Supporting Sovereignty: Is Your Tribe’s Constitution Full of Antiquated and Paternalistic Language?

shutterstock_412683298When 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 Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.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 GriswoldTed 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.

Carcieri Clarification: BIA Allowed to Limit Consideration to Whether Tribal Government is “Under Federal Jurisdiction” in 1934 for Fee to Trust Decisions

By: Rachel Giubilato | Law Clerk
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The DC Circuit Court in The Confederated Tribes of the Grand Ronde Community of Oregon, et al., v. Sally Jewell, et. al., (Civil Action No. 13-849 (BJR) December 12, 2014) undertook clarifying the ambiguity of Native fee-to-trust determinations left in the wake of Carcieri. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court held the definition of “Indian” under the Indian Reorganization Act of 1934 (IRA) applied to a tribal government “under federal jurisdiction” as of the date of enactment, 1934. However, the Carcieri Court remained silent as to whether a tribal government also had to be federally “recognized” as of 1934 to qualify.

Two schools of thought subsequently developed: the first believing a tribal government must be “under federal jurisdiction” and “recognized” as of 1934 for qualification under the IRA, and the second believing “under federal jurisdiction” and “recognized” to be separate concepts with only “under federal jurisdiction” subject to the 1934 cut-off. Since Carcieri, the Department of the Interior (DOI) has adopted the latter interpretation, continuing to accept land into trust for tribes who were deemed “recognized” post-1934.

The dispute in The Confederated Tribes of Grand Ronde arose from the DOI’s acceptance into trust of 152 acres of fee land owned by the Cowlitz Indian Tribe. The Confederated Tribes of Grand Ronde (Grand Ronde), together with Clark County, disputed the DOI determination, arguing that Cowlitz does not qualify under the IRA definition of “Indian” because they did not attain federal recognition until 2002 (consistent with the first school of thought explained above). Grand Ronde and Clark County sought reversal of the DOI determination on the basis that DOI made an unreasonable interpretation that only the “under federal jurisdiction” requirement of IRA was required for fee-to-trust decision.

The DOI countered that its interpretation was reasonable, and pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), judicial deference must be provided to an agency’s determination when a statute is ambiguous and the agency has provided a reasonable interpretation. The court agreed and upheld the DOI determination as dispositive of Cowlitz’s status under the IRA.

Keeping the concepts of “under federal jurisdiction” and “recognized” separate is pertinent for tribal governments seeking federal recognition as the scope of tribal governments that were considered “under federal jurisdiction” is much broader than the tribal governments “recognized” through the federal government in 1934.

For now, tribal governments and those relying on this determination for a fee-to-trust decision can continue to rely on the DOI interpretation that only “under federal jurisdiction” is required while they await the legislative clarification for the Carcieri case.

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.

It’s Just that Simple: Carcieri Fix Passes Senate Committee Vote

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Attorneys and scholars like to wax poetic about theories of interpretation and jurisprudence, but sometimes all it takes to change the law is a vote. In the context of Native American Law, the “Plenary Power of Congress” has become almost a throw-away phrase—one often referenced but far less frequently relied upon. That Power can be destructive or productive, depending upon the direction in which the winds of political change blow. Congress could and is providing Tribes with just enough wind at their backs to make up the ground recently lost in the courts, most recently in the 9th Circuit’s decision against the Big Lagoon Rancheria. Big Lagoon Rancheria v. California, 4:09-CV-01471-CW (2014).

Enter Senator Jon Tester and his bill proposing simple changes to the text of the Indian Reorganization Act that would effectively overturn the Supreme Court’s Carcieri v. Salazar opinion. That decision interpreted the Act’s original language to disallow those Tribes who were recognized after the time of the law’s passage from participating in the fee-to-trust process. Carcieri, 555 U.S. 379 (2009). Not only did the ruling prevent Tribes later recognized from enjoying the full benefits of sovereignty, but it also caused a significant disruption for those Tribes who had not been recognized at the time of the IRA’s passage but whose land had been taken into trust by the BIA and developed prior to Carcieri.

All it takes to overturn Carcieri is the will of Congress to exercise its plenary power by passing an amendment to the IRA. While this bill has Republican and Democrat co-sponsors from states across the country and was just unanimously passed out of the Senate’s Indian Affairs Committee, there is still opposition on the part of many states and their Attorneys General. It remains to be seen whether or not that opposition can gain a foothold somewhere in the arduous process of Federal lawmaking.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

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.