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."

Related Resources

Thumbnail

NNI intern 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…

Thumbnail

Robert Hershey, Professor of Law and American Indian Studies at The University of Arizona, dispels some longstanding stereotypes about what the federal government can and will do should a Native nation decide to amend its constitution to remove the Secretary of Interior approval clause or else make…