention had put forth. And the people voted on both of those and both of those measures passed. The surprise to me is that in the Bureau of Indian Affairs only about, only two-thirds of our people voted to take them out. There was fully a one-third of our people who said, 'No, let's keep the Bureau in our approval process,' and it mystifies me to this day as to why. I think there was misunderstanding. People thought we were cutting all ties with the Bureau, that we were rejecting any relationship with the Bureau and what would that do to our federal recognition? But two-thirds said, 'Yes, get them out of there,' and so we sent one amendment to the Bureau and that was, take yourselves [the BIA] out of the process. The [BIA] director at that time was Kevin Gover, or the assistant secretary. He assured us that he would, but it never happened. Some people in the interim, Neal McCaleb was the one who got closest to it, sent us a letter stating that yes, that was their intent and then they would do it, but then he resigned before it was actually achieved. So we stayed again in this state of limbo of just sort of having promises from the Bureau that they would take themselves out, but they didn't. So by 2006 our tribal court just said, 'Go ahead and do it. We've got this letter of intent from Neal McCaleb,' and on the basis of that, they said just go ahead and enact this new constitution, implement it within the Cherokee Nation. Our tribal court said that. We had three justices on the court. At that time it was a two to one decision. The dissenting person who said, 'No, we can't move forward until the feds sign off here,' was a woman named Stacy Leeds, and again the following year she ran for principal chief against Chad Smith. So you can do with what you will with that piece of information. I know what I do with it, anyway. But anyway, it was implemented by the court in 2006. The Bureau never said -- we got a couple of things that said, 'You shouldn't do that,' but they did nothing. They took no action whatsoever and this went on for a process of five years until last year, and last year we had another very, very contentious election that took place. We had the incumbent Chad Smith, who in the first election appeared to have won by seven votes out of over 15,000 votes that had been cast. And so this sent everything to a recount. The court got involved, they looked at the votes and noticed that there were 24 ballots that had been improperly notarized and because the vote was so close they said that the winner could not be determined by a mathematical certainty, so it went to a revote basically of the whole situation. In the middle of that process, between the time when the first vote was cast out and the second one was to be taken, our questions over the [Cherokee] Freedman and their citizenship within the Cherokee Nation -- these are descendants of former slaves that had been held by Cherokees -- came up. And we had very quickly a process of the Supreme Court saying, 'No, they were not citizens,' the Bureau of Indian Affairs coming back with a very threatening and intimidating letter saying that we've never actually approved that amendment and we've never approved your election processes for this time. They had never demanded to approve the election procedures for 40 years previously, so we got a very threatening letter from them, we got funds cut off by HUD [U.S. Housing and Urban Development], and we were in this situation now, a situation that I firmly believe was intimidation of our voters, scaring them to death that federal recognition was going to be revoked, because that's what the letter from the BIA essentially states. We made a deal -- many of us did not agree with it -- but our interim chief made a deal at that time with the federal courts to go ahead and allow the freedmen to vote. They did vote, they were given an additional two weeks of voting time beyond that that most Cherokee Nation citizens received -- Cherokee by blood citizens received -- and as a result of that, the challenger won in the election. So this is where we sit at this time, and I know that my time is up at this point, so I'll stop there. But I know that some people have indicated to me privately that this is a question that is coming up for many right now about the Bureau of Indian Affairs and their involvement in the process of our constitutions and our elections. And I would say if you get them out of there, get them out of there, because they in my estimation essentially engineered our last election with these threats of intimidation and so forth. Thank you."

    Special White Earth Constitutional Reform Issue

    Year

    As the White Earth Nation prepares for a referendum election to approve or reject the proposed constitution, the Reform Committee has implemented a series of citizen engagement activities that includes a special issue of the tribal newspaper to inform citizens of the election date, proposed changes, members of the committee, etc...  

    Native Nations
    Citation

    White Earth Nation. "Special White Earth Constitutional Reform Issue." Anishinaabeg Today. White Earth, Minnesota. October 11, 2013. Paper. (http://www.whiteearth.com/data/upfiles/files/Constitution_Special_Editio..., accessed October 25, 2013)