When was the last time you looked at your Tribe’s Constitution? It’s probably not an everyday occurrence, and when you do review it you might just be scanning for a specific clause. If you were to take a moment to sit back and work your way through it, however, it’s quite possible you’d come across some language that resonates as a bit tone-deaf in a 21st Century world in which Tribes rightfully resist federal paternalism. There are steps Tribes can take to remedy their own Constitutions, but first let’s look at how we found ourselves here.
In 1934, the Indian Reorganization Act helped move federal Indian policy away from the destructive policies of allotment and assimilation towards a new line of thought in which Tribes were encouraged to strengthen their governments. During this era, the federal government provided Tribes with template documents to help tribal governments establish constitutions and created a foundation upon which elections could be held with assistance from the federal government. Perhaps in a moment of overcompensation for past policies, the templates provided by the federal government contained paternalistic language and the support they offered maintained a significant amount of federal oversight; however, in the 1930s, this policy shift was a welcome change from the allotment and assimilation era.
Today we find ourselves in a period of federal Indian policy dubbed the “Self-Determination Era” and since the 1970s federal Indian policy has largely supported the notion of Tribes taking more control over their own affairs while simultaneously decreasing federal oversight. This is not to say that every federal decision has supported self-determination, but generally the principles of self-determination have helped many Tribes reestablish strong governing bodies capable of running their own electoral management offices.
Unfortunately, many Tribes continue to use the form documents provided to Tribes in the 1930s for their constitutions and other governing documents. For many Tribes, the paternalistic language contained within these documents represents an antiquated reminder of a bygone era of federal Indian policy. Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.
For example, many Tribal Constitutions contain language requiring approval by the Secretary of the Department of the Interior for amendments to their constitutions. Before such amendments can be operative, even if unanimously approved by a vote of the members of the Tribe, the action must obtain secretarial approval. In fact, the form constitution currently provided on the Department of the Interior’s website still contains this provision. (Click here to open the pdf form constitution).
This paternalistic approval process has worked against the interests of Tribes on many occasions. In 2003, members of the Cherokee Nation voted on, and passed, an amendment to their constitution removing the provision requiring secretarial approval for constitutional amendments. However, in 2007, four years after the Tribe passed this amendment, the Bureau of Indian Affairs notified the Tribe that the amendment was rejected. (Click here for the full story)
The important takeaway from this process is that even though we currently find ourselves in an era of federal Indian policy supporting and promoting self-determination (BIA encourages tribes to assert more control over internal affairs, read the article here), Tribal governments find themselves hampered by antiquated, paternalistic remnants of a previous era. Tribes must work to take back their rights to truly govern themselves.
Luckily, and ironically, the federal government has since approved amendments to many Tribal Constitutions removing the secretarial approval provision from the constitutional amendment process (Constitution of the Cherokee Nation; Constitution of the Seminole Nation of Oklahoma; Mashantucket Pequot Tribal Nation). I encourage all Tribal Members to look at your own Tribe’s Constitution to see if there is a secretarial approval requirement for constitutional amendments for your Tribe and decide if this is in your best interest. Removal will help bring the constitution in line with current federal Indian policy and it could to prevent future unnecessary burdens from impeding the goals of the Tribe.
If you would like help removing the paternalistic language from your Tribe’s Constitution or would like to talk with someone to learn more about what this would mean for your Tribe, the Native American Practice Group at Procopio is here to help.
Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law. He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs. Aaron is a recipient of the 2018 Procopio Native American Law Student Internship.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
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