Frank Pommersheim: Constitutions: Powers, Implementation, and Interpretation

Native Nations Institute

University of South Dakota Professor of Law Frank Pommersheim discusses the fundamental difference between a plenary power constitution and a reserved or enumerated powers constitution, and recommends that Native nations think very carefully about constitutional implementation and interpretation when developing or reforming their constitutions.

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

Native Nations
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Pommersheim, Frank. "Constitutions: Powers, Implementation, and Interpretation." 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 3, 2011. Presentation.

"Now what I wanted to do is to build on a few things that were said yesterday. In terms of thinking about constitutions broadly, I think two things were said yesterday I think are really critical for constitutions to address. The first one is the relationship of a tribe's constitution to its treaties. I think that's a very, very critical relationship for tribes that have treaties because I would argue for tribes, the two most important documents that exist for tribes are their treaties and their constitution. And since constitutions follow treaties, I think it's important that tribal constitutions make reference to their treaties and how treaties represent their sovereignty and represent their diplomatic stance vis í  vis the United States and the international community. And I think it's just necessary that tribal constitutions address their treaties in a very positive way, because if they don't there's sort of a disjunction between the tribe's organic governing document -- its constitution -- and its treaties. So I think that is very, very important for that to exist in tribal constitutions.

The second thing, and I think this was only mentioned a little bit yesterday, was the notion about in a tribal constitution, I think it's important that a tribal constitution say where the power is coming from that's reflected in a tribal constitution. Does it come from the people? Does it come from the clans? Does it come from the tiyospayes? What is the source of the power and values that exist in a [constitution]? Where does it actually come from? And this is very important not only in a broad sense, but it's very important in a practical sense. And I'm going to give one or two examples of how it's important in a practical sense. Because one of the issues that has actually come up for a few tribes is when the tribal constitution transfers powers to the tribal government, does that tribal government have all the power of the tribe? Or the converse: does the tribal government only have the power that's been transferred in the constitution by the people and the people retain some of that power? And one of the ways to think about that is a tribal constitution -- what I would call -- a plenary power constitution, in which the people knowingly or unknowingly have transferred all of its power to the government; or is it more of an enumerated powers constitution or a reserved powers constitution, in which the powers that have been transferred to the government come from the people and the people retain certain powers and the possibility of changing that distribution of powers? So how a tribe conceives in the large sense of its constitution as being either a plenary power constitution or a reserved powers constitution, I think is a very, very significant issue. And the way a tribe integrates its treaties into its governing document is also to me very, very significant.

Now yesterday when people were talking about constitutions or governance, they talked principally in the context of values and structure. And I want to add on two other kind of stages or variables. And I would add to values and structure the notion of implementation and interpretation. And Don [Wharton] mentioned implementation and I think that's absolutely critical, because the reality is that many provisions in tribal constitutions are not self-executing. That is that they require actions by the tribal council to enact powers that are recognized in the constitution itself. And how a tribal council actually implements certain powers that are granted to it in a constitution is very, very important, because sometimes tribes will get that just right, sometimes they will go arguably too far, and sometimes they won't go far enough. So when you're thinking about constitutional governance you not only have to think about the constitution, you have to think about the implementation component. That is, how does a tribal council implement provisions and guarantees in the tribal constitution? Because many provisions, just like in the United States Constitution, they're not self-executing. They require a law being enacted by Congress in the context of the United States Constitution. And I think the same is true in many cases for tribal constitutions. The council has to pass ordinances that actually put into place the powers that are granted to it in a constitution. And I think that's a very important kind of next step process that constitution is kind of an everyday ongoing thing and that implementation component is a very, very important part of it.

And then the last part and I don't think this was actually mentioned at all yesterday is what I would call the interpretation element because more and more tribal constitutions...what happens when -- in good faith or in bad faith -- tribal people disagree about what a constitution actually means? It's going to have to be interpreted by someone. And more and more, it's actually going to be interpreted -- in my experience -- by tribal courts. And so it's very, very important about how tribes think through, 'What is the body -- usually to be a tribal court but maybe not -- who actually will have the ultimate responsibility to interpret a tribal constitution?' Because a constitution, where it's written or even where it's not written, people are going to -- in good faith and sometimes in bad faith -- disagree about what the constitutional text actually means. And you're going to have to have a court that actually interprets the tribal constitution and I think that's a very important ongoing process. So it doesn't end when a constitution is actually adopted; one might argue it actually only begins when a constitution is adopted and you try to put those values, those structures actually in place in terms of implementation and then ultimately interpretation.

I thought I might give a few examples about the interpretation part in tribal court cases that I've actually been involved in. The first involves a particular tribe that started to disenroll its members. And one of the questions that came up was, did the tribal constitution actually allow the tribe to disenroll its members based on however it saw fit? A very important question in certain parts of Indian Country. And the question that came up was what does the tribal constitution actually say about the powers of the tribal council to disenroll people? Was it a plenary power constitution where the tribe had all the power and it could disenroll members as it saw fit? Or was it only an enumerated powers constitution that limited -- by the terms of the constitution itself -- the power of the tribe to disenroll its own members? And when that case was decided, that was a key issue in the case. What was the nature of the tribal constitution in the power of disenrollment? Because my experience is very few if any tribal constitutions actually specifically identify the power to disenroll members. And that unfortunately is a very important question about how tribes conceive of who has the power under what circumstances to potentially disenroll members and what would be legitimate grounds for disenrolling members.

In the particular case that I'm talking about -- I'll be happy to talk about the details to anyone after -- is that the court decided -- this was an appellate court -- decided that this particular tribe's constitution was an enumerated powers constitution. There were no expressed powers in this enumerated powers constitution that gave the tribal council the authority to disenroll members. And the court decided that the only kind of inherent grounds for disenrolling tribal members, when there was no expressed provisions for disenrolling members in the tribe's constitution, would be based on fraud or mistake. That is if the tribe could demonstrate that someone became enrolled as the result of a mistake, that is if he was basing on blood quantum and it was just an error in the computation and you could demonstrate that that person became a tribal member due to a mistake, the tribe would have the inherent power to disenroll that person after due process was granted to have the opportunity to have a hearing; or if someone had gained membership through fraud, that they had fraudulently deceived the tribe to become a tribal member. In this particular case we decided that indeed the tribe had the inherent authority to potentially disenroll that person after providing due process. So how you see the overarching structure of your tribal constitution as plenary power, enumerated powers with reserved powers to the people or to the community, I think it's a very, very important question.

Now let me give you an example on kind of the implementation part. Many, many tribal constitutions, in fact almost all IRA constitutions, recognize the power of referendum. Okay, does the tribe actually have to have an implementing ordinance that actually puts that in place? Some tribal constitutions say for example, if you get 300 signatures on a particular matter, that matter has to be provided for a referendum. Is that self-executing or does the tribe actually have to adopt an ordinance to actually put that in play administratively to say that, who do you actually submit that referendum petition to and does the tribal legislative branch or the executive branch, what part of the tribal government if any has the authority to review that referendum petition to see if indeed it has 300 signatures and/or that it has 300 signatures of tribal members and can they do anymore than that? And so many times you have to look at a tribal constitutional guarantee and see if it's actually been implemented.

I'm going to give you another example in this particular context. Again, a particular tribe did have a constitutional guarantee for referendum; the constitution identified the number of signatures that you had to have to get a referendum voted on. And so the tribe adopted an ordinance to administratively review these particular referendum petitions. And in that tribal ordinance they had for example the notion that they could review the number of signatures and somebody working for the tribe could determine whether they indeed were tribal members. But in this particular tribal ordinance it also said that the tribal council, acting through this particular body, had the right to review the merits of...and this was in the context of actually removing people from office. And so the tribe took the position [that] not only could they administratively review to see if it was the right number of signatures, that they had the authority to determine the merits of the claim for removing people from office. And when this came before, a particular tribal court said no, that that violated the constitution. That if there's a tribal constitutional provision for removal, then indeed the council has the right again to set up the requirements to check the number of signatures, etc., but the tribe wouldn't have the authority to review the merits of the allegations in the removal petition because that was for the people to decide when they actually voted in the context of removal. And to me that's just another example of interpretation, that in many situations you're going to have a tribal constitutional guarantee, you're going to have an implementing ordinance, and at some point that's going to be challenge. And the notion is what body -- and in many tribes it's going to be the tribal court -- has the authority to review what a tribe has done in the context of an implementing ordinance, for example, to determine if that ordinance is constitutional, not in the context of the United States Constitution, but in context of the tribal constitution itself? And I think those are very, very important things to keep in mind is this notion of interpretation.

And again, the notion of interpretation can be very, very beneficially enhanced for a court if the tribe itself not only has the text of the constitution, but all the surrounding history when the constitution was adopted. Because the reality is when you finally get the constitutional text, it's in a very short kind of abbreviated form and there might be reasonable disagreement about what a constitutional provision actually means. And if you have the tribe's constitutional history available to everyone and the courts as well to determine what were tribal people thinking when they were considering this particular provision? What were the discussions in the communities? What were people actually saying? And in many ways that background tribal constitutional history is very beneficial and important to the tribe independent of anything that's going to happen in tribal courts. Because that's part of your history, both legal, political, social and cultural. And I think you would want to have that history available to yourselves, broadly speaking, and certainly to the governing institutions within the tribe. And particularly for tribal courts, who at relevant points have to interpret the constitution, if they can have more than the constitutional text before them but the tribal constitutional history about particular provisions, it's going to be very, very helpful and very, very influential. And related to that is that many tribes -- this is particularly true in the bill of rights area, in the civil rights areas -- that they have adopted constitutional provisions that track very closely the text of the Indian Civil Rights Act or the Bill of Rights to the United States Constitution. But one of the questions that comes up when tribes do that is by doing that, does the tribe expect that the federal standard for the very same provision be the standard used by the tribe? And I'll give you an example.

Recently, the Rosebud Sioux Tribe amended its constitution. And one of the things it included in amending its constitution was a tribal constitutional guarantee for the right to counsel. It said that anybody being tried for a criminal offense in the Rosebud Sioux Tribal Court, they would be entitled to be represented by counsel, even if they couldn't afford it -- sort of matching the federal guarantee. Okay, that's the text. There's very little history around it. But one of the issues that came up was, okay: someone's represented by a court-appointed attorney in a criminal proceeding before the Rosebud Sioux Tribal Court. And they're convicted and they want to appeal. And the issue they want to appeal is that they had ineffective assistance at counsel. They said, "˜Yeah, you gave me court-appointed counsel. That person didn't do their job. Am I entitled to get my tribal court conviction reversed because I had ineffective assistance at counsel?' Now in a federal proceeding or in a state proceeding, the right to counsel means you are entitled effective assistance at counsel. And if you have ineffective assistance in counsel -- very high standard -- but if you can prove it, you can get your conviction reversed. So the issue that the Rosebud Sioux Supreme Court was faced was, when the tribe adopted a constitutional amendment providing for the right to counsel, did they intend that part of that right to counsel was the right to effective counsel? And conversely, if you were represented by an ineffective attorney in a tribal court criminal proceeding, should you be able to get your tribal court conviction reversed? A very important, practical question, and there was almost no tribal constitutional history about what the tribal people, what Rosebud people were thinking about when they adopted that provision, which as I said tracks very, very closely the understanding of the Sixth Amendment [of the] United States Constitution.

And again, that raises a very important question that when, and this is particularly true in the civil rights area. When tribes adopt tribal constitutional protections that largely parallel the language in the Bill of Rights to the United States Constitution or the language in the Indian Civil Rights Act, do they intend those standards -- which have now become tribal constitutional standards -- do they want the court to enforce or interpret them in accordance with the federal constitutional standard, which has been incorporated into the tribe's constitution? Or do they have a different tribal constitutional standard in mind? And unless there's important tribal constitutional history about how tribal people are thinking about these guarantees, which sound very much like guarantees in the Indian Civil Rights Act or in the United States Constitution, you need to make your voice heard about how you -- the people who are adopting these constitution provisions -- how you actually want them to be interpreted. And I think that's a very, very important kind of practical thing, is to...(okay, good. I have some more time. I was afraid it was a stop sign up there, that I would have to say I couldn't read but I did read five minutes but I can't read the word 'stop'). So it's important for tribes to be thinking through this implementation piece and the interpretation piece, because however much work goes into a tribal constitution, I think it's inevitable that these interpretive questions are going to come out. If you just look at the United States Constitution or any tribal constitution, these issues come to the forward; it's just natural. It's not a bad thing, it just happens; people in good faith have a disagreement about what a tribal constitutional provision actually means. And I think it's important for tribes to think through that particular piece.

And the last thing that I want to mention is the notion about any constitution only works because people actually believe in it. The United States Constitution, very, very imperfect, very, very imperfect, but it has generally worked because people believe in it, that they conceive its imperfections, but believe that it can be improved through better interpretation, it can be improved through the amendment process. And I think this is a very important issue for tribes, because I think tribal constitutions will only work if tribal people believe in them because if tribal people don't believe in their constitution, they're not going to work. And I think that's sometimes not articulated. Just because you have a constitution doesn't mean it works. People have to believe in it and concede that sometimes it might be wrong, it might be misinterpreted, but you believe in the long haul that it represents what you are about as a people and you believe that it works; because if people don't believe in it, they're not going to follow it.

And one of the things about the United States Constitution is there's this incredible myth that we have always kind of followed it. Well, that's not true. You could go back to two important early cases involving Indian tribes decided by the Supreme Court in 1831 and 1832, which involved the Cherokee Nation and the State of Georgia. When those two cases were argued before the United States Supreme Court in 1830 and 1831, the State of Georgia didn't even show up. They not only didn't show up, they indicated they weren't going to follow the decision. And if that had actually happened, the United States Constitution would have dissipated. It wouldn't have worked, because constitutions only work when people are willing to give them their ongoing consent. And I think that's an important notion, because when you look at any constitution, the question about whether it works is not defined by its text, it's defined by the people's commitment to it. And I think for tribal constitutions I think that's a very, very important, ongoing issue.

And I've seen this in a number of situations in tribal courts that I've participated in when we have made tribal constitutional decisions that have been, in some sense, against the tribe. That's an incredible point for a tribe, for the tribal council to say, 'Well, the tribal court of appeals just said what we did is wrong. What's the tribal council going to do?' It's like a fork in the road. They can say, "˜Forget that, we're not going to follow it,' or they can say, "˜We disagree with it, but we will follow it.' And if tribes take the one fork to say, "˜We're not going to follow that, we're going to get a new court,' well, then the tribe doesn't have constitutional government. They just have kind of a chaos, make it up as you go along. But if you have a tribe that has lost a case in its own court and says, "˜We disagree with this but we're going to follow the decision,' then you have constitutional government. And I think that's an important thing you don't want to lose sight of. You only have constitutional governance when tribal people and tribal institutions agree that they're going to play by the rules because that's how the system actually works. The United States Constitution has worked, for the most part, because people say, "˜We're going to play by these rules.' And I think that's an important kind of cultural and political element for tribes is to measure, in an ongoing way, their commitment to constitutional governance and playing by the rules that the tribe itself has established. And I think that's a very, very important thing to keep in mind.

And I think this is an exciting time, just as we've seen in these two days, the issues that tribes are dealing with and moving forward in the context of constitutional governance. It's a tremendously exciting and challenging time for tribes, and I think a key thing is always this educational component where people feel that it is their tribal constitution, it's something that helps the tribe go forward in its political, social and cultural mission and they have a commitment to it. And I think that's a key thing and that's where it's up to tribal people to make the constitution that you want, to agree to play by its political, social, legal and cultural rules. And I think this is a very exciting time for tribes and I'm honored to be here to provide some observations in that direction. Thank you." 

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