Frank Pommersheim

From the Rebuilding Native Nations Course Series: "Giving the Justice System the Support It Needs"

Producer
Native Nations Institute
Year

Native leaders and scholars share some critical ways that Native nations can support their justice systems to ensure their effectiveness.

Native Nations
Citation

Hershey, Robert. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 6, 2010. Interview.

LaPlante, Jr., Leroy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Pommersheim, Frank. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 11, 2010. Interview.

Pouley, Theresa M. "Reclaiming and Reforming Justice at Tulalip." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

Vaughn, Rae Nell. "Tribal Justice Systems in the 21st Century." Indigenous Peoples Law and Policy Program, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

Vaughn, Rae Nell. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Rae Nell Vaughn:

A lot of courts in Indian Country are set up the way we are. They’re statutory courts, and sometimes aren’t given the respect that they should be given. Let me assure you, tribal court is not a program. It is not a social program. It is a forum that is established to protect the people and enforce the law. But for whatever reason, and there are many I’m sure, there continues to be this tendency of a perception that these are just programs. Tribal court is nothing more than a program like social services, like legal aid -- it’s just a program.

Theresa M. Pouley:

Your law and justice system must be part of the whole tribal system. You have to be prepared as tribal council people, and tribal judges have to be prepared to stand shoulder to shoulder with their elected officials to say enough is enough, to say that it’s time to help our relatives heal.

Frank Pommersheim:

You’re involved with human beings, and I think from most tribal points of view is that they don’t want to cast those individuals out, but they want to try to hold on to them and work with them and try to reintegrate them into the community. And to do that, you need resources and capacity. And in the real world, that means having adequate law enforcement, having a fully-scaled tribal court system, having institutions that can help offenders who have been convicted or pled guilty. I think that those things are really, really important.

Leroy LaPlante, Jr.:

I think, at least, our tribal officials need to recognize our court system as a stand-alone entity that has a specific function, a very important function. What the courts do is so vital to tribal sovereignty. It is so vital to self-determination. It is so vital to us. You know, if we want to engage in any type of regulatory authority on the reservation, our courts have got to be equipped to be able to carry out adjudicating any matter.

Robert A. Hershey:

First and foremost, freedom from political interference. I think that’s pretty well-recognized, right? Qualified judges who receive the adequate training to deal with all manner of cases, because there’s an escalation of the number of cases coming in front of tribal courts with an escalation of the population on the reservations. And then there is escalation in the complexity of cases that come before it. So, independence, adequate training, adequate funding for programs, adequate court staff, technology that supports this.

Rae Nell Vaughn:

If you don’t feel that support from your government, then obviously the community’s not going to support you as well; and those are some key things that have to happen is to have that support. Now you and I may argue here, but when we step out as a judiciary and as a government, we need to be unified, because each of us as a legislative body and as an executive body -- whether we’re a judicial branch or a statutory court -- we still have to work and maintain as a stable government, because if your leadership is bad-mouthing you, judicial system, what does that say of the leadership?

From the Rebuilding Native Nations Course Series: "The First Key to Effective Constitutions: Legitimacy"

Producer
Native Nations Institute
Year

Frank Ettawageshik, Joan Timeche and Frank Pommersheim discuss the importance of constitutional legitimacy to effective Native nation governance, and stress that the source of that legitimacy is the very people a constitution is designed to serve. 

Native Nations
Citation

Ettawageshik, Frank. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 6, 2010. Interview.

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

Timeche, Joan. "Constitutional Reform: A Wrap-Up Discussion (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

Frank Ettawageshik:

“Clearly, an inadequate governing document can be a huge hindrance towards the development of good, of proper governance. I mean it can be really a real problem and it needs, you do need to have a good constitution for your government. Now that constitution in some cases may not be written, but nevertheless you need to have a system of governance that’s in place that the society understands and that your tribal citizenry understands and is able to use and that they feel comfortable with. Otherwise you can’t impose a system that, for instance, is not, that may be a good idea somewhere but may not be a good idea in your community. You can’t do that. You have to have something that works.”

Joan Timeche:

“We have 12 autonomous villages [at Hopi] and within these villages they control all of the land, they make all of the decisions within their area of jurisdiction, and here comes in the federal government that imposes upon us a constitution. We were one of the IRA [Indian Reorganization Act] tribes that in 1936 we approved the constitution. But like as you heard many other speakers here, our people did not go and vote. They voted with their feet, which meant that they stayed home, because that election that the Bureau of Indian Affairs was conducting was not their form of how we make decisions. Ours was based on clan hierarchy. We were a traditional culture and so all of our leadership was elected and appointed in a different way, and it wasn’t a democracy as this IRA constitution was putting us into. So we had these 12 villages. So if you look at what was happening out on Hopi, if you look at the 12 villages, for many, many years after 1936, only eight of those villages decided that they were going to recognize the constitution, and four of them did not. And one of those villages had probably about one-eighth of the nation’s population, and today still does not recognize it, so they’re not represented in council. I’m not represented either, because I come from a traditional village, the village of Old Oraibi. So there are probably about, we have population today of 12,000. I would guess that probably a quarter of our population is not represented effectively on council because we say, ‘That’s a foreign government, that’s the pahana’s form of government.’”

Frank Pommersheim:

“Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it’s necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that’s often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it’s ultimately voted on, how many tribal people are participating?...So this thing about legitimacy is absolutely essential, because it will happen -- and I’m going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you’re on the side that lost or if you’re on the side that doesn’t like the result, because it’s legitimate, will you accept a decision that you disagree with? It’s easy to accept decisions that you agree with. That’s easy. We can all do that. But it’s very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That’s what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn’t have legitimacy, it’s false, because as soon as the tribe faces its first most difficult decision, if there’s not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it’s legitimate.”

Frank Pommersheim: Constitutions: Powers, Implementation, and Interpretation

Producer
Native Nations Institute
Year

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

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

Native Nations
Resource Type
Citation

Pommersheim, Frank. "Constitutions: Powers, Implementation, and Interpretation." Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 3, 2011. Presentation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution

Producer
Native Nations Institute
Year

University of South Dakota Professor of Law Frank Pommersheim discusses the key constitutional issue of dispute resolution and presents three cases demonstrating how tribes are endowing their constitutions with legitimacy through the careful, thoughtful resolution of disputes.

Resource Type
Citation

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"I plan on leaving a lot of time for questions so we can have a good discussion. But I want to start by saying this, a number of you came up to me during the break asking me if I was Johnny Depp. I thank you for the compliment, but I'm not. But I appreciate that. But I also want to start by giving two examples of the importance of words and vision, because people have said how important words are and how important vision is, and I want to give from my own experience two concrete examples. One is very short but to the point. The second is much longer and had a much more profound influence on me. The first is, I think a number of tribes are aware that they have drug courts, that there's good funding that comes from the Justice Department and from the Bureau of Indian Affairs not only to tribes but to other communities around the nation to deal with the issue of drugs. And it looks to try to work with people who have drug problems and not focus so much on their criminal behavior. A very, very positive thing, a good thing. The federal government is actually trying to do a good thing in that way. But the people at Rosebud [Sioux], they think it's a good thing, but they didn't like the term drug courts because ‘drug court,' it sounds negative. And so what they did without anyone's permission, they just changed the name to ‘wellness court.' So the Rosebud Sioux Tribe has a wellness court that focuses on working with people who have committed crimes and have been involved with the use of drugs. But just think about that for a moment. To me that's a real profound difference between working with a drug court and a wellness court, because it shows the commitment of the people at Rosebud, that they want their members who have committed crimes who do have drug problems, they want them to be well. It's just like one word, the difference between ‘drug' and ‘wellness.' To me, it makes a tremendous amount of difference. And I actually see it in action, because when I listen to the tribal trial judges at Rosebud, when they talk about the wellness court, they talk about it with pride. They talk about how tribal members are really being healed and they're really changing. And I think part of that is because the drive is to get them well, not to punish them, not to be indifferent to the wrongs that they may have done, but to really focus on the good things. And I think one of the things to keep in mind in the context of tribal institutions in the courts, where I have most of my experience, or in a context of constitutions, is without being naïve, without being simple minded, to focus on the good and to focus on the positive.

The other example I want to give is a little bit broader example, because people are talking about sort of the importance of vision. And I think sometimes the word ‘vision' is kind of overused. It's a good word, it sounds great, but what does it actually mean? And I want to give one example. And again this comes from Rosebud. Thirty-five years ago, 40 years ago, before there were community colleges on most reservations, there were none. But there was one man at Rosebud by the name of Stanley Redbird, and Stanley had the vision that he wanted to start a college on the Rosebud Sioux reservation. No federal funding for it, no one had even really heard of that idea. But Stanley said, ‘We should have a college on the reservation. Why should people from Rosebud have to go off the reservation to go to college?' Well, it seemed obvious to most people. Rosebud Sioux reservation is in the middle of a very rural place in South Dakota, extremely impoverished, and you would think or most people would think, ‘You can't have a college here.' But Stanley had the vision, and he persisted. And he himself was not a college graduate. He himself was not even a high school graduate, but he persisted in his vision, and gathered around him a number of Native and non-Native people and said, ‘We can make this happen.' Without funding, without accreditation, but he had the vision, and his vision energized people, that you could do a good thing. I think that's a tremendously important thing, to be able to be energized by a vision to do something good, and in the context of starting a college. It started very slowly. Today it's fully accredited, offers not only AA [Associate of Arts] degrees, offers bachelor's degrees, master's degrees, [and] is getting certified for the first Ph.D. to be offered by a college on a reservation. Tremendously powerful. But the second part of that which kind of brings together a number of themes that I was hearing during the day is, education for what? Regis [Pecos] talked about Head Start. Head Start for what? And it's a very important question. Everybody's in favor of education, except some -- oh, this is recording -- except some Republicans. It's a joke. The thing is, is education for what purpose? And Stanley's vision was sort of the two-road approach. He wanted people educated on the reservation to know their tradition and culture, not just as something they knew, but something they could incorporate in their professional lives as teachers, as counselors, as lawyers, as doctors, but also not to ignore the good things that also come from the dominant society. And so the notion was to strike a balance, a creative balance. Hence, the two-road approach. So the people who went to college at Rosebud, at Sinte Gleska University, would know the best of the two roads. And so it was yes, education but education that didn't mindlessly accept the dominant society's view of education that meant just non-Indian, non-Native ways. That was unacceptable to Stanley and the people he gathered around him. So oftentimes there is a convergence at a high level of abstraction between Native and non-Native people about important issues, including constitutions. But one of the things you have to think through is below the abstraction, is what do you really want? And this has been one of the themes that I've been hearing all day is, what do tribal people want in their constitutions? How can you think about a tribal constitution? And Regis [Pecos] and Joe [Kalt] and others have given some very important ways to thinking about it.

I just want to add one or two things that are much more sort of practical in a way. One of the ways of thinking about law -- and I always have this for my students whether they're law students or not -- is you just ask, ‘What is law about?' Because I'm a teacher, I'm tempted to call on Bob [Hershey] to see if he could give me a good definition of what law is. But to me, what it is, it's about two things. It's about power and it's about values. Every law that exists, knowingly or unknowingly, is trying to support a particular value, and because it is the law, to a certain degree it has power behind it, because the power is what makes us obey the law even if we don't want to. So whenever we think about law -- there are good laws, there are bad laws, they cover the range, the continuum -- but the important thing always to ask ourselves is, ‘What is the particular value in that law? And what is the power that that government -- whether it's a tribal government, state government, provincial government, United States government -- that uses to enforce that particular value?' And so when tribes are thinking about constitutions, to me those are the two most important elements. What are the values? And that's the theme we've heard most of today -- that constitutions are about values. Absolutely critical, absolutely kind of central, but the other part, and Joe mentioned this a little bit, is sort of the power, because one thing that constitutions do -- and sometimes may or may not make you uncomfortable in talking about it this way -- is what? It distributes power, and that's just the reality of what a constitution is supposed to do in part -- to distribute the values, to distribute as it were the sovereignty, that a nation has to its constituent forms of government. And so when you think about constitutions broadly, those are the two things I would emphasize. What are the values that you want to see recognized, enshrined and supported in your constitution? And I think in many tribes there's quite a bit of convergence about that. Where there's more divergence is how you're going to distribute the power in the government to recognize and carry out and establish those values. And I think that's a very, very important kind of balance to keep in mind. How do you want to distribute the power?

When you look at that, roughly speaking, there's two ends of the continuum to look at. One is, traditionally, inasmuch as any tribe knows its true traditions, how was power distributed in your tribe traditionally? And two, is that still possible in some way today, in whole or in part, or not available at all today? Then the other model that's out there, which I think is a good model but it's a bit dangerous, is the model of the United States Constitution, the three branches of government, checks and balances, separation of powers. Well, they're good things, kind of, but I'm going to have a little asterisk next to them, because they're not inherently good unless that's what the people want. And one thing that's also true, because we were talking about constitutions today in terms of a lot of pressure, good pressure, from tribal members saying, ‘We want to improve our constitutions. We want to make them better.' And that's a tremendously good, positive and important thing. But I think it's also true, and one note that hasn't been struck, is that there's a lot of pressure on tribes to amend their constitution that doesn't come from within, but comes from without. And this is particularly true in the context of economic development and Joe touched on it a bit. Today in South Dakota, routinely when businessmen want to do business on the reservation, you know almost the first thing they ask, ‘Does the tribe have a separation of powers?' Now most businessmen, when they say separation of powers, if you could ask them a follow-up question, they themselves don't know what the hell the separation of powers is. It's just what their lawyers tell them. And so part of the deal about the separation of powers is, businessmen aren't really interested in the separation of powers, they are just interested, justifiably so, they want a business atmosphere where they can make money and where the rules of the game are predictable. That's what they really want. And they've been told that separation of powers sort of guarantees that. And in some ways it does and in some ways it doesn't. So I think tribes have to pay close attention not only to what's coming up from themselves and their communities but certainly in the states and certainly in South Dakota, tribes need to be alert to -- not necessarily a bad thing -- but they need to be alert to the pressures that come from the outside that say the tribes have to amend their constitutions, particularly to have separation of powers, to create a good business atmosphere. That's fine. But tribes have to realize where the pressure is coming from and what they are reacting to, what they are trying to achieve. That is again, what are the values? And if one of the contemporary values is economic development, which it is probably in every tribe in the country, then it's a legitimate question, Joe Kalt was suggesting this, that a tribe needs to ask itself. What is it that we can or should have in our tribal constitution that will enhance economic development? And I think the major thing in a tribal constitution -- any constitution -- that enhances economic development is to have a structure and distribution of powers which creates a fair, predictable rules of the game, rules of the road. So if somebody's going to come to your reservation and do business, they're entitled to know what the rules of the road are. And if they don't like the rules of the road on your reservation, fine, they can go someplace else. But they are entitled, I think, to know, and when we talk about responsibility, arguably the tribe has a responsibility to people who are coming and perhaps doing business, tell them what the rules of the road are and what their constitution says or doesn't say about economic development. So I think it's important to keep track of these two streams of pressure for constitutional reform, because in my view there definitely are these two streams. Not just one stream from the people themselves, but there is this outer stream, and tribes need to kind of thread their way through that.

The other thing I wanted to talk a little bit about -- before getting to this dispute resolution issue -- is this notion of to me two critical things are, and this note has been kind of mentioned a few times as well, is legitimacy. Any constitution will only work because it's perceived as legitimate by the people who are subject to it, that you accept it. Bush v. Gore is being used as an example. A terrible decision, an outrageous decision in which then Chief Justice [William] Rehnquist himself said in the aftermath, ‘This case can never be used as precedent in any other case.' I mean a fairly frank admission that the decision, in my opinion, blatantly political, but most American citizens kind of shrugged and said, ‘Okay. A bad decision, but we're not going to abandon a constitution.' Why? Because there's a longstanding commitment to it as being legitimate. Legitimate not because of its perfection, arguably legitimate because of its imperfection. Because if any of you actually read the constitution, know its surrounding circumstances, it wasn't perfect at the beginning. I mean, the United States Constitution recognized and accepted slavery. How could that kind of constitution be a model for anyone if it recognized and legitimized slavery? And so it was imperfect. And actually although it's kind of slidden away, there were some good things in the Constitution from my point of view about the relationship of the United States, the fledgling United States, to Indian nations. There was a great deal of respect actually in the Constitution as originally written for tribal sovereignty. There's a recognition in the Indian Commerce Clause that Congress only had the authority to recognize and regulate trade with Indian tribes, not to regulate the trade of Indian tribes. The Constitution recognized that the fledgling United States didn't have the authority to go into Indian country. It said basically, ‘You're sovereign, we make treaties with you. You're sovereign, you're separate.' Commerce is important to us, and so in our distribution of powers, that power was granted to Congress. So it was Congress who had that authority, and also an important issue in the context of the Constitution was that there was tension and battle between the fledgling federal government and the states who would have authority to deal with Indian tribes. The United States Constitution placed all that authority in the federal government, none in the states. And within the federal government, they gave all that power strictly in the area of commerce to the legislative branch. But this segues into the next thing about interpretation. Unfortunately it was a case decided by the United States Supreme Court in 1903 called Lone Wolf v. Hitchcock and all that stuff that I just said, the Supreme Court at that time just leapfrogged the plain meaning and the historical backdrop to the Indian Commerce Clause and said somehow, ‘Congress has plenary authority in Indian affairs, complete, untrammeled authority.' But it takes some work to get that from the text of the Constitution and from its history. And so this notion of legitimacy is absolutely central.

And when I think about legitimacy, I think there are three components to it in the context of Indian Country. Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it's necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that's often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it's ultimately voted on, how many tribal people are participating?

And two is part of that, the second group that's important, is the leadership. Official, unofficial, elected, not elected, traditional, non-traditional, people who are perceived as leaders. This is what leaders do. The best definition I ever heard of leadership is, leadership is managing learning in a group. That's what leaders do. They manage learning in a group, whether it's in a family, whether it's in a classroom, or whether it's being chair person of the tribe or president of the United States. And so authentic leaders -- and this idea of legitimacy -- they're the ones that manage in a good way the learning that takes place. That's what good leaders do, whether elected or not, none of that.

And then finally, I don't know if Joe's still here, Joe, no, Joe's not here. I'm coming to the defense of lawyers. Yes, indeed. The third group that is important, and I mean this quite seriously and I'll explain it, that lawyers are important. No, strike that, good lawyers are important, because it is true that ultimately in the modern world, constitutions at some point have to be drafted and written in a very, very thoughtful, complete, precise way, and the persons on balance who should have those drafting and expressive skills are lawyers. But it's also important to remember -- and I always tell my students this -- the people who have caused the most destruction in modern Indian law today are largely lawyers. Because lawyers, I tell my students, if a tribe is represented by a lawyer, and the tribe asks the lawyer, ‘Can we do this? And the lawyer says, ‘No, you probably can't do it because you haven't checked with the federal government.' That lawyer should be fired. He's just engaged in malpractice. But on the other end are lawyers, a tribe asks, ‘Can we do this?' And those lawyers say, ‘Well, you can do anything, you're sovereign.' I also believe they should be fired, because you can get people off the street to give you that kind of advice. It takes a lawyer with understanding, nuanced understanding, of what the tribe wants to do. But it's not a blank slate. History is out there. It doesn't mean you cave in to history, but good lawyers can help tribes navigate the treacheries of past and current history and their interaction with the federal and state governments. I don't believe you can pretend that that reality doesn't exist, and that's what good lawyers can do. They can help. They never tell tribes what to do, but they can help tribes get from where they are to where they want to be in the best possible way that avoids difficulty down the road because tribal attorneys who say, ‘You're sovereign, you can do whatever you want, now pay me and I'm going to leave.' And the tribe is left with that legacy when that advice turns out not to be too reliable in today's real, complex world. So I think lawyers are important. But more importantly, good lawyers are important. And good lawyers in Indian Country, I think there are two essential characteristics that they need. They need to be good lawyers, they need to be smart, they need to have the skills to navigate the law and to draft, but they have to understand the tribe they work for. They have to understand its history and its culture and perhaps more importantly, this is a dangerous word, they need to have affection for the people they work with, because without affection I don't think you can really accomplish the important things that tribes are kind of struggling to do. So this thing about legitimacy is absolutely essential, because it will happen -- and I'm going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you're on the side that lost or if you're on the side that doesn't like the result, because it's legitimate, will you accept a decision that you disagree with? It's easy to accept decisions that you agree with. That's easy. We can all do that. But it's very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That's what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn't have legitimacy, it's false, because as soon as the tribe faces its first most difficult decision, if there's not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it's legitimate. This is what oftentimes we mean by -- though it's a phrase that's been overused and misunderstood -- about the ‘rule of law.' You always hear that phrase in Indian Country. Do tribes have the rule of law? Actually, you hear it more in sort of foreign policy discussions. Whenever we're helping out foreign nations, the two things that are always parroted is, ‘We want to bring the rule of law to this country.' Well, it's sort of a yes-and-no proposition. If you're bringing bad law to those countries, what good is the rule of law if it's bad? So the notion about getting the rule of law is that your commitment, as others have suggested, both from your mind and from your heart and from your tradition, is that you believe enough that you can accept a decision that is contrary to your own interests. And without that, I think constitutions are yet another set of false promises. So legitimacy is key, and it doesn't just happen one time as you're going forward to the constitution, but legitimacy is always at risk. You don't learn this in high school, but in the context of American history there have been instances involving the United States Constitution when its legitimacy was actually at risk, and no guarantee that it was going to work. And strangely or not strangely enough, the first genuine constitutional crisis in American history involved two Indian law cases decided by the Supreme Court in 1830 and 1831: Cherokee Nation v. Georgia and Worcester v. Georgia. Most of you have probably heard about them. But the background of those cases were the state -- can you imagine this today -- in both of those cases the State of Georgia did not even appear to argue before the Supreme Court? Can you imagine that, that one of the constituent states to the Union in early days of the Constitution said, well, I won't use that word, but I'll use a nicer word and just say, ‘We're not going to appear before the United States Supreme Court, because it doesn't have any legitimacy to tell us, the State of Georgia, what we can or can't do in Indian affairs.' So you had amazing tension in those cases between the federal government and the State of Georgia. But you had even another tension. You had a tension between the executive branch and the judicial branch. You know, when the Supreme Court makes a decision, everybody plays by the rules, it's just enforced. But what happens -- particularly when it involves someone who's in prison -- if you don't play by the rules? Worcester v. Georgia, United States Supreme Court said to the State of Georgia, ‘You didn't have jurisdiction to convict these two non-Indian ministers who were preaching on the Cherokee Nation reservation and you wrongly convicted them. You have to let them go free.' And who would that be carried out by? Then-Chief Justice Marshall didn't go marching to the capital of Georgia to let those folks out. That's the responsibility of the executive branch of the federal government. That's the Marshals Service. Ultimately, it's the President of the United States. And what did the then-President of the United States say? Some people think it's apocryphal, but President [Andrew] Jackson said, ‘Whatever. Chief Justice Marshall has made his decision, now let him enforce it.' Meaning that the executive branch wasn't going to support a decision of the United States Supreme Court. Do you think the republic could endure if states felt free on a regular basis to not appear before the United States Supreme Court? Do you think the republic could survive if the executive branch on a routine basis said that it would not enforce judgments of the United States Supreme Court? And the answer is no. Fortunately -- or maybe unfortunately depending on your point of view -- is that what happened is that the court went into recess, President Jackson realized the republic was becoming unraveled. South Carolina passed the resolution they were going to leave the Union. And so he realized that he couldn't be, refuse to enforce a judgment and let the State of Georgia get away with its disrespect for the Supreme Court. And so he convinced the Governor of Georgia to pardon those two defendants who had been convicted. So right from early Indian law history there was a genuine constitutional crisis about whether the United States Constitution had enough legitimacy to survive that crisis. And it's important to realize I think, without inviting it, that sometimes tribes will face crises of their own about the meaning of their constitution. But my thinking is that you have to hold fast to the values and the structure that you can accept the decision, work with it, even when that decision seems to you to be against your interests and may seem to you quite wrong as a matter of constitutional interpretation. Because without legitimacy, constitutions cannot continue to function and that's the most difficult thing to establish at the front end, and it's the most difficult thing to maintain. And so it's important for tribes as they go through adopting constitutions or revising constitutions to insure that they have legitimacy. Legitimacy means what? Talking all the time, being respectful [of] what others say, particularly others that you disagree with, and that they're respectful of you and that you remember that you are united in your support of the values, you're united in the support of the structure, even though you might disagree with a particular decision.

So let me conclude by giving three examples and three cases that I served on the appellate courts of these three tribal nations. The first case comes from the Saginaw Chippewa in Michigan. People talked a little bit today about one of the critical issues for tribes in the U.S. is membership, enrollment. But nobody talked about the flip side of that and the flip side is disenrollment, a very painful, a very powerful force within a number of tribes. And so a case came up at Saginaw where the tribal council there began to disenroll people and a number of people thought it was just wrong. And so they brought a suit in tribal court raising the question, a very important question, ‘What power does the Saginaw Chippewa tribal council have to disenroll people?' It's a very powerful, though perhaps painful, question. And it would be a good question for all of you to ask yourselves, ‘What power in your own tribe does your constitution say about who has the power to disenroll for what reasons under what circumstances, or does it really address the issue at all? And so the case at Saginaw, and I'll simplify it a little bit, the view of the tribe was -- represented by an excellent attorney -- and the view that the tribe had plenary power to disenroll people for whatever good reason it thought. The challengers -- also represented by an excellent attorney -- took the position, ‘Well, if you look at the tribal constitution, it's an important, really basic question, what is the structure of this tribe's constitution?' And what it meant by ‘the structure' is this, and I think it's a very important question for every tribal member to ask about his or her constitution. And it is this: Tribal constitutions structurally, from an overall point of view, can be organized into two categories. One is what we might call a ‘plenary power' constitution. A plenary power constitution means in the text of that constitution, all the power of the tribe is granted to the tribal government and none of that power is reserved directly to the people, and there are tribal constitutions that do this, I've seen them. There are also many tribal constitutions, in fact probably more tribal constitutions, that are what I would call a delegated powers model, in which the power of the tribal people is delegated in a specific manner to the tribal government itself, and all powers not delegated or enumerated to the tribal government are reserved to the people. And I think, structurally, that is probably the most important structural question for tribes. All the power to the tribal government, or only some and the rest of it reserved to the people. And for those of you who are members of tribes that have tribal constitutions, look at your tribal constitution or look at it again and see how you would answer the question about whether it's an enumerated powers constitution or whether it's a plenary power constitution. So that was one of the big questions in the Saginaw case. And we reached the conclusion -- we being the court -- reached the conclusion that the Saginaw Chippewa tribal constitution, which was adopted in a revised edition in 1986, was an enumerated powers constitution, and the tribal council only had the expressed powers that were set out in the constitution. And so we went then to those enumerated powers, and there was some limited, direct recognition of the power of the tribal council to disenroll people. But they were very limited powers. They were limited to members who were enrolled in more than one tribe, and it also mentioned that they had the power to disenroll people who had been adopted into the tribe and their parents divorced. It didn't seem like the constitution gave the tribal council any broader power. Then the question was, ‘Does the tribal council have any inherent powers to disenroll?' ‘Cause that's another thing that comes up sometimes. It comes up with the United States Constitution, sometimes comes up with tribal constitutions. Even though it's not specifically mentioned in the constitution, does a tribe under some circumstances have inherent power to do X. And we decided in the Saginaw case that the only inherent powers that the tribal council had to disenroll people were for two reasons. If it could be proved that a person became a tribal member through fraud. We took the position that a tribe must have the inherent power to disenroll people if they can prove that those people became tribal members through fraud or mistake, because sometimes mistakes happen in the context of enrollment, particularly in the context of blood quantum, ‘cause blood quantum ultimately is what? It's ultimately a math problem, and so if you have somebody working in the enrollment office that's not that good at math, they might have got the fractions wrong and someone gets enrolled not because of fraud, but because of a mistake, and that's the position that we took. But that's not quite the end of the story, because it all doubles back to legitimacy. We made that decision and we said that the people who had been disenrolled had been disenrolled improperly, and if the tribe was going to disenroll them, they had to have another disenrollment ordinance, they could only do it for the grounds that were identified in the constitution and they had to provide due process, notice and the opportunity to be heard. This is very important from a tribal judiciary point of view. It's how you say what you say, because when we made that decision, the tribe might have said what? They might have said, ‘Go fly a kite.' They might have fired us on the spot.

So when a tribal court makes an important decision interpreting the tribal constitution, this is where legitimacy comes into play, because sometimes tribes can, will, although they're less likely to these days, is to say, ‘No, we don't recognize you the tribal court, and we're just going to go about what we've been doing.' And so there are two things there. One is -- and I'll give another example in a moment -- is how well tribal decisions are written, how thoughtful they actually are, how familiar they actually are in talking about tribal tradition and custom, because in the context of the Saginaw case, we looked back to the history of enrollment for the Saginaw Chippewa Tribe. It had a lot of adverse, troubling conditions imposed by the federal government that created a very difficult situation in Saginaw in determining members and it wasn't really the tribe's fault. It was the fault of the federal government who created these kind of crazy rules. But we understood that and we said that. And we tried to show respect to the tribe itself -- meaning the executive branch -- and to the plaintiffs and to tradition and custom. We talked about unity. We talked about respect. And they're just words, but you can make the power of expression, you can use the right words the right way and you can make a powerful expression. And so -- and this is my opinion and I'm not neutral because I worked on that case -- the tribe didn't like the decision. They definitely did not. But what did they do? They accepted it. You could see it in the tribal newspaper. It's incredible. It's like the statement in the tribal newspaper reads like this, ‘We disagree strongly with the decision of the Saginaw Chippewa Tribal Court of Appeals, but we're going to follow it.' That's legitimacy. And so tribal courts themselves have a powerful responsibility, in the way you write your opinions, to show respect, to try to lead the way even when one side wins and the other side loses, is to try to show that there's a way of harmony, there's a way of respect. It might not always work, but you have to do it, I believe, and all good tribal judges and tribal appellate justices do that. You kind of think in the context of respect, and it makes a difference.

I'll give one other...I'll give two more examples. One was a case from Cheyenne River [Sioux Tribe], it's actually an ongoing case. Issue came up at Cheyenne River, because they have a provision in their constitution about redistricting. Their constitution -- as most tribal constitutions [do] -- say that tribal council members will be elected from certain districts. Well, at Cheyenne River the constitution was adopted, it's an IRA [Indian Reorganization Act] constitution. It was adopted in the ‘30s. And so some people were saying, ‘Well, the population and demographic patterns in those communities have changed dramatically and therefore there should be redistricting.' And interesting enough in the Cheyenne River Sioux constitution, it actually expressly says that you can amend the constitution and so you could amend for redistricting purposes, but it also said the tribal council shall redistrict. And arguably the tribal council hadn't redistricted, so there was a challenge saying that the tribal council wasn't carrying out its constitutional responsibilities to redistrict the reservation and I'll just cut to the interest thing. The plaintiffs, the challengers, the relief they were asking for, they wanted the court, they wanted the Cheyenne River Sioux Tribal Court of Appeals to make, to order the Bureau of Indian Affairs to supervise the next election or, in the alternative, they wanted the court itself, the Cheyenne River Sioux Tribal Court of Appeals, to monitor and oversee the election. And the members on the court said, ‘We're not going there. What does that have to do with self-determination to ask the Bureau to come in and supervise an election?' And so despite ruling in favor of the plaintiffs, the challengers, we didn't adopt their proposed remedy. We just said -- and again easier said than done -- we just said that we expect the tribal council, and we set a timeframe, to go forward and come up with a redistricting plan. And so there, there's another sort of cautionary note, that even when you rule in favor of one party in the context of a constitutional dispute, be careful about the remedy that you order to be implemented, even when it's requested by the parties. And again, it takes a certain kind of sensitivity to that.

Last example -- this kind of stuff hasn't been mentioned at all today -- and I do want to mention it and then I'll finish. This case comes from Rosebud. A lot of tribes in their constitution -- hasn't been mentioned at all today, maybe Joe mentioned it quickly -- but there's a lot of pressure internally and externally on tribes to insure in their tribal constitutions that they have Bill of Rights protections, that there is the right to free expression, free exercise of religion, all that. But also because many tribal constitutions in their Bill of Rights section -- if they have one -- is modeled after the Indian Civil Rights Act. And so oftentimes they'll be like sort of what we call Fourth Amendment protections against unreasonable search and seizure. And so when you have that kind of language in a tribal constitution that is a direct replica of the Indian Civil Rights [Act] protection, this is just an example, against unreasonable search and seizure, and that language also models the Fourth Amendment, and then a tribal member is a criminal defendant in a tribal court prosecution, he wants to challenge his arrest. She wants to challenge the arrest as lacking probable cause. They want to say that evidence was seized impermissibly, and that the evidence should be suppressed and their conviction should be reversed. And this is a very important question for tribal appellate courts. When you have Bill of Rights-like language in the context of stuff that applies in the context of criminal prosecutions, does the tribe intend that that language -- and I'm just using the Fourth Amendment -- do they intend that it be interpreted just like the Fourth Amendment to the United States constitution, where there are warrant requirements, the exclusionary rule, all that kind of stuff, or do they mean something different? And if they don't have anything in the constitutional history or discussion when they adopt that language, they're not providing very much direction to the court itself about how it, that is the people, think about these constitution-like protections which have very similar language to the United States Constitution and oftentimes the Indian Civil Rights Act. And the tribe needs to speak -- when they're talking about individual rights because my experience has been with the tribes in South Dakota, tribes are interested in individual rights. To me, it wouldn't be accurate to say that tribal people are all sort of communal, they have no sense of individual rights. It's a balance, and the people who are adopting the constitution, if you're going to have that kind of language in the constitution, you need to provide some background for the court about do you mean just like the Fourth Amendment or not quite like the Fourth Amendment? So whenever you're copying language I guess, borrowing language that comes from the United States Constitution or from the Indian Civil Rights Act, it's really important that there be discussion, documents that show is it just the values that you're interested in, fairness and privacy, or are you inclined to want the exact rules that come from the Fourth Amendment to the United States Constitution, particularly in the context of prosecuting tribal defendants? If you believe that exclusionary rules should apply, that means X number of tribal convictions are going to be reversed. Is that where the tribe stands as a matter of value or not quite, [it] may have something else in mind.

So those are just sort of three examples in three different contexts. Disenrollment, district representation and the rights of criminal defendants, where those are from three real cases [from] three different tribes that I've worked with in terms of interpreting. They're all about interpretation, because that's ultimately what courts do, because however well a constitution is drafted, and the well drafted the better, no doubt about it, but ultimately there are going to be issues of interpretation. And so you have to think about interpretation. And one of the ways the tribal people can aid the court ultimately in interpretation is not just simply adopting the constitution and the language but the stuff that goes with it. Are there tribal constitutional debates, meetings, that are recorded that become part of the tribe's constitutional record, so that when a case comes up and people say what the people really meant was X, that there is testimony, oral history reduced to writing about how tribal people -- the people who give the constitution legitimacy -- how they were thinking about that particular provision of a constitution. Because it's totally inaccurate to think that a constitution is simply going to be interpreted based on the bare bones text that's in the constitution, however well it's been drafted. And so to me two key things that bracket constitutional thinking is legitimacy now, forever and always, and interpretation and an ongoing kind of commitment of tribal people to their constitution. And it might need revision at certain times. The United States Constitution has been amended any number of times. Very few constitutions survive and have authenticity and legitimacy without the necessity of being amended at certain times. And again it's a very powerful notion in terms of education, because education is a very valuable component that gives legitimacy. Because too often the education that people get in high school and even in college about the United States Constitution I don't believe is very effective or fair, because it's too, it's too self congratulatory about the constitution is great, we're great, duh. There's got to be more to it, because a long-lasting constitution is not inherently great. It takes legitimacy, it takes mistakes, and that's what tribal people themselves I think have to realize, and your children and grandchildren, about it's an ongoing process to be educated to think about any constitution, but particularly a tribal constitution.

Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution (Q&A)

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Native Nations Institute
Year

University of South Dakota Professor of Law Frank Pommersheim fields audience questions about the importance of civic engagement to constitutional reform, removing the Secretary of Interior Approval clause from tribal constitutions, and other important topics.

Native Nations
Resource Type
Citation

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

Q: "How do we decide if [constitutional reform is] best for the whole and not just a few? I really get nervous about that."

Pommersheim: "Well, I think that's an excellent question. I guess my suggestion is that in matters of constitutional revision or thinking -- it's one word I didn't use -- is sort of patience. It's an incredibly important process, and so patience to me is really a watch word, is to not rush to constitutional judgment, to amend a constitution or change the constitution. Patience. And I think it's patience with, easy to say, but patience with openness, that is on the council, for example, if somebody is proposing that there needs to be a revision to the constitution or an amendment, I guess one approach is to have some open kind of hearings on it, is just to have the opportunity for people to say who are in favor of wanting to change a constitution kind of where they're coming from, what is in the constitution that they think is harmful or doesn't work and how a change might be beneficial. And to have discussions, not only at the council level, but tribes that I'm familiar with have communities, you go out to the communities and you have hearings about it, and you have to have, I guess, belief that patience and openness and transparency will eventually lead to the best possible idea. I don't want to be naí¯ve, because obviously when you're on a council you can be catching a lot of grief, and I actually don't have an answer for that, but I think being patient is always something that is appropriate in a constitutional context. And your way of putting it is, is this really best for the tribe? Because constitutional revisions are not meant to benefit a small subgroup of the tribe, they're supposed to benefit the tribe as a whole, and I think that's a legitimate, not in a confrontational [way], but that's a legitimate response of a tribal council member, that we have to take a look at this and see if it's really going to benefit the whole tribe. What is the overall benefit of the change? Very much so. And again, I think for tribes that have these institutions, oftentimes there's just the tribal council and then there's the people. There's no mediating kind of institution, and I think, for example, tribes that have community colleges, they are a tremendous kind of benefit because the colleges are basically independent, they're not really politically affiliated, they're educational in nature, and to me it seems they are the appropriate bodies to host these kind of discussions about proposed amendments. Because I think it is important for tribes to have -- and they could be community groups as well -- but to have some kind of intermediate organizations that mediate between the council itself and interested tribal members. You need something I think in between to kind of facilitate the communication in a fair-minded way."

Q: "Reform versus amendment -- is there a huge difference between the two?"

Pommersheim: "Amendment is the technical process that allows you to change the constitution. Every tribal constitution that I've ever seen has an article that deals with amending the constitution. That's how you change a constitution that has already been adopted. You amend it, and how you amend it is contained in the constitution itself and that can lead to reform. But you cannot reform a tribal constitution -- or the process for reforming a tribal constitution is the amendment process. And an extreme amendment, which is permissible under the Indian Reorganization Act and others, is that you can do away with your current tribal constitution. But amendment is the technical, constitutional way spelled out in the tribe's own constitution -- not from the federal law or anything -- about how you can change the constitution. Most tribal constitutions that I've seen require either a petition by X percentage of tribal voters and/or approval by X majority of the tribal council, and then it gets voted on by the people. So in your own tribal constitution, go back to it, it should have a section for how you amend the constitution and that's how any change will be effectuated."

Q: "So we actually have to go by the current constitution that's in place right now in order to go through the processes of changing it."

Pommersheim: "Yes."

Q: "And the next question I have for you is what is your advice for removing the Secretary of Interior from making any decisions for our government?"

Pommersheim: "I'm all for it."

Gwen Phillips: "Search and replace!"

Pommersheim: "But, I'm all for it -- two parts. I'm all for it because that's what tribal sovereignty is about. Tribal sovereignty can't be about having the Bureau [of Indian Affairs] approve your most critical, organic document. It's just too inconsistent. But, you have to think it through about how it will work, because it is true that if you do away with the approval powers of the Bureau of Indian Affairs, you're taking on, in a good way -- but you need to think about it -- you're taking on a new responsibility. You're not going to have the Bureau to fall back on to actually run the elections, and you're not going to have the Bureau to fall back on to complain about when you don't like what happens. It's all going to be on you -- I don't mean you personally -- it's going to be all on you. And so yes, it's a step forward for tribal sovereignty, but I think thinking requires that to ask yourself, and this may be an unpopular question, do we -- of your tribe, any tribe -- do we have the infrastructure, do we have the capacity to monitor our own constitution? And that might be a painful kind of question, but I think it's a little bit irresponsible to go marching forward to do away with the Bureau's approval process without asking the coordinate question about whether you have the infrastructure and resources and legitimacy to do it on your own, because sometimes people get caught up in the rhetoric and the abstraction about sovereignty. But sovereignty has a subset of questions, which one of to me includes, "˜Do you have the institutional capacity to carry this out?' And your answer might be, "˜No, we don't.' But then you can develop a plan. Say, "˜Okay, let's not do it right now. Let's develop a plan so in three years we have developed the resources and the institutional capacity to do away with the Bureau's supervisory responsibility.'"

Q: "Instead of doing away with all of it, is there a way to do away with a majority of it?"

Pommersheim: "Well, it comes in two parts. One part is, and this I think is the first part, is to do away...if your tribe's constitution has stuff where the Secretary actually has to approve certain ordinances you pass, that could be done away with immediately I think, and you can do that without worrying too much about the resource issue, although you have to ask it. The broader thing is to basically get out of the IRA constitutional thing completely, and which you're permitted to do under federal law, the Bureau can't stop you. And then you're completely out from the Bureau altogether. So there are at least two parts. If there is stuff in your tribal constitution that allows or requires the Bureau to approve certain ordinances and certain subject matter areas, you can amend the constitution and get out from those. But if you are an IRA tribe or a tribe -- you don't even have to an IRA tribe. This is a little bit tricky because any number of tribes knowingly or unknowingly who are not IRA tribes who never voted for the IRA nevertheless adopted their constitution under that rubric, and would have to amend their constitution to do away with the Bureau's ability to supervise the elections, the amendments. Because it's true -- and you have to hold your local superintendent to the fire -- is that when a tribe is amending its constitution under the IRA, the Secretary cannot tell you that you can't do it. The only thing the Secretary can tell you -- and they have to approve the form of the amendments -- they can only tell you that we the Bureau have a problem with this amendment because it's contrary to federal law, and if they can demonstrate that the proposed amendment that a tribe is considering is opposed to federal law, they have the responsibility to tell the tribe that they're not going to allow you to engage in that amendment because it's contrary to federal law. But that's it. They can't say, "˜Oh, we don't like this amendment, we don't think it's good for the tribe.' No. And it's important that tribal people hold the local Bureau superintendent's foot to the fire. Know what those regs say. So again, where a good lawyer comes in handy. Because local superintendents come in all vintages. Some that know too little and some that know too much, and very few that know the right amount. So you want to have a good lawyer who can, in a good way, a respectful way, make sure that the local superintendent who is the first person that you deal with in these amendments, make sure that he or she actually understands the regs and how they work."

Q: "And then my last question is we have a court system that's separated from our tribal council, but in our constitution and bylaws, there's a portion of it that should there be I guess a conflict or whatever or the courts can't reach a decision it comes back to council I guess, it gives us that power all over again. And there's a lot of us that's uncomfortable with that. And so in working with our constitution now, we're trying to come up with a plan to safeguard the process, and so it's getting to the point where we have to think about these things. At what point do we involve an attorney for advice in this, or is this a thought-out plan that needs to be for our people alone? And -- as I think many people agree in here -- that we don't have educated tribal members, and it's sad, but I see that a majority of our educated tribal members don't come back to help the tribe. They're out doing their own and just living life they way they earned it. There are a few of us that do come back and our heart is where it is and this is what we want to do to...I'm loaning myself to my tribe in order to help them. But the thing with our court system, the concern that I have is that when it comes back to the council, we don't have any codes in place or anything that we can follow to help us make these decisions. Instead, it's going to be a majority consensus or something, and everybody refers to the CFR code, but in actuality I don't think that's followed either. So where's the justice for the person that is in front of the court?

Pommersheim: "Well, two things. You had asked at the stage you're at now, I think you definitely need a good lawyer to help explain to you or you explain to him, back and forth, about the problems you see in the way your constitution is set up where somehow the tribal court, whatever what means, can't reach a decision, it goes back to the tribal council. I think a good lawyer can help you evaluate the pros and cons of that and then if you're thinking about changing it, how you might actually sort of draft something to allow you to do that. It's also true and can be tricky, if you have an IRA constitution, the Bureau is required to give you technical assistance for free. And so you can approach the Bureau for free technical assistance, but be careful about things that are free."

Q: "Thank you for your time."

Pommersheim: "It is true. If you know -- because a number of my former students work for the Bureau -- there are many, many good people who work on the Bureau and if you connect with the right person, they will definitely help you. But there's also the baggage of the Bureau as an institution, but there are many good people who can be helpful."

Gwen Phillips: "He said he wanted me to ask questions cause he didn't think he'd be able to take up enough time. I don't think he's got a problem there. So I was mentioning that we've been at this constitutional, and I'm going to call it reform, because I really see it as a "˜re-form.' It's becoming, it's taking a new shape, where we also did some constitutional amendments or revisions and that was within that Society Act constitution, just to get it a little closer to saying "˜we're sovereign' without the government's knees shaking. Because I had mentioned, we've got the two going on right now. The internal constitution, that's our self-governing constitution that once we get to that point, it will be legislated into effect by the [Canadian] Parliament. And then the other one that allows us to have that certainty for business purposes that we're legitimate and they can sue us if they need to right now as a non-profit entity. I think one of the most important things we went through, I'm going to put a couple comments out and then ask a little bit of question, is because it's been such a long, long process, there's no darn way we could afford lawyers to guide us through the process. And because we have -- you've heard me note -- we have over 40% fetal alcohol [syndrome]-affected individuals -- and for those who don't know that's brain damage, permanent brain damage -- lovely people, but many challenges with understanding these concepts. But they can give you the spirit. Law is basically two components. I'm not a lawyer so please correct me, all of you legal lawyers and attorneys and barristers and solicitors and whatever you all are. But I've come to know that law takes two, there's two components to it. One is called the spirit of the law, the other's called the letter of the law, and that's where interpretation comes in, people, is in between the two of those things. So if you in community spend enough time with your people talking and capturing spirit and documenting it so that that becomes your constitutional record, then when it comes time to actually go to defense, an interpretation of the letter of the law, that your people see themselves in there. So we don't let the lawyers come until it's time to draft the letter, and as they're doing it we make sure they're working with the people who captured the spirit so that they can insure that the spirit is legally defensible basically. So it's critical that you spend enough time just with your people, because I'll tell you that we actually appreciate some of our people having a felony that are on council, because we demand that our council members be ready to defend our inherent right to govern, and the federal government doesn't like that so they'll through our leaders in jail at times. So we've defined basically what it is you can have and what it is you can't have. So it brings again the spirit of the people to the table and people can say, "˜No, we don't want you there, you abused my nephew.' Well, that says, okay, that's a very personal thing, but what they're saying is, "˜We want to protect children.' So if we catch the spirit, embed it in the letter, I think we're okay with this. We have to also I think recognize that process and procedure and regulation goes hand in hand with the law we establish. So if we establish this supreme law so to speak, we have to have at the ready, already, all the regulation that goes sideways from that, "˜cause that's where we get into trouble when we say, "˜Oh, we'll do this,' but we haven't put the process to it or the regulation on how we will go about doing it and then we get stuck. We haven't considered, "˜Oh, gosh, that's going to now lead it back to my desk again, and what am I going to do about it?' Etc. So making sure we've got the good processes in place as we develop these things. And as you were speaking I was getting this picture in my mind of a shield, that a constitution should be like a shield and I'm the battle warrior, we're back to the Star Trek theme. Did you see that? I brought it back to the Star Trek theme. But that shield, to me, shouldn't be a big shiny shield that's really pristine and looks like it's never been taken out of the case. To me, it should be all dented and it should show your battle scars, "˜cause to me your constitution should live through all of those, to be able to take the sideways hits, to be able to stand up to the arrows and sometimes the bulldozers and whatever else, and live through all those things. So sometimes you may actually have to weld on a new little piece to that shield because something's happened in the environment around you that you haven't thought of, nuclear weaponry or whatever or something, I don't know. So you might have to change it a little but if you've done a good enough job of your spirit, hopefully it's not a whole reform we're having to go through again. So my question now is, in our developmental processes right now one of the things I've been asked to do is create an ombudsman-type position. So who's going to hear the challenges of a decision of government? Because those end up back on government's table, and that's what bogs us down in this crisis mode all the time, all the time, all the time. So it's like a deflector, a place to not park those things "˜cause they're very important, but it's the proper machine to actually hear those things. "˜Cause I'll tell you when you put process behind complaint, people stop complaining "˜cause they're lazy about process sometimes, and that's just reality. But if it really is an important thing, they'll find a way, they'll take the energy, they'll take the time. So what tools or how would you actually see embedding or would you see it embedding that piece into the constitution?"

Pommersheim: "Let me see if I can pull that together. To me, this is one of the themes, and I think what Gwen was saying helps to pull it together, is having effective communication. That it's very important in all walks, but certainly in this context, is having effective communication between the government, between the people, between the communities, between tribal institutions, and in some situations having an ombudsperson who can advance or enhance that communication, that might be a way to go. You just have to examine it from your own tribal circumstances saying if we had a person or office whose specific charge was to ease communication or make it more efficient, that's definitely something to carry forward. One other thing about communication, is communication with lawyers, is that lawyers work for you and you should always feel that it is your right and in fact your duty to say to the lawyer, "˜God damn it, I'm paying you and I don't understand what you just have said. So say it again so I as a layperson can understand it.' There's nothing wrong with that, because it is true that part of our training as lawyers is not to communicate in ordinary language because that will strip us of some of the myth that surrounds us and why you're paying us all this money. And so you have every right to demand, and the best lawyers can communicate with people in ordinary ways. Nothing that we have spoken about today or spoke about tomorrow is so esoteric or complex that a good lawyer [couldn't] put in pretty ordinary language. And so you -- it's a two way street. You have to hold your lawyers accountable to you. You can't nod your head to something your lawyer says if you didn't understand it. And it's not your fault, it's his fault or her fault. And the big red sign in the back says, STOP, and I'm lawyer and I believe that means, 'It's finished, Bob, take a hike.'"

Q: "One more thing. You brought up interpretation, which is absolutely critical and you talked about your Fourth Amendment analogy and then borrowing on principles from the federal government and federal judicial opinion to help guide an interpretation, whether that was appropriate. The term "˜separation of power' that we hear around here is another term that we shouldn't just go ahead and adopt wholesale and say that we should have separation of powers. We can have co-equal, we can have distinct branches of government, but we shouldn't just go ahead and say, copy necessarily an interpretation from the federal government in having separation of powers."

Pommersheim: "Yeah, and one last thing about that is this notion about separation of powers. I think what it's about -- and it makes people uncomfortable to talk about it -- but what does separation of powers is to limit the abuse of power. It's easy to talk about values that you share in common, it's a little bit more difficult to say, "˜How are we going to deal with the potential abuse of power in your tribe?' And separation of powers, this is one of the tried and true ways of doing it. But you may have things in your tradition and custom that you deal with the abuse of power. But I think in the modern world the abuse of power is an issue, and I think it is naí¯ve in the extreme to think that, potentially, abuse of power is not a constitutional issue. Separation of powers isn't the necessary way to go, but I think it's a question, a necessary question, that a tribe has to provide its own answer to. How do we, in your tribe, deal with the potential abuse of power?"