University of South Dakota Professor of Law Frank Pommersheim discusses the key constitutional issue of dispute resolution and presents three cases demonstrating how tribes are endowing their constitutions with legitimacy through the careful, thoughtful resolution of disputes.
Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.
"I plan on leaving a lot of time for questions so we can have a good discussion. But I want to start by saying this, a number of you came up to me during the break asking me if I was Johnny Depp. I thank you for the compliment, but I'm not. But I appreciate that. But I also want to start by giving two examples of the importance of words and vision, because people have said how important words are and how important vision is, and I want to give from my own experience two concrete examples. One is very short but to the point. The second is much longer and had a much more profound influence on me. The first is, I think a number of tribes are aware that they have drug courts, that there's good funding that comes from the Justice Department and from the Bureau of Indian Affairs not only to tribes but to other communities around the nation to deal with the issue of drugs. And it looks to try to work with people who have drug problems and not focus so much on their criminal behavior. A very, very positive thing, a good thing. The federal government is actually trying to do a good thing in that way. But the people at Rosebud [Sioux], they think it's a good thing, but they didn't like the term drug courts because ‘drug court,' it sounds negative. And so what they did without anyone's permission, they just changed the name to ‘wellness court.' So the Rosebud Sioux Tribe has a wellness court that focuses on working with people who have committed crimes and have been involved with the use of drugs. But just think about that for a moment. To me that's a real profound difference between working with a drug court and a wellness court, because it shows the commitment of the people at Rosebud, that they want their members who have committed crimes who do have drug problems, they want them to be well. It's just like one word, the difference between ‘drug' and ‘wellness.' To me, it makes a tremendous amount of difference. And I actually see it in action, because when I listen to the tribal trial judges at Rosebud, when they talk about the wellness court, they talk about it with pride. They talk about how tribal members are really being healed and they're really changing. And I think part of that is because the drive is to get them well, not to punish them, not to be indifferent to the wrongs that they may have done, but to really focus on the good things. And I think one of the things to keep in mind in the context of tribal institutions in the courts, where I have most of my experience, or in a context of constitutions, is without being naïve, without being simple minded, to focus on the good and to focus on the positive.
The other example I want to give is a little bit broader example, because people are talking about sort of the importance of vision. And I think sometimes the word ‘vision' is kind of overused. It's a good word, it sounds great, but what does it actually mean? And I want to give one example. And again this comes from Rosebud. Thirty-five years ago, 40 years ago, before there were community colleges on most reservations, there were none. But there was one man at Rosebud by the name of Stanley Redbird, and Stanley had the vision that he wanted to start a college on the Rosebud Sioux reservation. No federal funding for it, no one had even really heard of that idea. But Stanley said, ‘We should have a college on the reservation. Why should people from Rosebud have to go off the reservation to go to college?' Well, it seemed obvious to most people. Rosebud Sioux reservation is in the middle of a very rural place in South Dakota, extremely impoverished, and you would think or most people would think, ‘You can't have a college here.' But Stanley had the vision, and he persisted. And he himself was not a college graduate. He himself was not even a high school graduate, but he persisted in his vision, and gathered around him a number of Native and non-Native people and said, ‘We can make this happen.' Without funding, without accreditation, but he had the vision, and his vision energized people, that you could do a good thing. I think that's a tremendously important thing, to be able to be energized by a vision to do something good, and in the context of starting a college. It started very slowly. Today it's fully accredited, offers not only AA [Associate of Arts] degrees, offers bachelor's degrees, master's degrees, [and] is getting certified for the first Ph.D. to be offered by a college on a reservation. Tremendously powerful. But the second part of that which kind of brings together a number of themes that I was hearing during the day is, education for what? Regis [Pecos] talked about Head Start. Head Start for what? And it's a very important question. Everybody's in favor of education, except some -- oh, this is recording -- except some Republicans. It's a joke. The thing is, is education for what purpose? And Stanley's vision was sort of the two-road approach. He wanted people educated on the reservation to know their tradition and culture, not just as something they knew, but something they could incorporate in their professional lives as teachers, as counselors, as lawyers, as doctors, but also not to ignore the good things that also come from the dominant society. And so the notion was to strike a balance, a creative balance. Hence, the two-road approach. So the people who went to college at Rosebud, at Sinte Gleska University, would know the best of the two roads. And so it was yes, education but education that didn't mindlessly accept the dominant society's view of education that meant just non-Indian, non-Native ways. That was unacceptable to Stanley and the people he gathered around him. So oftentimes there is a convergence at a high level of abstraction between Native and non-Native people about important issues, including constitutions. But one of the things you have to think through is below the abstraction, is what do you really want? And this has been one of the themes that I've been hearing all day is, what do tribal people want in their constitutions? How can you think about a tribal constitution? And Regis [Pecos] and Joe [Kalt] and others have given some very important ways to thinking about it.
I just want to add one or two things that are much more sort of practical in a way. One of the ways of thinking about law -- and I always have this for my students whether they're law students or not -- is you just ask, ‘What is law about?' Because I'm a teacher, I'm tempted to call on Bob [Hershey] to see if he could give me a good definition of what law is. But to me, what it is, it's about two things. It's about power and it's about values. Every law that exists, knowingly or unknowingly, is trying to support a particular value, and because it is the law, to a certain degree it has power behind it, because the power is what makes us obey the law even if we don't want to. So whenever we think about law -- there are good laws, there are bad laws, they cover the range, the continuum -- but the important thing always to ask ourselves is, ‘What is the particular value in that law? And what is the power that that government -- whether it's a tribal government, state government, provincial government, United States government -- that uses to enforce that particular value?' And so when tribes are thinking about constitutions, to me those are the two most important elements. What are the values? And that's the theme we've heard most of today -- that constitutions are about values. Absolutely critical, absolutely kind of central, but the other part, and Joe mentioned this a little bit, is sort of the power, because one thing that constitutions do -- and sometimes may or may not make you uncomfortable in talking about it this way -- is what? It distributes power, and that's just the reality of what a constitution is supposed to do in part -- to distribute the values, to distribute as it were the sovereignty, that a nation has to its constituent forms of government. And so when you think about constitutions broadly, those are the two things I would emphasize. What are the values that you want to see recognized, enshrined and supported in your constitution? And I think in many tribes there's quite a bit of convergence about that. Where there's more divergence is how you're going to distribute the power in the government to recognize and carry out and establish those values. And I think that's a very, very important kind of balance to keep in mind. How do you want to distribute the power?
When you look at that, roughly speaking, there's two ends of the continuum to look at. One is, traditionally, inasmuch as any tribe knows its true traditions, how was power distributed in your tribe traditionally? And two, is that still possible in some way today, in whole or in part, or not available at all today? Then the other model that's out there, which I think is a good model but it's a bit dangerous, is the model of the United States Constitution, the three branches of government, checks and balances, separation of powers. Well, they're good things, kind of, but I'm going to have a little asterisk next to them, because they're not inherently good unless that's what the people want. And one thing that's also true, because we were talking about constitutions today in terms of a lot of pressure, good pressure, from tribal members saying, ‘We want to improve our constitutions. We want to make them better.' And that's a tremendously good, positive and important thing. But I think it's also true, and one note that hasn't been struck, is that there's a lot of pressure on tribes to amend their constitution that doesn't come from within, but comes from without. And this is particularly true in the context of economic development and Joe touched on it a bit. Today in South Dakota, routinely when businessmen want to do business on the reservation, you know almost the first thing they ask, ‘Does the tribe have a separation of powers?' Now most businessmen, when they say separation of powers, if you could ask them a follow-up question, they themselves don't know what the hell the separation of powers is. It's just what their lawyers tell them. And so part of the deal about the separation of powers is, businessmen aren't really interested in the separation of powers, they are just interested, justifiably so, they want a business atmosphere where they can make money and where the rules of the game are predictable. That's what they really want. And they've been told that separation of powers sort of guarantees that. And in some ways it does and in some ways it doesn't. So I think tribes have to pay close attention not only to what's coming up from themselves and their communities but certainly in the states and certainly in South Dakota, tribes need to be alert to -- not necessarily a bad thing -- but they need to be alert to the pressures that come from the outside that say the tribes have to amend their constitutions, particularly to have separation of powers, to create a good business atmosphere. That's fine. But tribes have to realize where the pressure is coming from and what they are reacting to, what they are trying to achieve. That is again, what are the values? And if one of the contemporary values is economic development, which it is probably in every tribe in the country, then it's a legitimate question, Joe Kalt was suggesting this, that a tribe needs to ask itself. What is it that we can or should have in our tribal constitution that will enhance economic development? And I think the major thing in a tribal constitution -- any constitution -- that enhances economic development is to have a structure and distribution of powers which creates a fair, predictable rules of the game, rules of the road. So if somebody's going to come to your reservation and do business, they're entitled to know what the rules of the road are. And if they don't like the rules of the road on your reservation, fine, they can go someplace else. But they are entitled, I think, to know, and when we talk about responsibility, arguably the tribe has a responsibility to people who are coming and perhaps doing business, tell them what the rules of the road are and what their constitution says or doesn't say about economic development. So I think it's important to keep track of these two streams of pressure for constitutional reform, because in my view there definitely are these two streams. Not just one stream from the people themselves, but there is this outer stream, and tribes need to kind of thread their way through that.
The other thing I wanted to talk a little bit about -- before getting to this dispute resolution issue -- is this notion of to me two critical things are, and this note has been kind of mentioned a few times as well, is legitimacy. Any constitution will only work because it's perceived as legitimate by the people who are subject to it, that you accept it. Bush v. Gore is being used as an example. A terrible decision, an outrageous decision in which then Chief Justice [William] Rehnquist himself said in the aftermath, ‘This case can never be used as precedent in any other case.' I mean a fairly frank admission that the decision, in my opinion, blatantly political, but most American citizens kind of shrugged and said, ‘Okay. A bad decision, but we're not going to abandon a constitution.' Why? Because there's a longstanding commitment to it as being legitimate. Legitimate not because of its perfection, arguably legitimate because of its imperfection. Because if any of you actually read the constitution, know its surrounding circumstances, it wasn't perfect at the beginning. I mean, the United States Constitution recognized and accepted slavery. How could that kind of constitution be a model for anyone if it recognized and legitimized slavery? And so it was imperfect. And actually although it's kind of slidden away, there were some good things in the Constitution from my point of view about the relationship of the United States, the fledgling United States, to Indian nations. There was a great deal of respect actually in the Constitution as originally written for tribal sovereignty. There's a recognition in the Indian Commerce Clause that Congress only had the authority to recognize and regulate trade with Indian tribes, not to regulate the trade of Indian tribes. The Constitution recognized that the fledgling United States didn't have the authority to go into Indian country. It said basically, ‘You're sovereign, we make treaties with you. You're sovereign, you're separate.' Commerce is important to us, and so in our distribution of powers, that power was granted to Congress. So it was Congress who had that authority, and also an important issue in the context of the Constitution was that there was tension and battle between the fledgling federal government and the states who would have authority to deal with Indian tribes. The United States Constitution placed all that authority in the federal government, none in the states. And within the federal government, they gave all that power strictly in the area of commerce to the legislative branch. But this segues into the next thing about interpretation. Unfortunately it was a case decided by the United States Supreme Court in 1903 called Lone Wolf v. Hitchcock and all that stuff that I just said, the Supreme Court at that time just leapfrogged the plain meaning and the historical backdrop to the Indian Commerce Clause and said somehow, ‘Congress has plenary authority in Indian affairs, complete, untrammeled authority.' But it takes some work to get that from the text of the Constitution and from its history. And so this notion of legitimacy is absolutely central.
And when I think about legitimacy, I think there are three components to it in the context of Indian Country. Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it's necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that's often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it's ultimately voted on, how many tribal people are participating?
And two is part of that, the second group that's important, is the leadership. Official, unofficial, elected, not elected, traditional, non-traditional, people who are perceived as leaders. This is what leaders do. The best definition I ever heard of leadership is, leadership is managing learning in a group. That's what leaders do. They manage learning in a group, whether it's in a family, whether it's in a classroom, or whether it's being chair person of the tribe or president of the United States. And so authentic leaders -- and this idea of legitimacy -- they're the ones that manage in a good way the learning that takes place. That's what good leaders do, whether elected or not, none of that.
And then finally, I don't know if Joe's still here, Joe, no, Joe's not here. I'm coming to the defense of lawyers. Yes, indeed. The third group that is important, and I mean this quite seriously and I'll explain it, that lawyers are important. No, strike that, good lawyers are important, because it is true that ultimately in the modern world, constitutions at some point have to be drafted and written in a very, very thoughtful, complete, precise way, and the persons on balance who should have those drafting and expressive skills are lawyers. But it's also important to remember -- and I always tell my students this -- the people who have caused the most destruction in modern Indian law today are largely lawyers. Because lawyers, I tell my students, if a tribe is represented by a lawyer, and the tribe asks the lawyer, ‘Can we do this? And the lawyer says, ‘No, you probably can't do it because you haven't checked with the federal government.' That lawyer should be fired. He's just engaged in malpractice. But on the other end are lawyers, a tribe asks, ‘Can we do this?' And those lawyers say, ‘Well, you can do anything, you're sovereign.' I also believe they should be fired, because you can get people off the street to give you that kind of advice. It takes a lawyer with understanding, nuanced understanding, of what the tribe wants to do. But it's not a blank slate. History is out there. It doesn't mean you cave in to history, but good lawyers can help tribes navigate the treacheries of past and current history and their interaction with the federal and state governments. I don't believe you can pretend that that reality doesn't exist, and that's what good lawyers can do. They can help. They never tell tribes what to do, but they can help tribes get from where they are to where they want to be in the best possible way that avoids difficulty down the road because tribal attorneys who say, ‘You're sovereign, you can do whatever you want, now pay me and I'm going to leave.' And the tribe is left with that legacy when that advice turns out not to be too reliable in today's real, complex world. So I think lawyers are important. But more importantly, good lawyers are important. And good lawyers in Indian Country, I think there are two essential characteristics that they need. They need to be good lawyers, they need to be smart, they need to have the skills to navigate the law and to draft, but they have to understand the tribe they work for. They have to understand its history and its culture and perhaps more importantly, this is a dangerous word, they need to have affection for the people they work with, because without affection I don't think you can really accomplish the important things that tribes are kind of struggling to do. So this thing about legitimacy is absolutely essential, because it will happen -- and I'm going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you're on the side that lost or if you're on the side that doesn't like the result, because it's legitimate, will you accept a decision that you disagree with? It's easy to accept decisions that you agree with. That's easy. We can all do that. But it's very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That's what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn't have legitimacy, it's false, because as soon as the tribe faces its first most difficult decision, if there's not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it's legitimate. This is what oftentimes we mean by -- though it's a phrase that's been overused and misunderstood -- about the ‘rule of law.' You always hear that phrase in Indian Country. Do tribes have the rule of law? Actually, you hear it more in sort of foreign policy discussions. Whenever we're helping out foreign nations, the two things that are always parroted is, ‘We want to bring the rule of law to this country.' Well, it's sort of a yes-and-no proposition. If you're bringing bad law to those countries, what good is the rule of law if it's bad? So the notion about getting the rule of law is that your commitment, as others have suggested, both from your mind and from your heart and from your tradition, is that you believe enough that you can accept a decision that is contrary to your own interests. And without that, I think constitutions are yet another set of false promises. So legitimacy is key, and it doesn't just happen one time as you're going forward to the constitution, but legitimacy is always at risk. You don't learn this in high school, but in the context of American history there have been instances involving the United States Constitution when its legitimacy was actually at risk, and no guarantee that it was going to work. And strangely or not strangely enough, the first genuine constitutional crisis in American history involved two Indian law cases decided by the Supreme Court in 1830 and 1831: Cherokee Nation v. Georgia and Worcester v. Georgia. Most of you have probably heard about them. But the background of those cases were the state -- can you imagine this today -- in both of those cases the State of Georgia did not even appear to argue before the Supreme Court? Can you imagine that, that one of the constituent states to the Union in early days of the Constitution said, well, I won't use that word, but I'll use a nicer word and just say, ‘We're not going to appear before the United States Supreme Court, because it doesn't have any legitimacy to tell us, the State of Georgia, what we can or can't do in Indian affairs.' So you had amazing tension in those cases between the federal government and the State of Georgia. But you had even another tension. You had a tension between the executive branch and the judicial branch. You know, when the Supreme Court makes a decision, everybody plays by the rules, it's just enforced. But what happens -- particularly when it involves someone who's in prison -- if you don't play by the rules? Worcester v. Georgia, United States Supreme Court said to the State of Georgia, ‘You didn't have jurisdiction to convict these two non-Indian ministers who were preaching on the Cherokee Nation reservation and you wrongly convicted them. You have to let them go free.' And who would that be carried out by? Then-Chief Justice Marshall didn't go marching to the capital of Georgia to let those folks out. That's the responsibility of the executive branch of the federal government. That's the Marshals Service. Ultimately, it's the President of the United States. And what did the then-President of the United States say? Some people think it's apocryphal, but President [Andrew] Jackson said, ‘Whatever. Chief Justice Marshall has made his decision, now let him enforce it.' Meaning that the executive branch wasn't going to support a decision of the United States Supreme Court. Do you think the republic could endure if states felt free on a regular basis to not appear before the United States Supreme Court? Do you think the republic could survive if the executive branch on a routine basis said that it would not enforce judgments of the United States Supreme Court? And the answer is no. Fortunately -- or maybe unfortunately depending on your point of view -- is that what happened is that the court went into recess, President Jackson realized the republic was becoming unraveled. South Carolina passed the resolution they were going to leave the Union. And so he realized that he couldn't be, refuse to enforce a judgment and let the State of Georgia get away with its disrespect for the Supreme Court. And so he convinced the Governor of Georgia to pardon those two defendants who had been convicted. So right from early Indian law history there was a genuine constitutional crisis about whether the United States Constitution had enough legitimacy to survive that crisis. And it's important to realize I think, without inviting it, that sometimes tribes will face crises of their own about the meaning of their constitution. But my thinking is that you have to hold fast to the values and the structure that you can accept the decision, work with it, even when that decision seems to you to be against your interests and may seem to you quite wrong as a matter of constitutional interpretation. Because without legitimacy, constitutions cannot continue to function and that's the most difficult thing to establish at the front end, and it's the most difficult thing to maintain. And so it's important for tribes as they go through adopting constitutions or revising constitutions to insure that they have legitimacy. Legitimacy means what? Talking all the time, being respectful [of] what others say, particularly others that you disagree with, and that they're respectful of you and that you remember that you are united in your support of the values, you're united in the support of the structure, even though you might disagree with a particular decision.
So let me conclude by giving three examples and three cases that I served on the appellate courts of these three tribal nations. The first case comes from the Saginaw Chippewa in Michigan. People talked a little bit today about one of the critical issues for tribes in the U.S. is membership, enrollment. But nobody talked about the flip side of that and the flip side is disenrollment, a very painful, a very powerful force within a number of tribes. And so a case came up at Saginaw where the tribal council there began to disenroll people and a number of people thought it was just wrong. And so they brought a suit in tribal court raising the question, a very important question, ‘What power does the Saginaw Chippewa tribal council have to disenroll people?' It's a very powerful, though perhaps painful, question. And it would be a good question for all of you to ask yourselves, ‘What power in your own tribe does your constitution say about who has the power to disenroll for what reasons under what circumstances, or does it really address the issue at all? And so the case at Saginaw, and I'll simplify it a little bit, the view of the tribe was -- represented by an excellent attorney -- and the view that the tribe had plenary power to disenroll people for whatever good reason it thought. The challengers -- also represented by an excellent attorney -- took the position, ‘Well, if you look at the tribal constitution, it's an important, really basic question, what is the structure of this tribe's constitution?' And what it meant by ‘the structure' is this, and I think it's a very important question for every tribal member to ask about his or her constitution. And it is this: Tribal constitutions structurally, from an overall point of view, can be organized into two categories. One is what we might call a ‘plenary power' constitution. A plenary power constitution means in the text of that constitution, all the power of the tribe is granted to the tribal government and none of that power is reserved directly to the people, and there are tribal constitutions that do this, I've seen them. There are also many tribal constitutions, in fact probably more tribal constitutions, that are what I would call a delegated powers model, in which the power of the tribal people is delegated in a specific manner to the tribal government itself, and all powers not delegated or enumerated to the tribal government are reserved to the people. And I think, structurally, that is probably the most important structural question for tribes. All the power to the tribal government, or only some and the rest of it reserved to the people. And for those of you who are members of tribes that have tribal constitutions, look at your tribal constitution or look at it again and see how you would answer the question about whether it's an enumerated powers constitution or whether it's a plenary power constitution. So that was one of the big questions in the Saginaw case. And we reached the conclusion -- we being the court -- reached the conclusion that the Saginaw Chippewa tribal constitution, which was adopted in a revised edition in 1986, was an enumerated powers constitution, and the tribal council only had the expressed powers that were set out in the constitution. And so we went then to those enumerated powers, and there was some limited, direct recognition of the power of the tribal council to disenroll people. But they were very limited powers. They were limited to members who were enrolled in more than one tribe, and it also mentioned that they had the power to disenroll people who had been adopted into the tribe and their parents divorced. It didn't seem like the constitution gave the tribal council any broader power. Then the question was, ‘Does the tribal council have any inherent powers to disenroll?' ‘Cause that's another thing that comes up sometimes. It comes up with the United States Constitution, sometimes comes up with tribal constitutions. Even though it's not specifically mentioned in the constitution, does a tribe under some circumstances have inherent power to do X. And we decided in the Saginaw case that the only inherent powers that the tribal council had to disenroll people were for two reasons. If it could be proved that a person became a tribal member through fraud. We took the position that a tribe must have the inherent power to disenroll people if they can prove that those people became tribal members through fraud or mistake, because sometimes mistakes happen in the context of enrollment, particularly in the context of blood quantum, ‘cause blood quantum ultimately is what? It's ultimately a math problem, and so if you have somebody working in the enrollment office that's not that good at math, they might have got the fractions wrong and someone gets enrolled not because of fraud, but because of a mistake, and that's the position that we took. But that's not quite the end of the story, because it all doubles back to legitimacy. We made that decision and we said that the people who had been disenrolled had been disenrolled improperly, and if the tribe was going to disenroll them, they had to have another disenrollment ordinance, they could only do it for the grounds that were identified in the constitution and they had to provide due process, notice and the opportunity to be heard. This is very important from a tribal judiciary point of view. It's how you say what you say, because when we made that decision, the tribe might have said what? They might have said, ‘Go fly a kite.' They might have fired us on the spot.
So when a tribal court makes an important decision interpreting the tribal constitution, this is where legitimacy comes into play, because sometimes tribes can, will, although they're less likely to these days, is to say, ‘No, we don't recognize you the tribal court, and we're just going to go about what we've been doing.' And so there are two things there. One is -- and I'll give another example in a moment -- is how well tribal decisions are written, how thoughtful they actually are, how familiar they actually are in talking about tribal tradition and custom, because in the context of the Saginaw case, we looked back to the history of enrollment for the Saginaw Chippewa Tribe. It had a lot of adverse, troubling conditions imposed by the federal government that created a very difficult situation in Saginaw in determining members and it wasn't really the tribe's fault. It was the fault of the federal government who created these kind of crazy rules. But we understood that and we said that. And we tried to show respect to the tribe itself -- meaning the executive branch -- and to the plaintiffs and to tradition and custom. We talked about unity. We talked about respect. And they're just words, but you can make the power of expression, you can use the right words the right way and you can make a powerful expression. And so -- and this is my opinion and I'm not neutral because I worked on that case -- the tribe didn't like the decision. They definitely did not. But what did they do? They accepted it. You could see it in the tribal newspaper. It's incredible. It's like the statement in the tribal newspaper reads like this, ‘We disagree strongly with the decision of the Saginaw Chippewa Tribal Court of Appeals, but we're going to follow it.' That's legitimacy. And so tribal courts themselves have a powerful responsibility, in the way you write your opinions, to show respect, to try to lead the way even when one side wins and the other side loses, is to try to show that there's a way of harmony, there's a way of respect. It might not always work, but you have to do it, I believe, and all good tribal judges and tribal appellate justices do that. You kind of think in the context of respect, and it makes a difference.
I'll give one other...I'll give two more examples. One was a case from Cheyenne River [Sioux Tribe], it's actually an ongoing case. Issue came up at Cheyenne River, because they have a provision in their constitution about redistricting. Their constitution -- as most tribal constitutions [do] -- say that tribal council members will be elected from certain districts. Well, at Cheyenne River the constitution was adopted, it's an IRA [Indian Reorganization Act] constitution. It was adopted in the ‘30s. And so some people were saying, ‘Well, the population and demographic patterns in those communities have changed dramatically and therefore there should be redistricting.' And interesting enough in the Cheyenne River Sioux constitution, it actually expressly says that you can amend the constitution and so you could amend for redistricting purposes, but it also said the tribal council shall redistrict. And arguably the tribal council hadn't redistricted, so there was a challenge saying that the tribal council wasn't carrying out its constitutional responsibilities to redistrict the reservation and I'll just cut to the interest thing. The plaintiffs, the challengers, the relief they were asking for, they wanted the court, they wanted the Cheyenne River Sioux Tribal Court of Appeals to make, to order the Bureau of Indian Affairs to supervise the next election or, in the alternative, they wanted the court itself, the Cheyenne River Sioux Tribal Court of Appeals, to monitor and oversee the election. And the members on the court said, ‘We're not going there. What does that have to do with self-determination to ask the Bureau to come in and supervise an election?' And so despite ruling in favor of the plaintiffs, the challengers, we didn't adopt their proposed remedy. We just said -- and again easier said than done -- we just said that we expect the tribal council, and we set a timeframe, to go forward and come up with a redistricting plan. And so there, there's another sort of cautionary note, that even when you rule in favor of one party in the context of a constitutional dispute, be careful about the remedy that you order to be implemented, even when it's requested by the parties. And again, it takes a certain kind of sensitivity to that.
Last example -- this kind of stuff hasn't been mentioned at all today -- and I do want to mention it and then I'll finish. This case comes from Rosebud. A lot of tribes in their constitution -- hasn't been mentioned at all today, maybe Joe mentioned it quickly -- but there's a lot of pressure internally and externally on tribes to insure in their tribal constitutions that they have Bill of Rights protections, that there is the right to free expression, free exercise of religion, all that. But also because many tribal constitutions in their Bill of Rights section -- if they have one -- is modeled after the Indian Civil Rights Act. And so oftentimes they'll be like sort of what we call Fourth Amendment protections against unreasonable search and seizure. And so when you have that kind of language in a tribal constitution that is a direct replica of the Indian Civil Rights [Act] protection, this is just an example, against unreasonable search and seizure, and that language also models the Fourth Amendment, and then a tribal member is a criminal defendant in a tribal court prosecution, he wants to challenge his arrest. She wants to challenge the arrest as lacking probable cause. They want to say that evidence was seized impermissibly, and that the evidence should be suppressed and their conviction should be reversed. And this is a very important question for tribal appellate courts. When you have Bill of Rights-like language in the context of stuff that applies in the context of criminal prosecutions, does the tribe intend that that language -- and I'm just using the Fourth Amendment -- do they intend that it be interpreted just like the Fourth Amendment to the United States constitution, where there are warrant requirements, the exclusionary rule, all that kind of stuff, or do they mean something different? And if they don't have anything in the constitutional history or discussion when they adopt that language, they're not providing very much direction to the court itself about how it, that is the people, think about these constitution-like protections which have very similar language to the United States Constitution and oftentimes the Indian Civil Rights Act. And the tribe needs to speak -- when they're talking about individual rights because my experience has been with the tribes in South Dakota, tribes are interested in individual rights. To me, it wouldn't be accurate to say that tribal people are all sort of communal, they have no sense of individual rights. It's a balance, and the people who are adopting the constitution, if you're going to have that kind of language in the constitution, you need to provide some background for the court about do you mean just like the Fourth Amendment or not quite like the Fourth Amendment? So whenever you're copying language I guess, borrowing language that comes from the United States Constitution or from the Indian Civil Rights Act, it's really important that there be discussion, documents that show is it just the values that you're interested in, fairness and privacy, or are you inclined to want the exact rules that come from the Fourth Amendment to the United States Constitution, particularly in the context of prosecuting tribal defendants? If you believe that exclusionary rules should apply, that means X number of tribal convictions are going to be reversed. Is that where the tribe stands as a matter of value or not quite, [it] may have something else in mind.
So those are just sort of three examples in three different contexts. Disenrollment, district representation and the rights of criminal defendants, where those are from three real cases [from] three different tribes that I've worked with in terms of interpreting. They're all about interpretation, because that's ultimately what courts do, because however well a constitution is drafted, and the well drafted the better, no doubt about it, but ultimately there are going to be issues of interpretation. And so you have to think about interpretation. And one of the ways the tribal people can aid the court ultimately in interpretation is not just simply adopting the constitution and the language but the stuff that goes with it. Are there tribal constitutional debates, meetings, that are recorded that become part of the tribe's constitutional record, so that when a case comes up and people say what the people really meant was X, that there is testimony, oral history reduced to writing about how tribal people -- the people who give the constitution legitimacy -- how they were thinking about that particular provision of a constitution. Because it's totally inaccurate to think that a constitution is simply going to be interpreted based on the bare bones text that's in the constitution, however well it's been drafted. And so to me two key things that bracket constitutional thinking is legitimacy now, forever and always, and interpretation and an ongoing kind of commitment of tribal people to their constitution. And it might need revision at certain times. The United States Constitution has been amended any number of times. Very few constitutions survive and have authenticity and legitimacy without the necessity of being amended at certain times. And again it's a very powerful notion in terms of education, because education is a very valuable component that gives legitimacy. Because too often the education that people get in high school and even in college about the United States Constitution I don't believe is very effective or fair, because it's too, it's too self congratulatory about the constitution is great, we're great, duh. There's got to be more to it, because a long-lasting constitution is not inherently great. It takes legitimacy, it takes mistakes, and that's what tribal people themselves I think have to realize, and your children and grandchildren, about it's an ongoing process to be educated to think about any constitution, but particularly a tribal constitution.