By Sean Paige
insightmag.com
This is a story of three constitutional champions: James Madison, George Mason and Charles Vargas. Madison and Mason hailed from Virginia, circa 1789; Vargas comes from San Carlos, Ariz., where he lives with his wife and three kids on an Indian reservation.
Just as Madison and Mason today are revered for their masterful crafting of the
Constitution, if all goes well, in a couple of hundred years or so, Vargas may be hailed by Apaches for having a hand in rewriting their constitution - part of a movement sweeping through Indian country to throw out the old tribal governments and bring in the new.
At first glance, the Apache gem miner seems an unlikely second coming of Madison, Alexander Hamilton or John Jay. But listen and look closely past the blue jeans, vest, dusty boots and striking features, which clearly identify the 36-year-old as an American Indian and similarities emerge. Like the U.S. Founding Fathers, Vargas dreams of a future when his children and people will enjoy lower taxes, more personal freedom, less regulation, unfettered enterprise and free trade in short, far more liberties and less restrictions than U.S. citizens have living under the current federal government.
Banding together as a grass-roots group, Call to Action, Vargas and other San Carlos Apaches are among a growing number of American Indians who, fed up with the dysfunctional and corrupt tribal governments foisted upon them by the Bureau of Indian Affairs, or BIA, more than half a century go, are going back to the drawing board. They plan to write new and better tribal constitutions codifying new laws that better suit their traditions and cultures than the "cookie-cutter constitutions" issued to them by Uncle Sam like another slab of surplus cheese.
It’s a movement born from the frustration and despair of rank-and-file tribal members, tired of corrupt and incompetent tribal councils against which the Indian Reorganization Act, or IRA, constitutions provided no serious checks or balances, and which many believe have provoked the current crises. An Insight survey of Indian country suggests that constitutional crises among the tribes are coming with growing frequency.
At San Carlos, the slow boil began several years ago when tribal members began to ask questions about some $8 million in tribal monies that allegedly had gone missing. Council members reacted to the accusations by suspending officials who wanted to investigate. Protests by Call to Action led to arbitrary arrests, new elections and a paralyzed tribal council, split to this day between the old guard and the new.
But San Carlos is not alone in wrestling with change. In 1997, a similar political cataclysm rocked the once-stable Cherokee Nation of Oklahoma, deposing allegedly corrupt tribal leaders and producing a new constitution. Also in the 1990s, federal intervention was needed to settle violent intertribal power struggles among Michigan’s Saginaw Chippewas and New York’s Akwesasne Mohawks. And gunfire claimed the lives of three members of New York’s Seneca tribe before others, brought to their senses by the violence, saw the need to build better mechanisms for conflict resolution into their tribal constitution.
South Dakota’s Pine Ridge reservation, home of the Oglala Sioux (the site of a 1970s shootout between Indian activists and the FBI, in which a federal agent was killed), has been paralyzed since Jan. 16 when a reformist faction took over tribal headquarters to protest alleged corruption by the governing council.
Assistant Secretary of the Interior Kevin Gover, who heads the BIA, has called for reconciliation between the two factions, which have split the tribal government in two. However, he declined to say whether the BIA would intervene to end the impasse. "That’s something we don’t do lightly" Gover recently said during a Porcupine, S.D., radio interview. Gover (who declined to be interviewed for this story) suggested during the broadcast that a new tribal constitution might be needed at Pine Ridge but that reformers who had taken over the Red Cloud building "have to work through the constitutional process to make the changes they want."
Also this spring, members of New Mexico’s Jicarilla Apache tribe, frustrated by the series of contentious election challenges that divided and paralyzed the government, voted to ratify four amendments to the tribal constitution, including one limiting terms of tribal councilors. Members of South Dakota’s Crow Creek Sioux, angered by a tribal official who was appointing family members to an important election committee, stormed tribal offices March 1, demanding to see financial records and threatening a takeover unless its constitution was amended.
In April, tribal elders of Northern California’s Round Valley Nation became fed up with chronic poverty and social problems. Fearing that the tribe was straying from tradition, the elders disbanded their allegedly corrupt tribal council and demanded a referendum on a new constitution.
Finally, in New Mexico, rank-and-file Mescalaro Apaches demanded an accounting from tribal President Sara Misquez, complaining of retaliatory firings, financial irregularities and casino mismanagement, while some council members said that too much administrative power was concentrated in the president’s office. "We’re standing up for our rights," one Mescalaro dissident told the Albuquerque Journal. "We’re dealing with dictatorships, pockets of dictatorship, in the United States, and the U.S. government is allowing this to continue."
While "dictatorship" is too strong an indictment for some, many observers, even in the tribes, agree that one fundamental problem with the IRA constitutions adopted by more than 170 tribes since 1934 is that they are unicameral, vesting far too much power in a tribal council and providing no checks and balances against that power. Councils often serve both legislative and executive functions. Any existing judicial branch tends to be beholden to the councils. Often the tribal police also answer to the tribal councils. So it is not hard to draw a direct connection between this unchecked power and the official corruption and gross mismanagement suffered by so many tribes.
According to Chippewa Bill Lawrence, whose Bemidji, Minn.-based Ojibwe News has made a reputation (and enemies) for its hard-hitting investigations of corruption, tribal sovereign-immunity provisions codified in the IRA constitutions not only have led to corruption and lack of accountability but to abuse of the civil rights of rank-and-file Indians as well. "The biggest abusers and exploiters of Indians are other Indian people," Lawrence has said, and reservations won’t become more democratic as long as tribal officials can hide behind the claim of immunity. "You have to pierce the veil of sovereign immunity", says Lawrence, because tribal councils that exercise absolute control on many reservations have been hiding their criminal conduct behind it for years.
"If the federal government violates your rights, you can sue them; if a state agency violates your rights, you can sue them," says attorney Scott Kayla Morrison Standifer, an Oklahoma Choctaw who specializes in representing tribal members whose civil rights have been trampled by their leaders. "But the only place in the industrialized world where immunity hasn’t been waived is in tribal governments."
"There is no U.S. Constitution on many reservations," declares Morrison Standifer. "We have no free speech, no right to assemble. All of this is in the U.S. Bill of Rights, which we don’t have. We have only a watered-down version of that bill of rights, but it’s not enforceable because, where do you go to enforce it? We have to go to tribal courts, which are in the pocket of the tribal councils, which are often the ones violating the rights."
Lawrence argues that the shield of sovereign immunity hurts tribal members in yet another way - by scaring off businesses that otherwise might be lured to the reservation. If the tribe has a blanket immunity from being sued, no contracts can be enforced. Without enforceable contracts, most businesses can’t be drawn to the reservation. No businesses, in turn, means no jobs, no wages and no standard of living above and beyond what the federal government will provide. But the law won’t be changed until members of Congress overcome a "noble-savage mentality that says these tribes can do nothing wrong," according to Lawrence.
So why was it that Uncle Sam - more specifically, the BIA - couldn’t come up with a better constitutional model after passage of the IRA in 1934, which then-commissioner of Indian tribes John Collier hoped not only would provide tribes with more autonomy but also would return them to traditional forms of governance.
Some historians lay the blame on a Congress which, while approving the IRA concept in principle, declined to fund the second component of Collier’s plan - which was to have professional ethnologists tailor the new, boilerplate constitutions to fit individual tribes. Without that, tribes were left with limited options, able to choose one from Category A and another from Category B, none of which might be culturally and historically relevant.
"Tribal people are wearing the clothes of government that belong to someone else, and it isn’t a good fit," explains Robert Porter, a law professor at the University of Kansas and former attorney general for the Seneca Nation in New York state. "And like a misfit set of clothes, the old constitutions are restrictive and confining and actually may be inducing conflict." Others see more-nefarious designs behind the BIA’s flawed constitutions.
"If you look at these IRA constitutions, they had built into them a lot of federal approval requirements which were designed to maintain the jobs of BIA bureaucrats and maintain colonial control," according to University of Iowa professor Robert Clinton. "I’ve long suspected, but can’t prove, that the IRA constitutions lack a separation of powers because it’s easier to control one branch of tribal government than many."
The BIA, by most accounts, is doing a better job of facilitating constitutional overhauls than it did in the past - spurred on by a 1988 amendment to the IRA that imposed strict timelines on the BIA for ratifying new constitutions because of a reputation for dawdling. The result is that the biggest hurdles most tribes face now are internal ones.
The process of drafting and ratifying a new constitution itself can become a source of deep divisions on a reservation. "It’s a complex and controversial process," says Stephan Pevar, a professor of Indian law at the University of Denver. "I can’t imagine anything that would create more conflict with a group of people than trying to create a new government."
Another problem vexing new constitutionalists is a lack of consensus within tribes about what a tribal government is supposed to do, according to Thomas Holm, professor of American Indian studies at the University of Arizona. "In some cases, tribal members think it should be the maintenance of culture and identity. Another view is that tribal governments are supposed to ‘get us things," explains Holm. Yet another perspective is that this is a kind of business arrangement that the tribe is really a corporation, and that we should really have people in power who can develop [the reservation] so we can have more things. There are all these divergent views and therein might lie the problem.
Finally, as in the rest of the United States, cynicism and suspicion regarding government is prevalent on Indian reservations. "How can a tribe begin to think about language preservation, culture preservation, teen suicide and development issues if a government isn’t in place that can deal with those issues", asks Porter. "The government is the mechanism for change. If people have no faith in their government, how can they seriously bring about change?"
Change is painful, contentious, often ugly, and Porter who believes that some tribal conflicts must reach critical mass before change will be tolerated, is an advocate of allowing tribes to take this next evolutionary step with a minimum of federal meddling. "At some level [tribes] need to have the right to have civil war without external interference," Roberts tells Insight. "If self-determination means anything, it means you’ve got to have the freedom to suffer through your own evolutionary changes."
Is it worth all the trouble? Have new constitutions made life better for the tribes that have tried them? "I’d say the tribes that have reworked their constitutions tend to be happier, if for no other reason than because they see the document to be their own," says the University of Iowa’s Clinton. "That sense of ownership is awfully important."
Meanwhile, back in San Carlos, Vargas is plugging away at the more mundane chores of constitution-building - of getting the number of signatures required by the BIA before they’re permitted a tribewide referendum. Call to Action wanted to set up a petition table in front of the only grocery store on the reservation, but typical of life here, the Phoenix-based chain refused them permission, likely fearing the wrath of the tribal council on which the store’s monopoly at San Carlos depends.
A constitutional convention comes later: Then with luck, the ratification of what Vargas, in his more optimistic moments, hopes will do the U.S. founders proud - maybe even one better. The new document would borrow what is best from their constitution, discard what nearly 225 years of experience shows to be unworkable, add in a measure of cultural protection and hopefully remake a government that even may work better than the one under which Americans live.
Many nonnative Americans seem to have forgotten what real freedom means, according to Vargas, and haven’t noticed its erosion. "What we’re looking to do is better preserve the original freedoms" cherished and enjoyed by the founders, he tells Insight. In that way, in what would be a historic irony, the San Carlos reservation of the future may be more "American" than America.
Yet despite such flights, everyday experience at San Carlos keeps Vargas and his compatriots firmly grounded. "I don’t think there’s ever going to be a perfect constitution, but at least we’ll have a guiding document that can keep people honest," Vargas sighs, expressing another sentiment to which earlier constitutional architects no doubt would concur.