David Wilkins: Patterns in American Indian Constitutions

Archibald Bush Foundation and the Native Nations Institute

University of Minnesota American Indian Studies Professor David Wilkins provides a comprehensive overview of the resiliency of traditional governance systems among Native nations in the period leading up to the passage of the Indian Reorganization Act (IRA), and shares some data about the types of constitutions and governance systems that Native nations possess today.

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

Resource Type

Wilkins, David. "Patterns in American Indian Constitutions." Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 2, 2011. Presentation.

"I'm really, I'm pleased to be here. I've been having conversations with June [Noronha] and Jaime [Pinkham] and Steve [Cornell] and some other folks for several years, when Bush sort of partnered up with the Native Nations Institute. My interest in Indigenous governance goes back a long ways as well, and I'll share some of that with you. The work that I do, I focus a lot on constitutions, but I'm more interested in, more broadly, in patterns and structures of Indigenous governance more broadly defined, which is why I was really glad to hear the gentleman from Cochiti earlier today. And I'll share with you some figures and some recent data that I've collected trying to sort of tease out exactly how many of our Nations operate under constitutions. I finally got what I think is fairly definitive numbers on that, which is interesting especially when you compare that to the historical dimension.

I'm happy to be on the lands of the Shakopee Mdewakanton people. I just live right up here in Burnsville, just a few miles down the road. I really...when we originally moved up here in '99, I had wanted to find a home in Savage. I wanted to say that I lived in Savage, for all the obvious reasons, but my wife couldn't find us a home in Savage. So I wasn't able to say that I'm a true Savage. That broke my heart. But as Steve was saying, my background is in political science. I did my Ph.D. in UNC [University of North Carolina] Chapel Hill. I did my master's under Vine Deloria, the leading Indigenous scholar in poli sci as well, at the University of Arizona back in '82. And I've long been interested in issues of how we governed ourselves, how we comported ourselves, both historically and today. I belong to the Lumbee people of North Carolina; we exist in that sort of quasi-recognized status. I say we're recognized because Congress recognized us in '56 but the BIA [Bureau of Indian Affairs] refused to provide any services to us. So I tell my students I'm only quasi-real.

But this semester I'm teaching two courses that directly tie in with this conference. My first course is one on American Indian tribal government and politics, and we've been studying a lot of what you're talking about here and working on in your day-to-day lives. And then the other course is one on the Supreme Court, the one branch of the federal government that has been particularly impactful on our nation's rights and resources. And so I've heard the word self-determination used several times today. And we hear that all the time and we hear tribal sovereignty all the time. And that's absolutely true; we've made significant strides in exercising our self-determination since the late '50s, early '60s and continue to do things that for the previous century had not been allowed broadly. But at the same time, and as Mr. [Regis] Pecos also pointed out, there are still profound constraints on our nations. And in fact I coined an acronym for that. I call it the 'DPT syndrome.' That is we suffer under the Doctrine of the Discovery, the Doctrine of Plenary Power and the Trust Doctrine. And those three doctrines, combined together, create and allow for the federal government to do pretty much what it wants, vis-í -vis our peoples, our resources, our lands. So even while they're saying they support our self-determination, they still claim under these three important doctrines that they can overpower any aspect of our lives. And we all know that to be true, don't we? And so there is an interesting and confounding ad mixture there, of our being self-determined and yet still being subject to DPT. And so I talk to my students a lot about that and how that is and how that continues to coexist today.

And as I say I'm from North Carolina originally, and I just got back from Tempe at a conference down there. Those two states, the sun occasionally shines in those two states actually. I haven't seen the sun here in this state for quite awhile. I just thought I'd mention that since I saw snowflakes this morning driving over here.

My talk today is culled really from research that I've gathered over the years and two books that I recently edited. The first was a study by Felix Cohen who many consider the grandfather of the area of federal Indian law. It was a lengthy memorandum that he wrote in 1934 that was never published. In fact it was never officially accepted by the BIA as an official document, but it's a very important document. And I learned about it through some work that Elmer Rusco had done on the IRA [Indian Reorganization Act]. I tracked it down from the Yale [University] library, read it and convinced Oklahoma to publish it. Then I wrote an introduction about Felix Cohen. I'll talk a little bit more about that later on, but it contains a lot of information that I think debunks a lot of the myths and stereotypes about IRA constitutions.

That study was followed up by another edited work that I completed last year called Documents of Native American Political Development from the 1500s to 1933. This is a collection that I've been unwittingly working on for a very long time dating back to the late 1970s, when I was a budding archival researcher in the North Carolina archives. At the time I was researching my own people's history, the Lumbee and the Coharie tribe of North Carolina, as our nations were gearing up for their latest push to try to get federal recognition. But I left that position to work on my M.A. with Vine Deloria in political science and federal Indian policy at the U of A [University of Arizona], and there my interests and research desires just expounded exponentially because when you worked with Vine, he exposed you to a wide world. He wasn't limited to just law or just politics or just theology or just culture or anthropology. He combined multiple fields of research and analysis in his effort to understand who we are, how we came to be, our relationship to the other governments in our midst and so on.

And since 1982 really and forward, and even before that, two broad questions have really sort of dominated most of my research. First, I've always wanted to understand how and why the colonial state and federal governments adopted the treaties and statutes, judicial rulings and policies they did with regards to our nations. And why they've always maintained a schizophrenic position and attitude toward us, sometimes saying they support our right to be self-governing and sovereign and so on, while at the same time maintaining that they have the power to terminate us, to eclipse us, to dominate us, to confiscate, to do whatever they want. And they've always been schizophrenic towards us. And Clarence Thomas, no good friend of mine, even said in the Lara decision, federal Indian policy and law is schizophrenic. He's the first Justice to actually use that term. And so I applaud Clarence for that; the only thing I've ever applauded him for. And second, I've always wanted to understand how our peoples were politically and legally and culturally organized and how the arrival of Europeans and others affected our self-governing capabilities, particularly before John Collier, Felix Cohen and Nathan Margold -- the New Deal triumvirate -- came on the scene in 1933. My earlier works have focused largely on question one, but in the last several years I've been intent -- I've been hell bent -- on understanding historical governing structures, values and patterns and have been especially keen on learning what kinds of political, cultural and institutional adaptations we made once we had sustained contact with the foreign polities that intruded and settled upon our lands.

We know quite a bit about the Iroquois Confederacy and their important Great Law -- the Gayanashagowa -- and nearly as much about the constitutional development that occurred among the Five Civilized Tribes, but what about the rest of Indian Country? And that has been my charge in recent years. Vine Deloria, as many of you know, always stressed the importance of understanding culture, history, law and politics and many other subjects as well, and the status and structures of our societies, as well as the way we were impacted by our intense interactions with non-Native governments and their peoples. So when he encouraged me to read Felix Cohen's original Handbook of Federal Indian law -- and I would encourage you to read the original before you read the later editions, it's still the best one of the lot -- when I first arrived in Tucson in 1980, one specific sentence struck me from that book. Cohen wrote, Between the time of the adoption of the Constitution of the Five Nations -- that is the Iroquois -- and the adoption by more than 100 Indian tribes of written constitutions pursuant to the IRA, there was a fascinating history of political development that has never been pieced together.' And that was true when he wrote it in 1942 and it's still true today. And so I sort of, I clipped that comment out and I began to collect data wherever I could find it -- whether it was an early treaty or an early constitution or an early statute or some judicial ruling or whatever I could find -- and I began to keep a file of things, just as Deloria had encouraged me to do. And it was this quote that I've been responding to for a good number of years. How did we as Native nations politically cope with what was easily one of the most oppressive assimilation campaigns in world history and remained generally true to our ancestor's good values, as Mr. Pecos mentioned, while modifying to some extent the institutions themselves that carry out those values?

And so my anthology that was published last year explores that so-called fascinating history. But it is only a beginning because the field is so vast, our nations are so diverse, and the data -- both oral and recorded -- is not as available as one would like. Still, as I collected documents over these last 20 years that evidence our remarkably adaptive abilities, I was struck by how gifted we were at being able to positively respond to tremendously harsh situations by creating a bevy of governing arrangements that truly reflect how diverse, strategic and creative we were and still are. I struggled with how to organize all that data, but found that three broad categories were helpful to me as I began to sort of put together the anthology.

First, the broad span of nations who continue to operate under what we can call -- for lack of a better term --traditional or organic forms of governance, and this despite the heavy hand of federal officials intent on obliterating or at least profoundly diminishing any semblance of those structures and values. And again, hearing from Cochiti this morning reminded me of how effective and how well the various Pueblo nations have been at doing just that. Second, the wide range of Native nations who adopted constitutional, that is formal written constitutions, and this long before we heard of John Collier or Felix Cohen. According to the data that I've gathered over the years, there were approximately, somewhere between 55-60 formal written constitutions before the IRA was adopted in 1934; so 55-60 out of 560 Native nations, small percentage but an important segment of the population. And third, the creation of what I call transitional institutional arrangements that many of our nations adopted, or that were at least proposed for adoption by our communities, as a means of coping with the unprecedented swiftness of cultural and religious and demographic and territorial loss that we endured.

In some cases, transitional structures were developed or suggested by our nations in response to corrosive Euro-American policies. In other cases our ancestors proactively and preemptively generated changes to their own historic institutions in an effort to better situate themselves politically, economically, culturally, legally. And of course there's a fourth category, right? A combination category really that would include those Native nations -- probably all of us -- whose community members exhibited elements of more than one of these three prior sets of responses. And there's ample evidence that within many tribal nations depending on leadership, retention of structures and other factors, one might see one segment writing a constitution, while another segment was striving to perpetuate traditional forms of governance, while another segment would be aspiring to meld into the local citizenry. And so our communities very early on were segmented. I don't like the word divided or fragmented but that applies, too. We know that.

And so prior to 1934, we have already a startling diversity and it had only become even more intense as a result of all these pressures that we were feeling both internally and externally. From confederacies of hunting groups to the Iroquois Confederacy to small fishing villages to the small gated communities of North Carolina and South Carolina to the pueblos, to the towns of the Creek, to the villages of the Northwest coast, I mean, the diversity is startling and quite amazing when you think about it. And so that diversity along with the value systems that underlay that amount of diversity indicates that our ancestors were more than willing to embrace new political and legal traditions and institutions in an effort to adjust. They had to adjust, didn't they, to the shifting political, economic, legal and cultural terrain that they were now confronted by? And at the same time varying segments of many Native nations strove to maintain pre-contact socio-cultural norms, institutions, values and traditions to distinguish themselves then and today as much as they can from other Native nations and the inexorable tide of intruding powers that was not going to be kept at bay.

And so this is where I want to introduce the first handout that I brought, if I can get Steve's help here. This is a little table that with the help of my colleague Heidi Stark -- who actually created the table for me -- it lays out for you some of the diversity that was evident in Indian Country in 1929. Let me pause for a moment and let that work its way around to you. We know that by the 1920s, of course, allotment and coercive assimilation, boarding schools and other forces had worked a mighty toll on our communities. And so in 1929 Charles Burke, the commissioner of Indian Affairs, said he wanted to know what kind of governing mechanisms were in place in Indian Country. And so he created a circular that he sent out to all 120 Indian superintendents in Indian Country and he specifically asked about what kind of business councils or other governing arrangements were in place on the reservations under those superintendents charge. And that was a specific question: "˜What kind of business council or other governing arrangements?' And so he sent that circular to all 120 superintendents. Seventy-eight superintendents responded in writing to Commissioner Burke's circular. I don't know what the rest of them are doing. They might have all been vacationing somewhere where the sun shines. But at least we have some data that lets us know, it gives us some firsthand snapshot of what kind of governing arrangements were in place. (It's working it's way kind of slowly, but it's coming. That's alright.)

But what you'll see when you do get it -- and again I apologize for the darkness of the top font -- of the 78 superintendents who wrote written responses, 33 of them said, on our reservation are business councils. And frequently those business councils, they identified the names of each and other one of the council members. And 16 of those 35 business councils, the members served lifelong terms. So even though they had adopted a formal Western system of governance, although it was business-oriented, 16 of them held lifelong positions. They were life tenured. So that is a clear connection to some historic traditional way of governing. Twenty-eight of the superintendents said that there within the reservation were traditional arrangements that was still in evidence. And there you see the Pueblos figure very prominently. All the Pueblos were listed as being specifically traditional in their form of governance and several of the agents were quite ticked off about that. They complained that they couldn't rid of these old-time traditional Pueblos and they had lost the ability to try and control them. And they had basically thrown up their hands because they realized that the Pueblos were going to retain those values and those structures that had held them in good stead throughout history. Fifteen other superintendents said that the Indians under their charge had no business council whatsoever to speak of and had no other formal tribal arrangement. Does that mean that there was no tribal governance on that reservation? I don't think so, but the agent just simply couldn't see it or opted to say that he couldn't reference any of that. In fact the Choctaw agent made that point. The Colorado River agent said, "˜There is no governing arrangement on my reservation.' The Colville agent said the same thing. And we know that our peoples continued to govern themselves, didn't they? So it just goes to show that agents weren't always on top of things. Twelve tribes were identified as operating under written constitutions by their agents, but then you had a series of other types of arrangements: general councils, committees, farm chapters, chapters in Navajo country, welfare associations and there were several broad intertribal organizations as well.

And so this is just one set of responses from 78 superintendents, and so we still don't have the broader comprehensive view of the rest of Indian Country. But just within this small body of agents we see a fair amount of diversity. Interestingly enough, 10 of the tribal governments had elected women identified as being on their council: the Crow Nation, who we heard from today; Fort Berthold; Fort Hall; the Kaw; the Potawatomi; Quapaw; Sac and Fox; Siletz; Snohomish, Quinault. So our women were being elected to governing positions long before white women were allowed to vote in this country. I think that's an important fact to be reminded of. So this descriptive assessment of the 78 responses reveals an extensive range of governing business and customary institutions in Indian Country, some of which still broadly resemble pre-contact structures that had persisted. Because, as we've heard and as we've always known, we are the most resilient peoples in the world. And understandably there had been of necessity many changes because of the devastating impacts of nearly six decades of federal, church and societal pressures, death and depopulation, etc. In other words, by the time John Collier arrives on the scene in 1933, the remarkable persistence of many of our traditional albeit modified governing mechanisms provided them with a foundation on which they could then begin to build a new set of institutions, but that really weren't that new, because we already knew what constitutions were and we knew that many of us didn't need to rely on constitutions, either because we had many ways of governing ourselves because we are all different nations.

So after I had gathered all this data and read through these various materials, I organized the book. It has 86 documents ranging from the Iroquois Great Law of Peace all the way up to several pre-IRA constitutions. And I put them in eight broad categories: constitutions developed by Native peoples for themselves; constitutions developed by or heavily influenced by non-Natives, like the Laguna Pueblo; laws, charters, legal codes developed by us; the same developed by the United States; documents written by federal Indian agents, like the CIA [Central Intelligence Agency] and other federal officials; U.S. congressional documents that describe Indigenous governance; there were several international organizations out of Oklahoma that talked about themselves as an international body; confederated arrangements; and finally, Indigenous narratives on politics and governance. And those documents -- dating like I said over a three century period of time -- while certainly not anywhere nearly exhaustive, demonstrate how a wide cross-section of Native nations continue to exist, to continue to exercise a significant if variable measure of self-governance long after it was presumed that we had lost, surrendered or been physically deprived of that power. And I think it's remarkable when you look at how broadly and how widely we govern ourselves and how much traditional governance was still in place in 1929. Many people talk about the period from 1880 to the 1920s as the rise of plenary power and the absolute devastation and domination of our nations. And politically that was certainly true. And yet within that, we still were maintaining forms of governance that were still connected to our ancestors. And that's no small feat.

I'd now like to shift to a brief discussion of the important work that Felix Cohen did on tribal constitutions in an attempt to dispel some of the many lingering myths about the IRA process. Cohen, as many of you know, had been hired expressly in 1933 to draft the legislation that would culminate in the IRA. And many scholarly analyses have been written about that important piece of legislation, hailed as the most important law of the 20th century and rightly so. And unlike Collier, who had spent considerable time among Native nations prior to his appointment to the commissionership, Cohen lacked any kind of substantial knowledge about Native peoples and their governance before he was hired to work at the BIA. But he was a quick learner and he soon immersed himself in examination of our peoples and our cultures and became a very fast friend of Indigenous peoples and Indigenous governance.

In the 1940s, he and his wife bought and built a cabin in the Adirondack Mountains and they were neighbors with Ray Fadden, who was a prominent Mohawk traditional person. And Cohen began to learn from Ray Fadden about the Iroquois and the Great Law of Peace and that fantastic Confederated government that they had that dates back to the early 1500s. And so I find that a fascinating sort of friendship that built there. And if you read the lengthy memorandum that he wrote and that had been published by Oklahoma Press, you see Cohen mentioning the Iroquois Great Law of Peace multiple times throughout the book as one guide, as one model, as one form of governance that Native peoples operated under and he held it as a remarkable institutional arrangement.

Cohen and his colleagues were convinced, especially at the beginning of the process, that tribal organization via written constitutions, charters and by-laws, were the most appropriate means for our nations to protect and exercise our basic right of political and economic self-determination. But why tribal constitutions? What were these documents to contain? How would tribes adopting constitutions relate to the BIA, state governments, the federal government? And if tribes had retained any traditional institutions, how would the adoption of a constitution affect those continuing traditions? And was there to be a "˜model' constitution that tribes should be expected to follow?

If you read Cohen's earlier analysis and description -- this is before he begins to venture into Indian Country -- at the earliest stages of his drafting of the IRA, you could see that he really had no clue about Indigenous governance. In fact his original idea, his original model for tribal IRA constitutions was municipal or town government. I went through all of his papers at the Yale Library as I was preparing to put his book together and he writes at one point, Tribal constitutional governments were to be like town governments except that they would have federal protection and their special rights.' And that's what he thought. And in fact, in his papers, I found a lengthy nine-page bibliography that contained references to municipal or town structural arrangements. And that was Cohen's original model and that was what he originally thought tribal constitutions should look like, should resemble. But as I said, as he began to venture out, as he convinced Collier to hold these series of congresses around Indian Country, he began to learn more about how we had always governed ourselves and he began to incorporate that knowledge into his own research, into his own writing and into his own thinking. And the IRA that finally worked its way through the congressional channels reflected some of that. I'm going to just sort of summarize a few things for you here.

At the time the IRA was adopted in 1934, there were 55 recognized tribal constitutions in operation in Indian Country -- and I have that from Cohen's own papers. Within the first six years of the IRA's enactment, 195 tribes adopted the IRA; 77 tribes rejected it. And by 1940, 133 Native nations had adopted formal written constitutions, 33 of those came out of the Alaska, which was brought in under 1936, 17 came out of Oklahoma under the Oklahoma Indian Welfare Act, the rest of them were IRA communities within the U.S. (I've just been told to shut my mouth and I'm going to do that.) But very quickly let me tell you that as of today, as of 2010, there are 173 IRA constitutions recognized by the Department of Interior. There are another 74 IRA/ANA constitutions -- that is, Administration for Native Americans. There are 25 Oklahoma Indian Welfare Act constitutions, 46 non-IRA constitutions, one non-Oklahoma Indian Welfare constitution, one non-IRA/ANA constitution, the Tlingit people up in Alaska, there's a Navajo code. So in total, there are 330 tribal constitutions of these various categories; 245 of our nations do not operate under constitutions. So we need comprehensive studies, ladies and gentlemen, of all these different types of constitutions, and we need to know how these other 245 Native nations continue to operate, because under the BIA's categories those 245 communities are identified as traditional/other governments. So I think that's a fascinating reality. Thank you very much. One last thing, I made a copy of the so-called model constitution that I found in Felix Cohen's papers and that will be or has been distributed to you. So you can take that, look at this and compare that. If you operate under an IRA constitution, see if yours comports, because the fact is only a handful of tribes ever received this model constitution because Cohen himself insisted that it not be sent out because he wanted tribal Nations to develop their own from within their own value system. Thank you very much."

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