American Indian Constitutional Reform and the Rebuilding of Native Nations

Eight. THE PROCESS OF CONSTITUTIONAL REFORM

Eight THE PROCESS OF CONSTITUTIONAL REFORM These are exciting times. American Indian nations across the country are taking steps to revise their constitutions and reform their governments. They are “reinventing” their political systems to better fit their own cultures, traditions, and relationships, and to better cope with changing political and economic realities. The significance of these current reform efforts cannot be overestimated. To the extent there is widespread involvement by the community in this “reformation” process, American Indians will have a greater sense of ownership of their political institutions and a greater willingness to view such institutions as legitimate—something that has been seriously lacking under their current systems of government. Moreover, in the drive to reform existing institutions and to create new ones, citizens of these communities are rejecting many aspects of the constitutions and institutions that were effectively imposed on them by the U.S. government as a precondition for the receipt of official “recognition ” and federal funding. In effect, these communities are changing their relationship with the U.S. government. They are choosing to move from a former relationship of subjugation and dependency to a liberating and transforming exercise of their own inherent sovereignty. They are taking a significant step in establishing their own identity and taking responsibility for their own destiny. This shift alone can be the breakthrough that will enable American Indian nations to truly realize their fullest potential. In other chapters of this book, a number of general observations have been made about differences between the IRA government model and the values and governing institutions typically found in traditional Indian societies . There also has been considerable discussion about a range of issues that currently concern contemporary Indian communities as citizens question how to enhance the effectiveness of their current political systems. This chapter is not concerned with the “what” of constitutional reform but rather with the “how.” How do communities go about surfacing, Steven Haberfeld The Process of Constitutional Reform 253 addressing, and resolving constitutional issues in a systematic and constructive way? Other than the requirements in many tribal constitutions for a specified percentage of eligible voters to ratify a new or amended constitution and subsequent review and approval by the Secretary of the Interior (for IRA constitutions), most tribal constitutions are silent on how to initiate and obtain citizen approval of constitutional reform. Since there is no blueprint to follow, reformers are presented with the challenge of designing and implementing a process that will get the job done in their communities. But what should that process look like? In answering this question, we can begin with a basic premise that is reflected in this entire book. No matter what traditional societies had to say about participation in tribal government, members of Indian communities today expect their governments to function according to democratic principles. They expect tribal government to be “of, by, and for” the people. No matter the shortcomings of the IRA constitutional template, the typical IRA constitution embodies basic democratic principles of “one man, one vote,” representative government, majority rule, due process, popular election of tribal leaders , and leadership accountability to the people, with whom sovereignty ultimately rests. Over the years, tribal citizens have been conditioned to expect adherence to these democratic principles. In fact, typical criticisms of IRA governments are that they have not lived up to these expectations. In this context, tribal citizens will also expect the reform process to be democratic. They will expect the process to be open and fair, to provide community leaders and members sufficient opportunity to participate in the deliberations, to have an impact on the content of the proposed changes, and ultimately to be in a position of approving the changes before they go into effect. Constitutional reformers will have to begin by designing a participatory process—before any substantive constitutional issue is addressed—that meets these democratic expectations of tribal citizens. While each community will design a process that reflects its unique needs and values, I will endeavor to identify some basic characteristics that successful reform processes seem to contain. I will identify these by reviewing the experiences of successful reform efforts and of some failed attempts at reform as well. My impression is that there are more instances in which tribes have tried to revise their constitutions or, similarly, initiate new or revised government codes, ordinances, or other organic documents , and were unable to get these approved by the membership. The details of where and...