Stephen Cornell: Getting Practical: Constitutional Issues Facing Native Nations

Archibald Bush Foundation and the Native Nations Institute

Udall Center for Studies in Public Policy Director Stephen Cornell provides a brief overview of what a constitution fundamentally is, and some of the emerging trends in innovation that Native nations are exhibiting when it comes to constitutional development and reform.

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

Resource Type

Cornell, Stephen. "Getting Practical: Constitutional Issues Facing Native Nations," Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 2, 2011. Presentation.

"So I'm just going to start with a couple of quotes that Joe [Kalt] had come up with that I think are worth bearing in mind as you consider governmental reform. This is Albert Hale, former president of the Navajo Nation, making an argument that all the things David [Wilkins] just talked about: tribal innovations in governance -- these are acts of sovereignty. I'll give you a moment just to look at that.

Now one of the issues that has come up -- and I mentioned this earlier when I was introducing Regis Pecos. We talk about constitutions and I think very often people immediately think of a written document. But if you think about a constitution with a small 'c', just what does it mean? It basically means what are the set of rules by which this Nation has decided to govern itself? That's a constitution, whether you've written it down or not, whatever form it takes. When a Nation says, ‘This is how we govern ourselves,' that's a constitution.

And some of you may be interested at some point, there's a First Nation in British Columbia called the Gitanyow people. The Gitanyow are a Gitxsan people in the mountains in central British Columbia. They're very traditional people and they have an interesting form of government. They've got a government on reserve on their reservation that was formed under the Indian Act passed by Canada. But then they have a very substantial traditional area where they retain land use, hunting and fishing rights. And within that area the hereditary chiefs govern and they govern according to the kinds of ancient rules and principles that Regis Pecos talked about this morning. But they found that Canada could not understand how these hereditary chiefs made decisions because in fact, it's a very complex system they have. It's a system of clan control over land use. And within their tradition area the clans, which they call houses, the houses of the Gitanyow people make decisions. If you want to hunt in that particular part of a mountain range, you have to go consult with that house and ask their permission to hunt in the piece of territory for which they carry responsibility. If you want to fish at this place in the river, you have to go to that house and ask their permission. ‘Can I fish in the area for which you're responsible?' And if the house says yes, then you can fish there. And sometimes there are disputes between houses over, ‘Wait a minute, whose territory is this? Who did you get permission from?' Well, the Gitanyow have a traditional mechanism for how they resolve those kinds of disputes. When those disputes come up, this group of houses get together and they deliberate and they decide what the answer is. All of this was simply passed on in the typical way, oral tradition and knowledge, but Canada couldn't figure it out. So the hereditary chiefs said, ‘We're going to have to write a constitution. We're going to have to explain to the Canadian government how we do stuff.' And they wrote a constitution, I've got a draft of it here. The Gitanyow Constitution, Gitanyow Hereditary Chiefs Working Draft Number 12 -- it took a little while to get it right -- 2003. And what's interesting about this is now it's written, but it was a constitution before it was written down. It was the rules they used to survive as a people. And that's what we're talking about here, is the decisions you make about how you're going to govern. What are the principles and the processes you use to make the decisions you need to make to survive as people and create that future that you imagine? Nothing really changed in those rules when the Gitanyow wrote it down, but now they've got a written constitution where before they didn't.

Another couple of quick quotes; this is Rocky Barrett, Chairman of the Citizen Potawatomi Nation: ‘Without good rules, tribal government is just a bad family reunion.' This is one of Darrin's [Old Coyote] countrymen, Richard Real Bird, former Chair at the Crow Tribe. When they were first working on trying to do constitution, that process didn't really work out. Darrin told you about the process that succeeded but when Richard Real Bird was starting that process, he said, ‘This is our strategic plan, a constitution -- how we're going to govern ourselves as a people. It's our strategy for how we deal with the future.' Joe Flies-Away, tribal judge at Hualapai, ‘A Nation's laws are the deepest expression of its culture.' It doesn't matter if they're written down. This is an expression of who we are. So that's what we're talking about when we talk about constitutions. (I'm going to skip a lot of what is in here, we'll be happy to email you these slides at your request if you...we'll just I guess decide we'll email them to all the email addresses we get on that sign in sheet.) But I wanted to touch on a couple of other issues.

This is one point that Joe wanted to make. ‘A lot of Nations today operate under constitutions built on ‘Western' paradigms.' But when we think of constitutions, I've had somebody say to me a constitution is a Western idea. Well, Dave mentioned the Iroquois. Here's a fascinating piece of the Iroquois, in a sense, Constitution of the Confederacy. It's pretty explicit about how we do things. I'll let you read it. I think ‘contumacious' means resistant. If you look at what that says, that's a set of rules about how we choose leaders and how we get rid of leaders who show that they cannot serve the people effectively. And it also tells who gets to do this. Who replaces the leader? The women shall choose the next lord and they'll inform the senior leadership about who they've chosen and then that person will be elected. It's a set of rules, ancient rules about how they choose to govern themselves. (I'm going to skip through some of this. We really covered a lot of this.)

Constitutions and the governments they create are tools; they have multiple purposes. (Again, we'll send some of this to you. I don't want to cut into the time of our presenters later.) Some of the key tasks that most constitutions -- that we see nations working on now -- some of the things they're trying to address: identity and citizenship, powers, rights, responsibilities, structures, etc. (I'm going to cut into a couple of these.) This is just one version of ‘who we are.' The Coquille Tribe of Oregon, the preamble to its constitution. It's making a certain claim about who we are as a people, why we're putting this constitution together. It's a statement.

Citizenship: the one thing I want to touch on here, this is a tough issue that a lot of nations are dealing with. One of the things we're seeing at that top bullet says, ‘From Membership to Citizenship.' Several times I heard Oren Lyons, traditional faith keeper of the Onondaga people, speak and he never used the word members. He always said the citizens of the Onondaga Nation. And one time I was chatting with Oren afterwards and I said, ‘I notice you always say citizens.' He says to me, ‘Are you a member of the State of Arizona, are you a member of the United States?' He says, ‘At Onondaga we're not a club. We're a nation; we have citizens.' It's an interesting take on just the language that we use.

‘Powers, Rights and Responsibilities: What Matters to You?' This is St. Regis Mohawk; they straddle the U.S./Canadian border, the Akwesasne people. These are some of the things, in their governing system, that they say their own citizens have a right to and that their government therefore has to deliver. And it also says, ‘The Constitution of our Nation will be secondary to the Great Law of Peace,' the constitution of the Confederacy.

There's a lot of talk about branches, separations. I want to spend a little bit of time on separations of powers and a couple of other things. What are the roles of the different pieces of government? And I wanted to acknowledge that sometimes people have raised questions about separations of powers. Sounds like a Western idea to me. I'm indebted to Don Wharton actually from NARF [Native American Rights Fund] who at a meeting last summer said, ‘What we're really talking about is allocations of responsibility,' because that's exactly what nations do. They say, ‘These people will be responsible for this. These people will be responsible for that set of issues. When it comes time to resolve disputes, that's taken care of by these people.' They're allocating responsibility for the various things the nation has to do in order to survive. And I think this quote I just showed you, that's really what they were doing. There are particular roles and responsibilities that have to be fulfilled. And part of what you learn to be a functional citizen of our nation is what those roles and responsibilities are. Now some of these things take Western form.

This is Salish and Kootenai Tribes of the Flathead Reservation -- sorry it's a little dark -- but Flathead is three nations with very different traditions, forced together under the Treaty of 1855 to live on a single reservation. And how are they going to govern? And what they come up with, they basically said, ‘How do you want to govern?' And the Kootenai said, ‘We want to govern in a Kootenai way.' And the Salish said, ‘It's got to be Salish.' And Pend d'Orielle said, ‘We want a Pend d'Orielle government.' And they said, ‘Boy, this'll never work. What's everyone's second choice?' Good old U.S. governing institutions. And so what they ended up with was district representation, a parliamentary system where the council chooses the chair. Why did they decide that? Because they said, ‘Look, we've got three different nations here with very different traditions and one is larger than the other two. So if we have a directly elected chief executive, it's always going to be a Salish person. And over time the Kootenai and the Pend d'Orielle are going to say, ‘Eh, we don't like this system.' 'So instead of having a directly elected chair, let's elect a council and then have the council choose the Chair' -- a smart solution for a difficult problem. A very strong, independent court system, because they knew there were going to be disputes and they needed those disputes to be free of politics. So they created a strong court system. They systematically -- this was the first nation basically to assume almost every program you could 638; they took it over. They basically said, ‘We want responsibility for everything that happens on our reserve,' systematically took it over and then made careful choices about how to keep the strategic decisions about where we're going as a nation in the hands of elected leadership but then put implementation of those decisions, that day-to-day management, in the hands of professionals. So that's kind of using Western models that they said, ‘Well, these may not be our traditions, but they work given the situations we're in,' which is kind of what Dave was just talking about.

But then there's -- and I'm building really on what Regis [Pecos] had to say -- the non-Western form and you can use Cochiti as an example but there are others: Jemez, Tesuque. Regis mentioned this, I'm just really giving you a quick summary. The governor has secular responsibilities, the war captain spiritual responsibilities. To the outside world, the governor is who you meet. When we first arrived at Cochiti Pueblo and said, ‘Who can we talk to?' they sent us to the governor's office. You think you're talking to the top guy. Turns out the world doesn't work that way. The governor's job is simply to keep people -- like these nerdy academics coming around asking questions -- keep them at bay and protect that core of what really matters to the people, from the State of New Mexico, the United States, the school system, the county, etc. And then as Regis pointed out of himself, if you ever have served in one of those positions, you're a member of the legislature for life. Think about what that means. It means there's a council at Cochiti and at other pueblos like this where you have an enormous body of experience that a sitting leader can draw on sitting in that council. Every person on that council has carried the ultimate responsibility of ‘I am responsible for the future of the Nation.' What a terrific asset for a sitting leader to draw on all that accumulated experience.

Rule of law: friend, family and foe should be treated equally. We found in our research the number-one predictor of economic and social success: politically independent dispute resolution mechanism. What you've got there -- I know it's a little dark -- but up on top is the Navajo Nation court processing 9,000 cases a year; some in a typical adversarial Western court system, some through traditional Navajo peacemaking that draws on ancient traditions of how we maintain the harmony of the community. Over here the San Carlos [Apache] Elders' Council doing the same thing, Flandreau police, and just as an example the Citizen Potawatomi Nation very successful economically. A powerful independent court system assures everyone, whether you're a citizen or not, you'll be treated fairly, not according to who you voted for, who your relatives are. This court system's a major reason for its success. How do we know the court's independent? Tribal Chairman Rocky Barrett: ‘I've had cases in that court twice and I lost both times.' When your tribal chairman loses in your tribal court, it's a pretty independent court system. I won't spend time on this. This is just a piece from their 2007 Constitution that describes the court system. San Carlos Apaches -- we went over this, but what I just want to come back to is this really is about separations of powers. It says, or as Don suggested, allocations of responsibility. Who chooses future leadership? The female heads of the clans. How do we get rid of a chief? Here's how. Now someone eventually wrote this down, but long before this was written down in the translation that you see here, it existed as a set of rules, it was a constitution. This is really... somebody asked Darrin [Old Coyote] about separations of powers. Well, this is from the 2001 [Crow] constitution. Every one of these branches is directed to respect separations of powers, allocation of responsibility. And finally I just wanted to, I've already given you one of these but run through a few of the things that just strike us as interesting innovations. Your nations are...I loved what Dave had to say of this history of governmental innovation that is this unspoken invisible history of Indian Country that Dave is trying to excavate and make visible to us again. Indian Country is full of innovation about how to deal with new challenges.

So some of the ones that we're seeing: Laguna. Six villages, each has representation on the council, and they describe councilors as elected officials. But when you go and actually find out how these councilors are chosen, there are no elections -- not in the way we understand them. Villages gather and in their wisdom and by processes not identified in a written constitution, they choose who they want to serve. We talked to one young man in his early 30s who'd been chosen to serve on Laguna Pueblo council. He said, ‘Well, the older people in the village came to me and they said, ‘You're the one. You're running for the council.'' 'But,' he said, ‘no one ran against me ‘cause they didn't tell anybody else. So there was an ‘election' and there I am on the council.' And he says, ‘When they showed up and told me this, you get this sinking feeling because you suddenly say, ‘Wait a minute. I'm being told I have to carry this responsibility. They don't give you power. They place this responsibility on you. Now I've got to go carry that responsibility.'' He said, ‘It's a sobering moment. You don't win an election. You get this burden placed on you to act on behalf of the people.'

Gitanyow I already covered. This is the British Columbia Council of Hereditary Chiefs. This is kind of how their government works. There's some overlap there but...the Indian Act is the Canadian equivalent, in a sense, of our Indian Reorganization Act. It specifies how First Nations in Canada should govern themselves. And the big constitutional movement among First Nations in Canada now is to get out of the Indian Act and replace it with their own ideas about how they should govern. And Gitanyow is one of those that has been doing this in part through the hereditary chiefs. And so this is what that system looks like. The elected chief and council run the social programs but when it comes to the things that really matter to the people -- the land, their way of life -- the hereditary chiefs are the authority and they recognize each other -- that division, that distribution of roles, that allocation of responsibilities is clear in the community.

And then Joe found this, the Pueblo Zuni Oath of Office. For 1970, it's a pretty remarkable piece of work. I'll let you read it. Interesting authority there: I don't know if any of your constitutions include this particular way of responding to disrespect, but it's intriguing. And then we thought this was an interesting innovation. This is a relatively small First Nation in British Columbi,a but it went through a long, careful process of constitution making that involved the entire community and when they finished and adopted the constitution, they had every adult citizen of the nation sign it. It was like this statement to Canada. ‘You want to know how we govern, here it is and all of us are part of it. It's our constitution.'

And finally, just a final word -- and this comes really out of some of the discussion this morning. We get talking about codes and various things and pretty soon when you think about creating a governing system, it just becomes a mountain to climb. Think of the constitution as laying the foundation. It's not about the details. ‘It establishes the principles and the processes by which the rest of your governing system can be built.' It's that first step that you then say, ‘Okay. Based on that, based on that articulation of our principles, our core values, of how we make decisions, now we can begin to put in place the other pieces of governance that we need -- those codes, those processes that we need -- in order to do the things we need to get done.'"

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