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 Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.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

Sustainable Economic Development in Indian Country

By: Nikke Alex | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Today, in mainstream media, the only economic ventures that people see Tribal Governments pursuing are mega gaming and mineral resource extraction. While many Tribes are engaging in both ventures, many other Tribes are not. Unemployment rates are very high in Indian Country. On average, the unemployment rate on reservations varies from 40% to 90%. Factors contributing to these high rates of unemployment include the isolation of Tribal communities plus the sparse education opportunities.

Creative programs are needed to help young Native people think outside the box beyond these two common economic ventures. In Southern California, one Native youth program has done just that. The American Indian Recruitment (AIR) Program promotes higher education and success in academics in American Indian communities. This past spring, AIR’s Leaders Project in partnership with the Tribal Learning Community & Educational Exchange Program offered a course to high school students entitled “Economic Development in Indian Country.” The course explored the pros and cons of various economic development strategies being used throughout Indian Country and the implications those strategies have on Tribal sovereignty.

As a part of the course, the high school participants were tasked with developing feasibility studies for a potential business in their Tribal communities. Dr. Joe Graham instructed his students to choose projects that reflected community values and their cultures. If Native People focus on their passions and community cultural wealth, then an economic venture is more likely to be sustainable.

On June 11, the students presented their completed feasibility studies at Hewlett-Packard in San Diego, CA. The students’ presentations were very thorough and well thought-out. Of the six presentations, the potential businesses ranged from implementing solar energy to starting a culturally-based hotel to creating a market that sells produce from local farms and gardens. Each of these proposals addressed a specific need of the students’ home Tribal Government. These particular presentations stuck out, because these are all examples of green business ventures.

Perhaps Tribal leaders should begin thinking outside the box as well. The opportunities for green business ventures are limitless. Tribal Governments can implement solar and wind, retrofitting programs, farmers’ markets, and artisans’ cooperatives. The transition to green business ventures promotes community and cultural values while conserving land, water, and air for future generations.

The transition to a green energy economy is becoming more realistic for Tribes. On July 13, Senator Martin Heinrich (D-NM) and Congressman Raúl M. Grijalva (AZ) introduced the Tribal Tax Incentive for Renewable Energy Act. This Act would allow Tribal Governments to take advantage of federal renewable energy tax credits, and, ultimately, these tax incentives would allow Tribes to exert their energy autonomy. Federal incentives like this Act could create more job opportunities, so young Native People can delve into the green energy economy. Looks like these forward-thinking AIR Leaders are headed in the right direction!

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke has worked with Indigenous youth throughout the world developing leadership pathway programs that value and reflect sustainability. Nikke is a recipient of the 2015 Procopio Native American 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.