ROSEBUD SIOUX Sicangu Lakota Tetunwan Oyate:

Transcription

1 ROSEBUD SIOUX Siangu Lakota Tetunwan Oyate: CONSTITUTIONAL REFORM LOOKING TOWARDS SOVEREIGNTY, DEVELOPMENT, AND CULTURAL MATCH Siangu Lakota Tetunwan Oyate: Constitutional Reform 1

2 Presented to: The Rosebud Sioux Tribal Counil and Citizens Prepared by: Natalie Palugyai Candidate for Master in Publi Poliy, 2004 John F. Kennedy Shool of Government, Harvard University Andrew Rabens Candidate for Bahelor of Arts Degree, 2005 Government Department Harvard College, Harvard University Supervisor: Professor Joseph Kalt 2004 Harvard University Native Amerian Program The views expressed in this report are those of the author(s) and do not neessarily reflet those of the Harvard University Native Amerian Program or Harvard University. For further information and reprodution permission, ontat the Harvard University Native Amerian Program at (617) or Siangu Lakota Tetunwan Oyate: Constitutional Reform 2

3 TABLE OF CONTENTS EXECUTIVE SUMMARY INTRODUCTION.4 PROCESS VS. SUBSTANCE...5 PART I- PROCESS CONCERNS CONSTITUTIONAL TASK FORCE & CONVENTION APPROACH... 6 COMMUNITY INVOLVEMENT & PARTICIPATION.10 COMMUNICATING INFORMATION THROUGHOUT THE PROCESS. 14 PART II- SUBSTANCE CONCERNS DESIGN OF GOVERNMENT BODIES.. 17 INDEPENDENT DISPUTE RESOLUTION (COURTS). 23 REMOVAL OF U.S. DEPARTMENT OF INTERIOR OVERSIGHT.26 FINAL THOUGHTS 28 Siangu Lakota Tetunwan Oyate: Constitutional Reform 3

4 EXECUTIVE SUMMARY INTRODUCTION The work, whih is urrently being done within the Rosebud Sioux ommunity to amend the urrent 1935 IRA Constitution is both timely and extremely ommendable. Reforming the onstitution so that it better fits the present day lives and ulture of the Rosebud Sioux ommunity is an ambitious at, urrently being takled by the Rosebud Community at-large and through the hard work of the Constitutional Task Fore. A onstitution should serve as the essene of the ommunity, whih embodies the spirit, politial struture, ulture, and way of life in whih a soiety has hosen to live. Potential investors will look at the safeguards in plae within the onstitution to see how their potential investments will be proteted. Foreign peoples will look at the Constitution and develop an image of what the Rosebud Sioux stand for. While a onstitution must be legitimate in the eyes of its people, it must also evoke a proud and deep personal sense of onnetion. There seems to be broad onsensus that the urrent onstitution omes up short in these respets. Therefore it is extremely advantageous that the Rosebud Community and the Constitutional Task Fore have been working to address some of the urrent Constitution s shortomings. The amending proess of the Constitution, whih is urrently taking plae, is a tremendous step in the diretion of exerting sovereignty and developing a preious doument, whih an aurately embody the unique Rosebud ulture and establish a ulturally pratial politial struture. At some later date, more onstitutional reform inluding a brand new onstitution may be deemed in the best interest of the Rosebud Sioux Community in order to redefine itself domestially and internationally. We hope to provide you with some advie on how to get the proess going and on what issues must be addressed in order to attrat investment and to better tailor the systems of government to ulturally math the unique Rosebud way of life. Given our lak of understanding about the Lakota way of life and ulture, this report will not make presriptions on what would be in the best interest of the Rosebud ommunity. If and when the ommunity hooses to re-write the Constitution from srath and redefine its politial struture and system of governane, this report will provide possible options whih an be debated and onsidered by the Rosebud ommunity. Siangu Lakota Tetunwan Oyate: Constitutional Reform 4

5 EXECUTIVE SUMMARY THE DIFFERENCE BETWEEN PROCESS AND SUBSTANCE Re-writing a onstitution involves two parts: Proess & Substane. By proess, we refer to what ations the tribe will take in order to jump start the atual rewriting of the onstitution. In general, the greatest onern under proess is the assurane that the methods used by the tribe in order to re-write its onstitution are legitimate in the eyes of its itizens. This report will provide options and examples of what others have done under three proess areas of onern. Creating a onstitutional task fore and onvention: * Giant Convention Approah * Representative Constitutional Convention * Tiyospaye Representative System Involving and invoking the partiipation of a nation s itizens: * Loal town hall meetings * Large town hall meetings * Add-on: ombine soial events with town meetings Disseminating onvention information to the people : * Closed-door vs. open-door onstitutional onventions * Use of Rosebud Tribe radio * Use of loal tribal newspapers By substane, we refer to the ontent the tribe will inlude in its onstitution. Deiding what issues will be plaed in a onstitution is just as important as the proess used to rewrite the onstitution. Failure to inlude speifi issues an lead any ountry to politial ruin and hinder eonomi development. This report will provide options and examples of what path other ountries as well as tribes have taken under three substane areas of onern. Designing the government bodies: * Current entralized system * Parliamentary system * Separated Presidential system Designing an independent dispute resolution/ourt system: * Pyramid system * Flat system Removing U.S. Department of Interior oversight of tribal onstitutions: * Preedene Siangu Lakota Tetunwan Oyate: Constitutional Reform 5

6 PART I- PROCESS CONCERNS CONSTITUTIONAL TASK FORCE & CONVENTION APPROACH How is the Constitutional Task Fore Created and What Kind of Convention Approah Should be Used? An effetive Constitutional Reform Committee and Convention Struture is one of the most important aspets of the Constitutional Reform Proess. The ommittee and onventional system hosen must be representative, effetive, and legitimate in the eyes of the people. Option I: Giant Convention Approah with Honest Broker Task Fore: This system basially represents what is urrently in plae in Rosebud. - The Task Fore is made up of a selet group of non-tribal ounil members of the ommunity who initially supervise the giant onventions and ultimately ipher through the numerous amendments or strutural ideas and ome up with a new Constitution. - The Task fore is appointed by members of the Tribal Counil or legislative branh to run the initial onventions and then to judge the ideas and amendments brought forth at the onventions. - The initial onventions are open to the publi and provide an arena for ommunity members to present their ideas and at as delegates. - The Task Fore plays the role as honest broker and remains ompletely impartial during the proess. They do not serve as primary authors of the Constitutional text and are not even allowed to submit ideas themselves. They impartially gather and judge the strutural ideas and visions submitted by the publi at large and then determine whih ones an adequately be applied to the onstitution. - The finished Constitution is eventually put up for a publi vote and must gain a majority. Siangu Lakota Tetunwan Oyate: Constitutional Reform 6

7 Option II: Representative Constitutional Convention- Amerian Convention - Task fore is made up of delegates who represent their speifi state or distrit and onvene to amend or re-write the Constitution in a losed-door setting. - The representatives are either diretly eleted by the people or appointed by the loal government to serve as delegates for the Constitutional Convention. - The Delegates work ontinuously behind losed doors until they have ome up with a revised or brand new Constitution whih has a likely hane of being legitimate in the eyes of the people. - The delegates take an ative role in the formulation and onstrution proess of the Constitution and at as the primary authors of the text. They an gather initial input from their state and distrit populations but do not onsult them one the Convention begins. - The Constitution must ultimately be taken bak, disussed, and ratified by the state or distrit government. In 1786: Commissioners who were onvening at the Virginia Legislature endorsed a motion for a grand onvention to take plae for the following year in whih all states would meet in Philadelphia to disuss how to improve the urrent Artiles of Confederation. The Artiles of Confederation aording to George Washington and other statesmen did not embody the essene of the Amerian harater. 70 delegates from the 13 different states were appointed or eleted to represent their state at the Convention. 55 delegates from 12 states (not Rhode Island) ended up onvening at the Constitutional Convention in Philadelphia to amend the Artiles of Confederation, whih resulted in the writing of the new U.S. Constitution. The Convention met in seret non-publi deliberations for 4 straight months and eventually wrote a omprehensive onstitutional doument. The delegates then brought the finished Constitution bak to their individual states to be debated and ratified within the state government apparatus. Siangu Lakota Tetunwan Oyate: Constitutional Reform 7

8 Option III: Tiyospaye Representative System: Family System: This would be a similar senario to the basi representative system however the fous is on the more traditional reliane of Tiyospayes (families) as opposed to distrits or states. Representative would be hosen from the different tiyospayes and would then onvene at a onvention behind losed doors for an extended period of time. One the Constitutional doument was ompleted, then it would be taken bak to the tiyospaye for ratifiation. - The Task fore is made up of delegates who represent their speifi tiyospayes and onvene to amend or re-write the Constitution in a loseddoor setting. - The representatives are either eleted by their tiyospaye or appointed by the family elders to serve as representative delegates at the Constitutional Convention. - The Delegates work ontinuously behind losed doors until they have ome up with a revised or brand new Constitution whih has a likely hane of being legitimate in the eyes of the people. - The delegates take an ative role in the formulation and onstrution proess of the Constitution and at as the primary authors of the text. They an gather initial input from their tiyospayes but do not onsult them one the Convention begins. - The Constitution must ultimately be taken bak, disussed, and ratified by the different tiyospayes. Add-On: Mini Conventions at loal levels prior to Representational Convention - The eleted or appointed Representatives for the large Constitutional Convention would onvene loal onventions or town hall meetings within their distrit or Tiyospayes to hear publi opinion, whih ould then be used to shape their ideas and better enable them to represent their distrit, state, or Tiyospaye at the Constitutional Convention In 1999, the Cherokee Nation of Oklahoma formed a seven member Cherokee Nation Constitution Convention Commission to lead its reform proess. Importantly, the Commission suessfully obtained enabling legislation from the Counil vesting it with sole authority to manage the reform proess. The legislation also allowed the Commission to plae proposed reforms diretly on a referendum ballot bypassing the need for Counil approval and a potential veto of ontroversial proposals. ¹ Siangu Lakota Tetunwan Oyate: Constitutional Reform 8

9 QUESTION BOX FOR CONSTITUTIONAL TASK FORCE & CONVENTION APPROACH QUESTIONS Who makes up the task fore? How are the representatives on the task fore hosen? What are the speifi roles, powers, and duties of the task fore representatives? Do they raft language of the new Constitution or stay unbiased and at as honest brokers, relaying ideas from the smaller groups to the ommittee? Giant Convention Approah with Honest Broker Task Fore Non-tribal ounil members of the ommunity Appointed by members of the Tribal Counil or legislative branh Collet hanges from the people, organize hanges effiiently and give bak to people to vote Unbiased, do not raft the language of onstitution Representative Constitutional Convention: Amerian Convention Delegates who represent their speifi state or distrit Diretly eleted by the people or appointed by the loal government Collet ideas from the people, then write the onstitution without additional outside influene. Then give bak to the people to ratify Close-doors, opinionate and raft language of final onstitution Tiyospaye Representative Convention: Family System Delegates who represent their speifi tiyospayes Eleted by their tiyospaye or appointed by the family elders Collet ideas from tiospayes, then write the onstitution with or without additional outside influene. Then give bak to the families for approval. Closed or Open-doors, opinionate, debate and raft language of final onstitution Consideration Matrix Representation Giant Convention Representative System Tiyospaye System Independene Powers of Delegates Siangu Lakota Tetunwan Oyate: Constitutional Reform 9

10 PART I- PROCESS CONCERNS COMMUNITY INVOLVEMENT & PARTICIPATION If we ould get the same fanatiism that we have for sports and somehow be able to transfer that to having an interest in our government, we d have the best government in the world. -- Member, Northern Cheyenne Tribe "[We need to] try to lure people into it [the reform proess] beause a lot of people feel like what they say won t make a differene. And they re just going to give up on it. But there omes a time when something impats them and they'll speak up. So, even though people aren't going to ome [to ommunity meetings], we have to find a way to get to them. -- Member, Hualapai Nation Tribal Counil ¹ If the Community is not able to feel a sense of ownership of the Constitution and feel that their personal views are well represented in the Constitutional text, then it will be extremely diffiult for the Constitution to be legitimate in their eyes. Extraordinary measures must be taken in order to ensure that the ommunity has the opportunity to partiipate in the Constitutional proess and feel a sense of ownership of the text. Siangu Lakota Tetunwan Oyate: Constitutional Reform 10

11 Current Problem of Legalese: One of the inherent problems with the urrent Rosebud Constitutional Convention is the requirement for the submission of amendments to be written in proper tehnial legal language. The ability to write thoughts and ideas in preise Constitutional legalese is an extremely diffiult task whih experiened lawyers often struggle with. It is nearly impossible for the ommon person to be able to express their thoughts in proper legalese. Some members of the ommunity may therefore feel disenfranhised and unable to partake in the Constitutional Reform proess. On this aount, they may not view the finished doument as legitimate in their eyes. It is imperative that the ideas of the publi be submitted and disussed in their raw form and turned into onstitutional legalese at some later point in time. Possible Solutions to Legalese Problem: Task Fore Members and Representative Delegates: The members of the Constitutional Task Fore or representative delegates to the onvention ould help members of the ommunity transform their raw ideas into onstitutional legalese. Community Legal Sholars: The basi publi ideas and disussion an be reorded and written down at the town meetings and then later transformed into Constitutional legalese by the legal sholars within the ommunity. Traveling Legal Team: A legal team ould be formed whose primary job would be to travel to the different town meetings, large or small, and transform the main ideas into Constitutional legalese. One member of Northern Cheyenne s onstitutional reform ommittee took the lead for explaining proposed reforms at ommunity meetings in the Cheyenne language. Working losely with the ommittee s tribal lawyer, he and others were able to ensure that itizens omments made their way into the language of draft proposals. ****** To explain the Navajo Nation s Loal Governane At in 1998, then-president Albert Hale visited the nation s itizens on horsebak, explaining to individual families in the Navajo language how the proposed reforms would impat their day-to-day lives. ¹ Siangu Lakota Tetunwan Oyate: Constitutional Reform 11

12 Option I: Loal Town Hall Meetings - Loal Town hall meetings within the loal distrits or Tiyospayes an serve as great arenas to get publi opinion from the loal population. Ideas an be proposed and disussed in a omfortable asual atmosphere. - The town hall meetings would be aessible to all members of the loal ommunities and led by the loal politial leaders or elders. - The publi information and ideas ould be olleted by a sribe and ould at some later point be turned into legalize - The ideas brought forth in the town hall meetings ould then be submitted by the publi or by the representative delegates to the Constitutional Convention. - This system would help establish legitimay for the Constitution beause the ideas diretly from the people would be inorporated in the doument. Option II: Large Town Hall Meetings - Large town hall meetings would be held in a large gymnasium or rereational room and would provide a venue for the ommunity at large to ome together and disuss issues and make suggestions openly. - The large town hall meetings would be open to all members of the ommunity and would be run by the tribal politial leaders or Constitutional task fore or ommittee. - The publi disussion and ideas suggested ould be olleted by a sribe and ould at some later point be turned into legalese. - The ideas brought forth in the town hall meetings ould then be further debated and disussed at the Constitutional Convention or by the Constitutional Task Fore. - This system would help establish legitimay for the Constitution beause the ideas diretly from the people would be inorporated in the doument text. Add-On: Combining Soial Events with Town Meetings - Community partiipation at town hall meetings tends to be very low and an diffiult to inrease. Some members of the ommunity may not be interested in sharing their ideas onerning a new Constitution or even getting involved in the proess. However, everybody loves a good soial event or a fun night out and the town hall meetings ould be used for suh an oasion. Both the loal or large-sale town hall meetings ould be ombined with soial events. The town hall meeting ould be immediately followed by dinner, daning, and musi for the ommunity to enjoy. This would not only attrat many more people to the meetings but would also strengthen the ohesiveness and unity of the overall ommunity and would transform the irksome town hall meetings into highly antiipated events. Siangu Lakota Tetunwan Oyate: Constitutional Reform 12

13 QUESTION BOX FOR COMMUNUTY INVOLVEMENT & PARTICIPATION QUESTIONS Loal Town Hall Meeting Large Town Hall Meeting How do you get the Community to beome involved in the Constitutional Proess? Is the system aessible to the people? How should publi information be olleted? Does the system allow for legitimay in the eyes of the people? Attah soial event (family event or town event) to meeting Yes, and beause it is loal, even more aessible In smaller meetings, the tiospaye an nominate who will ollet all the omments. May also hose to use loal university. Yes, given history and persistene of tiospaye traditions Attah larger soial event to meeting (tribal event) Yes, but transportation problems may exist With large groups, have to ontrol speaking times and order. Information about what is said an be olleted by sribes. Perhaps not as muh as loal meetings Consideration Matrix: Pro s and Con s of Big Town Meeting vs. Small Town Meeting Attendane Level Loal Town Hall Meeting Large Town Hall Meeting Comfort Level Where omfort level is lowest Number of Ideas Siangu Lakota Tetunwan Oyate: Constitutional Reform 13

14 PART I- PROCESS CONCERNS COMMUNICATION OF INFORMATION THROUGHOUT THE RE-WRITING PROCESS In order for the people to feel as if they are a part of the Constitutional reform proess, they have to be onstantly updated on the urrent happenings and deisions within the Convention. This an be a diffiult task and the ommunity must be strategi in using its plentiful resoures to disseminate information. Closed vs. Open-Door Constitutional Convention The US Constitutional Convention was done ompletely behind losed doors for a lengthy period of 4 months. No information was publiized until the end of the Convention in an effort to enable the delegates to get deep into the issues and not have to be burdened with explaining every minute step to their publis. One the doument was ompleted however, then great resoures were expended to widely publiize the doument and gain publi approval. An open Constitutional onvention allows for information to be transferred freely to the publi during the onvention proess. Debates and hotly ontested issues an be publiized as they are being disussed and the publi is able to stay updated on the Constitutional reform proess. Whatever style of onvention, open-door or losed-door, is deemed to be in the best interest of the Rosebud ommunity, there is still a need to keep the publi informed about the proess and to immediately publiize the final onstitutional doument for publi approval. Siangu Lakota Tetunwan Oyate: Constitutional Reform 14

15 Option I: Disseminate Information through Rosebud Radio - Information about the Constitutional Convention proess or Constitutional doument an be read over the radio during breaks in the daily musi or talk show programs. Option II: Disseminate Information through Loal Newspapers - Information an be printed in the widely read loal newspapers, whih an over the Constitutional Convention. Option III: Making the New Constitution Available - When the final doument is written and the new Constitution is omplete, opies must be made available to all members of the ommunity. They should be dropped off at peoples houses, left available for pik-up at the loal hangouts and/or published on the Offiial Rosebud website.. Add-On: If the newspaper or radio refuses to over the news surrounding the Constitutional Convention and publish the Constitutional text in the paper, then the Tribal Government should onsider investing in buying ads in the newspaper, whih publiize updates of the reform proess and publish the final text. Siangu Lakota Tetunwan Oyate: Constitutional Reform 15

16 QUESTION BOX FOR COMMUNICATION OF INFORMATION THROUGHOUT THE RE-WRITING PROCESS QUESTIONS Radio Newspapers How do people know what is going on during the Constitutional reform proess? Should information be disseminated to the publi during the Constitutional reform proess? The Rosebud radio is listened to by many itizens. Talk about onvention updates during breaks or dediate a talkshow to what s going on with the onvention Depends on whether opendoor or losed-door onvention is hosen. If open-door is seleted then people an all-in and debate or give their opinions on the air. Individuals who purhase the newspaper will be able to read about the proess. Negative to newspapers is that many do not buy paper and therefore will not get this information. Depends on whether opendoor or losed-door onvention is hosen. If open-door seleted then people an omment their opinions through artiles, opeds. Consideration Matrix: Information Dissemination Tehniques Rosebud Radio Newspaper Making Constitution Available Cost LOW LOW HIGH (printing) MEDIUM (mix printing/ internet) People Affeted LOW to MEDIUM MEDIUM HIGH Advertising LOW Medium (but well worth it) N/A Siangu Lakota Tetunwan Oyate: Constitutional Reform 16

17 PART II- SUBSTANCE CONCERNS DESIGNING THE GOVERNMENT BODIES For the many Amerian Indian nations with histories and ultures of deentralized, onsensus-oriented, and deliberative methods of deision-making, IRA onstitutions entralization of power in small tribal ounils ating by divisive majority votes with few heks or balanes has been a diffiult transition. In addition to their substantive drawbaks, IRA onstitutions have been ritiized for the way in whih they were imposed top-down upon tribal memberships that did not fully understand their ontents and purposes. Today, a number of Amerian Indian nations have overome IRA onstitutions lak of effetive mehanisms for separating government power, resolving disputes, and providing avenues for popular partiipation in government to form strong tribal governments. More often than not, however, these harateristis have posed daunting hallenges of tribal governane. (lemont) Example of the Navajo Traditionally, politial power and deision-making took plae at a loal level, with bands of ten to forty families omprising politial units. In the early 1920s, however, outside oil interests eager to tap into Navajo s potential energy rihes urged the U.S. Department of Interior to authorize the establishment of a entralized, Navajo tribal ounil for the purpose of approving oil leases. In 1923, the Department initiated the reation of the Navajo Nation Tribal Counil, the first body in Navajo history organized to at on behalf of the entire nation. Offiials at the Interior Department drafted the Counil s regulations. Although the Counil has ontinued to operate as the Nation s governing body, its governing authority has never been onsented to by the Navajo people in a referendum.¹ Siangu Lakota Tetunwan Oyate: Constitutional Reform 17

18 Option I: Current Centralized System tribal ounil members urrent entralized system PROBLEM PRESIDENT Committees Currently, the Rosebud Sioux government bodies under the 1935 IRA Constitution do not allow for a separation of powers. This results in the entralization of power within the President, who presides over tribal ounil meetings, and oversees the tribal ommittees. This system of entralized power results in part beause of the imposed IRA onstitution whih was based on the Amerian Legion s non-for profit organizational style. It is also a result of the Rosebud ommunity s deision to vote diretly for its President and Tribal Counil members. urrent entralized system itizens itizens itizens President itizens itizens itizens = Tribal Counil Members Siangu Lakota Tetunwan Oyate: Constitutional Reform 18

19 A entralized government may not fit the Sioux s traditional form of governane. It is extremely important for the Rosebud Sioux to reate government bodies that fit best not only with the traditional Sioux government, but with the tribe s present ulture as well. Certain tribes appear to have done relatively well under the IRA. IRA onstitutions and those modeled on them typially reated a system of entralized tribal government with a single hief exeutive (the tribal hair or president), a one-house legislature (the tribal ounil), and a weak or absent judiiary. This system appears to math ertain tribes' traditions and norms regarding the legitimate struture and powers of government, and these tribes may funtion effetively under these provisions These histori foundations of Apahe governane share some ommon ground with the IRA system, i.e., in both indigenous Apahe governane and the IRA we find few and relatively undifferentiated branhes of government. Our researh repeatedly finds that this kind of ommon ground this math between ultural standards of governmental legitimay and the formal struture of tribes' urrent governments is a key to reating an environment onduive to eonomi development. ² Histori Sioux soieties had fairly fluid but highly developed politial systems. Oglala bands, for example, were governed by a ounil, or legislature, known as the Big Bellies or naa, omposed of headmen, mediine men, warriors, and other men of stature. This ounil seleted from among its number an exeutive ounil of four hiefs or ounilors, who bore primary responsibility for the welfare of the group. They were ultimately responsible for amp poliy, dispute resolution, and for advising the people on issues of signifiane to the ommunity as a whole. They in turn delegated authority to four younger men, known as "shirt wearers," who served as the exeutives of the tribe and the voie of the hiefs, responsible for arrying out their poliies. These then appointed marshals or akiita were responsible for the maintenane of order, for seeing to it that the deisions of the hiefs and the laws of the soiety were observed by all the members of the amp inluding the Big Bellies and the hiefs themselves and for disiplining violators. Politial organization above the band level apparently was rare and fleeting, but aording to Royal Hassrik, something resembling a national assembly met yearly prior to the mid-nineteenth entury. In these gatherings hundreds of delegates from the Oglala, Minionjou, Brulé, and other Sioux tribes seleted four "Supreme Owners" who served as hief exeutives of the nation. At the same time, it seems lear that olletive identity was most prominently foused at the band or tiyospaye level, where there was a high degree of group autonomy. ² Siangu Lakota Tetunwan Oyate: Constitutional Reform 19

20 Option II: Parliamentary System A parliamentary system presents a model more in Parliamentary System line with deentralized governments. In itizens suh a system, the Rosebud itizens itizens would Counil Members itizens vote for their respetive Tribal President and then the Tribal Counil members would selet their leader or President from itizens itizens amongst the itizens members of the Tribal Counil. In suh a model, the President, as a Tribal Counil member would be aountable to the Tribal Counil. This model may still present problems beause there is no lear separation of powers. The roles of the President and the Tribal Counil are not distint. SUBSTANCE: Design of Gov t Bodies Parliamentary System PRESIDENT President is part of Tribal Counil Aountability to Counil ommittees Siangu Lakota Tetunwan Oyate: Constitutional Reform 20

21 Option III: Separate Presidential Another option for the tribe is to ombine the very traditional deentralized governments with a distint separation of powers. Under suh a design, Rosebud itizens would elet their tribal ounil members either through a distrit or tiyospaye system, and ould either elet the President diretly as done urrently or have the Tribal Counil members elet the President from amongst the Tribal Counil as is done in a parliamentary system. What would result is a separate Presidential System, where the President falls under the Administration of the government, responsible for the Tribal Committees, and the Tribal Counil falls under the Lawmaking of the government, seleting a Tribal Counil Leader if desired. Separate Presidential Administration Lawmaking itizens itizens Citizens Or Counil PRESIDENT TRIBAL COUNCIL MEMBERS oversees elets Tribal Counil Leader Siangu Lakota Tetunwan Oyate: Constitutional Reform 21

22 Cherokee Nation of Oklahoma Major hanges in the proposed onstitution inlude the addition of two Counil seats for off reservation tribal members, the removal of the Deputy Chief from his position presiding over Counil meetings, the reation of the position of Speaker of the Counil, the reation of an independent eletion ommission, term limits, removal of all referenes in the old onstitution requiring federal government approval of tribal laws, and a omplete overhaul of the judiiary, inluding the reation of a Court on the Judiiary harged with suspension and reommendation of removal of judges and justies. ¹ QUESTION BOX FOR DESIGNING THE GOVERNMENT BODIES QUESTIONS Current Centralized Parliamentary Separate Presidential Who is ontrol of the tribal budget? Tribal Counil & President ==onflit Tribal Counil President/Tribal Chair Who proposes laws? Tribal Counil & President ==onflit Tribal Counil Tribal Counil Who are the Tribal Committees aountable to? Tribal Counil & President ==onflit Tribal Counil The President/ Tribal Chair Who is the President/Tribal Chair aountable to? The tribe s itizens who voted for him The Tribal Counil that elets him *If diret eletion: the people *If eleted by tribal ounil: tribal ounil Siangu Lakota Tetunwan Oyate: Constitutional Reform 22

23 PART II- SUBSTANCE CONCERNS INDEPENDENT DISPUTE RESOLUTION/COURTS No matter whih governmental body design is hosen by the tribe, an independent judiiary is a ruial aspet of a tribe s politial struture and is an absolute neessity if a tribe wants to attrat greater investment from the outside world. Speifying this separation in the Constitution will allow for a strong independene from politial influene. Weak and non-independent powers not only hurt the tribe politially, as ourt deisions have the potential to be interfered with by offiials from other branhes of government, but eonomially as well, as the lak of an independent judiiary auses the outside investor to fear that his ontrats will not be held up by the tribal ourts. An independent judiiary is essential in promoting the onfidene of both tribal itizens and outside investors that ourt deisions are being made in a just manner. 67 Tribes Studied: those that have strong, genuinely independent judiiary systems outperform eonomially those that don t. ² THE INDEPENDENT TRIBAL JUDICIAL SYSTEM MUST: Enfore stable business odes Settle d omesti disputes Uphold Contrats Protet business from politis Siangu Lakota Tetunwan Oyate: Constitutional Reform 23

24 Option I: Pyramid System A Pyramid system is one where one ourt deals with all possible grievanes. It is referred to as a pyramid beause there is the opportunity to appeal ases to a higher ourt. The United States is only one of many ountries that have adopted suh a ourt model. U.S. Supreme Court (80 ases per year) U.S. Court of Appeals (13 ourts: 52,000 ases per year) U.S. Distrit Courts (314,000 ases per year)_ - The judges for the Federal benh are seleted to lifelong terms in offie if they are nominated by the President and onfirmed by a 2/3 Senate vote - They are beholden solely to the people of the United States and are immune from being fired unless for some egregious violation - The appeals proess is highly regarded in the pyramid system as ases an be appealed from the Distrit Courts to the Court of Appeals and ultimately to the Supreme Court - The Supreme Court judges also possess Judiial Review, whih allows them to strike down laws emanating from the legislative branh whih are found to be unonstitutional, or inonsistent with the onstitution Siangu Lakota Tetunwan Oyate: Constitutional Reform 24

25 Option II: Flat System In a flat ourt system, suh as has been adopted in South Afria, different grievanes are dealt with by different ourts. In suh a system, there would be a different judge and/or ourt assigned for different matters: - Civil Courts: Dealing with non-riminal matters between individuals, businesses, and the government i. Business Court ii. Family Court iii. Government Personnel Grievanes iv. Redress of government abuses of power - Criminal Courts: Deal with riminal matters i. Juvenile Court ii. Trial Court Add-on: Pooling Resoures with other tribes Having the Tribal Constitution expliitly state that the ourt system is independent and enforing this independene may not be as diffiult as atually deiding what ourt design will best fit the tribe. It may very well be that the present tribal ourt, one assured independene will work perfetly for the tribe. In any ase, any redesigning of the ourt system must onsider the finanial impliations for the tribe. One option for reduing the ost is pooling the resoures of the Rosebud Sioux with other Lakota tribes and ommunities in the region and reating an intertribal ourt system. Makah Tribe of Indians v. the State of Washington Reognizing the inreasing burdens that the administration and oversight of these issues would ause, leaders of nine Native Amerian tribes met that year in order to disuss the pooling of resoures. This deision ame from the realization that none of the tribes possessed the individual finanial resoures or the trained personnel to aomplish the mission of the tribal ourts. The most pratial solution that was devised was to reate a personnel pool system, and thus the Northwest Intertribal Court System (NICS) was born. NICS tribes deided to interlok both the original and appellate levels of their individual ourt systems. Moreover, proseution, ode writing, and administrative (personnel) are also fully ombined, suh that individual members of any one of the tribes reeive full servie in these areas regardless of their loation. The relative proximity, both in terms of geography as well as ultural heritage, makes this type of intertribal ourt feasible and legitimate. ³ Siangu Lakota Tetunwan Oyate: Constitutional Reform 25

26 PART II- SUBSTANCE CONCERNS REMOVING U.S. DEPARTMENT OF INTERIOR OVERSIGHT One of the real ironies in urrent tribal politial affairs is the federal granting of tribal sovereignty oupled with the requirement of the U.S. Seretary of the Interior to approve any hanges made to the onstitution. The present Rosebud Constitution mentions this oversight several times. The following are only a few examples: To employ legal ounsel for the protetion and advanement of the rights of the tribe and its members, the hoie of ounsel and the fixing of fees to be subjet to the approval of the Seretary of the Interior To advise the Seretary of the Interior with regard to all appropriation estimates or Federal projets. Future Powers - The Tribal ounil may exerise suh further powers as may in the future be delegated to the tribe by the Seretary of the Interior The ounil shall draw up one or more forms for standard and exhange assignments, whih shall be subjet to the approval of the Seretary of Interior This Constitution and By-Laws may be amended by a majority vote of the qualified voters of the Rosebud Sioux Tribe but no amendment shall beome effetive until it shall have been approved by the Seretary of Interior. It shall be the duty of the Seretary of Interior to all an eletion on any proposed amendment, upon reeipt of a written resolution signed by at least three-fourths (3/4) of the membership of the ounil. Harold I. Ikes, the Seretary of the Interior of the United States of Ameria, by virtue of the authority granted to me by the at of June 18, 1934 (48 Stat. 984), as amended, do hereby approve the attahed onstitution and by-laws of the Rosebud Sioux Tribe. permits or ontrats must be approved by the Seretary of the Interior The good news for tribes wishing to fully assert their sovereignty and remove Department of the Interior and BIA oversight is that there is now preedent set by both the Crow tribe and the Oklahoma Cherokee Nation to do so. The removal of Department of Interior oversight will not affet Federal reognition of tribes and furthermore it will not affet tribes abilities to apply for federally funded grants. Siangu Lakota Tetunwan Oyate: Constitutional Reform 26

27 The Convention was onvened on February 26, 1999 and was in session for 9 days. On Marh 6, 1999 the delegation adopted a new Constitution. Sine then, the Constitution Convention Commission has been working to define a strategy to get the new Constitution to a vote of the Cherokee people. The greatest obstale to that proess is ontained in Artile XV, Setion 10 of the 1976 Constitution that requires that no amendment or new Constitution shall beome effetive without the approval of the President of the United States or his authorized representative. The new Constitution was submitted to the Bureau of Indian Affairs for review. After months of waiting, the BIA responded with numerous omments, some of whih were suggestions, and others were mandatory hanges. In May 2000 the Counil passed a resolution requesting that the Commission seek approval from the Assistant Seretary of the Interior to authorize a referendum vote on a single amendment to the 1976 Constitution. After almost two years of ommuniation and negotiation, in April of 2002, an agreement was reahed with the BIA to allow the Cherokee Nation to amend the 1976 Constitution, by referendum vote, to remove Presidential approval authority, thus eliminating the need for further negotiation on the new Constitution. 4 QUESTION BOX FOR REMOVING U.S. DEPARTMENT OF INTERIOR APPROVAL LANGUAGE QUESTIONS What is being removed? How will affet the ability to obtain federal grants? Will the tribe still be federally reognized? Removing the U.S. Department of Interior approval and oversight language from the onstitution All language stating that the U.S. Seretary of Labor must approve onstitutional or government hanges. Not at all. Yes. Siangu Lakota Tetunwan Oyate: Constitutional Reform 27

28 FINAL THOUGHTS The ability to have a onstitution that truly represents the Rosebud people, expounds an image of what they stand for, enourages outside investment, and evokes a deep of sense of personal pride and onnetion is invaluable and well worth the efforts and toils whih will go into rafting the preious doument. The urrent work whih is being undertaken by the Rosebud Community at-large and through the hard work of the Constitutional Task Fore to reform the Constitution is a step in the right diretion and extremely ommendable work. It is a testament to the fat that there is a great underlying desire and urge within the Rosebud ommunity to reform the urrent 1935 IRA onstitution and tailor it to better fit the present day lives and ulture of the Rosebud Community. In the ideal world, it would be fantasti if at the end of this urrent Constitutional Reform period, all the strutural problems were solved and the Rosebud people were both happy and proud of their new doument. The reality is that you are going through a proess similar not only to other tribes in the United States but to other ountries around the world. Creating a onstitution signifies a long proess, a hallenge, and one ahieved, the foundation for a people s every day life. We are privileged and honored to have had the opportunity to work with you and were very impressed with the ommitment and dediation of ommunity members to the future progress and finanial suess of the Rosebud ommunity. We urge you to remain optimisti in this battle against a history of ultural and spiritual repression. We urge you to keep fighting to relaim and re-build what is yours. We urge you to move forward, onfident that the outomes will be great. Siangu Lakota Tetunwan Oyate: Constitutional Reform 28

29 Works Cited 1) Lemont, Eri, Developing Effetive Proesses of Amerian Indian Constitutional and Governmental Reform: Lessons f rom the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation and Northern Cheyenne Tribe. Harvard Projet on Amerian Indian Eonomi Development. 2) Cornell, Stephen and Joseph P. Kalt, What an Tribes Do? Strategies and Institutions in Amerian Indian Eonomi Development. Reloading the Die: Improving the Chanes for Eonomi Development on Amerian Indian Reservations. 3) MCowan, Nathan, An Analysis of Native Amerian Intertribal Courts: Should Alaskan Tribes Integrate Their Judiiaries? ) Mosqueda, Jessie M. and Yinug, C. Falan, Ihanktuwan Ihanktuwan Dakotah Dakotah Oyate: A Referene Manual to Constitutional Reform. Siangu Lakota Tetunwan Oyate: Constitutional Reform 29