Vol. 16 No. 10 (October, 2006) pp.807-810

AMERICAN INDIAN CONSTITUTIONAL REFORM AND THE REBUILDING OF NATIVE NATIONS, by Eric D. Lemont (ed). Austin, Texas: University of Texas Press, 2006. 360pp. Hardback. $55.00. ISBN: 0-292-71281-2. Paper. $21.95. ISBN: 0-292-71317-7.

Reviewed by Jill Norgren, emeritus, Department of Government, John Jay College and University Graduate Center, City University of New York. Email: jnorgren [at] gc.cuny.edu.

In 1887 the U.S. Congress passed the Dawes (Indian Allotment) Act, legislation designed to destroy Native American governments, allot tribal land, and assimilate Indians into American society. Tribal governments were abolished despite the resistance of tribes, 90 million acres of tribal land passed into the hands of non-Indians, and Indian children were taken off to American-run boarding schools where their mouths were washed with soap if they spoke the language of their parents.

In 1934 Congress terminated this “Americanizing” policy with the passage of the Indian Reorganization Act (IRA). With this legislation Washington acknowledged that the Dawes Act had been a disaster. The IRA provided for the expansion of the remaining tribal land base and the reestablishment of tribal governments abolished by earlier legislation. In 1975 the United States government further altered its policy toward Native American sovereignty, again increasing its commitment to tribal independence and self-governance. In response many Indian nations began a process of amending existing constitutions as well as writing new ones in order, according to Eric Lemont, “to foster greater governmental stability and accountability, to increase citizen support of government, and to provide a firmer foundation for economic and political development” (p.xi). In 2000 the Harvard University Project on American Indian Development, recognizing the importance of these efforts, launched an initiative to investigate the constitutional and governmental reform experiences of a few of these tribes including the Cherokee Nation of Oklahoma, the Hualapai Nation, the Navajo Nation, and the Northern Cheyenne Tribe. Following a symposium at the Kennedy School of Government, a working group of constitutional reformers from a dozen Indian nations was formed so that experiences and ideas for strengthening American Indian constitutions and constitutional conventions might be shared. The edited volume organized by Lemont is largely the product of papers and presentations from this working group. It is a book that will be of interest to students of comparative constitutionalism and North American studies.

Lemont divides the volume into three parts. Essays in the opening section explore the historical, cultural, economic, and political motivations behind these recent reform initiatives. Short chapters by scholars Duane Champagne, David Wilkins, and the late Elmer Russo introduce the complex [*808] nature of reform, particularly when trying to generalize about the experiences of the 562 federally recognized American Indian nations and Alaska Native villages that, according to Wilkins, “have yet to experience, and most likely never will experience, complete decolonization” (p.46). Russo’s contribution is an interesting one that has already drawn attention because it questions the conventional view that the Bureau of Indian Affairs thrust “model” Indian Reorganization Act-era constitutions upon unwilling tribes in the years following its passage in 1934.

In this section as elsewhere, the valuable firsthand accounts and insights of tribal leaders, past and present, complement the more formal essays. Their contributions provide a map of what is happening “on the ground.” Their concerns vary but most of these leaders highlight the importance of constitutions that fully appreciate tribal culture. They predict that the failure to honor cultural values and practices in such documents risks the creation of governments that citizens will not support. What constitutes tribal culture, however, is not easily determined. According to former chairman Larry Foster at Navajo Nation, for example, three factions must be heard from: Christian Navajos, traditional Navajos, and followers of the Native American Church.

Other tribal leaders are frank in acknowledging that constitutional initiatives have been driven by economic and investment concerns. John Peters, a member of Mashpee Wampanoag writes, “the constitution really isn’t about us, it’s really about [investors], and about them having confidence and investing in us” (p.101). Cherokee Ross Swimmer says that the funneling of Great Society dollars “to Indian Country” required a tribal organization to distribute it which, in turn, required a constitution. More recently, the wealth created by gaming has created the need for constitutions which would determine who, within the tribe, is eligible for per capita distributions.

The determination of tribal membership constitutes one of the most difficult issues confronted by Native Americans. In the second part of this book law professor Carole Goldberg offers a clear, useful overview of the questions posed in designing citizenship requirements. Should blood quantum or a minimum percentage of ancestry requirement prevail? Should social incorporation into clan or kinship group matter as much or more than ancestry? Should cultural knowledge and commitment trump blood as criteria for enrollment? And what of individuals who live off-reservation? Goldberg is sage and respectful in suggesting that choices will, and should, vary according to individual Indian nations’ norms and values which, she writes, “are the only true guide for legitimate governance” (p.129). The determination is critical not only as it determines who shares in the wealth of the tribe but also, as in most societies, who may vote, hold office, or claim tribal benefits such as healthcare.

The firsthand accounts that follow Goldberg’s overview testify to the painful and divisive nature of the discussions concerning tribal [*809] membership. Jaime Barrientoz of the Grand Traverse Band of Ottawa and Chippewa writes that the membership issue is the most controversial and sensitive of all reform questions. He says that people are “concerned about . . . enrollment numbers as that translates into dollars . . . it’s very disruptive, the [gaming] benefits we are giving out, because the people are only thinking about today and they want the biggest per cap check they can get, so therefore they want the enrollment numbers to be as low as possible. They want us to be a three-hundred-member tribe so that way our per cap checks are $500,000 dollars. You know, that’s just not going to happen and I don’t think that’s a good policy to have because what we are is a sovereign nation” (pp.175-176). A member of the Hopi tribal constitutional reform committee, however, testifies that not all tribes are dealing with royalties and gaming proceeds, and that Hopi finds itself in the opposite position of the Grand Traverse Band. Constitutional reform for the Hopi must be sensitive to continuing bloodlines, to expanding its membership base, and to the “long run” (p.177).

In an essay that anchors the second section of this book, international political economy professor Joseph Kalt shifts the inquiry to the question of the effective governance of Native nations. He explores when, and even whether, American Indian nations need constitutions, and teases apart the issue of whether constitutions are inherently “Western” or “dominant society.” His discussion is informed and thoughtful. Using separation of powers as a template, he considers the differing experiences of tribes with strong council governments, centralized executive branches, or independent judiciaries. Unsurprisingly, Kalt concludes that no one set of constitutional provisions will apply across Indian nations.

The final section of AMERICAN INDIAN CONSTITUTIONAL REFORM addresses questions of citizen participation – and non-participation – in constitutional reform initiatives. Lemont leads off with an essay that outlines commonly cited reasons for non-participation. Steven Haberfeld follows with a discussion of “who should be at the table” as well as the limits of constitutional reform initiatives led by technical experts. He recommends community organizing as a model that could be used successfully within tribal communities to bring citizens into the process of constitutional reform.

The firsthand accounts appended to this section testify to the difficulty of bringing members of the community “to the table.” Oglala Sioux Vice President Theresa Two Bulls recommends more education in political matters. Lummi Leonard Dixon underscores the pervasive feeling that constitutions are “just white man’s law and therefore not important to . . . daily lives” (p. 283). He counsels that “culture is the most relevant and difficult aspect to incorporate in a tribal constitution. As Indian people, we are reluctant to put our culture on paper for anyone to pick up, read, criticize, condemn, and steal” (p.283). He argues that tribal leaders, as opposed to politicians, should be sought out and educated about these initiatives as they are the “true conduit to the [*810] community and carry credibility” (p.285).

AMERICAN INDIAN CONSTITUTIONAL REFORM offers students of Native American Studies and comparative constitutionalism an opportunity to learn about government reform initiatives that seldom make their way into the scholarly literature. The volume is by no means definitive. Readers new to federal Indian law will need to school themselves in U.S. policy toward Indians – allotment, reorganization, termination, and self-determination – in order to appreciate fully the nature, and challenge, of writing and re-writing constitutions in communities long subject to U.S. colonial power.

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© Copyright 2006 by the author, Jill Norgren.