Robert Hershey: The Legal Process of Constitutional Reform

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Native Nations Institute
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Robert Hershey, Professor of Law and American Indian Studies at the University of Arizona, provides an overview of what Native nations need to consider when it comes to the legal process involved with reforming their constitutions, and dispels some of the misconceptions that people have about the right the federal government has to interfere in what changes Native nations make to their constitutions.

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Citation

Hershey, Robert. "The Legal Process of Constitutional Reform." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Robert Hershey:

"Let me just introduce myself just a little bit. I'm Robert Hershey; I was born and raised in Hollywood, California, born on Sunset Blvd. in Cedars of Lebanon Hospital to...yes? I went to Hollywood High School for typing in summer school. I went to John Marshall High School, and the reason we had such a lousy football team is because our mascot was the Barristers. So I don't know if I was destined to become an attorney from the start. However, I skateboarded down the Avenue of the Stars before there were Avenue of the Stars. It was still concrete at that time and growing up in Hollywood as a young kid -- and you might think I'm only 39 with prematurely moonstruck hair -- but really I was born in the late '40s. It was a magnificent time to grow up and to be totally involved in a fantasy world that was very, very difficult to have any concept of racial hatred and discrimination, except when the African-American community decided that they certainly were not getting a fair share of things.

The Indians in my world were all portrayed on television and in movies and it's very important to consider the imagery of American Indian policy, how interwoven it is, because the idea of an Indian is a white construct. We use the term 'Indian and non-Indians' all the time, but at the same time it is something that is just made up. You didn't refer to yourself, "˜I'm Indian.' You referred to yourself by your name, you referred to yourself by your kinship, your family relationships, the nation you belonged to, the societies you were part of, but there's this whole fantasy thing that still dictates today American Indian policy and it paints Indian people with one long, broad brush. Every time there's legislation in Congress it's usually, it's a panoramic landscape of which it paints everybody with the same ideas.

So you come from Hollywood, California, and you find yourself going to big movie theaters that are 10 times the size of houses and you get a really different kind of view of where you were going to be. My grandparents had to leave Europe, they were chased out of Europe because they were Jewish. Fortunately it was before the Holocaust. They went to Cleveland, Ohio, then they came out to California. My parents met there and I was raised there. I went to college at the University of California at Irvine. I studied pre-med. Got tired of memorizing molecules and wound up in law school. I came here to the University of Arizona. When I graduated college at the University of Arizona from law school, I got a job on the Navajo Indian Reservation. How many Navajo speakers are here? Uh oh. I'm in trouble. I was hoping there wasn't going to be any, but we can share mutton together. My mutton story is that where I would go eat mutton every day, one day I was backing up to go back to work and I backed my car into a telephone pole and I still have the muscle spasm from that and that's from 40 years ago. That's my second mutton story. I worked for Diné be'iiná NáhiiÅ‚na be Agha'diit'ahii. So-so? How did I do? I did all right. Thank you. D.N.A. Legal Services, so I was a legal aid attorney there.

And my first experience, and I'd never been on a reservation before, but my first experience, because I was a part of the outdoor life my whole life, and my first experience on the reservation was I rented a house, actually rented a cabin. It was a one-room cabin -- no water, no electricity -- way back in a canyon off the road and the mud chinking was missing. When the wind blew my curtains on the inside of the cabin would blow. I had a two-burner wood stove. I'd fire that thing up, get that stove pipe going red hot, open the front door to a snow storm and I was absolutely in heaven. But when I first went there, my Navajo landlady, my landlord Bertha Harvey, she was about 70 years old, still riding her horses, still chopping her wood and she asked me one day, she said, "˜Robert' -- because she lived much closer to the highway and I lived about a mile and a half back in the canyon -- and she said, "˜Robert, would you...' She called me 'Shinaaí­' and, "˜would you mind taking my goats back to the pen that's next to your place?' Being from Hollywood, what am I going to say, I'm going to say I don't know how to do goats. I didn't know how to do goats, but anyway I said, "˜Sure, I'll do that.' And this one black goat who was the leader of the pack, his name was Skunk and he wore this big bill on him and he took off, he took the whole flock up into the hills and I chased after them and chased after them and chased after them and finally I couldn't get them to come back with me. So I slowly slinked back down the hill after about two hours and I told [her], I said, "˜Bertha, I am so sorry. I lost your goats.' And all she did was start laughing at me. And she says, "˜They know where to go!' So I go back to my house, walk back another mile and a half back and they're in the pen where they're supposed to be. I'm supposed to talk to you today about legal process. My first question, was that legal what she did to me? Then when I worked with the Apaches, they're real good jokesters and they do these joking imitations of the white man. Oh, when I left the Navajo Indian Reservation one of my Navajo friends, she put a thunderbird around my neck, a beaded thunderbird and she said, "˜This will bring you luck in your whole, white life.' And I said, "˜Okay, I got that.'

So I have been very fortunate and I'm absolutely amazed and in wonderment and as I said yesterday, I said, I'm so honored to be with people that care so much and it's been a 40-year commitment on my part to work with and be honored by and in this situation and watch the success of Native peoples. You may get discouraged at times, but look around you, look at the success of Native nations. I am astounded and so happy to be part of that and have based my career on being a participant in that. So thank you very, very much for allowing me that opportunity. So what's legal? Give me a concept. What is legal? Go ahead. I need a mic to give to this young man here. Yes, sir. What's legal?"

Audience member:

"It would be an activity permissible or sanctioned by the people."

Robert Hershey:

"Okay. Who else has an idea about legality? What's legal? Beause we talk about legal process, we know...we heard so much about law, but I want to know what's legal. You basically said, "˜It's sanctioned by the community.' It's an agreement. It's an agreement. Who else has an idea of what's legal? Go ahead."

Audience member:

"Like a binding contract between two people."

Robert Hershey:

"A binding contract between...again, an agreement. Right? In reality, [it's] an agreement. Yes, sir."

Audience member:

"A treaty."

Robert Hershey:

"A treaty. A binding contract between two people. Anybody else? You've been talking about reformation of constitutions. You've been learning a lot about constitutions. This is something that you heard before; I'll reiterate. This is nothing that gets fixed in stone. This process of amendments you hear and you hear about, "˜Can we amend our constitution, can we keep it moving forward, can we start a constitution?' It just keeps rolling forward. It's as dynamic as your culture and as your culture rolls and rolls and rolls into contemporary societies that you've created, the constitution supports that and it gives you a greater understanding. Later on I'm going to tell you what I consider also different conceptions of what a constitution might look like. There was one comment that was made to me yesterday by a man who said that, "˜The treaty gave us rights,' and, "˜What about our treaty rights?' Let me tell you, I view things a little differently. Native peoples enjoy all the inherent attributes of sovereignty. Think of it as a big pie. You are inherently sovereign. You inherently control your own destiny. Treaties took away parts of that right. Court decisions take away those rights. Congressional statutes take away those rights. What's left is your inherent ability in addition to your traditionally inherent and aboriginal abilities to govern yourself. That's what's left.

When you hear the word 'sovereign', 'You're sovereign. You have rights of sovereignty,' do you know where that comes from? This is not going to be a federal Indian law lecture, but very, very briefly, in the early 1800s there was a series of three cases. The first case legitimized the Doctrine of Discovery. It basically says that the colonizing power of the United States could go ahead and be unapologetic about subjecting you into their dominion and control. They had plenary authority. The second case basically called you dependent...domestic dependent sovereigns. That's where that term 'sovereignty' came from, which over the years has also been my coin of the turn domestic dependent abuse at times or domestic dependent violence, but that's where that word sovereignty comes from. The third case involves, "˜Well, wait a second, if you are domestic dependent sovereign, then we must have some sort of a guardian/ward relation over you, therefore we have the trust responsibility.'

So since the 1800s, the early 1800s, that kind of relationship has been established and the United States then has taken away lands, it's allotted your lands to take away more lands and then, by the 1930s, that's when it passed the Indian Reorganization Act and those are the types of constitutions that we're talking about now. In addition to the Indian Reorganization Act, there's the Oklahoma tribes' organizing documents, there's other specific statutes for tribes that have organized in constitutional format. Is it all voluntary? And why isn't it voluntary? Because there was not equal bargaining power, there was a conquest, there was a power here and there was subterfuge and there was deceitfulness and dishonesty and saddled you with certain systems of government that you're still fighting against or rallying against today.

Now let me ask you this, and this is something that I would like some participation in, when we talk about the Secretary [of Interior] approving constitutions and having that kind of authority over you, there are a great deal of pressures that the Secretary of the Interior and the BIA [Bureau of Indian Affairs] and through the superintendents in the different agencies they exert over you. I would like you to share some of those stories before I go into what the secretarial process is all about. There have been cases where the Secretary, the agency personnel, they basically say, "˜If you want to go ahead and change your constitution to remove the authority of the Secretary to approve your actions, then you will either lose federal recognition or you will no longer be a participant to the benefits and advantages of the Indian Reorganization Act governments. You will lose that government-to-government relationship,' those kind of threats. In addition, financial pressures, can you say no to them? Are you strong enough economically to say no to them and carry on by yourself? I would like to hear some of you talk about the things that the BIA and the Secretary and the agencies have disclosed to you or have said to you when you've discussed with them the remodeling or the amendment or the reformation of your constitutions. Can somebody tell me some of the stories? Red Lake has its own history. Red Lake was not an IRA tribe. Navajos have no constitution. They've tried. Yes, please. Because I think it's important for us to share at this time the experiences that everyone's had with the Bureau before I get into the scope of what I think their powers are. Thank you."

Audience member:

"In the 1980s when I was tribal chairman, one of the things we became very much aware of was how ineffective and how not responsive to our needs the BIA was. We discovered some of the same things that Elouise Cobell wrote about and we made the BIA rectify those. When we saw how they were dealing with our land and how the land transactions weren't being carried out to the full extent that they are supposed to be, we decided to do something about it. And we didn't follow the same process you're talking about here today. We didn't follow like this very highly democratic process, but what the tribal council did was identify what we needed to do and that was to take away the authorities that the BIA had over us and take over the governance of the tribe ourselves because we knew that we had people who were much more capable than the individuals who were working for the BIA. We came up with the ideas or with the reforms that we needed, and one of the things that we figured we needed to do was to claim jurisdiction over all people in all lands within the exterior boundaries of the Fort Berthold Indian Reservation. And then we gave the authority to carry out those jurisdictions to the tribal business council. And we also went for a name change because the Three Affiliated Tribes was what we called...colonial appellation; it was given to us by the BIA. So we wanted to use our own tribal name. We wanted to call ourselves the Mandan, Hidatsa and Arikara Nation. After they drafted... after the legal department drafted those up for us, we went to every community, every district and showed it to them, we explained it to them. And I know you kind of poo-pooed that idea a little while ago, but it worked for us."

Robert Hershey:

"What was that?"

Audience member:

"Where we wrote out what we wanted, we took it to the community, they gave us our... to the communities, they gave us our blessing. They gave us their blessing and...we answered all their questions, we were honest with them and to me, I think the whole issue at hand was one of trust. Did our people trust us enough to let us do this reform? And by being open with them and honest with them and letting them know what we were doing and why we were doing it, when it came time to vote, they voted overwhelmingly for the changes. And that has helped us immensely down the road. After that we took over all the services that the BIA had. We took over the realty department because they were not doing a good job with realty and we knew that. It worked. These amendments worked out very well for us. I was wondering this morning when you were talking about that Violence Against Women Act and you were saying people need to change their tribal constitutions. Is there something within that Act that says we have to proceed in a certain way or if we already claim jurisdiction over all people and all lands are we okay with that already? That's just kind of an aside I was wondering about. But anyway, when it came down to actually running that Secretarial election, there were other things we wanted to do at the time, but the BIA told us that the people in Washington did not want us to have more than three amendments presented to our people because they thought it might confuse them. So we went along with that and later on we did another secretarial election to get other things done that we wanted to do."

Robert Hershey:

"And is your constitution still, the amendment process still subject to the approval of the Secretary of the Interior? If you wanted to amend your constitution again, do you have to have another..."

Audience member:

"We still have to have the Secretarial election. We were encouraged to leave that in there. One of the things I just want to mention that we found later on is that our...a number of our people, if things didn't go just the way they wanted them to, they kind of longed for the BIA again. And we found that kind of interesting because if they couldn't get their way with the tribe they thought maybe the BIA, if they still had control of the tribe maybe they would have let them have this, that or whatever."

Robert Hershey:

"Thank you for sharing that 'cause I do want to talk a little..."

Audience member:

"I have one other thing I want to say, too. If you're going to do this, you have...the tribe has to be the one to push on these. The BIA is very lax. They don't...they're not going to push things forward for you. We had a young man who was one of our tribal members, Ray Cross, and we had another legal counsel, Kip Quail. But Ray Cross, one of our own tribal members was very, very aggressive and he just...he pushed everything. It was always, "˜Okay, when is our next meeting? All right, when are we going to meet next?' And he was telling the BIA not...he was telling the BIA what to do. We didn't let them tell us what to do."

Robert Hershey:

"Absolutely. Thank you. You brought up a question that many of you might be thinking about. The Tribal Law and Order Act of 2010 and also the Violence Against Women Act. They require certain constitutional rights, United States constitutional rights like the presence of a counsel, in order to go ahead and have increased sentencing authority or to assume jurisdiction over non-Indians in domestic violence cases on the reservation they have to be afforded United State constitutional rights, not just Indian Civil Rights Act cases. So if your constitutions have a provision in there where you have adopted the Indian Civil Rights Act and made that part of your constitution and that has old sentencing authority in it, it does not provide...it may be a limitation and that may be something you have to amend to go ahead to keep in pace with the jurisdictional advantage and the punishment that can be meted out under these two new acts, so that may be something. Yes. Thank you."

Audience member:

"Thank you."

Robert Hershey:

"Anybody else? How about somebody who has a good story about the BIA? Raise your hands. There's a young man over there who's got a good story about the BIA."

Audience member:

"I am not a young man, but thank you. We had trouble in our reservation and some buildings burned and tribal council moved their meetings off the reservation under the Roger Jourdain regime. And I had a friend that worked for the BIA in Minneapolis and she called me and told me to come down. And so I went down to the BIA in Minneapolis and she showed me an order from the Bureau of Indian Affairs. At the time, there was a lot of mineral concerns that are still going on right now, but this was like in the 1970s, late 1970s and the directive from the Bureau of Indian Affairs was to allow oil companies and people that...companies that were looking for minerals to allow them to do that without informing the tribal council that the Bureau, local bureaus on each reservation throughout the United States, giving them the authority to go ahead and allow illegal coring and other matters that was going on. And it did happen in many Midwestern states. So I took that directive and I took it to Roger. Roger got mad at me. He said, "˜Where the hell did you get this?' I said, "˜Well, it doesn't matter where I got this. What matters is the directive from the Bureau of Indian Affairs.' I said, "˜This is what I'm giving you.' And it wasn't too long after that the superintendent of Bureau of Indian Affairs on the Red Lake Nation was booted out and Roger informed other tribal councils about that directive from the Bureau undermining tribal governments. And so that's a story I have about them."

Robert Hershey:

"Okay. Thank you. Someone back here too. Because what I'm getting at here is that there are some sentiments on the reservations that the BIA there is to protect some people from actions of tribal councils and they do appreciate that oversight, as much as they do interfere with the tribes exercising their own self-determination. So there is that kind of split...

...Not only is there dependence on this bureaucracy, but some people are advantaged because of this bureaucracy. And so when you adopt the BIA constitutions, how many people are living today that have not been a part of a BIA constitution from a government, especially if your nation was there from the 1930s and adopted that constitution? So these are very powerful institutions, so that your leaders that are part of the IRA government, tribal council, they wear the clothes of power by virtue of these forms of government. So you're trying to change that, too. Now I've worked with a number of nations in constitutional reformation. One tribe has been trying to amend its constitution since 1975 and they've appointed a committee, a constitutional committee, but we heard yesterday too there's some fatigue that sets in and that fatigue...and so you have attrition, you have people falling out. And I've been at council meetings where there's been a call to the audience, "˜Who wants to be on the constitutional committee now? Who wants to be there?' And maybe one person might step up and give it a go. But we've advised these constitutional committees and some of these constitutional committees think that they are in effect a shadow government. I don't know if that's been an experience there where they think that they should have the power. They say, "˜The council's not doing this, this, this so we're going to change the constitution to make sure that they don't do this, this and this.' There [are] other people that I've worked with that have been trying to amend their constitution since 1990. This is a long, arduous process. Please don't feel that you have to get this done within any quick period of time. Before I continue...Yes, councilman.

Audience member:

"Just kind of a question, if you can discuss or point out the state of the organizations for example like the BIA and their role is changing, but they have some changes that are going on like some generational differences that are being felt and also I've heard that -- Ben pointed out at the legislative level -- where younger leadership is coming in and they're met with these older...at the state level it's become evident as well. There's just a generational gap in the organizations. And how is that changing and where do we see that going because I...one of the things, the good things I was going to say about the BIA is that they just got emails maybe about five years ago, which I thought was remarkable. They've come a long way."

Robert Hershey:

"I talked to some of my students...I've had two students that got a job a year-and-a-half ago at the solicitor's office. They were...I'm very proud of them. They were chosen out of about 1,000 people, there were four jobs open, two of our students from the Indigenous Peoples Law and Policy got jobs in the solicitors and I called them to ask them these types of things. There's still a climate of kind of hush-hush. There's still the politics going on there. Most of your experiences with the BIA are going to be at the agency level and so those experiences are not necessarily resonate all the way up to the central powers in Washington where you're going to get like a consultation policy from the Secretary of the Interior. Well, it looks really nice. They've done a fairly good job, but like all consultation policies, they're usually adopted before they consult with the tribes as to what a consultation policy should look like. And I'm going to come back to that in a little bit, but there may be a generational issue. But being youthful does not guarantee that you're going to have dramatic success. The youthful people on the Navajo Reservation in the 1920s are the ones that wanted to go ahead and start this process of exploration of shale oil development. But again, it's going to be your own individual experiences. Usually it's the agency superintendent levels that are going to determine...and those relationships I've seen have changed a bit to where they've been more supportive. But let me go on and talk about still how they make their determinations. Go ahead."

Audience member:

"[Unintelligible]."

Robert Hershey:

"We can't retire. I'm sorry. We can't. You would all have that experience. One second, sir. I want to get to one other thing. They've given me a sign there and I've got about six hours of material to get through. How many people do not have an IRA constitution here? Navajo, Red Lake does not. Sorry?"

Audience Member:

"[Unintelligible]."

Robert Hershey:

"It looks like it, but it's not under the IRA, am I correct?"

Audience member:

"[Unintelligible]."

Robert Hershey:

"So you still went ahead and had the Secretarial approval. So there are those kinds of constitutions that have not been adopted under 25 USC Section 460, which is the Indian Reorganization Act, but you've put the Secretarial approval language in your constitution, so you're still bound by the Secretarial approval. Yes?"

Audience member:

"With our committee here one of the things we were looking at is to...striking that out of our new constitution and..."

Robert Hershey:

"You want to know the consequences."

Audience member:

"Under the law, and maybe international law, would it still be recognized in international law because it was signed off, our original one was signed off by the government."

Robert Hershey:

"Okay. I'm going to get to that in a minute, the consequences of removing the approval process by the Secretary of the Interior."

Audience member:

"Does that include Red Lake's unique status?"

Robert Hershey:

"That would include Red Lake's unique status as well because it basically...excuse me. Was it by statute or was it by just an inclusion that you put in there?"

Audience member:

"Inclusion."

Robert Hershey:

"Inclusion. You may get some backlash from the Secretary on that; however, you can get it done. There's been some threats that I've been made aware of where the Secretary would basically say, "˜Well, you're no longer going to be federally recognized.' Those of you that have succumbed to those kind of threats, that is not true. You cannot lose your federal recognition under the acknowledgement process by virtue of removing the Secretarial language. What will happen is if you remove the Secretarial approval language, like I said yesterday, in one sense, in one sense that you could remove the language that's filtered through all the language of the constitution that they have approval: attorneys, they have to approve mining, they have to approve leases, things...you can get rid of all that language. It's only when you go ahead and try to remove the Secretarial approval clause, "˜amending the constitution,' if you already have it in the constitution, that then you would no longer become an IRA tribe. It does not mean you lose your federal recognition. Yes, ma'am."

Audience member:

"[Unintelligible]."

Robert Hershey:

"Well, it is related to the trust responsibility and here's how, and that's a reason why some of the BIAs, how they view whether you can go ahead and amend their constitution or not. They're basically saying, "˜We have to support our trust responsibility to you, therefore we have to have oversight.'

Now, for the Secretary to...first of all, in the materials you have are the statutes, the Code of Federal Regulations that talk about the process of what you have to do to go ahead and have an amendment. How many people have...if you've had no constitution whatsoever and you want to become an IRA constitutional tribe, then you have to have 60 percent of the members that are on your reservation petition the Secretary of the Interior to have an election. If you already have, then you get together the people that want to go ahead and have an amendment to the constitution or a revocation of the constitution and then you have to go through a process where you tell the Secretary, the Secretary has 90 days to go ahead and look at your amendments, give you suggestions and advice under the trust responsibility, approve or disprove and then you have to...if they disprove, then you have to decide whether you're going to go ahead with the election or not; I'll tell you the grounds in just a minute. And then, once the election is had, 30 percent of your voting, the eligible voters must show up at the election, a majority of which then determines whether those amendments pass. The Secretary then, if they pass, the Secretary then has 45 days within which to approve or disprove of those amendments. If they don't make a decision within 45 days, they automatically become an amendment to the constitution.

Now here's where the trust responsibility comes in, because prior to 1988 when the Indian Reorganization Act was amended, the Secretary was insinuating itself in all manner of decisions as to whether or not it could approve or disprove your constitutional amendment provisions. And they...basically for any reason whatsoever, and the tribes were really getting hung up. As a result of the 1988 amendments, the Secretary only has the authority to disprove your...if your proposed amendments are in violation of federal laws, congressional statutes, court cases. What the Secretary is also doing is they say that they have the authority to insinuate themselves into the approval process if your proposed amendments violate federal policy. And this is where that trust responsibility comes in because there's no standards that talk about the violation of what the policies are. They can bring anything up. Now this is especially acute in membership issues, when you're trying to amend the constitution in terms of...the regulations are given in your materials under one of the numbers. You can read through that. So it is still unclear and it is not demarcated exactly what the authority is. The BIA Handbook of 1987 is still in use. There are working drafts of later, of 2009 handbooks, copies that I've seen and they're really hard to find, this handbook how the BIA determines whether or not it's going to go ahead and rule whether or not something is approved or not. For the most part the BIA has been approving. The consequences of not being an IRA tribe; if you remove that language, what are those? What else do you have in place at that time? There are communities that want that certitude, that they have the United States government exercising its trust responsibility through the Secretary of the Interior and steadfastly saying that, "˜We have the supremacy of the United States government behind us because they approve what we do.' The Secretary has no authority to approve your ordinances or resolutions, statutes, providing you have not given them that authority in your constitution. It's only in terms of the amendment process.

Now I want to move on because I have a few things to show you here. Somebody asked about the United States, the Declaration of the Rights of Indigenous Peoples, some of the international law documents. I'm not going to run through all of it here but please, all of you should have a copy of the United Nations Declaration of the Rights of Indigenous Peoples in your council rooms, in your attorney's offices because these laws are binding. Now there's no real teeth in them, it's not that if the United States Office of the Solicitor or the United States government in itself violates any of these principles, that you can then sue them, take them to task, but you can incorporate these principles within your constitution should you choose to do so -- I'm sorry these are not well written. I'm going to buzz through these because they're different -- but you have the right to determine your own members, you have the right to control your own lands, you have the right to make decisions about just about anything and no state government, United States -- and when I say state governments, nation states -- can go ahead and interfere with those rights as long as you continue to assert them through this process.

Now, the Advisory Council for Historic Preservation; if some of you are involved in sacred sites litigation, holy place litigation, the Advisory Council for Historic Preservation -- I'm sorry you can't see these -- just put a clause in there, it just came out last month that they're supporting the United Nations Declaration on the Rights of Indigenous Peoples within their advisory council materials. This is an EPA [Environmental Protection Agency] policy. This is just for draft. It says, "˜Do not cite or quote.' Too bad. There's another provision in the EPA draft that basically says, "˜that we support the United Nations Declaration of the Rights of Indigenous Peoples.' This is the Indigenous and Tribal Peoples Rights; this is the Inter-American Commission on Human Rights, one of the international law documents, the International Labor Organization Convention 169. Your attorney should be well versed in this. In fact, on April 19th at ASU, the Special Rapporteur for Indigenous Peoples Human Rights is part of a symposium at Arizona State University on incorporating these Indigenous international law principles into the domestic discourse. Native peoples, Native societies and nations in this country have been reluctant to embrace this because they've held so fast to the trust responsibility. This is the frontier. This is the inclusion of the Indigenous Peoples Rights in the new constitution of Nepal. You will see this. And in Bolivia you will see this. This is the National Congress of American Indians. They have a draft.

Now, I want to think about something other than what you've been talking about, these kind of documents that you try to embrace within a written, English language written structure and whether or not there are other concepts of how you formulate government. How many people have conversations about plants, about place names, about a certain site, about a mountain? What's the story there, how does that envision, how does that help you then translate into what's appropriate to be written rules of conduct? The O'odham here, they basically teach their children, or at least traditionally, they taught their children, they waited until bedtime and when the child was just about ready to go to sleep they would tell them in their dream so they could dream about what was appropriate behavior or when they would wake up.

There's different ways of expressing what a constitution may be -- a land management plan. This is the Poplar River First Nation in Manitoba and what they have done is that they've organized together, they've mapped out their lands, they have a vision statement, which you might consider like a preamble to the constitution. One of the speakers just before me was talking about land management, comprehensive land management. The constitution reformation does not have to come before a comprehensive land management [plan]. One may inform the other. And in the process of developing comprehensive land management strategies, I suggest that you map your intergenerational memories. You probably already have done that. You've taken the statements of your elders. You've archived them. You've protected privileged knowledge. You've put them in your archives, you've created maps, you've created place names, you've gathered stories. These are important not just for whether or not you're going to go into aboriginal title litigation or whether you're going to design a constitution, but whether there's preservation of language because all those stories inform custom and tradition that can be used by your tribal courts in establishing common law.

So what they've done here is they have the vision statement, they spent 10 years working on this comprehensive land use plan. As a consequence, shortly after this they worked in concert with the government of Manitoba. The government of Manitoba passed Bill 6 and Bill 6 basically set aside most of the eastern shore of Lake Winnipeg in Manitoba as conservation area joining the traditional lands of the Poplar River First Nation. You can get there. Go on their website and download this plan. It's magnificent. This is the constitution, according to my colleague Ray Austin, Professor Ray Austin, former Navajo Supreme Court Justice. He's one of our professors. He's a distinguished juris in residence at our college in our program. This is his constitution of the Navajo Nation. "˜Mother Earth and Father Sky and the rights and responsibilities and the protections afford each.' He says he can go ahead and talk about the whole Navajo system of government through this. He incorporates the terms hozho, hozho k'e, nayee, other concepts here.

Emory Sekaquaptewa, magnificent Hopi elder, Chief Judge of the Hopi Court of Appeals, one of my most significant mentors, wrote about Hopi songs and ritual dances as being constitutions, as being the stories. So when we think of a written constitution, we ask our self, "˜Who's it for or to? Is it to show to the external world? Is it for our selves internally? Are there other ways that we can go ahead and express ourselves by virtue of mapping, by singing?' These are all constitutions. These are all rules of conduct. The Maya Atlas, the Toledo Mayo in Belize put together an atlas. I would have you look at their...this is something called 'Dreaming New Mexico' and it's not a very good rendition. A project in New Mexico that got together all the stakeholders, the Native peoples, the Pueblo peoples, the food peoples, the people that were bringing food in, the energy inputs, the ranchers, the farmers, people...all your community, all your neighbors and they visualized and mapped something different because we're all talking about ecological sustainability here in addition to the promotion of self-determination and sustainability of Native identity within your community. So you have neighbors out there as well. I'd like to hear if any of you have any other questions that I might be able to answer or comments. I would love to hear from you please. Kevin? No. Yes, sir."

Audience member:

"This has to do with citizenship. If you were born on a reservation, your allegiance is to that piece of land where you were born, correct?"

Robert Hershey:

"I would hope so."

Audience member:

"And so if you were born off the reservation then your allegiance is to the United States? Is that part of..."

Robert Hershey:

"Me?"

Audience member:

"Yes."

Robert Hershey:

"Am I allegiance to the United States?"

Audience member:

"Yeah. Do you have allegiance...? When you're born in Hollywood...?"

Robert Hershey:

"That gets...that's a political thing. I don't want to go ahead and cast a disparaging comment about the United States government in front of this illustrious audience, but I will if you want me to. I'm much more comfortable with Native politicians than I am with Anglo politicians. That might answer your question there. I've had many more positive experiences on reservations and working with Native peoples. It's been my whole career except for surfing and skateboarding. Thanks. Anybody else before...yes, I knew you'd come back here, Kevin. Give that man a microphone, please."

Kevin:

"One of the questions I have is all the IRA governments, when you get sworn into office, you have an oath to the United States government...when you swear into office, does anybody swear an oath to the United States government? That's one of the issues with the IRA for some of us. So when we swear an oath, even though I was elected in with my own people, I swear an oath to the Constitution of the United States because it's part of our constitution. That, in turn, we become a body politic of the United States government in one form or another. I want to talk about an issue with White Earth, but it involves the Minnesota Chippewa Tribe about the issue with the BIA or Secretary Interior. In our constitution, if we wanted to remove somebody from office, we have a process called Article X. And if Article X isn't heard by or acted upon by the reservation business committee, our tribal council or the tribal executive committee, then it in turn goes to the Secretary of the Interior for review. For the last 22 years, the four petitions that went to the Secretary of the Interior have all came back and said, "˜It's an intratribal matter, deal with it yourself.' In the issue that happened with White Earth years ago on a removal process, the BIA stepped in and let a person sit office early at the tribal executive committee with only two members to run a reservation. So the BIA stepped in and told that person they were able to do that by violating the tribal executive committee and everything that existed under the constitution. So I don't know if that...everybody else in here has to deal with them kind of issues, but we as the Minnesota Chippewa Tribe, that's what we have to deal with. By the BIA stepping in sometimes and setting precedence or telling us, "˜No, we're not going to deal with it even though trust responsibility is ours, we're not going to deal with it, you deal with it.'"

Robert Hershey:

"Some of the things that they say they have authority to do is stepping on electoral matters."

Kevin:

"Exactly."

Robert Hershey:

"They do and they still...and I've seen cases of that right now. And they're very reluctant to do [it] in membership issues, which is striking because the Pala Band of Mission Indians, this case that just came out, it's a horrible, horrible case of disenrollment and the Federal District Court dismissed the lawsuit and basically said the tribe is sovereign, too. They had a sovereign immunity clause there. One other thing, if you go to the BIA website right now and you scroll down in their general thing and they have a pattern constitution you can click onto, just about the same as it ever was. So I suggest that all of you take over the BIA, start writing new constitutions and let's do it right. So thank you very much. I appreciate your time."

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Asatiwisipe Aki Management Plan

The Asatiwisipe Aki Management Plan arises from several earlier initiatives by Poplar River First Nation. Poplar River has completed a variety of studies for the planning area, including traditional knowledge and community history interviews with Elders, traditional land use studies, archaeological…