Tribal Constitutions Seminars

Joan Timeche: The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Joan Timeche (Hopi) discusses how the Hopi Tribe continues to wrestle with an Indian Reorganization Act constitution and system of governance that runs counter to its traditional, village-based system of governance and that currently does not represent a significant percentage of Hopi citizens.

People
Native Nations
Resource Type
Citation

Timeche, Joan. "The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"My tribe has 12 villages that were autonomous before the federal government came in and they didn't want to talk to not just those 12 village chiefs, but we have a very complex religious...religion and cultural ways that we have multiple societies, there's chiefs of them, of all these societies, we have ceremonies, there's chiefs of those functions and basically they didn't want to have to deal with all the multiple chiefs. They said, 'We need...we want one person.' And a lot of...and we see that...we've heard of this in a lot of other nations where they really wanted to get to the resources of those people and they wanted to deal with one person, one chief who could put their fingerprint on those documents because they didn't want to have to deal with too many chiefs.

And so in this case, when our constitution was established, it's an IRA [Indian Reorganization Act] constitution, in 1935, we had four of our villages who never willingly accepted that form of government and today have no representation on our council. They consider themselves to be traditional. One of those villages constitutes about 25 percent of our population. Can you imagine that? And then so we have...and now we're going through some political turmoil still and now we have only about five villages who are making decisions on behalf of the entire nation. So we have that hybrid that exists there. You have outside to...anybody on the outside sees the Hopi tribal council as its form of government. But internally, in my village and many other villages, we know all the decisions get made at the village level and the council has not much to say over the land base or what happens within the villages. So you see the hybrids that still continue to exist throughout even today."

Miriam Jorgensen: Considering People-Made Law in Your Constitution (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Key Things a Constitution Should Address: 'How Do We Make Law?'," Miriam Jorgensen lays out some of the different ways that Native nations can provide mechanisms for citizens of those nations to make laws or change laws governing those nations.

Resource Type
Citation

Jorgensen, Miriam. "Considering People-Made Law in Your Constitution (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"So what if a representative council isn't the only place you want that law made? Here critically I'm going to point out that there might be lots of decisions that you decide are perfectly appropriate to depute to a legislative council, to a representative council of some sort. But there may be certain kinds of decisions that you don't want to give over to them, that as a community, as a people you think there are certain kinds of decisions that you want to have broader agreement on and that's where a general council decision or a decision of the entire body of the nation, of all the voting age citizens or whatever, might be something that you want to make a provision for in your constitution.

I will say this one caveat, which is the first point above there. If general councils are the only way you're making law, that every time you want to make a new decision and you take it to the entire voting public, most research evidence proves...suggests...I shouldn't say proves because all that research do is sort of say, "˜Here's the general trend that we see out there.' Most research suggests that if you take most decisions to a general council, all decisions to the general council, that's a recipe for instability. There's just in a sense too much authority given over to kind of who showed up in the high school gym on any given night. But very successful Indigenous constitutions or other kinds of non-Indigenous constitutions too do have certain kinds of decisions that they say, "˜Yeah, this needs to go to a wider public.'

Now for a lot of native nations, one of the decisions that almost always goes to a broader public are decisions about land. So when you look across Native nation constitutions, Indigenous constitutions, and you see, okay, here's the powers of the tribal council or whatever the representative legislative body is, the congress, again, a council or a legislature, whatever it's going to be termed, there's still almost always when there are decisions to be made about purchasing land, selling land, changing the use of land, those go to a broader body, to a general council of some sort. So that's one way.

Another newer kind of provision we see in some of the very modern tribal constitutions might be called referendum or initiative and these are not quite the same as a general council meeting, but it comes from sort of the, I guess, the progressive and reform movement where basically even in non-Indigenous nations people said, "˜Well, individuals should have a voice. Individuals should be able to challenge their governments not just at election time but should be able to challenge and say, 'Hey, my representatives on the council didn't carry forth a piece of legislation that I would have liked to have seen'.' And initiative and referendum provide an opportunity for people to get enough signatures and then push a piece of legislation forward themselves as a population. So some constitutions provide for that kind of effort as well. And I've provided some examples in the handout first of limited general council power.

So here from the Coquille Indian Nation, where they've given the opportunity to the general council to make certain kinds of decisions, they're going to elect the tribal council, they can amend the constitution and they can make advisory recommendations. There isn't a listing here about land but again that shows you providing a general council with some limited legislative authority."

Here's an example from Skokomish [Tribal Nation], where they have an initiative provision and I love this initiative provision because it basically says, "˜Yeah, yeah, we know that people may still want to come forward and make law and not just have the council do all of that for us,' but look at this, they say, "˜An initiative can't just be a way to destabilize government. You can't just use an initiative to go out there and say, 'Oh, hey, that council, they didn't do what I wanted. There, I'm just going to bring an initiative forward and make law without them'.' Skokomish says, "˜I recognize that I want people to be or we was a nation recognize we want people to be able to make law and to put it out there, but they need to have 60 percent of the number of people who cast ballots in the last election sign a petition for this initiative and then it has to pass by two-thirds of all persons who voted in that election.' So it's a pretty high bar, right? It says, "˜This is going to...you can pass people-made law, but it has to meet a pretty high standard before it...otherwise it's going to be too de-stabilizing to government.'

Just a little aside, a lot of political scientists...I do economics and political science is my sort of academic degrees...a lot of political scientists look at California and say, "˜California doesn't do this well enough.' What do we know about California? Constantly they're having these referenda and initiatives and a lot of people said that California has too low of a bar, it allows too much of that disruption of the day to day flow of political business to go on by setting the bar too low. So it's too easy in a sense for the populace to kind of disrupt the government business by forcing these things forward.

So as a tribal nation with an even smaller population, I think it's really important to consider, yeah, it might be nice to have people-made law and to have provisions for that in your constitution, but really take seriously this notion of which kinds of things are you going to depute to a representative council, which kinds of things are you going to depute to a regularly convened general council and which opportunities do you really want to give to initiative and referendum. So that's a set of allocational decisions you need to be making in your constitution."

Ian Record: Some of the Difficulties of Constitutional Reform (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Ian Record discusses two of the many challenges that Native nations typically encounter when they move to change their existing constitutions or develop new ones.

People
Native Nations
Resource Type
Topics
Citation

Record, Ian. "Some of the Difficulties of Constitutional Reform (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"Legacies of colonialism complicate it [constitutional reform]. I've had the great fortune of sitting down with Joe Fliles-Away, who you heard from this morning, and he often discusses when it comes to the issues of constitutions and constitutional reform -- and he may have shared it again with you this morning -- that it's really hard to do in Indigenous communities because you have so many people in your communities who are dealing with the legacies of colonialism, they're dealing with those traumas, however they're manifested whether it's substance abuse, alcohol abuse, violence in the home, whatever that is and you're trying to get them to care about their constitution and get them to provide input on how to change it. It's really, really difficult to get that person to contribute to this process because ideally you want everybody in your nation providing their voice to your constitution because your constitution is, ideally, supposed to be an expression of the will of the people. Frank Ettawageshik said it yesterday -- the constitution is the vehicle through which the people inform the government how they want the government to serve them and ideally you want all of your people providing that voice to that government.

So you have the legacies of colonialism. You have this issue of time. I'll never forget, and it was only a few months ago, we received an email from a tribe that we've been working with on and off over the years and it was from the chairman of the tribe and he sent us this email and he said, 'We're talking about constitutional reform here.' He said, 'I've only got X number of months left in my term.' He goes, 'I want to get this thing done before we get out of office or potentially I get booted out and somebody else comes in who may not share my belief that constitutional reform is a necessity for our tribe.' So he says, 'Here's the process I've laid out.' And we were reading through it and basically he had it in mind to come up with an entirely new constitution within six weeks. Six weeks. This is a nation of more than 5,000 people and he said, 'We can go from initiating a conversation with the community to having a draft constitution in six weeks.' It's not realistic. It's not realistic.

And so you really need to be cognizant of that issue about time because if you're going to engage in meaningful... a meaningful dialogue with your people around this issue of constitutionalism and what you want your constitution to look like moving forward, you've got to be very cognizant of time. You've got to understand going in that it's an organic, messy, unpredictable process and you can pre-plan it as much as you can and try to design the perfect process and inevitably you're going to have to retool, you're going to have to re-task in the midst of it because it's unpredictable. Unforeseen obstacles are going to arise and the idea that you can do it in that short a timeframe, it's just...it's on one level insane because it sort of assumes that you're not going to get to that level of engagement that you need to have with your people because often the challenge you face at a fundamental level is your people do not have ownership in that system, often because that system is not theirs. And so if you're serious about re-instilling in your system of governance a true sense of ownership by the people in that system, it's going to take time."

Stephen Cornell: Defining Constitutions (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Stephen Cornell provides some basic definitions of what a constitution is and the role it fundamentally plays -- or should play in the life of Native nations.

Native Nations
Resource Type
Topics
Citation

Cornell, Stephen. "Defining Constitutions (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"...What kind of future do you want for your people and how do you get there? That's what a constitution is. It's a tool. It's something that a nation uses to achieve its goals.

So let's start just thinking about what is a constitution and why does it matter. And I'm going to give you a definition here, it's just one definition. I think if you canvassed everyone in the room, you'd probably come up with a number of alternative definitions, but here is one version. 'A constitution articulates the most fundamental rules by which a nation and its people intend to work together to achieve their goals. The most fundamental rules by which a nation and its people intend to work together to achieve their goals.' A constitution lays out those rules. It's about who you are as a people, how you intend to make decisions, which relationships to the land, to the spirit world, to each other, to other nations are most important. What is it you're trying to protect, to defend, to sustain? What is it you're trying to change, make better, make different? A constitution is like a roadmap. It says, 'This is how we work together, this is how we get things done.'

It's about governing.  And if...you know, what you want to be...when you undertake the task of governing a nation, you have to think very carefully about, 'What are you governing for?' When you start to make a constitution, think of it as that tool, but what kind of house are you trying to build with that tool? What kind of future are you trying to build with that tool? Those are the sorts of things you need to think about when it comes to constitution making. Why are we doing this? What's that future we want for our grandchildren, for other generations yet to come? These are big issues, but you can't go into a constitution just thinking, 'Gee, we've got this crummy constitution that some bureaucrat in D.C. came up with and we need to fix pieces of it.' What you really want to do is say, 'Where are we trying to go? Do we have the tools that'll get us there? And let's think about what those tools should be.'

Another way to think about it, and this I put together just from the dictionary, 'To constitute, to compose.' We're composing ourselves as a nation or we're recognizing what we've already known for generations what kind of nation we are. Bring together pieces into a whole. Are people going off in different directions? There's conflict, families who don't talk to each other, a history of fragmentation because of the stomping that you were subjected to by the U.S. government, the Canadian government, some other government, some colonial system. How do we take those pieces and bring them back together, to constitute yourselves as a nation? 'To establish or create.' So, to constitute ourselves as a nation or community capable of organized action, we want to be able to act. We want to make our dreams a reality. Now we've got to think about what tools we need to do that."

Joseph Flies-Away: Knowing, Living and Defending the Rule of Law

Producer
Native Nations Institute
Year

Joseph Flies-Away (Hualapai), Associate Justice of the Hualapai Nation Court of Appeals, discusses the importance of Native nations building and living a sound, culturally sensible rule of law -- through constitutions, codes, common law and in other ways -- that everyone in those nations knows, understands, practices, respects and defends.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "Knowing, Living and Defending the Rule of Law." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

"Good morning. Say these words with me, right after I say them: Framer. Framework. Founder. Follower. Funnel. Facilitator. Friend. Family."

[Audience]

"Now remember those words. Now I'm going to say something to you and I'm going to ask you to do something. I'm going to say ‘the people' and then in your own mind or in your own verbal expression yell out at the top of your lungs, or as silent as you want, your 'people.' So when I say ‘people,' you say your thing and then I'm going to say, ‘Gather, ground, and grow,' and I'm going to do something with my hands and I want you to watch that. So you all know what to do? You're the accelerated class? The people. Joan [Timeche]. You can't interrupt. I don't know if this is on or not. He put it on me, that man, so I don't know. I can't deal with the technical stuff. I've got to go on. Remember the instruction. I say, ‘the people,' you say yours out as loud as you want in your own language and then, ‘Gather, ground and grow,' and I do something with my hand. The people. [Audience] Oh, gosh, you people are...come on. [Hualapai language]. The people. [Audience] Gather, ground and grow. And I'm going to continue with that kind of thinking as we do this.

Okay, I'm going to talk to you from this paradigm and it's this, and I always speak to everything from this. And I developed this starting when I was a planner for the tribe and a council member for the tribe and then when I became a judge. This used to be a flat planning tool, but it became spherical when I became a judge after this minor said to me, ‘Joey,' because they always call me 'Joey' instead of 'judge.' I let the kids do that, but not the adults. ‘What do you think about when you decide to send me to jail?' or something like that and I really thought about it because I wanted to tell that juvenile what I thought about when I decided things because I had...that was the first time someone really asked me the question. So this has come...let me get it up here...and I now speak with it all the time because it's very relevant to what we do as community nation builders, how we all gather, ground and grow. And some of it's very academic so I can speak to a bunch of professors in this way and then I can speak to any population. I can speak to Chinese. I can speak to Russian. I was in Australia in November. I spoke to a bunch of judicial people there from the same point of view. I'm going to share this with you. Now that's this sphere.

As people gather, ground and grow -- throughout all human beings -- there's always conflict. There's always going to be, as you see on the bottom, conflict, but at the same time there's always going to be cooperation. And between conflict and cooperation we're going to go through life; all our life, we're going to have goods, we're going to have bads. We're also going to have issues of personal, or citizen against the group, tribe or community and we have to balance between myself and my people, myself and my family, myself and the tribe, myself and the nation. But we're somewhere along those lines in balance. We're going to also have to think about what one person thinks is right or wrong, as opposed to what the group thinks is right or wrong. Me, my family. Me, the tribal council. Me, my co-workers.

Now this last one, this sphere is made up of these axes and so there's that one, that one, that one, but the bulk of it is made up of this last one, which is on one end common law, constitutions and codes, that which is written and on the other end custom, common practice and culture, that what we do. And all cultures are in there somewhere. White people, you're like way over here on the writing for a long time, Anglos, English, they wrote. We didn't write all the things. We had picture glyphs and we had symbols and things, but we're more down here. We didn't have to write everything. We talked about it, we were oral, we told stories.

So as we get into the more modern context, they're asking us to be more in this somewhere up here rather than down here. But there's nowhere in the sphere that's wrong or bad. It's where the group of people have decided to be because you're going to take your custom and culture as far forward with you as the best you can. But like at Hualapai, chiefs used to have more than one wife. Can I do that now? Unfortunately, no, I guess not. So you don't bring everything forward with you. You bring the best of your people, the best of your culture, the best of what you know as human beings from out this generational growing as people. But somewhere along the line you're going to be between here and balance here all over.

The person in the middle or the institution in the middle is what I call the warrior of law. Every human being should be a warrior of the law. They shouldn't be just a judge or shouldn't be just a leader, shouldn't just be someone who was put in that position. Everyone of us, our children, all should be a warrior of law, meaning that we're going to try to balance all of these things throughout our lifetime. With myself as a human being, because this works as individuals, but myself with the groups that I'm a part of because there's always going to be the me, but always a group. There's always going to be all of these other things.

So, as far as dispute resolution, the four words that I look at that by constitution or by custom and peacemaking, they're basically doing some of these things. They're confronting whatever issue might be at hand or whatever problem or whatever hurt or whatever pain that's there. They start communicating about it, meaning they're going to discuss or they're going to go through procedure. What procedure are you going to use to get through it? So I call that communication.

They're going to need to make compromises, because no one can have everything they want, although we want to have everything we want, we just cannot. When we go to court, somebody's going to lose in there. I made a lot of decisions. I was telling some of these people this morning, half my tribe hates me because I put them all in jail at least once and I've took children away from people, I divorce people and I gave alimony to one side or I gave the tool chest to someone and they got pissed about it, whatever it's going to be. As a judge, you're hated or disliked by half the people. You can't win. It's sad for me, but I try to do my job. But people have to make compromises, but you confront, you communicate, you compromise in order to reach concord, which is peace.

So every warrior of the law, everyone of us should be wanting to get to peace inside of us as an individual, but with the groups and people, families and all of the others that we are a part of. That should be our goal in life as humans. Now institutionally, you have governments writing things down in constitutions saying how this communication might work procedurally: trial level, appeals, how it's to be filed. I have a case right now where the justices, the three of us on the panel, are bickering over whether to give a person a pre-trial conference on an issue, these little things that we have to deal with, but it's all a part of how we're going to communicate about it on the appellate level. But we have a code, we have new rules that we made not too long ago in the court of appeals. It's supported by our constitution and we try to do the best we can. But there are a lot of issues that I'd rather would not have all this procedure, all this stuff in the court system.

When I was judging, and I judged in many places, and I've been around many places to help with, as professor said, wellness courts. I even came to do TA [technical assistance] for this tribe actually. Pascua Yaqui used to have one of the only family wellness courts at one point and it was a good one. I don't know where it is now, it's not there, but they had a good family wellness court. I think they have adult, but that kind of process is something that you look at a little bit differently and we're making rules...they make rules about it and everything, but I've been all over the place and I've learned a lot everywhere I got from the people that I deal with. They're all over the board. Some like to be more like haikus or White people when they want to be the system; they want to look just like the state court. Others don't want that.

When I sit as a judge, I wear a ribbon shirt that my mom made and I don't like to wear that black dress. I might as well put on that white wig if I wear that black dress, but I'm not going to do that. I don't want my hair white yet. It's getting there, but I'm not going to go there yet. So I wear a ribbon shirt because it's something that is of us, not of Anglo. But there are a lot of tribes who want to be like that. Well, okay, who am I to say, ‘Well, that's not good.' But all of you as nations or people...leaders of your people, warriors of law, all of your people have to come to some conclusion about how that's going to look, up here. History, clarity, vision are the past, the present and the possible, the vision. You have to have a sense of what that's going to be.

What is your court system, your dispute resolution system going to be? And there's quite a bit out there as you just heard. There's other places that have started peacemaking. There's other places who are just developing court systems. A lot of people have...I read grants for the federal government, we award money to people who are just developing court systems and they want to do more like wellness court, they want to deal with the issues of that because wellness court is about addictions of all the people and yesterday I said, ‘Well, we can't build all these nations with half our population being sick, we just can't do it. Then we rely on all the outsiders and it's not our nation, it's theirs. We have to get our people well.' So wellness courts are important. We have to keep working on them and a lot of tribes, they ask for money to do that and that's one of the things I help them do. So we have dispute resolution, we have writings, we have customs here, we have the individual issues where people file against each other or the community or the tribe files against the person or however it goes.

Now, this part here, I'm going to talk about some of the...see the people, policy, place, and pecuniary possibilities. That's another way of saying the people gather, ground and grow. Policy meaning how do these people as a political unit, polity, get together, organizational structure. Remember the people were like this, we're related by clan, by family, by band, whatever. But when we get to government, it's like this, hierarchical. How is the structure of our government going to be? So the people gather in whatever form or fashion, ground, and then the place and land issues like we have to have a building for our court system, we have to have a place to meet, we have to have a courtroom, we have to have all these things. And when I was a judge, I got electrocuted in my court and some of my council members here don't even know this, but I was electrocuted in our court because it was a condemned building, but that's where I had to hold courts for two years. But we have to have a place to do it.

The pecuniary possibilities is we have to have the money and the funds. We have to be able to have the resources, the tools to do good court, to make good decisions. If you have an appellate court system and you're only paying your judges $100 a day when they're making five times that an hour as lawyers somewhere, you won't get all the people you need. I've been in different places where they pay from $100 a day to $500 a day and I've done all the different places, but it's a matter of pecuniary possibility meaning financial. So going back to this, it's another way...do you have the people to do your court systems, do you have the human resources, your own people? It's best to have your own people as judges I would think.

But now through the TLOA, Tribal Law and Order Act, how many of you are actually looking at doing TLOA changes with your 3C or sentencing? Nobody in here? Because it's going to ask you -- and then the VAWA [Violence Against Women Act], the VAWA group -- it's going to cause you to have to have certain requirements made of your judges, of your public defenders, of your prosecutors, but we don't have a lot of us, don't have the human capital. There's only been three people at Hualapai that have gone to law school and two of them, they're younger than me, have already gone on and I don't know what the first one's doing, but the other one, he works in California and he's going to be a sports agent and I'm the one that works for tribal people, but some of us don't...some tribes don't have anybody who's gone to law school. But I'm not saying you have to go to law school to be a judge, although these acts tend to make you think you have to do that. But you have to have the human resources and we don't always have that.

A lot of people have wise people, older people. Well, not all old people are wise, but there are some...these peacemaking courts, which they put to use, those are the ones they're putting in there because they have some sense of wisdom and people respect them. Unfortunately...my mom says, ‘I didn't say anything and I'm an elder.' But I look at her, to me she's my mom and the elders are way older than her. So some people, we don't see the elders in the same light. But most tribes have good, strong, wise people who can be peacemakers, but are those...

Like what kind of cases are you going to bring to those systems? We have the law. We have a criminal code, tells you everything you can't do that's a crime, all the offenses, battery, assault, sexual defenses, everything. We have civil codes that tell you what you can't do. But we also have custom things that we shouldn't be doing, but these ones go to the court system that we have that is under the constitution and the code, but what about when people are just mad at each other? That is where I wish we would have more of the peacemakers where we could bring people in...we have a gym; we could fill the whole room with whatever. Bring these two people in and say, ‘What happened?' and if we have to give them boxing gloves. Well, let's make it a safe little place and let them have at it because we fight with pipes and all kinds of things, bats, when they get thrown in jail, why can't we let them do it in front of us? Just have them...we could do peacemaking at home if we just had the ability to figure it out.

And we can do it in our own way because at Hualapai, in our ethnographies and what I've read and then what I asked about from my great grandma was, they used to say...people would come in and if they needed to bring in another chief from another band...because Hualapai really, 13-14 bands of Pai people, [Hualapai language] is people of the tall pine. It's my great-grandfather's people. There's other bands. They're all different people. A long time ago they would bring in a head man or a chief from something else and sit down, hear what's going on and let that person decide, things like that. But they would all talk [Hualapai language] or how they'd say that. They'd all talk about it and some decision would be made and that would be it. [Hualapai language], it would be over with. That's it. We can still do that at home, but do we have the ability, do we have the people, the human resources to do that and do you?

Those are the things you need to think about and we have a lot of resources, but sometimes we don't know, we don't...and again it goes back to our own ability to see it in those people we don't like. And I know, you guys are all going to say, ‘Oh, I'm not like that.' All of you probably don't like someone at home and you...it just tears at you when you see them excel maybe or whatever. You know how you see them going down the road and you go...I know. We all do that. You're going to all these cars waving and waving, there's one, don't wave at all. All of us, you know. We have to come and accept that that's the confrontation, the acknowledgment of that. We have to know that that's what we do. I know I did it or I do it. I'm afraid of people at home. They're mean to me and I was telling our councilmen, I have no thick skin. I'm a baby. One little word, look, I'm just in tears practically. But we do that to each other. We have to somehow get past that.

But a lot of that comes from the historical trauma or the way that we were raised. Our parents and the grandparents were in boarding schools and they weren't given all the love and all the parenting, and so we're kind of just mixed up through a lot of hurt and pain that we're not over. We carry it. And I always make the mistake of saying like Bob Marley, but I'm not talking about Bob Marley. What Marley am I talking about? No. Jacob Marley. Christmas Carol. You know how he's coming, ‘Eh, harr.' We carry our pain and our misery and our hatred and anger for whatever our great grandpa said about so and so. We do that. We need to let that go. We don't have to forget everything. We've got to let those chains go because we're holding onto such pain and just horrible feelings about things that has just been handed down.

My grandma used to tell me about how the...she heard and all of Hualapais know about this -- we're celebrating this in the next month or this month -- when they made us march all the way to a place called La Paz, which interestingly means ‘the peace' in Spanish, but they took all the Hualapais over there and a lot of people died on the way and they took off and escaped and came back home. People died on the way back. But I come from and these guys come from the people who survived that. But when the old people told you that story, they would remember and they would cry and they would just...and we haven't let all that go and we all have our stories, we all have that memory that we carry. And we may not acknowledge it or even know or can see it, but we do, we just hold on because our grandmas were special to us, our grandpas and we listened to them and they unfortunately sometimes gave us this feeling.

My grandma said, ‘Don't trust white people.' I didn't trust a white person until I went to college and five years ago I went to a reunion and I told them this. I never said it to them before. I said, ‘My grandma said not to trust any of you people, but you're all right.' And they laughed like that. But I had to tell them that because I was like, ‘Oh, god.' Three white people I had to live with in a three-room thing and, ‘what do I do with this?' because I hadn't lived with white people. The white people in here probably think that's backward, but it's just...I'm telling you as it is. So we have this in our people and I'm going to go these ones.

ELDR, E is for earth, L is for lightening, D is for dream and R is for rain. Dream's the most important, that just means law and I'm going to get to that, but E is the physical. We have a lot of issues: alcoholism, diabetes, hypertension, all of our physical problems that we have. L: lightening. Our thoughts. We hold off on our... We have terrible thinking. We remember, we hold onto these thinkings. The R: the rain. The emotions. We have a lot of the emotions still. But D, the most important one is the dream, which is law, whether it be what we've done as custom or what we've written down and all of that is good, but we have to have our law.

Law is what connects us and binds us together, whether it's in the stories and tales and cultures and customs and common practices that we know, that the Pueblos know more, Hopi knows more, Diné know more of these things because it's in ceremony. But we also have the ability to write things down for ourselves, for people to know in our own place, but also for outsiders to know who we are, where we come from, where we want to go as human beings so that is this side, but everywhere here is good.

There's so much more with this. I didn't even look at this. I had all these little notes, but I didn't even tell you these things because I guess that was all right, I went through stuff, but there's too much to say all the time and too little time with this. And there's too little time for all of you in a way because you're going to be 10 years from now, boom, what happened? So we've got to wake up, [Hualapai language], and do what you've got to do and go home as survivors and know that you descend from strong and powerful people and that you can do this stuff with whatever knowledge you learn from each other and other people and just do the best you can, like I said yesterday, because we have to get past that. We are going to be the people who show the entire earth how to be good human beings. Hopi prophecy, other prophecies -- that's going to be the Indigenous people. Which one of us are going to do the best job of that? So I challenge all of you to go and think about that.

Lastly, warrior of law, all of us as human beings, as leaders, leadership, law, land and les affaire we'll leave that for now. But all of us should say, ‘I stand in reason, I walk with will, I stumble over morality, but I will catch myself and go on with my journey with law. So the best of luck to all of you. [Hualapai language], thank you."

Andrew Martinez: Constitutional Reform: The Secretarial Election Process

Producer
Native Nations Institute
Year

Native Nations Institute's Andrew Martinez (Salt River Pima-Maricopa Indian Community) gives participants a concise and informative overview of how the secretarial election process works when Native nations amend their constitutions, and what happens (and doesn't) when Native nations remove the Secretary of Interior approval clause from their constitutions.

Resource Type
Topics
Citation

Martinez, Andrew. "Constitutional Reform: The Secretarial Election Process." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management & Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Andrew Martinez:

"Good afternoon. My name is Andrew Martinez. I'm originally from San Diego, California. I grew up on the Mesa Grande Indian Reservation out there. And just for scale, it takes about two minutes to drive through on the highway. It's pretty small. I came to NNI last semester as an intern. I just kind of wandered into the office, spoke to Joan, she decided to take me on. I was given the task to look into the secretarial election process and the first thing she said is like, "'Go to the 25 CFR.' I'm a business major; I'm a minor in public policy and management. I'd never look at 25 CFR. I was very, very lost and the more I read it or the first time I looked at it I was very confused, but I had to continue to go over it and go over it and through numerous Google searches I started to discover a pathway through it and that's what I'm here to clarify for you today.

So getting started I'm going to cover the objectives that I was given last semester to basically understand, once I'm going through this process, cover some background on the secretarial election process, specifically to remove the secretarial approval clause from the IRA constitutions, the Indian Reorganization Act constitutions. After the background, I'll step into the legal process in Section 82 and 81 of the Code of Federal Regulations hitting on the actual code and then also discussing tribal action that happens during that time. And these are basically observations that I've made from the tribes that have gone through this process. And I'll end with some documents that I feel that will be helpful for those of you who are undergoing this process right now and drafting your constitutions, and then also show you some more legal documents that Dr. [Robert] Hershey was talking about and open the floor up to questions. And if you would, I'll be asking my own questions. This is the first time I'm giving this presentation to an audience who really has experience in this process. So if you're willing to help me out here, help me understand the process that much better, that would be great.

So starting out, I was tasked with understanding the timeline, basically the framework that exists with the secretarial election process right now. There was no established timeline prior to 1988. That came with an amendment. I found out the amendment happened, looked at the timeline. My next question was, what brought on that amendment? Looked further, I found one case, Coyote Valley Band. Three tribes sued the United States, basically because they wanted to reform their constitutions, submitted documentation to the BIA [Bureau of Indian Affairs] agency, and got no action. One of the tribes waited a couple months; another tribe waited a couple years, no action at all. The ruling was in favor of the tribes and now we have the established framework that I'll be presenting today.

The second is to understand the interactions that happen within the secretarial election process, from the petitioning process, the tribal council interactions, the tribal membership and citizenship, even with the constitutional reform task force or committees that are initiated. And then once the official documents have been submitted to the local agency office, where do they go, how far up do they go? This is where I really started to get interested, and I have to say I got quite excited when I was able to find official BIA paperwork online.

So getting to the background. These points that are on the slide I pulled from presentations that were given during information sessions by tribes to their citizens. A secretarial election is not a tribal election, it's a federal election; therefore, you have to register separately. Second, it's authorized by the Secretary of Interior. That's what the language says. However, the paperwork only works up to the regional director unless there's an issue that needs to be clarified past that. And to clarify that, the Pueblo of Laguna who -- I think both of their representatives have left already, that's okay. Thank you for that. Thank you for posting that. That was very helpful for me, clarifying that it is the regional director that calls the election. And then why is it conducted? For the purpose of allowing tribes to reorganize under a federal statue, specifically the IRA [Indian Reorganization Act], to amend, ratify, revoke their constitutions, bylaws or tribal charters.

And I know that we have some representatives that are not from the U.S., so I put this in here to clarify the language. This is what the typical BIA constitution amendment section looks like and what a lot of us are hitting on today is removing the Secretary of Interior approval clause from that. As you can see, it's noted four times within this section. And this is the BIA template constitution. When you look at other IRA constitutions around the U.S., it looks very similar and when tribes are going through the secretarial election process now, this is the main concern, removing this so that they can put themselves into the driver's seat.

So getting into Section 82, the petitioning process. This is a lot of back-end work for the tribes. This is where the constitutional reform task force is formed. Sticking with the objectives that I was given, I'll only be hitting the points that discuss deadlines and interactions. Starting with 85, the official text of the Code of Federal Regulations notes that there will be a cutoff date once the petition has begun circulating, however it doesn't really specify that.

Filing a petition: Once all signatures have been collected, adequate amount of signatures have been collected, it's submitted to the local agency office by the tribal representative, they choose to make comments, return it back to the tribe, the tribe can accept or reject those comments and then it's returned back for the official filing date. Any challenges to the signatures on the petition must be brought within 15 days. This is the first...well, actually this isn't the first, but this is one of the many points where this process can be stopped, once these challenges are brought. Then, action on the petition. The area director or commissioner, regional director when reviewing has 45 days to review the documents and decide and also assess all the challenges that have been brought.

So tribal action during this point. The tribe will have identified whether it wants to reform its entire constitution during this process or simply hit one amendment or article. And I've seen successes and failures with the searches that I've done, the research, on both ends. Some tribes are successful, some tribes are not. Lac du Flambeau [Band of Lake Superior Chippewa Indians] just went through this process earlier this year, I think January or February, just to remove that approval clause, secretarial approval clause, failed. White Earth [Nation] reformed their entire constitution, passed. So there's no simple path to success during this process.

Again, Ian [Record] spoke about holding tribal education sessions, keeping tribal members informed, keeping them engaged and keeping them motivated. Make sure that they understand what's happening. Make sure that they understand their constitution how it is right now. Compile a membership list. I put that up there so that those who are actually going through this process specifically on the task force or constitutional reform committee, that they know the exact numbers that they have to hit, the adult members and the petitions, their signatures they need on petitions. And also consider, at this point you haven't submitted documents to the local agency office, consider at this point to who's going to serve on the secretarial election board once approval is given and I'll speak about that more later on. Circulate the petition -- 180 days to circulate the petition from the date of the first signature.

Now I pulled this date off of a document loaded to the BIA website. It's noted' DRAFT 2009.' Can anyone confirm this or deny this for me? Does anyone have any info? No? Okay. If anyone happens to come across any language that clarifies that, please send it to me. And then you will be submitting all documents to the local agency office.

At this point, setting tribally imposed deadlines, I think, is appropriate. Again keeping people motivated. Currently, Pascua Yaqui [Tribe] is going through this process. When I first gave this talk last semester to the managers at the Native Nations Institute, it was the week after they held their first education session. They continued to do this and one of the focus on amending one of the articles is removing the Secretarial approval clause from their amendment section. There are a lot of lawsuits that come out of this process. This is one of them and bringing the attention to the second point, the text of the proposed amendment was numbered rather than labeled alphabetically. Again, there's a lot of steps that can hang up tribes when trying to go through this process. If the petition or official documents once submitted are not deemed appropriate, the process needs to start all over again.

Now moving onto Section 81, Secretarial Election Process. This is once authorization has been given, official documents have been approved. Again, sticking with only the deadlines and interactions, picks up at 81.5 that 45-day period. At this now authorizing official is reviewing the documents. This picks up right after 82. If approved, the secretarial election board will be...will convene for the first time and set the dates for the election. This election needs to happen within the next 90 days and they will then set the dates for registration deadlines, absentee ballot voting if that's the case, and then also the posting of the official voter's list.

Once the secretarial election board is formed, they will convene, meet, set the deadlines at 30 days, no earlier than 30 days I should say, the election packets notices need to be mailed out to tribal citizens because at 20 days prior to the election the official voters list must be posted. That is so citizens can bring challenges forward to the official voting list to verify if the names on the...the names of the citizens who registered to vote are eligible to vote. If the tribe chooses to do absentee ballot voting, the absentee ballots need to be mailed out 10 days prior to the date of the election. And again, any challenges that are brought forth need to be brought forth three days after the election, date of the election.

And then the authorizing official, again regional director, will cover and assess challenges and rule on the sufficiency of the election. And really this was very confusing to me when I first looked into it, but then when I started finding the official documentation that was mailed out to tribal citizens it made it much more clear and for me referring back to certain sections, 82.5 and 81.11, you'll see these notices once you go through this process.

Tribal action during this period. Select representatives for the secretarial election board. Will you have the same representatives that are serving on your reform committee serving on the election board at that time? Do you have...consider the amount of districts that you have. Will you have a representative from each district serving at that point? Continue to hold education sessions, verify that registration's gong out on time, make sure that tribal members are registering and vote. I've seen a couple elections where they just didn't meet the numbers. They didn't meet that 30 percent criteria. So in that the election failed. Submit all absentee ballots on time. And then the election board, following the date of the election, will post the unofficial results and that's when the challenges can be brought forth by the tribal citizens.

So some of the found documents, and I got again real excited when I found these. This is a letter dated 2009 addressed to tribal leaders informing them of education sessions to note the changes that have happened to the IRA, specifically noting first that there's a timeframe established within that first bullet point up there. The second includes language clarifying that an IRA tribe may amend its constitution to remove secretarial approval of future amendments. There you go. There's your official language and the official document. And that led me then to the Native American Technical Corrections Act. I wanted to find out where that's at.

Section 103: Tribal Sovereignty. Each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section. You can remove the language, you're not going to lose your sovereignty, you're not going to lose federal recognition. Here's a document from Pueblo Laguna and if anyone has a chance and is going through this process and wants to see the official documents prior to submitting anything, check out their tribal website. It was actually very helpful for me because they have their documents still loaded from their 2012 secretarial election. This letter here, again, one of their articles that they were amending was removing the secretarial approval clause from their amendment section. This will not affect the status of their current standing as an IRA tribe. The Pueblo will continue to be an IRA tribe with a non-IRA constitution. Again, there it is for you."

Robert Hershey and Andrew Martinez: The Legal Process of Constitutional Reform (Q&A)

Producer
Native Nations Institute
Year

Robert Hershey and Andrew Martinez engage participants in a lively discussion about the intricacies of secretarial elections and whether and how Native nations with Indian Reorganization Act constitutions should remove the Secretary of Interior approval clause from those governing documents.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Martinez, Andrew. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Andrew Martinez:

"Now I'm going to go into my questions. This Pueblo of Laguna document was the only document that actually noted anything towards cost. Allocated funds from the federal government for the tribe to go through this process. Funds are in the process of reprogramming for the secretarial election in the amount of $20,000. My question to the audience is, is this the same across the board, has this value changed since 2012? How's the money best allocated? What worked for the tribes?"

Audience member:

"Our tribe just went through that process of removing the Secretary of Interior, but we failed and they never mentioned to us any cost associated with it at all. And we did receive a letter saying that we would be okay as an IRA tribe, but there was still the fear within the community that we would lose our status and that we wouldn't be able to get grants, etc., etc."

Andrew Martinez:

"Would you mind me asking how you addressed that fear when it came up?"

Audience member:

"We held meetings, but we didn't hold enough meetings because by the time it was announced that there was going to be a secretarial election...going back to it, I've been on the committee for two years, and going back we should have held more educational meetings. I see that now."

Andrew Martinez:

"Hindsight's 20/20."

Audience member:

"Yeah, but that's what we should have done is that we should have held more meetings and did more explanation of what was going on and the benefits of it and so on and so forth. But it was just too little of time and not enough education."

Andrew Martinez:

"Did you work to only remove the approval clause from the mandate section?"

Audience member:

"That was the only amendment that we worked on, yeah."

Andrew Martinez:

"Okay. Thank you. Thank you for that. Any other responses? One other topic that I wanted to hit on is the means of communication. A lot...actually Red Lake right now has a Facebook page for their constitutional reform. There are other tribes that have Facebook pages. White Earth utilized YouTube to get information out to citizens. It's still up, you can watch it, it's actually very helpful. It helped me understand better what the process was going through and understand also the history of the tribe. It was great.

Some tribes have Twitter accounts. I guess I'm the young'in in the group right now. Twitter, I guess, is active for me so I could check Twitter and understand what's going on there, too. I also heard that White Earth used web sessions, broadcasted their meetings, understanding that you felt like you had to have or should have held more educational sessions. If your tribal members...if you have a large group of your tribal members who live off reservation, use the Internet, if they have Internet access, use it. Broadcast your meetings. I believe Justin.tv is one where you can set up a webcam, broadcast it, anyone can log in and check it out.

And if you choose to go the Facebook route, you have open discussions on there. It's up to you, the tribe, how much information you're going to put out there. If you only want to post about meeting updates and stuff like that, that's fine. You may still get some feedback, backlash to what's happening. You might get straight out opinions and sometimes some of the interactions that I've seen on the Facebook pages is pretty harsh, but it's intense and I would note that a little criticism and a little conflict is good. It breeds innovation. However, once it gets to a certain point it just starts to kill the process and really those are the individuals who you need to communicate with the most to start to quell their fears.

This last document that I have is a flow chart that I found from the Ho-Chunk Nation. Really this is how they went to break it down on there when they went through this process. They also utilized YouTube. However, they only have one video up. So moving from that on to questions, does anyone have any questions?"

Robert Hershey:

"There's a gentleman in the back there."

Audience member:

"Mr. Martinez, have you come across anything concerning the IRS [Internal Revenue Service] within doing what you're doing because some of their rules apply to the tribes too? And a lot of the times when you're doing a financial format for your people, we have to follow the federal guidelines and some of it seems like they're trying to infiltrate the government."

Andrew Martinez:

"So any documentation that I found regarding the IRS is what you're asking about? I have not. I could look into that, but I haven't found anything official."

Audience member:

"And then the other thing, like Mr. Hershey was saying is that for that reason the tribes are kind of...the funding source. When you get the funding from the federal government, when you remove yourself from that, they say that you're not going to get anymore funding. And in the health organization, there's some tribes that are under that format and other tribes are under the other format and they call it, I think, self-determination or something like that. And tribes were asking the questions, "˜If you go on that sides, do you get no more funding and if you stay on this side you still get funding.' So that was a lot of the concern. So a lot of the tribes didn't want to switch over for that reason too because that's where the money comes from to support all the programs that are for the tribes anyway. So that's why I was thinking that if you put the IRS, the funding source, the financial part of it, it has to be under all those things too. And they don't mention it and I looked at that [25 CFR] many times and I tried to make heads or tails with it, but you can't find it there. So that's why he was saying that you could find it elsewhere, too, and that's a good idea."

Andrew Martinez:

"Thank you."

Robert Hershey:

"I'm going to add something to what you said as well. Funding is obviously a major issue. These elections are not cheap. They are costly. But this is also something that the government has to think about in putting away this kind of...putting nest eggs away in anticipation of accomplishing this in order to cover the cost too. There's something that I wanted to follow up on as well and it goes back to this issue of trust. Not just a loss of funding or loss of federal status, but there's some tribal members or citizens -- we haven't had that discussion yet, the distinction between membership and citizenship, that's for another conference -- that they don't trust necessarily their tribal governments. I just want to put that out. That's a thought that comes out. So some of the people want the Secretary of the Interior to have oversight on this and I know some of you deal with that situation as well.

The other point that I wanted to bring out; there are alternatives in terms of amending constitutions as well. For example, if your constitution is restrictive as to the membership, you can always go to Congress and get a special congressional statute. Pascua Yaqui has done that. While their membership was very restrictive in their constitution, they went and got a special... I won't use an appropriation, but a congressional act designated that opened their enrollment for a period of three years. So there are also ways of getting around the specific inability to amend your constitution by seeing if you could get certain things accomplished by special acts. Any other questions? Yes, yes."

Audience member:

"One more question on that. Some of the tribes were established by executive order. And is there any other way you can get around that to be sanctioned by the Congress?"

Robert Hershey:

"I think the body of law is pretty well clear that whether you're established by treaty or by executive order, your rights and obligations and commitments are going to still be the same, they're going to be equal. I think that there's enough experiential evidence over the years and I have not seen any kind of distinction that would denigrate your rights because you're executive order. A lot of the tribes in the west...the reservations were created by executive order and they still retain their inherent sovereignty and you try to go ahead and take away their rights and it would not be accomplished that way. You've got to be on the same footing."

Audience member:

"And then the other one is, when they fund the services to the BIA [Bureau of Indian Affairs] where we're at, it's getting less and less and less. So if they can't get you the other way, they'll take the money away from you. So you don't have the services available for what you have too."

Robert Hershey:

"We call that termination by non-appropriation."

Audience member:

"Right. That's where we're at right now."

Robert Hershey:

"And especially with the sequester too. I know that tribes have been hit really hard with sequestration of funds as well."

Audience member:

"Right. My president, that's what he was asking BIA and they tell them, "˜We want original funding because if you can send billions of dollars across the ocean to these other people that you don't know and you know us, how come you can't give it to us?'"

Robert Hershey:

"This also resonates the larger question as to whether or not you feel economically empowered to go ahead and resist. And that's a consequence of colonization over the years as to whether or not you think you have the power to say no based upon economics or the power to do things on your own by virtue of your economic conditions."

Audience member:

"Thank you."

Audience member:

"I had a question about the secretarial approval that's in those constitutions that exists now. Is there...let me back up. I'm a management product of the education system. So my whole focus has always been on structures. Well, with my tribe it seems like the structures that are in place aren't meeting the needs of the people. There's a lot of resignation with tribal members about our government, our leaders. There's a lot of fear about repercussions if you're too vocal in the community and our court systems are controlled by our tribal leaders. So I think there's a lot of people that want to see constitutional reform, but there's fear about what to do with that.

So my question is, some alternatives for grassroots people who can have a voice about those constitutional amendments but...and I was told because, I don't want to make it sound like it's just no other way, but if the people can come together and our leadership would see that this is what the people want, possibly that they would buy into it and they would jump onboard. Hopefully that's the way it'll go, but I just want to make sure that if it doesn't, that the people have a way to deal with the situation so that they can have more voice in what's going on with our tribe. And I guess that's my concern so...

This is the question I guess. Is it possible, these petitions...because there's been a lot of petitions that circulate about different things in the tribe and one of the things is a lot of times they'll petition for money. So we have all the people vote on petitions to come from a certain funding. Well, the way I look at that is, if we get the number of people to sign the petition then legally the council should honor that. That's my interpretation, but I don't know because they don't. So I don't understand enough about legally the tribal members other than voting but we're an IRA [Indian Reorganization Act] constitution and it doesn't reflect who we are as a people and we're kind of stuck with it.

So if the people would petition the Secretary of Interior on some constitutional changes, is that going to be honored or are we...is there a way that the grassroots people can have a voice in our constitution and have those reforms be...to have some outlet? I guess is what I'm looking at, because like I'm telling you, there's a lot of frustration, there's just resignation, "˜Why do anything?' The people, the way that our election process works is families aren't representative, clans aren't representative, it's just whomever gets on the council is there, sometimes you don't have a family member there to represent you. So that's why I'm just saying that there's a lot of frustration. Maybe you have some suggestions on people like me that want to see some reform."

Robert Hershey:

"I hear your frustration. I would venture to say that in your constitution there exists a provision for initiative. Is there a provision for initiative in your constitution? There might be a provision for referendum and the distinction between initiative and referendum is that a referendum is usually decided by the tribal council and it's submitted to the members, the citizens, for a vote. The citizen-initiated way to create a referendum is by what's called an initiative.

So I would suggest two things. Number one, use that procedure in your constitution or those of you that have an initiative procedure in your constitution. Two, go around and get the signatures of enough people to comply with those requirements for initiative, which would then force the tribal council to have a vote on whatever particular thing you want. You're still going to have to go through your own tribe in this regard. The amendment of a constitution that's already been approved by the Secretary of the Interior is going to require a secretarial election so you could perhaps...and again, it's questions of authority within your own community and those people that have...are clothed in those authorities and there's power situations and power dynamics.

So the other option is to try and create a consultative mechanism. We hear about tribal consultation and I mentioned something to you yesterday in terms of how tribes consult with the federal governments or the state governments and the federal agencies, I've tasked one of my students, Edward, this semester because the idea that the tribal legislative bodies are not listening to people -- grassroots people -- to create some sort of a consultation mechanism that may or may not already be in place from tribal peoples to their tribal councils and try to get something like that passed. If...regarding an initiative, the tribal council is bound to honor and hold an election on a tribal initiative if there are enough signatures passed and if they don't do that, that's something where you can take the tribe to court, it doesn't involve sovereign immunity issues, that you could go ahead and try to force the council to go ahead and comply with the terms of the initiative.

So, either you get an initiative to deal with a large issue of constitutional reformation or you create an initiative to create an ordinance, a law, a statute that talks about intra-tribal consultation. So there are mechanisms in that regard.

Audience member:

"I was just wondering, let's say you failed at it, but for reasons other than participation or lack of participation. Is there a time limit or a waiting period before you can try again with the feds?"

Andrew Martinez:

"Not that I've seen. I haven't seen assigned period. It just...it takes a lot of work to get it initiated once again, get everything going."

Robert Hershey:

"That's the old thing, you know the definition of...no, I'm not going to go there. But I would give it sufficient time to go ahead and analyze what happened and figure out as the woman over there said in terms of more outreach, more education because of the fears and mistrust. Mr. Chairman? That's you, yeah. A comment, whatever."

Thomas Beauty:

"Yeah, just a comment. Removing the secretarial approval, I was thinking why wouldn't they approve? If they went through the whole process and they didn't approve it, but they approved somebody else's, what do you think their thinking is in regards to that? Are they just doing it because they want to still keep control or are they doing it because...what reason do you think? I'm not quite sure what..."

Robert Hershey:

"I think that the tribe itself votes to remove the Secretary of the Interior approval language, then the Secretary of the Interior must go ahead and remove that language. I don't think they have discretion to go ahead and say to one tribe that, "˜Yeah, we'll remove it. We agree with you that you can go ahead and remove it from your constitution,' and then not remove it from another tribe's constitution."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"I think the denial was that their members voted against it."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"They worked it, presented, they had an actual secretarial election, but that their membership voted against it. I guess there was fear and mistrust."

Terry Janis:

"In other situations we saw on the earlier panel that I was in, the woman [Jennifer Porter], her tribe reorganized and restructured, the BIA refused to approve that because their constitution still required constitutional approval or BIA approval, secretarial approval in order to amend their constitution and so they did a second secretarial election to remove the requirement for secretarial approval and then they did it on their own. But in that removal of secretarial approval, the BIA approved that.

So if you think about what that says about the Bureau of Indian Affairs, whenever you give them authority to approve or disapprove your decisions, they have two considerations I think. One is they have a trust obligation to give their best thought to it. They're not just going to agree with you just because they agree with you, but their history of a trust responsibility is to overrule you if they think you're doing the wrong thing. So that's a real sort of issue. You're giving them authority to disagree with you. The second issue is there is a long history of paternalism with the Bureau of Indian Affairs, there just is. And as any kind of large bureaucracy, you've got people in there that are old, old, 1950s Termination-era guys with the white hair and kind of like that guy."

Robert Hershey:

"No, no, no. Wait a second, they have white hair, I have moonstruck hair. That's right."

Terry Janis:

"But for that agency to change, people are going to have to die out. You know how bureaucracies are, right? And remember who they are. They come from assimilation, termination, that's why they were set up. It's going to take them a long time to change. And so as long as you continue to give them, in your constitution, secretarial approval authority, those are the dynamics that you're going to have to deal with and it's a crap shoot every time."

Thomas Beauty:

"Well, thank you for that clarification. Not only dealing with these entities of the government, they're always looking at what's their liability, what's their liability and that to me tells me that they don't want to make a move. They'll take forever to do anything because they're still thinking about it. What can happen down the road if we do this? Because they blanket all the tribes together and if they do one thing for one tribe and then, "˜Oh, no, it's a big fire!' So they take forever and I just wanted to put that comment out there. I know we probably all know that, but just dealing with them in my little short term, that's what I understand from them."

Robert Hershey: Dispelling Stereotypes about the Federal Government's Role in Native Nation Constitutional Reform

Producer
Native Nations Institute
Year

Robert Hershey, Professor of Law and American Indian Studies at The University of Arizona, dispels some longstanding stereotypes about what the federal government can and will do should a Native nation decide to amend its constitution to remove the Secretary of Interior approval clause or else make their foundational governing document more culturally appropriate in ways that perhaps do not conform to federal bureaucrats' attitudes about how that Native nation should govern itself. He also offers a broad definition of constitutions that encompasses things like Indigenous ceremonies, songs, the knowledge of elders, etc.

Native Nations
Resource Type
Citation

Hershey, Robert. "Dispelling Stereotypes about the Federal Government's Role in Native Nation Constitutional Reform." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Robert Hershey:

“Good afternoon everyone and thanks for staying awake after that fabulous meal. I usually have my students interact with me, but Terry [Janis] said something about being older and I want to just get this out of the way. May I ask you what color your hair is?”

Audience member:

“It’s calico.”

Robert Hershey:

“Okay. I wasn’t anticipating that. I like that one. There was a young man over there, I’m looking for people with the same hair color. Calico, I’d never heard that. Robert, what color is your hair?”

Audience member:

[Inaudible]

Robert Hershey:

“All right. My hair color is moonstruck, just so you know that. It’s not silver, it’s not gray, it’s not old. You’re getting a little moonstruck yourself. So let’s talk about that.

The other thing I want to talk about is gravity because I always like to remember, someone was talking about starting the beginning of the day with a prayer. I always like to remember that if it wasn’t for gravity, I would float away and oftentimes I do float away. So I’m pretty attuned to the idea that I like gravity. If you all want to stand up and jump and wake yourself up and feel gravity, you can. No takers?

The other thing that I want to tell you about is that in addition, I’m going to introduce myself a little bit, but I’m a judge for the past 25 years for the Tohono O’odham Nation, and it’s about questions. So I’ll ask you right now, do you have any questions? Now, the reason I’m asking you now is to give you time to think because you know that you’re going to have questions, but you usually take some time to think about your questions. You’re not like us, we stick our hands right up. ‘Us’ meaning me, this face. We take our time to answer, to ask questions.

When I was a judge, there was a removal proceeding of a council member and I’m up there, and it’s almost time for lunch and I said, ‘Are there any questions?’ And being dutifully trained and schooled by many of you individuals in many nations that I’ve worked with, I’m told to wait because people will have questions and so I wait and I wait. I must have waited over five minutes for questions and I said, ‘Okay, we’ll break for lunch and when we come back, we’ll finish this up.’ So I step off the bench and come down and the chairwoman of the legislative council says to me, ‘You didn’t wait long enough.’ So, I know that if you think that I’m going to ask you, ‘are there any questions?’ and you see a pause there, you’ll know ahead of time why I’m pausing.

I was raised in Hollywood, California. I was skateboarding down the Avenue of the Stars before they even laid Avenue of the Stars. I had hair down to here when I went to law school. My crazy aunt said my hair was my antenna to the cosmos and so I kind of thought that description was pretty good. And ultimately I became, went to law school and then I became a legal aid attorney for Dinébe’iiná NáhiiÅ‚na be Agha’diit’ahii (DNA People’s Legal Services). Close? Good. Joe? All right, I did it. It took me three weeks to pronounce it where I worked back in those days.

So when I became a legal aid attorney on the Navajo Reservation, John, this’ll be referencing the trickster idea and this is how Native people have played tricks on me my entire legal career. When I was asked, and I lived way back in a canyon about a mile and a half off the road and my landlady at that time -- who was in her 70s, still riding horses, chopping wood, herding goats -- she said, ‘Will you do me a favor? Will you please take my goats from my house to your house?’ And I figured a mile and a half; a young boy from Hollywood, raised with Charleston Heston, Peter O’Toole, cowboys and Indians movies, thinking that I could do this. And as soon as I started taking the goats, they took off up in the hills and they just went up. And the lead goat was named Skunk and he had this big bell on him that clanked and every time he moved away from me it clanked and I got so pissed off at this goat. And finally I came back after an hour and a half. I said, ‘I’m so sorry. I am so very sorry. I lost your goats.’ And all she did was laugh hysterically, bent over double, laughing and laughing and laughing. She says, ‘Don’t worry. They know where to go.’ And I walked back to where I lived and they were in the pen next to my house. And ever since then I’ve had to have a sense of humor about all the ecological catastrophes that are befalling us, about all the work.

Let me tell you something: in 1969, ‘70, I started this in ‘72, working with Native peoples, the strides that you have made, the things that you have accomplished in that time, the youth, all the programs have been monumental. So you should all know that regardless of the challenges, you are striving in such a positive direction and your attendance here at this [seminar] is a testament to that fortitude and stability that you’ve carried forward for over 500 years. And I appreciate it. I want you to know how honored I am to have had an entire legal career of over 40 years working with Native people. So I thank you too for allowing me this time to be with you.

The ethics of what we do today, the integrity that you mentioned -- humor, respect, integrity -- the ethics of what you do today become the oral tradition 100 years from now. We do not go ahead and live in the past. It’s dynamic. So what we are doing today is what will be thought about 100 years, 200 years from now, because you know you’re still going to be working on this -- as we all are -- 200 years from now. I don’t plan on going anywhere so I hope you’re not. So I want us to remember about that. The ethics of today become the oral history of tomorrow. You’re also saddled with the idea of imagery and American Indian policy because Native peoples are thought to be historical. Non-Native peoples can’t quite grasp the idea there are living dynamic societies in existence today, wrestling with their own problems after all these years of subjugation, if you will.

You mentioned something about trust and trust in constitutional reformation is absolute key because I’ve worked with tribes where the committees that the tribal governments have established thought of themselves as the anti-government, if you will. That they thought of themselves as the shadow government because they didn’t trust their tribal councils. So they were creating their own agendas in and of themselves. That’s why this dynamic partnership between the leadership and this independent body is absolutely crucial and it’s consistent and constant.

There are tribes that have been working since 1975, one of your neighboring Apache tribes, since 1975 -- Pascua Yaqui has been working since 1990 -- to amend their constitutions. I worked two years with Pascua Yaqui. It is a difficult process. Don’t, you may get frustrated; it is still an amazingly worthwhile thing to do. The gentleman from Canada was talking about, ‘But what about housing, why don’t we work on that?’ And as I said, O’odham in their districts, they have special powers reserved to the districts. Same thing with Joan’s [Timeche] in Hopi, and many of your communities, have already worked these things out. You have historical precedence upon which to build. They all become the framework for constitutional revision.

The BIA [Bureau of Indian Affairs] -- as much of a tiger as you see the BIA -- I think it’s an administrative mindset in the BIA because the law seems to be more progressive than how the BIA is effectuating the law, because you have provisions in 2000, the reformation to contracts, not needing as much oversight, even in land leasing, if you will. Only those contracts that encumber land for more than seven years require BIA approval in leasing. There are special congressional statutes giving tribes the authority to go ahead and enact leases for 25 years, up to 25 years without secretarial approval.

But here’s the key, here’s the kicker I think of what you wanted me to talk about and Andrew’s [Martinez] going to talk later and he’s going to show you, in big bold type, of the Native American Technical Corrections Act where the removal of the clause that requires secretarial approval does not mean you will lose your status as a federally recognized tribe. I’ll say that once again. You remove the language, taking out from your constitutions the requirement of secretarial approval of what you do, does not mean you lose your status as either an IRA tribe or a federally recognized tribe. You can do that. And we had testimony from the folks at Kootenai today to that affect. Laguna is another community that has done that. You see this happening. Do not let them threaten you with the loss of federal status. Forget about it. Give yourself permission to be whatever you want to be.

One of the other things that I’d like to tell you about is that because of the trust responsibility, and we’re all familiar with the trust responsibility -- I’m not going to go ahead and give you law professor’s lecture on the origins of the trust responsibility other than to say that it’s almost 200 years old in the federal case law. But because tribes have been so whetted to this notion that if they do something that does not comport with the values of this dominant society that they’re going to lose some sort of federal support for what they do. You have to disabuse yourself, you have to stop thinking in that way because there are international precedents and Miriam [Jorgensen] brought this up, but I wanted to reiterate this and harp on this.

The American Declaration, the United Nations Declaration on the Rights of Indigenous People, the International Labor Organization Convention 169, all are emerging and very, very, very strong and compelling documents that you should be thinking and you should learn about that and you have to ask your attorneys to tell you about that. If your attorneys don’t understand that, you send them to us, you send them to the University of Arizona for a crash course in international law precedents, and you start thinking in terms of the rights contained in those documents as being embedded in your constitutions. United Nations Declaration on the Rights of Indigenous Peoples, International Labor Organization 169, the American Declaration, the Committee for the Elimination of Racial Discrimination, these should all be part of your signposts, your guides as well; very, very critical. This gives you a whole other avenue. The United States has signed onto the United Nations Declaration. This gives you a whole other strengthening body of instruments to help you craft what you’re trying to accomplish.

Two other small points, not so small -- what I call mapping intergenerational memories. Every time that you go to your community in this process, community engagement, you are also asking for bits of history, you’re asking your elders to contribute to a body of knowledge, you are asking them to give forth their intergenerational memories and those intergenerational memories are not just for one specific purpose, not just for the purpose of revising a constitution, not just for the purpose of what was the home site assignment. They are the purpose for everything that you do. So that anything you undertake has this body, this repository of memory, whether it’s map-making your ancestral territory, whether it’s in the case of litigation for aboriginal title, you’re marking place names...I understand there’s issues on revealing sacred knowledge. There’s issues on dealing when it is appropriate to reveal, to talk about these things. That’s up to each community, each distinct individual community, to find a mechanism to go ahead and preserve and identify these intergenerational memories that help you for your entire broad spectrum of what you want to accomplish because then, in today’s ethics, you’re carrying forward past ethics and into the future.

The last thing, and it kind of dovetails on this, is what I call the 'reality of river thought' and the reality of river thought came to me when I saw the movie 'Apocalypse Now' for about the 18th time. You get in a boat in Saigon and you’re in this very, very busy city and as you go down the river further and further and further, further down the river, the only thing that matters to you is what’s right in front of the bow, what’s right in front at that moment. We’ve had speakers talk about never forgetting about where you came from. So in the process of constitutional revision, always remember that you started out in a large society and that is what’s carrying you forward. So when you’re looking over the bow, remember, there’s a whole past bit of information. It’s much more grander in scope. Don’t get trapped into this idea that the attorneys are basically saying, ‘Everything has to be in the four corners.’ You have dances, you have songs, you have paintings. These are all constitutions. The trick is how you craft them in a way that substantiates and flavors -- and as John was talking about -- this magnificent opportunity to engage your community, to determine where you’re going to be next and you’re doing it with respect, integrity, neutrality, a few punches here and there, can’t be avoided. Don’t ever let anyone ever tell you that you have to be bound by the forms that you were given to. Create your own. Create your own.

Now, Andrew’s going to move us into this idea that, so right now, when you have these certain forms of constitutions, how do you go about, what is the legal mechanism how you go about then reforming under the processes that have already been dictated to you and how do you start shaking those things off?”

Jennifer Porter: The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change

Producer
Native Nations Institute
Year

Jennifer Porter, former chairwoman and current vice-chairwoman of the Kootenai Tribe of Idaho, discusses how her nation moved to amend it constitution to change its basis of political representation, how the U.S. Secretary of Interior and the Bureau of Indian Affairs (BIA) tried to block the move, and how and why her nation decided to remove the U.S government from the constitutional reform equation in order to make its governance system more culturally appropriate -- and effective.

Native Nations
Resource Type
Citation

Porter, Jennifer. "The Kootenai Tribe: Strengthening the People's Voice in Government Through Constitutional Change." Tribal Constitutions Seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation.

Herminia Frias:

"Okay, so we're right before lunch and we have two great speakers lined up to talk about the issue and the challenges of citizen engagement. And I'm sure many of you have many stories to talk about when it comes to citizen engagement. How do you host a meeting and actually have people come and show up or have people actually come and participate? So we have two wonderful speakers this morning and the first speaker is going to be Jennifer Porter and she's the Vice Chairwoman for the Kootenai Tribe of Idaho, and she'll be speaking first. And then she'll be followed by Terry Janis, who is the Project Manager...who was the project manager for the White Earth Constitution Reform Initiative. So if we'd...first we'll welcome Ms. Porter."

Jennifer Porter:

"So my name is Jennifer Porter. I don't know what's worse, going before lunch or going after lunch because everybody seems to be thinking when are we going to eat this afternoon, and after lunch you're all tired and want to go to sleep. So I'll try to make this brief, but touch on the aspects of it.

There were a few questions yesterday that were asked and it was a gentleman over here and he kept wanting to know, ‘Well, how do we do it?' He wanted to know about like...I felt like he was asking a question, ‘How has it been done in the past? Like who actually did this? Who reformed their constitution? And I just...you kept hearing people say, ‘Well, tomorrow we'll have that story, tomorrow.' Well, tomorrow's here and I'm one of those stories.

I'm a former chairwoman. I've been on the council for the past 17 years. Recently this past October, I stepped down to the [vice-chairman's position] just to have more family time and to enjoy my life. After eight years, I think it was about time. I have recently become a grandmother so I thought, you know, it's time to let the youth...it's weird to say that, but I just...I've hit that point where I can say the youth now are coming up and taking these positions.

So our story, like I said, the Kootenai Tribe of Idaho, we're in northern Idaho. It's about a half-hour south of the Canadian border. It started in the mid 1990s. Prior to that our constitution, it stated in there a five-member council with our hereditary chief at the time having a sitting position on the council. So every time they had a new council come in and seated, it was always that same chief. He never had to vie for that position. He was always had that position and it seemed to be creating problems all the time. You have this one position and in our community it's made up of three main families. So you see three's the odd number. Whoever's getting along at the time, they'll vote these two families in. ‘We don't like this family, so we're going to keep them off.' And it did that for so many years and you see how every...

At the time, my mother was the chairwoman and she sat on for maybe about 10 years at that time and she said there were times where she would come home and she didn't know if she had a job or not. There was petitions; she would go off to a meeting, she'd come home and there'd be a petition to have her taken off the council. So she would kindly clear her office, fight the council, come back on and they would have her on again. And we hear about that in Indian Country all the time, and it kind of got to where they weren't moving forward. They were always just doing this little 'jumble effect' with council, who's going to be chairperson this week, who's going to be chairperson next month, that kind of thing, and we hear a lot about that in Indian Country still today.

Well, she was tired of it and she was tired of petitions and just like one of the gentlemen was stating yesterday, she kind of...she went back and she goes, ‘Well, how did we...how did we work as a so-called government before constitution, before this was put upon us? How did our elders do it? How did our community work?' She talked to the elders at that time and being with the three main families, it worked. They didn't need voting, they didn't need a constitution, they didn't need a paper telling them how to work their community and how to move forward. So what she did is she got those three main families together. And it was hard. And I could imagine all the fights back then, but all the people that were on council at that time, all the elders that were within those families at that time, all the people that would like...write those petitions and take them around and getting them signed. She got them all together at that time and she said, ‘We need to stop. We're losing our young people. We're losing our old people. In order for us to move forward and to grow as a tribe, we need to stop this.' She can't do her job, nobody can do their jobs. So they came to that agreement.

They all sat down and they came up with something. She said, ‘We need some kind of system that all three families will be represented, that nobody will ever feel left out again. We can all get along at the table.' So what they decided was they were going to rewrite their constitution and all three families were always going to have a seat at the table. They rewrote it to where they took off the chief as the standing position. Each district would be allowed to vote in -- from their families -- two positions on the council.

So mid...it was about 1995 they proposed four amendments to BIA [Bureau of Indian Affairs]. Amendment One had to do with blood quantum and changing enrollment wording with our tribe. Amendment Two was a proposal of changing the district factors into the three main families. The third amendment was the quorum issue, changing the seating from the three [for] a tribal quorum to the four. And the last issue was the naming of the tribe because we didn't want to be known as the Kootenai Tribe of Indians anymore, we wanted to known as the Kootenai Tribe of Idaho. So BIA was okay with the first amendment, they passed that no problems. They were okay with the fourth amendment. We have the right to change our name. But they weren't okay with us changing our structure.

They said we couldn't change it from the five people to the six people. So I asked yesterday, ‘Why weren't they okay with it?' And the answer I got was because of the size of our tribe -- which we are a very small tribe -- at that time, we were a little over...maybe between 110 to 120 and BIA said they were opposed to it because they more or less went towards the U.S. vote, 'one person, one vote,' and they felt going to the three districts or the three different families not every person would be represented as a vote. But we argued with that because we said the way it worked in our past was as long as they were within one of those districts, which made up our whole tribe, they would get a vote.

So it didn't take my tribe long, and I always say they were a bold council back then, and they weren't going to let BIA tell [us] what to do, so they took it upon themselves, they got all the tribal membership, they got them all onboard saying, ‘This is going to work. This is how it's going to work but we need you guys to jump onboard with us. We need you guys to support us. So what we're going to do is we are going to vote that BIA doesn't have a say on how we govern ourselves anymore.' So all they needed was a 70 percent voting of the membership. They got more than that. I think they got about 90 percent of our membership to say, ‘This is right. This is how we're going to do it.' They sent that to BIA, BIA approved that. It's just funny how they had no question to that. They approved it. They couldn't tell the tribe anymore how to run our constitution or how to do our government.

So once that was approved, the tribe took it upon themselves to change the constitution. They didn't need those powers over them and we changed it. So running today, we are the three family districts. Everybody votes for two members and I believe it's been 18, 19 years since that [amendment] and it works today, still today. I was just asked this morning, how is it run? I've never seen any better form of government. I can say maybe I haven't experienced what it was before, but I've only experienced this and I've never been through a petition. It's always worked. I have...out of all of our tribal members -- you ask any of them -- they feel like they do have a word in the community. They can go to a family, whoever their district representative, their family representative is and ask for something to go to the council.

And the way our council works is we do come together, but if a family or community member is asking for something or wants to know what's going on, the first thing we ask them is, ‘Have you talked to your district representatives?' Because with us, it's their responsibility to take care of their family first before they come to the table. We don't deal with the ones who, if they're from Family A, jump over to Family C and want us to push and fight. We've gone away from that. If they do make friends with Family B or C, we said, ‘No, you still have to go through your Family A. We won't even address that issue until we hear from your family and how they deal with that.'

I know I was asked to speak a little about how the tribe decided to not allow BIA to determine where the tribe was going and I found it interesting yesterday that there are so many tribes that are still under that notion that they've still got to ask BIA for everything. They've got to have BIA approval. And I guess maybe it's the whole way of thinking, but today with self-governance and under self-determination, it's the tribe's right to not do that anymore. And we just were one of those tribes who moved forward and got it done and it's working great today.

Joan [Timeche] finally got me down here to speak about my tribe. She's been after me for a number of years since I shared that story, because at the time she said she'd never heard of that concept, she's never heard of a tribe dividing like that and making it work." 

Terry Janis: Citizen Engagement and Constitutional Change at the White Earth Nation (Q&A)

Producer
Native Nations Institute
Year

Terry Janis, former Project Manager for the White Earth Constitution Reform Project, fields questions from the audience about his specific role in White Earth's constitutional reform process. He stresses the need for those engaging in constitutional reform to be cognizant of the fact that a process involving foundational change will necessarily entail Native nations citizens to confront and deal with the enduring legacies of colonial federal policies.

People
Resource Type
Citation

Janis, Terry. "Citizen Engagement and Constitutional Change at the White Earth Nation (Q&A)." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Q&A session.

Audience member:

"Okay, to develop this, I guess this governance model because we've been at this for awhile now and we got our... Let me take you back. It first started, we tried to go to self-government, that was shot down; people were scared of that. Our land code, people were scared of that; that went down. But we got our own election code and that's what the people passed and membership code. I guess how I see it is you gave us all this information how to govern ourselves, the whats and ifs, what if this happens, what if that or whatever, all the unknowns. Maybe it was too much for our people to give them all that at once. Now we have a problem of backlog of over 400 and some odd homes, some houses are boarded up and need renovation and so it boils up dollars.

So let's say if we develop a model and this is important what you're talking about on communication, that's important. With that same concept, if we've already got our election code and membership code, now let's develop the housing code because we have a problem, we pay rent. Nobody understands that money goes back into their homes and whatever to develop and all. Nobody likes paying rent. They think everything's free. So we have a problem of collecting rent. If we develop this model, let's say just for the housing area to start off, develop this kind of model, bring it out to the people, not evictions, whatever might work.

So is there processes like that that'll slowly sort of keep the whole picture into the... To me, the way I look at it is, there's too much, they can't digest all that. So bit-by-bit, I guess that's how I'm looking at it. Now what we're talking about here is just the housing part of it. We've got our own education, hopefully we develop that. At least in this term, at least we can push something, working with... It's a process to make it work, at least we're going someplace instead of taking a step back all the time. I'm trying to look for solutions I guess."

Terry Janis:

"I don't know if this is on, but can you hear me okay? In every situation you have to deal with the reality of two issues, one of which is our colonization. And we as Indian people have a colonized mentality, regardless of whether we realize it or not and when we're talking about change, we have to accept that. So we are a colonized people and change in that sense is going to be difficult to accomplish. And as people that are moving our communities towards change, whether it's a broad constitution or a specific code, that's got to be part of the educational process is accepting our people for who they are and where they're at. There's beauty in our people and because of the history of what we suffered there's also darkness. And when we're thinking about how we're informing and how we're educating our people, we have to keep in mind the colonized mindsets that our people have and are we going to engage that because we have to engage it, otherwise it'll kick us in the ass. It'll stop things from moving forward. And the reality is, it's only going to be able to move forward as far as it can. Sometimes you have to take a staged process. So that's one thing.

And the second thing I spent a lot of time with earlier is just the politics of our community. Anytime you're talking about change and you're talking about an informational, educational process the politics of the community are very real and you have to deal with that. I didn't mention earlier the kind of colonized reality or colonized mindsets because it's sometimes difficult to really accept about ourselves. But...and it's not always the best strategy to say it directly, but you see it over and over and it's a part of the reality of who we are as Indian people. It's how we grew up. We have certain ideas.

My dad growing up on Pine Ridge, the idea was that him as a landowner is he was completely free; he could never be regulated, he could never be taxed, he could do what he wanted with his land. That's what it meant to be Indian on a reservation. And the reality is that's just not true at all. We as Indian people are regulated and managed and controlled more than any other people on the country, my dad included. And if the tribe wants to move forward and start to assert its sovereign authority by zoning and regulating and taxing and doing other things with their property, they're going to do that at some point. But that's our reality and the colonized mindset comes from what happened to us as Indian people, but also the unique sort of situation that we live in, what we've gotten used to, the things that we think we can do and that are inherent, but oftentimes are just circumstantial. For my dad, it's just because the tribe hasn't chosen to regulate their tax yet and that's all that is.

But I agree with you completely. Thinking through, knowing your own people, how best to achieve change, how best to inform and educate your people about that process, maybe a staged sort of process is the best way, maybe a broad complete reform-like what White Earth did is the best way. You're in the best situation to make that decision but it's a decision you have to make. You have to make that decision. It's tactical, it's strategic and you're responsible for it. As leaders, you are responsible for making that decision, period. And you'll live or die on that. Sometimes it'll be the wrong decision and then it'll all fall apart, but that's your job and that's what you do."

Herminia Frias:

"Another question...do we have a question on this side? Okay, question over here. Oh, I'm sorry. Ms. Porter did you want to respond?"

Jennifer Porter:

"Oh, no."

Audience member:

"Okay, so I have a question for you, Terry. So you mentioned maintaining a firm principle of neutrality. That's really interesting and I suspect I'm probably not the only one thinking this, but as you noted, as a Lakota person working up with Ojibwe people, it's really difficult for me to imagine that, one being a Diné, I cannot imagine Navajo, in this case we have a constitution, but a Navajo government development person who is basically in charge of putting together a reform or a government that is one for either Comanche or worse case with the Ute, speaking from that role. So referring to that again what I'm saying is I commend you White Earth Nation and you for doing that. Getting to the question is the neutrality piece to it. We all come with our values, our perceptions, our thoughts. I can't help but think that at some point during this process that you sort of like wanted to nudge folks in one way or another on some of your own issues with respect to one being an attorney and having a good understanding of federal Indian law in relation to Indian Country. I just wanted to ask how do you handle something like that?"

Terry Janis:

"Yeah, yeah. There's two answers to that. The first is that in this particular issue, this idea of neutrality, it only focuses on the educational and informational process. The whole drafting of a constitution or an amendment to a constitution, you cannot be neutral on that. You're going to make decisions and you're going to compromise and it's going to be one way or another and that's the work that tribal members really need to be doing I think. So as far as your own governmental reform, actually drafting the reforms, actually thinking them through, I think the very nature of that is positional and political and about compromise. For me the neutrality thing was important from an educational perspective, strictly in getting information out there, educating, helping people to understand, answering their questions. When they're completely wrong about something, fighting with them about that. That's the only time I took a position. When they were wrong about what they were saying about what this proposed constitution said, then I fought about that because I just wanted them to get it right. I don't want...that didn't decide for them one way or the other, I just wanted their information to be accurate, that they learned the materials and I got into plenty of fights, I had plenty of fun on that. The reason why we go to law school is we kind of like fighting a little bit, right? And so you get into plenty of fights and you have plenty of fun with that, but that neutrality position is really directly tied to the educational and informational process as a community-based thing. This is community-based work. This is going into people's house, this is personal, this is physical, this is live; you've got to be comfortable with that. You've got to get educators and people that are a part of your community training and information thing that are comfortable with that kind of arrrgh. It's a beautiful thing and it's really fun if that's what you enjoy and that's what you love as an educator and that's... So no, I never really compromised in that sense. I didn't really have a struggle with that ever."

Herminia Frias:

"We have time for one more question and just to let you know, we're going to continue this conversation after lunch. Ian Record is going to be continuing this on citizen engagement. So Robert, you'll have the last question before lunch and if you have more questions, we'll open it up again after lunch."

Robert Hershey:

"Thank you and thank you very, very much for the presentations. In response to the gentleman from Canada, I was going to talk about this in my presentation later, but let me just say really the idea of big bites versus small bites. And there are a number of constitutions, like you talked about housing, well, the Tohono O'odham have a constitution that has a lot of power reserved to the districts. The districts are responsible for home site, land site assignments. The way the Navajos constructed land site assignments through matrilineal. The Hopi, the villages have independent authority in many regards and things are specifically reserved. So by working on these different codes, your election code, your education or whatever, it might be your housing, you are actually then having the discussions, which will then transform themselves when the time comes into writing themselves as constitutional amendments. So you are basically in the process of creating constitutions by virtue of your actual practices in these different areas."

Herminia Frias:

"Thank you, Robert. And I'd like to thank both of the panelists for sharing their stories. Thank you very much. Give them a round of applause."