Happy Constitution Day Indian Country
by Monique Vondall-Rieke, JD
September 17, 2021 marks the United States’ 234th day of celebrating when the “Founding Fathers” signed the U.S. Constitution. I recall in 1976 we celebrated “200 years of Independence” as a nation. I was 11 years old, spending the summer with my aunt and uncle and visiting on weekends sometimes with my father in Texas. Everything is big in Texas so was the Nation’s 4th of July that summer – commemorating the 200-year celebration. At that time, I was eager to take part in the summer events.
I was unmoved years later when I learned of the truth behind the Doctrine of Discovery. Many legal scholars have written on this issue but none as much as Chief Justice Marshall in Johnson v. McIntosh, 21 US 543 (1823). The facts of the case involve land purchased by Johnson and some other British people in Virginia from the Piankeshaw Indian tribe. The purchase was apparently “allowed” by the King of England. Upon his death, Johnson passed on his land to his heirs. In 1818 however M’Intosh purchased 11,000 acres of land from Congress – which included the land originally purchased from Johnson. Basically, after some horrible language referring to Native Americans as “savages” and other non-politically correct terms, basically upheld the Doctrine of Discovery and claimed that tribes do not have the right to convey the land as it was claimed under the doctrine, thereby making the “chain of title” invalid for Johnson’s heirs.
Ultimately, nobody except Congress has the right to negotiate with Native American tribes stemming from this decision.
In 1934 the U.S. passed the Indian Reorganization Act (“IRA”), which was a result of the “Meriam Report” of 1928. In the report, conditions of impoverished and unhealthy living conditions on reservations, as well as the report of gross and inadequate care given to children who were victims of boarding schools, along with the General Allotment Act compelled Congress to pass the IRA as part of President Roosevelt’s “New Deal” policies. The Great Depression had begun, and the administration of the President had to act, and the result was the IRA or also called “Wheeler-Howard Act” or the “Indian New Deal.”
Armed with what are called “canned constitutions,” Native agents hired under the BIA’s new Native preference policy head out to the tribes to promote tribal constitutions. Today, we know that originally 181 tribes voted to accept the IRA constitution which, in Alaska, constitutes 1/3 of the tribes there.
Many tribes have reformed their constitutions today. Strengthening tribal constitutions requires copious amounts of drafting, organization, and consultation unless a tribe has a competent team of lawyers on staff to commit time to the project.
For instance, the Turtle Mountain Band of Chippewa Indians early 2000s attempt at adopting a new constitution was documented in Keith Richotte’s book, Claiming Turtle Mountain’s Constitution: The History, Legacy and Future of a Tribal Nation’s Founding Documents. Richotte goes on to tell the story of how the new constitution effort failed to adopt a constitution that left the community divided. In his review of the book Carty Monette, former Turtle Mountain Community College President, criticizes Richotte for neglecting to interview survivors of the constitutional review effort, including Monette. This author experienced the era of constitutional revision on that reservation, and it turned even uglier than Monette or Richotte care to admit.
Why is it so political then and so difficult for contemporary tribes to change their constitutions?
Change is hard and sometimes must be forced. Take, for instance, the right for Native Americans to vote and be considered citizens in the U.S. It wasn’t until the 1924 Indian Citizenship Act was passed which recognized all Native Americans as citizens. Prior to that, it depended on who paid taxes and in 1924 only 125,000 of about 300,000 Native Americans were considered citizens of the U.S.
More than that, there were no voting protections in the Indian Citizenship Act. That was not secured until the Civil Rights Act of 1965 and today, we still have opposition on voting rights because of the types of identification allowed in states.
So, what do we do from here? Tribes – its time to secure your laws, your constitutions, your children, your rights to hunt, fish, gather and to strengthen your constitutions.
Unlike the lower 48 tribes, the Alaska Native tribes do not have treaties to turn to. Instead, we have the Alaska Native Claims Settlement Act. This is a whole other bag of tricks the U.S. government has placed in the way of tribes acting as full sovereign nations. We must work around it and do our best to protect the interests of our tribal members. The shareholders that own the Native Corporations of Alaska are tribal members – they all struggle to achieve greatness and preservation of their cultural and traditional rights. This is true for all of the lower 48 tribes as well. We all work to preserve sovereignty.
The past two years have been a time, once again, of anger and frustration over federal policies and funding available to tribes and tribal agencies for pandemic relief. This has created once again a moment of divide and conquer – tribes have faced off with tribal corporations representing Alaska Native tribes.
We have all given so much – lower 48 tribes enjoy land into trust whereas tribes in Alaska do not. Tribes in Alaska have Native corporations acting in their best interests whereas tribes in the lower 48 were not set up by the federal government to form corporations. The trade-off is that all the tribes have given up something in return for everything. It means that the corporation I work for can bring relief to shareholders. It means that tribes in the lower 48 can offer community gardens to their members on tribal land. We all make the best of what we have.
Tribal constitutions work in this way as well. It can only produce the best of what it can under its own conditions. Why not take the next 16 years to build up our tribal constitutions like the Great Wall of China, which will protect barriers that will break down the wall and to hold in what we mean to protect – our people, our culture, our traditions and of course, our land. By the time the U.S. celebrates its 250 years of its own constitution, we will have built the Tribal Great Wall of Constitutions that will protect sovereignty and the people of our tribal nations.
 See Matthew Fletcher, https://turtletalk.blog/2007/11/21/the-myth-of-the-model-ira-constitution/.