Native Nation Building TV: "Constitutions and Constitutional Reform"

Native Nations Institute

Guests Joseph P. Kalt and Sophie Pierre explore the evidence that strong Native nations require strong foundations, which necessarily require the development of effective, internally created constitutions (whether written or unwritten). It examines the impacts a constitution has on the people it represents, successful reform processes among Native nations, and common features of constitutional-reform efforts.

Native Nations
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Native Nations Institute. "Constitutions and Constitutional Reform" (Episode 2). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Mary Kim Titla: "Welcome to Native Nation Building. I'm your host Mary Kim Titla. Contemporary Native nations face many daunting challenges including building effective governments, developing strong economies, solving difficult social problems and balancing cultural integrity and change. Native Nation Building explores these complex challenges and the ways Native nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

Mary Kim Titla: "As Native Nations work to strengthen their governments and seize control of their own futures, the subject of constitutions has moved front and center in the debate about how to best achieve those goals. Today's program explores constitutions, the key role they play in effective governance by Native Nations in the U.S. and Canada, and the push by many Nations to reform their constitutions. Here today to discuss constitutions and constitutional reform are Chief Sophie Pierre and Dr. Joseph Kalt. Sophie Pierre has served as Chief of the St. Mary's Indian Band of the Ktunaxa Nation in British Columbia for the past 24 years. She also serves as President of the St. Eugene Mission Resort Holdings, and was formerly the Co-Chair of the First Nations Summit. Dr. Kalt is a Ford Foundation Professor of International Political Economy at the John F. Kennedy School of Government at Harvard University, where he also serves as Co-Director of the Harvard Project on American Indian Economic Development. Joe and Sophie, welcome."

Joseph Kalt: "Thank you."

Sophie Pierre: "Thank you."

Mary Kim Titla: "Thanks for being with us today. We're going to jump right into the first question and talk about constitutions and how they play a role in Native nation building, particularly with respect to effective governments and community and economic development. Joe, you want to tackle that first?"

Joseph Kalt: "Sure. I think we're in this point in history in which tribes and First Nations in Canada are struggling to assert their rights of self-determination and self-government. They turn out to be like other nations in the world. You can assert those rights, you can get those rights but if you can't exercise them effectively, you're going to fall flat on your face like any other nation in the world. And so the tribes and First Nations in North America are struggling right now to rebuild institutions of their own design and they do it by starting with the basic structure of the way they're going to govern themselves, their constitution."

Mary Kim Titla: "Sophie, would you like to add to that? What's happening in your community?"

Sophie Pierre: "In British Columbia, we're doing something that's just a little bit different because we're involved in treaty making. In the year 2005 we're involved in treaty making. This is something that happened 200 years ago started here in the United States and 100 years ago in Canada but as the federal government moved across the country, by the time they got to British Columbia decided that treaties weren't necessary, so now in 2005 we're in treaty making. But we're looking at it as nation rebuilding, because we were very strong, established Nations at one point and we now need to rebuild that. And this particular process -- the treaty process --makes it possible for us to actually have something that I first heard coined by Dr. Kalt and by Dr. [Stephen] Cornell, which is to put the self back into self-government, 'cause we're looking at self-government but through a constitutional reform, the constitutional process, you identify that self and I think that that's why it's so important."

Mary Kim Titla: "Very important. Now, I personally am familiar with what is happening on my community, the San Carlos Apache Tribe, and this seems to be a movement really across the U.S. and it sounds like Canada. Can you talk about why that's happening?"

Joseph Kalt: "I think in both the U.S. and Canada, we're at a point in history where tribes have asserted their rights, they've developed the capabilities internally to run their affairs and they're starting to find that systems of government -- San Carlos Apache, 1930s, the [President Franklin Delano] Roosevelt administration -- these are systems of government that really didn't fit the tribes of Canada and the United States. And so now people are saying, 'Hey, we've got to find a system that fits ourselves.' And it's like every nation in the world, you've got to find a system that works for yourself, and I think we're at a point in history where the First Nations and the tribes are saying, 'It's time to change the basic structures so they work for us.'"

Mary Kim Titla: "And a lot of tribal governments I'm sure are going back into their own oral histories and that comes into play in reforming their constitutions. Is that what's happening in your community?"

Sophie Pierre: "Absolutely. And what it does, when you look at and you start bringing forward some of the traditions, then it really creates that understanding of why we're doing what we're doing and it develops the ownership which everyone -- I think that we all understand that if you don't have that ownership coming from the nation, then all the paper in the world and all the advice that you put together in the world, it's not going to work in a community if there isn't that ownership. And that's really where it starts from is when you feel that it's yours."

Mary Kim Titla: "How has this process worked in your communities? Is it working out well? I'm sure there were challenges."

Sophie Pierre: "Oh, there's always challenges. There's always challenges. There's a challenge for the whole treaty process. We started the treaty process about 12 years ago and it's very slow. I think that we expected that we would be able to get through and actually have some signed treaties today in Canada and in British Columbia. For the treaty process, we started with the First Nations Summit. We don't yet have a signed treaty, but I think that that's okay too with us with the way that we're doing it, 'cause we're spending a lot of time and a lot of effort in ensuring that the citizens really understand what we're doing and why we're doing it, 'cause some day we're going to have to ratify this and if the people aren't along with you, you could have done a whole lot of work and spent a whole lot of money and not be any further ahead, and we don't want to be in that position."

Mary Kim Titla: "And I know it's a tedious process and you have these public hearings and public meetings and you have these long documents to read but it's really important for people to be involved and to have a say really. I'm sure that you've been through that."

Sophie Pierre: "Yes."

Joseph Kalt: "It's a long process, because there's a process of public education that goes on. Most of us in our lives, we don't walk around every day thinking about the constitution of our nation, and so I think it's a long process that gets people to understand why you're doing it, why are you undertaking this really revolutionary step to change how you're going to run yourselves, and then you have to go through, well, what are you going to do. If you're throwing the old out, you've got to figure out what the new is and that takes time. So there's a long process of public education, and I think sometimes we work at the Native Nations Institute and at the Harvard Project with tribes and First Nations and people get impatient and they want to have it happen quickly. No, it takes years and years often because it's got to be in the people that they understand that they want this, they understand why they're doing it, what they're doing. So it's a long, long process."

Mary Kim Titla: "And how different is this process with the U.S. tribes and the First Nations in Canada, how different are the issues?"

Joseph Kalt: "Sophie, the treaty process is very different."

Sophie Pierre: "Yes, as I mentioned, the treaty process, but that's only going on in British Columbia. There are the self-governing legislation that is available for other First Nations in Canada, and so it's like a constitutional reform, where rather than being under the Indian Act in Canada that there's possibilities for new legislation on self-government, so we're taking that just one step further by actually having treaties with the government of Canada and the government of British Columbia. And that definitely is a long and tedious process."

Joseph Kalt: "And here in the United States many tribes either operate under the Indian Reorganization Act of 1934, Public Law 280 and so forth, and quite often here in the states it's not a treaty process, it's often tribes now getting out ahead of anywhere where the federal government might want them to be, changing the constitutions and then, in many cases, these constitutions in the United States have what are called a secretarial approval clause where the Secretary of Interior can approve or disapprove of constitutional reform. Through some recent efforts by the Cherokee Nation, for example, that precedent has now been broken and so tribes have I think potentially now greater freedom to step out and do what they're going to do. But it's not occurring in the kind of treaty process that British Columbia First Nations are going through."

Sophie Pierre: "We're really talking about different levels of government now or different branches of government, the names of the tribal leadership titles. We have now not only chairman but we have president, governor, lieutenant governors and so...chiefs. It's really changing to what really fits each tribe I suppose."

Joseph Kalt: "And I think so many of these historic governments that were really not adopted by the tribes. They were written by outsiders quite often. Well, now tribes are coming back and saying even what name we want to use, like you mentioned. You were 'Kootenai' for a long time."

Sophie Pierre: "That's right. We're also known as 'Kootenai,' but 'Kootenai' is an English word and our people, our nation decided to go back to our own name for ourselves which is 'Ktunaxa.'"

Mary Kim Titla: "I tried very hard to say that properly."

Sophie Pierre: "Yes, and you did very well."

Mary Kim Titla: "Thank you, I appreciate that. Well, even here in Arizona with Tohono O'odham and some of the others, they've gone back to their original names."

Joseph Kalt: "And then people are also working -- it goes far beyond the names. As you say, they're working on, what structure do we want? Do we want a president that's directly elected by the people? Do we want the president selected by the tribal council? Do we want our tribal council to be elected at-large, do we want it to be elected by districts? Will we have an off-reservation district, 'cause so many citizens will be living off in here -- say in Arizona -- off in Phoenix or Tucson, so will you have an off-reservation district. So people are getting very inventive and starting to invent new systems and new structures that fit their particular situations."

Mary Kim Titla: "Can you talk about the efforts by the Harvard Project on American Indian Economic Development and how they've been involved in this process?"

Joseph Kalt: "Yes. We've been running a program we call the Initiative on Constitutional Reform. About 15 tribes or so approached us because we're professors, we write nerdy papers. But they approached us and said that they wanted a forum because, as you pointed out when we started, this is like a movement right now. There are lots of tribes and First Nations doing this. So these 15 tribes came and said could we help organize a forum where they could talk to each other and learn from each other, because tribes are so different and yet they have some common issues: the citizenship, the structure, the issues of land control and jurisdiction. And so we've been running these programs that really allow tribes to sit down and the constitutional reformers can sit across the table and, 'Oh, you're doing that, we're trying it this way.' And it's a great way I think for tribes to be able to learn from each other."

Mary Kim Titla: "And network."

Sophie Pierre: "Absolutely. And you find now that, once we heard about what was going on in the United States and we started having some of the influence of the Harvard Project coming into Canada, you found that there was just an immediate uptake. There was just a lot of excitement. Our own tribal council had Manley Begay and Stephen Cornell come and do a three-day workshop with us just to take us like right from the very beginning and the very basics and talk about why, what was it that we really wanted to do, how did we want to rebuild our nation and it was just an awesome time. But that particular exercise was just with the leadership and what we really need to do and we have to ensure it happens is that it gets out to as much as possible throughout the whole Nation so that it gets into the schools, into the colleges and right into the elementary school, it gets into all the community meetings. This whole movement, it can't be just with the leadership. So it was a good way to start for us but we made sure that it moved forward from that."

Joseph Kalt: "In this process, we often say that the leaders like Sophie, they have to become community educators. It's not going to be the university types who come in and reach into the community and I think often -- I don't know what you think -- I feel like I watch leaders shift their roles a little bit. They think they're supposed to be decision-makers, but at this stage of building and rebuilding nations, you're really an educator. You're not really making the decision, you're trying to educate a community so the community can make intelligent decisions that fit them. But it's that shift in role for a leader from decision-maker to educator."

Sophie Pierre: "That's right. And it's sometimes a little bit disconcerting, because you're elected chief so you kind of figure that you're supposed to be like this decision-maker, this all-around leader, but really to be a leader you have're more, you have to be a servant of the people. That's how you become a leader. And so that sure puts you in that place where when you start bringing this information into the community meetings and you start getting to have to answer the really, really difficult questions or you ask those difficult questions that people don't really want to talk about. For example, citizenship and this whole thing about blood quantum, those are really, really tough questions and somebody has to ask them because we have to deal with those issues. And so sometimes being that leader asking those questions makes you really, really unpopular, but it has to be done."

Mary Kim Titla: "And I know that in California they're dealing with some of those issues right now with tribal enrollment and blood quantum and it's just become a really tough, tough thing to deal with because now you've got some tribal members who are no longer members of a tribe they thought they were for life, and all of a sudden they have no tribe that they belong to."

Joseph Kalt: "And in the process ultimately, you have to get to the questions of the structure. How's your council going to be elected and who are the chief executive officers going to be and how are you going to handle your judicial and dispute resolution? But what we keep finding in our work with these 15 tribes we've been working with is this issue of citizenship. It's the self in self-government. Until that can get settled down, it's hard to move on to how are we going to elect our council and our chief and so forth, and so this issue of citizenship really for so many tribes and First Nations, it's the number-one issue and it's a very hard one to resolve. There's not one right answer. You look across North America and you see different answers: blood quantum, family relationships, adoption mechanisms, all kinds of different mechanisms. There isn't one right answer, and you've got to go look for your own."

Mary Kim Titla: "How did your community deal with that issue?"

Sophie Pierre: "Well, we went back to our word, we have a word in our language, it's [Ktunaxa term] and it means 'root,' and we've got this picture of a plant that has the roots and when you talk about your relatives, the word for relative is [Ktunaxa term], so what it really means is if you can show your roots, you know where your roots are, you're Ktunaxa, you're born Ktunaxa, you're going to die Ktunaxa, but will you be able to show your roots. And it doesn't matter -- blood quantum doesn't matter in our case. What we're saying is, you show your [Ktunaxa term] and your Ktunaxa. So it's gone back to this whole thing of how we were as traditional people and using our language. Yes, using the language. The language is just so powerful with all of our nations, and I think that we all know that that's what distinguishes us amongst each other even as First Nations people of both North America and South America. It's our languages that differentiate us and so you have to use that and that's part of your traditions."

Mary Kim Titla: background:white">"And sometimes that's hard to translate into English terms really because I know that with... for instance, in the Navajo culture there's this ke'e which is -- it means a lot of things and basically 'family,' and so that's really interesting how you've dealt with that."

Joseph Kalt: "But there's nothing that says you have to translate it. There are First Nations and tribes who are using their own language to write their own constitutions. There are many tribes, in fact there are Nations around the world that don't have written constitutions. Israel doesn't have a written constitution, for example, quite successful nations and I think we get caught up because this word constitution has that... it's like a high school civics text in Canada or the United States and it's very Anglo and western. But the notions of constitutions isn't an Anglo or western concept, it's just people governing themselves. And in going back to one's roots and one's language. For some tribes in the eastern United States and eastern Canada where so much of the language is completely gone, sure it's done in English and that's fine, that's their culture today. But each tribe has to find the way that works but it doesn't have to be translated, it doesn't even have to be written."

Mary Kim Titla: "And really there was just an understanding in Native communities about what everyone's role was and it wasn't written down. It was very much oral, so you're right. You talked about some of the obstacles already being dealing with citizenship and some other things. What are some common obstacles in constitutional reform?"

Joseph Kalt: "Well, I think one of the obstacles -- and I'd appreciate your comments on this, Sophie -- one of the obstacles is I think so many First Nations and tribes go into constitutional reform thinking that there's kind of this golden moment where we'll all agree and everything will suddenly be perfect and the reality is that Native communities, they're human communities and [have] all the same problems. You have vested interest in the status quo, people who don't want to change because perhaps their job currently depends on the system or they're comfortable with it, and that's a major obstacle in this process of just some people are liking the status quo and don't see need for change or reason for change. So some of the obstacles I think are just to recognize that there are just going to be good old politics out there where you're going to have to worry about people with vested interests and so forth but that's where leadership again comes in."

Sophie Pierre: "And again I think too that understanding that there's not a perfect answer out there being the major thing, that the perfect answer, if there is such a thing, is going to come from within. So bringing in advisors is good and it gives you options, it gives you things to think about, but at the end of the day it has to come within, within the nation and I think that that's really a difficult part because we all kind of like to look around and say, okay, what's others done. Well, then that works over there, maybe something works for Navajo, let's bring it over to Ktunaxa and see if it works and sort of impose it. Well, no, that's not going to be that way."

Mary Kim Titla: "Yeah. You talk about conflict resolution and just this idea of agreeing to disagree I'm sure comes into play. There are, as I mentioned, this really starting at the grassroots level and getting a lot of people involved, getting the entire community involved. What did your community use that worked, that was grassroots?"

Sophie Pierre: "We started the treaty process like everybody else did where it was, as I mentioned was the leadership was going to be involved and we had a chief negotiator and we had called in the lawyers and the economists and other advisors to work with us and then it was about eight years ago that we realized, and based on some examples of what was happening around the province, that if we didn't have the citizens involved in this negotiation that we were really doing ourselves a disservice. All of the work that we're doing is on borrowed money, so at some point we have to bring this to a ratification and we have to settle the bill at the end of the day and we could be wasting a whole lot of time and whole lot of money if we don't bring the people along with us. So we realized that we needed to do that. So that's easier said than done, though. So we started out with -- we're just changing our whole way of governance within our nation. We're not going to have the elected people under the Indian Act the way that we have it now, and so we've gone back to the main families within each of our communities and the main families putting forward their spokespeople and then having the meetings with the families and sometimes that works better than having sort of a general meeting where all the families are in there and all the usual fighting and just little niggling that goes on all the time in a community. Well, it happens in families, too. That's not to say that family meetings are smooth or anything. There's lots of really interesting discussion."

Mary Kim Titla: "It just works better."

Sophie Pierre: "Well, it's just another forum. So we do all of that. We do the family meetings, we do the community meetings, we do the nation meetings."

Mary Kim Titla: "Is that what you're also seeing?"

Joseph Kalt: "We see different strategies. I've seen everything from family meeting-based mechanisms because the community meetings didn't work. Different tribes have different traditions and the notion that everybody gets in the same room, well, maybe instead you get around the elders in the family or the clan leaders. And I've seen situations at the other extreme where things were so tense politically that I know faction leaders would go out at 2:30 in the morning and wake up their opponents and try to talk one on one to get conversation going. And so sometimes this notion that somehow we're just going to all get together in the room and have a wonderful meeting of several thousand people, sometimes we have to face the reality that maybe there's a lot of political tension. So we've seen it families, community meetings and then down to the level sometimes where the leadership just has to privately talk among themselves for awhile to say, 'Look, we don't get along, but we need to start talking about this because if we don't reform things we're never going to really be able to effectively govern ourselves.' And so we see a wide range, and I think the correct impression to leave is that it's going to be different everywhere and there isn't like a little formula where on Tuesday we'll meet and on Wednesday we'll agree. It just doesn't work that smoothly."

Mary Kim Titla: "What about the role of attorneys in this process?"

Sophie Pierre: "They very definitely have a role, and that's to give advice, to give options and to answer questions, to help people think through things. But at the end of the day, it's not their decision to make. It's not they who are going to live the decision, so when it comes time for decisions, all attorneys out of the room unless you're a nation member, then you stay there and then you're there as a nation member -- not as an attorney -- to ratify this. But I think, yeah, there's a role for them but I think that they have to remember what that role is."

Joseph Kalt: "I had a very smart tribal attorney say to me one time, 'Well, you know, attorneys shouldn't write constitutions. The law comes from the constitution, so the attorney comes after the constitution.' And I think that's very perceptive that what you're doing when you create a constitution, whether written or not, whether in English or another language, you're really saying, 'This is how we will make our laws. Once we've done that, yeah, we might need some attorneys.' I think where the attorneys do play a critical role is on those edges around, okay, what are the boundaries of jurisdiction and so forth that we are going to state and so forth. But the core issue as Sophie says is the attorneys don't make the constitution, the people make the constitution. And so the role of attorneys is important, but we see many problems created where...this isn't like negotiating a contract or something, here, hire an attorney and please give us back a constitution. It's not going to work."

Sophie Pierre: "But unfortunately some of the treaty discussions that we've had, that is how it's been looked at. It's been looked at like it's a contract, you get the attorneys to write it up, then when it goes back to the people to be ratified, everyone's saying, 'Where did this come from?' And there's just no way that they're going to accept it. So, yeah, it's a difficult process to go through, there's no doubt. But I think that we definitely, as we started looking it as nation rebuilding, then I think maybe it makes it a little bit easier for people to accept and to realize."

Joseph Kalt: "I think part of this, and Sophie's remarks have touched on this, once you get into this, and as she says, this is a process of nation building and rebuilding, I've seen leadership -- it's kind of a freeing experience. 'Hey, wait a minute, we don't always have to ask the attorneys or we don't always have to ask an outside federal authority, maybe we want to run ourselves this way.' Figure that out and then give it to the attorneys to write the language perhaps, but the decision and the design -- it's a very freeing experience for leadership and for the citizens to say, 'Hey, we are actually going to design the way we run ourselves.' That's what self-government's all about."

Mary Kim Titla: "What about predictions for the future in terms of constitutional and government reform among Native nations?"

Joseph Kalt: "Well, I think it's going to continue here in North America. While there's a movement and there's more and more tribes doing it, there are still hundreds of First Nations and bands and tribes that still have to face this issue. It's starting to take hold outside of North America even. I think the other piece is not only will this continue but we're seeing really inventive things being done that the whole world can learn from. The notion that there are only three branches of government. We're watching tribes create some version of a fourth branch, a kind of ethics branch, a council of elders or a council of ethics which just sits there and watches over the process as people govern themselves. Something that other nations, many other nations in the world might be able to learn from. So I think there's going to be inventiveness and an ongoing process of reform for quite a few years. This is a long process."

Mary Kim Titla: "But it's a positive one. It's something that needs to happen."

Sophie Pierre: "Absolutely. It's very positive. I just came out of a nation meeting before coming here and we had, I don't know, about 250 people in the room and almost every person that came to the mic to speak was someone that was under the age of 30. So it really is, it's a good thing that's happening there."

Mary Kim Titla: "For the future. Thank you so much for being with us today. This is truly educational for me and enlightening and I really appreciate you both being here and talking about the process."

Joseph Kalt: "My pleasure. Thank you."

Sophie Pierre: "Thank you."

Mary Kim Titla: "Again, we want to thank Sophie Pierre and Joseph Kalt for appearing on today's edition of Native Nation Building. Native Nation Building is a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed on today's program, please visit the Native Nations Institute website at Thank you for joining us and please tune in for the next edition of Native Nation Building."

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