White Earth Nation

"Modern Tribal Governments, Constitutions, and Sovereignty" Session at NCAI's Annual Convention

Producer
National Congress on American Indians
Year

This session, convened by NCAI at its 2014 Annual Convention, chronicled the growing movement by tribal nations to reform and strengthen their constitutions in order to reflect and preserve their distinct cultures and ways of life, more effectively address their contemporary challenges, and achieve their long-term priorities. It shared the constitutional stories of four tribal nations who have either reformed their constitutions or currently are in the process of doing so.

The session includes 5 presentations from prominent Native nation leaders and scholars:

  1. Sherry Salway Black and Ian Record provide a brief overview of tribal constitutionalism and the current movement among tribal nations to engage in constitutional reform.
  2. John “Rocky” Barrett, longtime chairman of the Citizen Potawatomi Nation, shares how the Citizen Potawatomi Nation long struggled with an imposed system of governance and how it turned to constitutional reform to reshape and stabilize that system so that it is capable of helping the nation achieve its strategic priorities.
  3. Erma Vizenor, former Chairwoman of the White Earth Nation, provides a detailed history of White Earth’s Indian Reorganization Act (IRA) system of governance, and why and how White Earth decided to create an entirely new constitution in order to make its system of governance more culturally appropriate and functionally effective.
  4. Richard Luarkie, former Governor of the Pueblo of Laguna, offers a detailed chronology of the Pueblo’s constitutional and governmental odyssey over the past few centuries, and how the Pueblo is in the process of reforming its constitution to fully exercise its sovereignty and make its system of governance more culturally appropriate.
  5. Justin Beaulieu, Coordinator of the Constitution Reform Initiative for the Red Lake Nation, describes the process that Red Lake designed to engage Red Lake citizens about the nation’s current constitution and what they would like to see in a new constitution.

 

 

Resource Type
Citation

“Modern Tribal Governments, Constitutions and Sovereignty”. (October 2014). Presentation. National Congress on American Indians's Partnership for Tribal Governance. Atlanta, GA. Retreived from https://www.youtube.com/playlist?list=PLBjQrzrj0Iyu5miLAFGEg9VS6BhS_JS58

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

White Earth Nation Constitution

Year

Location: Minnesota

Population: 19000

Date of Constitution: TBD

Key Facts: Proposed constitution - scheduled for referendum November 2013

Native Nations
Topics
Citation

White Earth Nation. 2013. "Constitution of the White Earth Nation." White Earth, MN. 

White Earth Suicide Intervention Team

Year

The White Earth Suicide Intervention Team (WESIT) was created in 1990 in response to an extraordinarily high rate of suicide attempts and completions among tribal members living on the White Earth Reservation. With the Tribal Council’s official support, a group of volunteers came together following a series of grassroots community meetings and adopted the mission of ―suicide intervention. Their volunteer program is designed to provide support and care to clients and family members and to ensure that appropriate intervention and treatment occur in the event of suicidal ideation or a suicide attempt. In 1990, there was great despair among members of the White Earth Reservation that they might not be able to overcome this difficult problem; today, WESIT’s effectiveness is best demonstrated through a renewed level of community hope. WESIT has turned the tide of opinion at White Earth, showing that with compassion, coordinated resources, and proper training, something can be done.

Native Nations
Resource Type
Citation

"White Earth Suicide Intervention Team." Honoring Nations: 2000 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2001. Report. 

Permissions

This Honoring Nations report is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development. 

Good Native Governance Break Out 3: Tribal Constitutional Revitalization

Producer
UCLA School of Law
Year

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

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

Citation

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

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

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

Ian Record: Constitutional Reform: Some Perspectives on Process

Producer
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."

Andrew Martinez: Constitutional Reform: The Secretarial Election Process

Producer
Native Nations Institute
Year

Native Nations Institute's Andrew Martinez (Salt River Pima-Maricopa Indian Community) gives participants a concise and informative overview of how the secretarial election process works when Native nations amend their constitutions, and what happens (and doesn't) when Native nations remove the Secretary of Interior approval clause from their constitutions.

Resource Type
Topics
Citation

Martinez, Andrew. "Constitutional Reform: The Secretarial Election Process." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management & Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Andrew Martinez:

"Good afternoon. My name is Andrew Martinez. I'm originally from San Diego, California. I grew up on the Mesa Grande Indian Reservation out there. And just for scale, it takes about two minutes to drive through on the highway. It's pretty small. I came to NNI last semester as an intern. I just kind of wandered into the office, spoke to Joan, she decided to take me on. I was given the task to look into the secretarial election process and the first thing she said is like, "'Go to the 25 CFR.' I'm a business major; I'm a minor in public policy and management. I'd never look at 25 CFR. I was very, very lost and the more I read it or the first time I looked at it I was very confused, but I had to continue to go over it and go over it and through numerous Google searches I started to discover a pathway through it and that's what I'm here to clarify for you today.

So getting started I'm going to cover the objectives that I was given last semester to basically understand, once I'm going through this process, cover some background on the secretarial election process, specifically to remove the secretarial approval clause from the IRA constitutions, the Indian Reorganization Act constitutions. After the background, I'll step into the legal process in Section 82 and 81 of the Code of Federal Regulations hitting on the actual code and then also discussing tribal action that happens during that time. And these are basically observations that I've made from the tribes that have gone through this process. And I'll end with some documents that I feel that will be helpful for those of you who are undergoing this process right now and drafting your constitutions, and then also show you some more legal documents that Dr. [Robert] Hershey was talking about and open the floor up to questions. And if you would, I'll be asking my own questions. This is the first time I'm giving this presentation to an audience who really has experience in this process. So if you're willing to help me out here, help me understand the process that much better, that would be great.

So starting out, I was tasked with understanding the timeline, basically the framework that exists with the secretarial election process right now. There was no established timeline prior to 1988. That came with an amendment. I found out the amendment happened, looked at the timeline. My next question was, what brought on that amendment? Looked further, I found one case, Coyote Valley Band. Three tribes sued the United States, basically because they wanted to reform their constitutions, submitted documentation to the BIA [Bureau of Indian Affairs] agency, and got no action. One of the tribes waited a couple months; another tribe waited a couple years, no action at all. The ruling was in favor of the tribes and now we have the established framework that I'll be presenting today.

The second is to understand the interactions that happen within the secretarial election process, from the petitioning process, the tribal council interactions, the tribal membership and citizenship, even with the constitutional reform task force or committees that are initiated. And then once the official documents have been submitted to the local agency office, where do they go, how far up do they go? This is where I really started to get interested, and I have to say I got quite excited when I was able to find official BIA paperwork online.

So getting to the background. These points that are on the slide I pulled from presentations that were given during information sessions by tribes to their citizens. A secretarial election is not a tribal election, it's a federal election; therefore, you have to register separately. Second, it's authorized by the Secretary of Interior. That's what the language says. However, the paperwork only works up to the regional director unless there's an issue that needs to be clarified past that. And to clarify that, the Pueblo of Laguna who -- I think both of their representatives have left already, that's okay. Thank you for that. Thank you for posting that. That was very helpful for me, clarifying that it is the regional director that calls the election. And then why is it conducted? For the purpose of allowing tribes to reorganize under a federal statue, specifically the IRA [Indian Reorganization Act], to amend, ratify, revoke their constitutions, bylaws or tribal charters.

And I know that we have some representatives that are not from the U.S., so I put this in here to clarify the language. This is what the typical BIA constitution amendment section looks like and what a lot of us are hitting on today is removing the Secretary of Interior approval clause from that. As you can see, it's noted four times within this section. And this is the BIA template constitution. When you look at other IRA constitutions around the U.S., it looks very similar and when tribes are going through the secretarial election process now, this is the main concern, removing this so that they can put themselves into the driver's seat.

So getting into Section 82, the petitioning process. This is a lot of back-end work for the tribes. This is where the constitutional reform task force is formed. Sticking with the objectives that I was given, I'll only be hitting the points that discuss deadlines and interactions. Starting with 85, the official text of the Code of Federal Regulations notes that there will be a cutoff date once the petition has begun circulating, however it doesn't really specify that.

Filing a petition: Once all signatures have been collected, adequate amount of signatures have been collected, it's submitted to the local agency office by the tribal representative, they choose to make comments, return it back to the tribe, the tribe can accept or reject those comments and then it's returned back for the official filing date. Any challenges to the signatures on the petition must be brought within 15 days. This is the first...well, actually this isn't the first, but this is one of the many points where this process can be stopped, once these challenges are brought. Then, action on the petition. The area director or commissioner, regional director when reviewing has 45 days to review the documents and decide and also assess all the challenges that have been brought.

So tribal action during this point. The tribe will have identified whether it wants to reform its entire constitution during this process or simply hit one amendment or article. And I've seen successes and failures with the searches that I've done, the research, on both ends. Some tribes are successful, some tribes are not. Lac du Flambeau [Band of Lake Superior Chippewa Indians] just went through this process earlier this year, I think January or February, just to remove that approval clause, secretarial approval clause, failed. White Earth [Nation] reformed their entire constitution, passed. So there's no simple path to success during this process.

Again, Ian [Record] spoke about holding tribal education sessions, keeping tribal members informed, keeping them engaged and keeping them motivated. Make sure that they understand what's happening. Make sure that they understand their constitution how it is right now. Compile a membership list. I put that up there so that those who are actually going through this process specifically on the task force or constitutional reform committee, that they know the exact numbers that they have to hit, the adult members and the petitions, their signatures they need on petitions. And also consider, at this point you haven't submitted documents to the local agency office, consider at this point to who's going to serve on the secretarial election board once approval is given and I'll speak about that more later on. Circulate the petition -- 180 days to circulate the petition from the date of the first signature.

Now I pulled this date off of a document loaded to the BIA website. It's noted' DRAFT 2009.' Can anyone confirm this or deny this for me? Does anyone have any info? No? Okay. If anyone happens to come across any language that clarifies that, please send it to me. And then you will be submitting all documents to the local agency office.

At this point, setting tribally imposed deadlines, I think, is appropriate. Again keeping people motivated. Currently, Pascua Yaqui [Tribe] is going through this process. When I first gave this talk last semester to the managers at the Native Nations Institute, it was the week after they held their first education session. They continued to do this and one of the focus on amending one of the articles is removing the Secretarial approval clause from their amendment section. There are a lot of lawsuits that come out of this process. This is one of them and bringing the attention to the second point, the text of the proposed amendment was numbered rather than labeled alphabetically. Again, there's a lot of steps that can hang up tribes when trying to go through this process. If the petition or official documents once submitted are not deemed appropriate, the process needs to start all over again.

Now moving onto Section 81, Secretarial Election Process. This is once authorization has been given, official documents have been approved. Again, sticking with only the deadlines and interactions, picks up at 81.5 that 45-day period. At this now authorizing official is reviewing the documents. This picks up right after 82. If approved, the secretarial election board will be...will convene for the first time and set the dates for the election. This election needs to happen within the next 90 days and they will then set the dates for registration deadlines, absentee ballot voting if that's the case, and then also the posting of the official voter's list.

Once the secretarial election board is formed, they will convene, meet, set the deadlines at 30 days, no earlier than 30 days I should say, the election packets notices need to be mailed out to tribal citizens because at 20 days prior to the election the official voters list must be posted. That is so citizens can bring challenges forward to the official voting list to verify if the names on the...the names of the citizens who registered to vote are eligible to vote. If the tribe chooses to do absentee ballot voting, the absentee ballots need to be mailed out 10 days prior to the date of the election. And again, any challenges that are brought forth need to be brought forth three days after the election, date of the election.

And then the authorizing official, again regional director, will cover and assess challenges and rule on the sufficiency of the election. And really this was very confusing to me when I first looked into it, but then when I started finding the official documentation that was mailed out to tribal citizens it made it much more clear and for me referring back to certain sections, 82.5 and 81.11, you'll see these notices once you go through this process.

Tribal action during this period. Select representatives for the secretarial election board. Will you have the same representatives that are serving on your reform committee serving on the election board at that time? Do you have...consider the amount of districts that you have. Will you have a representative from each district serving at that point? Continue to hold education sessions, verify that registration's gong out on time, make sure that tribal members are registering and vote. I've seen a couple elections where they just didn't meet the numbers. They didn't meet that 30 percent criteria. So in that the election failed. Submit all absentee ballots on time. And then the election board, following the date of the election, will post the unofficial results and that's when the challenges can be brought forth by the tribal citizens.

So some of the found documents, and I got again real excited when I found these. This is a letter dated 2009 addressed to tribal leaders informing them of education sessions to note the changes that have happened to the IRA, specifically noting first that there's a timeframe established within that first bullet point up there. The second includes language clarifying that an IRA tribe may amend its constitution to remove secretarial approval of future amendments. There you go. There's your official language and the official document. And that led me then to the Native American Technical Corrections Act. I wanted to find out where that's at.

Section 103: Tribal Sovereignty. Each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section. You can remove the language, you're not going to lose your sovereignty, you're not going to lose federal recognition. Here's a document from Pueblo Laguna and if anyone has a chance and is going through this process and wants to see the official documents prior to submitting anything, check out their tribal website. It was actually very helpful for me because they have their documents still loaded from their 2012 secretarial election. This letter here, again, one of their articles that they were amending was removing the secretarial approval clause from their amendment section. This will not affect the status of their current standing as an IRA tribe. The Pueblo will continue to be an IRA tribe with a non-IRA constitution. Again, there it is for you."

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."

Terry Janis: Citizen Engagement and Constitutional Change at the White Earth Nation (Q&A)

Producer
Native Nations Institute
Year

Terry Janis, former Project Manager for the White Earth Constitution Reform Project, fields questions from the audience about his specific role in White Earth's constitutional reform process. He stresses the need for those engaging in constitutional reform to be cognizant of the fact that a process involving foundational change will necessarily entail Native nations citizens to confront and deal with the enduring legacies of colonial federal policies.

People
Resource Type
Citation

Janis, Terry. "Citizen Engagement and Constitutional Change at the White Earth Nation (Q&A)." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Q&A session.

Audience member:

"Okay, to develop this, I guess this governance model because we've been at this for awhile now and we got our... Let me take you back. It first started, we tried to go to self-government, that was shot down; people were scared of that. Our land code, people were scared of that; that went down. But we got our own election code and that's what the people passed and membership code. I guess how I see it is you gave us all this information how to govern ourselves, the whats and ifs, what if this happens, what if that or whatever, all the unknowns. Maybe it was too much for our people to give them all that at once. Now we have a problem of backlog of over 400 and some odd homes, some houses are boarded up and need renovation and so it boils up dollars.

So let's say if we develop a model and this is important what you're talking about on communication, that's important. With that same concept, if we've already got our election code and membership code, now let's develop the housing code because we have a problem, we pay rent. Nobody understands that money goes back into their homes and whatever to develop and all. Nobody likes paying rent. They think everything's free. So we have a problem of collecting rent. If we develop this model, let's say just for the housing area to start off, develop this kind of model, bring it out to the people, not evictions, whatever might work.

So is there processes like that that'll slowly sort of keep the whole picture into the... To me, the way I look at it is, there's too much, they can't digest all that. So bit-by-bit, I guess that's how I'm looking at it. Now what we're talking about here is just the housing part of it. We've got our own education, hopefully we develop that. At least in this term, at least we can push something, working with... It's a process to make it work, at least we're going someplace instead of taking a step back all the time. I'm trying to look for solutions I guess."

Terry Janis:

"I don't know if this is on, but can you hear me okay? In every situation you have to deal with the reality of two issues, one of which is our colonization. And we as Indian people have a colonized mentality, regardless of whether we realize it or not and when we're talking about change, we have to accept that. So we are a colonized people and change in that sense is going to be difficult to accomplish. And as people that are moving our communities towards change, whether it's a broad constitution or a specific code, that's got to be part of the educational process is accepting our people for who they are and where they're at. There's beauty in our people and because of the history of what we suffered there's also darkness. And when we're thinking about how we're informing and how we're educating our people, we have to keep in mind the colonized mindsets that our people have and are we going to engage that because we have to engage it, otherwise it'll kick us in the ass. It'll stop things from moving forward. And the reality is, it's only going to be able to move forward as far as it can. Sometimes you have to take a staged process. So that's one thing.

And the second thing I spent a lot of time with earlier is just the politics of our community. Anytime you're talking about change and you're talking about an informational, educational process the politics of the community are very real and you have to deal with that. I didn't mention earlier the kind of colonized reality or colonized mindsets because it's sometimes difficult to really accept about ourselves. But...and it's not always the best strategy to say it directly, but you see it over and over and it's a part of the reality of who we are as Indian people. It's how we grew up. We have certain ideas.

My dad growing up on Pine Ridge, the idea was that him as a landowner is he was completely free; he could never be regulated, he could never be taxed, he could do what he wanted with his land. That's what it meant to be Indian on a reservation. And the reality is that's just not true at all. We as Indian people are regulated and managed and controlled more than any other people on the country, my dad included. And if the tribe wants to move forward and start to assert its sovereign authority by zoning and regulating and taxing and doing other things with their property, they're going to do that at some point. But that's our reality and the colonized mindset comes from what happened to us as Indian people, but also the unique sort of situation that we live in, what we've gotten used to, the things that we think we can do and that are inherent, but oftentimes are just circumstantial. For my dad, it's just because the tribe hasn't chosen to regulate their tax yet and that's all that is.

But I agree with you completely. Thinking through, knowing your own people, how best to achieve change, how best to inform and educate your people about that process, maybe a staged sort of process is the best way, maybe a broad complete reform-like what White Earth did is the best way. You're in the best situation to make that decision but it's a decision you have to make. You have to make that decision. It's tactical, it's strategic and you're responsible for it. As leaders, you are responsible for making that decision, period. And you'll live or die on that. Sometimes it'll be the wrong decision and then it'll all fall apart, but that's your job and that's what you do."

Herminia Frias:

"Another question...do we have a question on this side? Okay, question over here. Oh, I'm sorry. Ms. Porter did you want to respond?"

Jennifer Porter:

"Oh, no."

Audience member:

"Okay, so I have a question for you, Terry. So you mentioned maintaining a firm principle of neutrality. That's really interesting and I suspect I'm probably not the only one thinking this, but as you noted, as a Lakota person working up with Ojibwe people, it's really difficult for me to imagine that, one being a Diné, I cannot imagine Navajo, in this case we have a constitution, but a Navajo government development person who is basically in charge of putting together a reform or a government that is one for either Comanche or worse case with the Ute, speaking from that role. So referring to that again what I'm saying is I commend you White Earth Nation and you for doing that. Getting to the question is the neutrality piece to it. We all come with our values, our perceptions, our thoughts. I can't help but think that at some point during this process that you sort of like wanted to nudge folks in one way or another on some of your own issues with respect to one being an attorney and having a good understanding of federal Indian law in relation to Indian Country. I just wanted to ask how do you handle something like that?"

Terry Janis:

"Yeah, yeah. There's two answers to that. The first is that in this particular issue, this idea of neutrality, it only focuses on the educational and informational process. The whole drafting of a constitution or an amendment to a constitution, you cannot be neutral on that. You're going to make decisions and you're going to compromise and it's going to be one way or another and that's the work that tribal members really need to be doing I think. So as far as your own governmental reform, actually drafting the reforms, actually thinking them through, I think the very nature of that is positional and political and about compromise. For me the neutrality thing was important from an educational perspective, strictly in getting information out there, educating, helping people to understand, answering their questions. When they're completely wrong about something, fighting with them about that. That's the only time I took a position. When they were wrong about what they were saying about what this proposed constitution said, then I fought about that because I just wanted them to get it right. I don't want...that didn't decide for them one way or the other, I just wanted their information to be accurate, that they learned the materials and I got into plenty of fights, I had plenty of fun on that. The reason why we go to law school is we kind of like fighting a little bit, right? And so you get into plenty of fights and you have plenty of fun with that, but that neutrality position is really directly tied to the educational and informational process as a community-based thing. This is community-based work. This is going into people's house, this is personal, this is physical, this is live; you've got to be comfortable with that. You've got to get educators and people that are a part of your community training and information thing that are comfortable with that kind of arrrgh. It's a beautiful thing and it's really fun if that's what you enjoy and that's what you love as an educator and that's... So no, I never really compromised in that sense. I didn't really have a struggle with that ever."

Herminia Frias:

"We have time for one more question and just to let you know, we're going to continue this conversation after lunch. Ian Record is going to be continuing this on citizen engagement. So Robert, you'll have the last question before lunch and if you have more questions, we'll open it up again after lunch."

Robert Hershey:

"Thank you and thank you very, very much for the presentations. In response to the gentleman from Canada, I was going to talk about this in my presentation later, but let me just say really the idea of big bites versus small bites. And there are a number of constitutions, like you talked about housing, well, the Tohono O'odham have a constitution that has a lot of power reserved to the districts. The districts are responsible for home site, land site assignments. The way the Navajos constructed land site assignments through matrilineal. The Hopi, the villages have independent authority in many regards and things are specifically reserved. So by working on these different codes, your election code, your education or whatever, it might be your housing, you are actually then having the discussions, which will then transform themselves when the time comes into writing themselves as constitutional amendments. So you are basically in the process of creating constitutions by virtue of your actual practices in these different areas."

Herminia Frias:

"Thank you, Robert. And I'd like to thank both of the panelists for sharing their stories. Thank you very much. Give them a round of applause." 

Terry Janis: The White Earth Nation Constitutional Reform Process

Producer
Native Nations Institute
Year

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

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

People
Resource Type
Citation

Janis, Terry. "The White Earth Nation Constitutional Reform Process." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. St. Paul, Minnesota, February 6, 2014. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Terry Janis. Terry is a citizen of the Oglala Sioux Tribe in South Dakota and for the past year he has served as project manager for the constitutional reform process of the White Earth Nation in Minnesota. Terry, welcome and good to have you with us today.”

Terry Janis:

“Thanks, man. It’s nice to be here.”

Ian Record:

“Yeah, it’s good to see you again.”

Terry Janis:

“Yeah, yeah.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

“Right.”

Ian Record:

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

Terry Janis:

“Yeah.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

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

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

Ian Record:

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

Terry Janis:

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

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

Ian Record:

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

Terry Janis:

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

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

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

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

Ian Record:

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

Terry Janis:

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

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

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

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

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

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

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

Terry Janis:

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

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

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

Ian Record:

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

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

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

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

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

Ian Record:

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

Terry Janis:

“Oh, absolutely.”

Ian Record:

“of engraining in our people young, old”

Terry Janis:

“Absolutely.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

“Exactly.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

It’s just the opposite actually.”

Ian Record:

“You want the opposite.”

Terry Janis:

“It has to build.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

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

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

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

“Yeah.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

“Exactly.”

Ian Record:

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

Terry Janis:

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

Ian Record:

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

Terry Janis:

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

Ian Record:

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

 

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

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Native Nations Institute
Year

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

People
Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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