Todd Hembree: A Key Constitutional Issue: Separations of Powers
Hembree, Todd. "A Key Constitutional Issue: Separations of Powers." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.
"First, let me introduce myself. My name is Todd Hembree. I am a Cherokee citizen. I live in Tahlequah, Oklahoma, which is the capital of the Cherokee Nation. Originally from Greasy, Oklahoma, which is a very poor rural, highly Native population in southern Adair County in Oklahoma. I grew up on a cattle ranch there and we kind of ran a general store. I went to college at Northeastern State University, went to law school at Notre Dame, and then began a law career. This is my 20th year in my career. My passion has been Native American law. I have had the pleasure to consult and represent tribes across the nation. My crowning achievement I would say in my legal profession has to again have the pleasure to represent the Cherokee Nation tribal council for the last 12 years. I recently changed roles, which I'll talk about later on in my talk, to that of the Attorney General. So my position now is, I've moved from the legislative branch to the executive branch, which is a new and sometimes difficult role for me.
But here we are to talk about separation of powers. Listening to the very good speakers that we've had so far today, I've kind of thought about, well, you know, I need to incorporate something about that in my talk, and one thing that reached out to me was when Steve [Cornell] said that someone had told him that we need to either decide whether we're going to be traditional or constitutional. And in that context of separation of powers I thought, "˜Well, what is it about the Cherokee Nation or the Cherokee traditions that had separations of powers?' Well, maybe it is part of our culture and that got me to thinking in that, yes, in the historic ancient Cherokee villages we had a peace chief and we had a war chief. The peace chief was what was often called the "˜white' chief and usually came from the Long Hair Clan. The war chief was the "˜red' chief that usually came from the Wolf Clan. And they had distinct, separate duties and responsibilities, and they did not mix and you knew who was in power in the council house because you either had a white painted pole or you had a red painted pole. So yeah, there are instances where our separation of powers are engrained in us. We just have to look for them. They're not necessarily a western constitutional mode.
But you look at the concept of separation of powers, and again in our history I would consider myself an amateur historian, but I wanted to read two provisions of separation of powers that came from constitutions. First is Article 2: "˜The powers of this government shall be divided with three distinct departments, the legislative, executive and judicial. Second, no person or persons belonging to one of these departments shall exercise any of the powers properly belonging of either one except in here after expressly directed or permitted.'" And here's another, this is Article 5, Distribution of Powers: "˜The powers of the government of the Cherokee Nation shall be divided into three separate branches, legislative, executive and judicial, and except as provided in this constitution, the legislative, executive and judicial branches of the government shall be separate and distinct and no branch shall exercise the powers properly belonging to either of the others.' Now the first one, Article 2, was drafted and written in 1827. That was the first constitution of the Cherokee Nation. The second was drafted in 1999 in Tahlequah, Oklahoma. We talk about generations and how they are connected, my great-great grandfather John Ross helped draft the 1827 Article 2 in New Echota, Georgia, and me, his great-great grandson, helped draft Article 5 Distribution of Powers in Tahlequah, Oklahoma, in 1999. So it is part of our culture, it is part of our heritage, it's part of our history. So they are not necessarily just pure western concepts.
Now, separation of powers. My idea of separation of powers, and if I misspell something, please forgive me. I'm a lawyer. My idea of separation of powers is separate the power from the powerful. We need to have a concept of separation of powers...and also checks and balances, and they're not necessarily the same thing. We always have that check, but the separation of powers and checks and balances is to avoid or at least limit the concentration of power into a limited few or even a one. So that is why in my concept we want to separate the power from the powerful. We want to decentralize that concept. Now the one thing that...also to limit power to a limited few is also to avoid conflicts of interest, and most importantly in my opinion to avoid the perception of a conflict of interest. Now when a person wears many hats, and they are a member of a tribal council that will perform sometimes executive, legislative and even judicial functions, we may have the perfect person there that is able to delineate each one of those powers. They will say, "˜Well, I can make this decision in a vacuum and this one and this one.' I know there are people out there that can do that. But it's the perception that your people have, and perception is reality. And so when you have an individual who is wearing three different hats and calling all the shots, what are the people going to think? Well, they're going to think, "˜Well, they're all in total control'. So separation of powers in avoiding even the perception of a conflict of interest is very important.
Now, how do we get there based on a system that is sometimes even foreign to us? Historically tribal governments have been largely spiritual, holistic, oral, clan-based, family-based, and consensus-oriented. The leaders were often felt to be facilitators or even respected guides, but sometimes they weren't considered "˜decision makers.' Tribal citizens often had a direct say in the runnings of their governments. So how do we deal with the system as it is, when it may be foreign to our concepts? And we have heard several times today about the IRA, Indian Reorganization Act and the Oklahoma Indian Welfare Act, and there's a lot of bad things or the history of the IRA, but I'm not here to completely decry it, because it was better than the alternative. The alternative was extermination. So at least in 1934, there was a concept that Indian tribes should reorganize and should exist. That has not always been the policy of the United States both before the IRA and after the IRA. But there is a legacy of the IRA that we have to deal with, and that is as has been mentioned earlier today the concept of the cookie-cutter constitution. IRA constitutions you could pick, there were hundreds of them, but you could pick any ten and they're going to look pretty substantially similar. They're going to have a clause about territory, they're going to have a clause about membership, they're going to have a clause about a governing body and that governing body is going to either range from three, five or seven members, and that governing body is going to both have legislative and executive functions and sometimes even judicial functions. They'll have a referendum and recall provision. They'll have a provision in there about elections. And then sometimes later, they had a judicial function almost put in as an afterthought and most IRA tribes did not have a constitutional judicial function.
So this hybrid that was created and this bleeding of the powers of the three branches did not suit us well. It might have been good in the 1930s for a limited amount of tribes, but it definitely is not good for us in the long run, and often, well, in almost all cases, there was very little if any consultation with tribal members and tribal citizens about the creation of this. These constitutions were insensitive to the tribes' culture, history, heritage, size of the tribe, the resources that it had. Basically it was, "˜Here's your constitution and good luck,' and some people and has been mentioned earlier think that that was by design, that the United States government did not want a decentralized form of government that had been part of our history. They wanted someone to talk to. They wanted someone to make deals with. They wanted businesses as said, timber companies, railroad companies, someone, a structure to have a government entity that they were familiar with to make their deals with. They had a square peg and they wanted to have a square hole to put that peg in....And also in these IRA constitutions, and you can look through them, is federal approval for this, federal approval for that, and that you can do this, mindful that the president or his representatives will give approval for it. It was almost full of "˜Mother, may I's...?' It's the mother of "˜Mother, may I's...?' And so we have dealt with that, and even if you're not an IRA tribe or an OIWA [Oklahoma Indian Welfare Act] tribe, that has been kind of the model that we've kind of adopted. Well, [due] in no small part to the people in this room and your predecessors, Native American tribes are going through a constitutional resurgence. We have begun in many instances to throw off the paternalistic yoke of the Bureau of Indian Affairs and if there are members of the BIA in here or you formerly worked for the BIA, I apologize in advance for offending you because I may do so at certain times during this presentation. But we have started that process.
Now, how many tribes here have a constitution? I know not all of them, but raise your hand if you've got a constitution. How many of you are currently going through a constitutional reform? How many people in here perceive that their constitution is perfect? No one raises their hand. You wouldn't be here listening to the good speakers today if you thought that your constitution was perfect. There's not a document made by man that cannot be improved, but as we go through -- and many of you raised your hands that you're going through a constitutional reform and may in some instances even rewrite your constitution -- the concept of separation of powers will be at your forefront. And let me tell you folks that this topic, separation of powers and checks and balances, it's the most important topic of this conference, so feel free to leave after you're done here today. I say that in jest, but obviously it is of extreme importance. Okay, Todd Hembree, why? Why is separation of powers and checks and balances so important? Well, I will tell you with every bit of conviction that I have and every fiber of my being that there are tribal leaders in this room who are caring, who are dedicated, who are selfless and want to help their people. I can guarantee you that. I can also say, with the same amount of conviction and every fiber of being in my body, that there are tribal leaders in here who are selfish and irresponsible. Now how do we protect ourselves from the latter? You do that through a system of checks and balances, of separation of powers.
Now, we're not going to go through just your normal civics lesson, but I'm going to give you examples of how my nation dealt with it, the Cherokee Nation, and we have a tribal councilor, Ms. Julia Coates, who will be talking about what we did and why tomorrow, but for now I'll just briefly go over it. Now we wanted to insure that there was copious checks and balances in our government and a true and complete delineation of the separation of powers. We had, some may say, the [misfortune], but I say it was fortunate that we had our constitutional convention during a time of great trial and tribulations in our government. So there was an era of mistrust, so therefore that concept was truly on my mind and I was a delegate to the Constitutional Convention in April of 1999, and I had the fortune of serving on the Constitutional Commission also. So how did we build in that separation of powers? Well, obviously we had the executive, legislative and judicial branches and eighth-grade civics, the executive branch enforces the law, the legislative branch passes the law or makes the law, and the judicial branch interprets the law. Now what we did is we -- as I earlier read Article 5 -- we made sure that no person can exercise the powers of the other unless specifically allowed in this constitution. But how do we go about making sure that that's done? Well, we put in there an attorney general and marshal, constitutionally created offices that have a term of five years. Now the principal chief and deputy principal chief have a term of four years. The legislative branch, the councilors have a term of four years. We wanted to build in an extra layer of independence that the chief is going to appoint an attorney general for five years, so insuring that that attorney general will serve at least one more year into the next chief's tenure. The same with the marshal -- that these are not going to be concurrent with the other officials. And that's important, because that again leads to the aura of independence. Also, which I think is very important, is that the attorney general can't be fired by the chief. The marshal can't be fired by the chief. They can only be impeached through a process that is set up in the constitution and in our legislature. Again, the aura of independence and the actual safeguards that we won't have, oh, with President Nixon's Archibald Cox, the Saturday Night Massacre. "˜I don't like you, you're fired.' You can't do that in our system. If I make a decision that the executive branch doesn't like or the legislative branch doesn't like, that's tough. The only way to get rid of me is by a two-thirds vote in the council after a complete due process of charges being brought against me. I think that's very important, and that's when you go and you're in your constitutional reform, the independence of a legal representative not just for the tribe, or not just for the chief or the legislature, but for the entire tribe. That independence is important. And the same it is for [the] marshal to actually commence the criminal process. Now what other things are indicative of checks and balances? These are separations of powers. These are checks and balances.
Also in our constitution we have a constitutionally created election commission, "˜cause where are you going to have your most fights, folks, in Indian Country? Normally, elections. So if we have an independent election commission that we have -- through our codification or ordinances or laws that we've passed have -- insured that they are independent, that cannot be, no influence by either the executive or legislative branch can influence this election commission, that's important. We heard about just very recently the tribal conflict with Bush v. Gore. We just went through that with a Cherokee Nation election. We had an instance where the principal chief was elected by a mere seven votes in the first election. Well, there was a challenge to that. We went to our courts and the courts determined that there was no mathematical certainty, no, that the election could not be determined by a mathematical certainty, so you know what, we had another election. And in that other election, a new chief was elected. But we didn't break out the guns, tanks weren't rolling in Tahlequah, the system worked and there was a peaceful transition to power in a very contentious and hotly contested election. Regardless of who won, you had to be proud of the fact that the system worked, that people actually...that violence did not break out. And again, that's because, as said earlier, the constitution is embedded in the culture of our people, that our people respected the rule of law.
In this room here we have, I've read through the list of them, we have tribal council members, we have election commissioners, we have people representing business entities, we have the most honored title, citizens, of Native American tribes, and you're here for a reason, and that reason is that you're to go about the task of reforming your constitutions, which is in many cases hard, long, thankless. You've probably made more enemies than friends by volunteering for this process and you're to be commended. So it's gatherings like this where people and the other good speakers can give you nuggets of wisdom as you go about your task. I will attempt to give my perspective and I will say it's a unique perspective. I've been a drafter of a constitution. I've been a delegate to a constitutional convention. I've been a tribal council or a tribal judge. I've represented the tribal council legislative branch for 12 years, and you could not find a more strong advocate for the legislative branch than I have been. And here recently I've been made attorney general, so I've changed roles. I've gone over to the executive branch. This was interesting. Early on in my tenure, in the first couple weeks, we were dealing with what is called a FOIA request, a Freedom of Information Act, that there's a process where citizens can get information from our tribal government. And there was a FOIA request from a tribal councilor, and I'm sitting there and wondering, "˜Well, is this information that can or should be put forthcoming?' And one of my attorneys that works in my office came to me and we were all sitting around the desk and he was spouting this proposition that would tend to lend itself to the disclosure or the releasing of this information. I said, "˜Well, that's ridiculous. That's a bad train of thought.' And he said, "˜Well, sir, it's from a 2002 memo that you wrote when you were representing the legislative branch.' And that was an awakening to me, that was an epiphany. More appropriately it was a slap in the face that yes, you're right that it's not just the perspective, it's not that the perspective changes of where you sit, it's just doing what is right and following the rule of law. I'm so glad -- things happen for a reason and that epiphany that I had early on in my career I'm thankful for, because it instilled to me it doesn't matter where you're at today. It matters where you and your predecessors are going to be tomorrow, "˜cause I can guarantee you one thing, ladies and gentleman, in 50 years I will not be the Attorney General of the Cherokee Nation. I still want to be alive, but at 96 I don't want to be practicing law and I don't want to be the Attorney General of the Cherokee Nation. I can also guarantee you this folks, in 50 years you will not be holding the positions that you have today. We're merely occupying these seats. We're occupying these seats that our ancestors held before us and that our future generations will have from here on out. So when you're going about the task of reforming your constitution or rewriting your constitution and you're putting in these safeguards, it's important to understand where you are today and where your tribe will be tomorrow, because we won't be here, but I guarantee you your tribes will, I guarantee you the Cherokee Nation will be here in 50 years. The Cherokee Nation will be here 500 years from now. So it is these little steps that we take when we're drafting these constitutions and trying to create a system of government that is going to last generationally.
Also, before I forget, we're talking about checks and balances here. Now there's more to it than that, and I'll go back here briefly. We have a constitutional office of treasurer, which handles the money. There's a song by Warren Zevon that says, "˜Send lawyers, guns and money.' Well, we don't have guns to send, but we do have lawyers and money and we are protected in the constitution as to that. Now also we have a recall provision in our constitution and those are important, that you have the power of the people to provide yet another checks and balances. You have the power of referendum and initiative, that if the legislative branch is not doing their job or they're not doing it correctly, the people can come in and provide a system of checks and balances on this. We have impeachment. That if there's not enough people for recall, we have a system of impeachment that can go about the task of removing an elected officer or appointed officer if they've done wrong. Now notice on impeachment, I only have executive and legislative on here. We have something that's unique in our constitution, and I've read hundreds of them and I haven't seen it in any others. It's called the Court on the Judiciary, and obviously I didn't spell any of this right. That's the benefit of having messy handwriting, people can't tell when you misspell something. But we have the Court on the Judiciary, which is a constitutionally set-up, independent body that can only remove the judges. Again, an attempt to de-politicize the impeachment process and adding another layer of independence to the judicial branch. And again, as we've just heard, in many constitutions we have a general council of membership or citizenship that can watch over everything. It may be an elders council, it may be a general council, but is, as I would say, the all-seeing eye over all of this process, the watcher of the watchers. So in my opinion, you cannot have too many checks and balances to insure the well running of your government.
Now a lot of you can say, "˜Well, Todd Hembree's a Pollyanna. He has 12 lawyers in his office, he has a support staff of 18, the Cherokee Nation has an annual budget of over half a billion dollars, their businesses have another half billion dollars in their budgets. You have the resources, Todd, you have the luxury of talking in these high-minded ideas. You don't know where we're at. We're in the middle of the Utah desert where we have to drive an hour and a half to get to a gas station to fill our tanks up. We don't have adequate housing, we don't have the ability of adequate education. We have two or three people who are really interested in actually forming the government. We can't have all these separations.' And I hear you, I get it. I've done consulting with tribes across the nation. I've been down there where the rubber meets the road, but to me I tell you, you don't have the luxury to not think about these ideas and to not incorporate these separation of powers and checks and balances, because as was said earlier, you're looking at an investment in your future and the way you're going to have that investment pay off is by having a good system of government. I've always liked this saying is that, "˜Well, what if we're doing good? What if we don't have that system, but we're still doing good?' A benevolent dictator is still a dictator. That's why you have to have these systems of checks and balances in there, and how you go about doing that is through, as I said, the diffusion of power on multiple levels, the decentralization of power in your constitution. Use your history and your heritage, use your traditional communities, your clans, to incorporate into your constitution. One of my favorite sayings from my grandfather is, "˜If there's a stone in your shoe the foot is the first to feel it.' Your communities, where you're down in the trenches, if you incorporate them in your government structure in a diversification of your power, it's going to serve you well. And I know I'm short on time and I'm going to open it up for questions, but in the next couple days take advantage of this opportunity. Everyone in this room and their tribes, they have made mistakes and they have had successes. Talk to each other, learn from those mistakes and those successes, because again, I always like to quote my grandfather, he said, "˜Son, you don't have to touch the stove to know that it's hot. If someone's already touched it and been burned, you don't have to go up and do it yourself.' So learn from the people around you. We've all been through this process, sometimes several times. And with that I thank you. I'll open it up to questions and appreciate your invite here."