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Bringing Your Tribal Constitution, Bylaws
and Ordinances Up to Date





A well-written constitution and the ordinances that accompany it promote trust from tribal citizens, respect from other governments, the protection of Native cultural activities and traditions, and a smooth flow of government and continuity between administrations. But constitutions that served well in past eras don’t always meet the realities of the present day. In the years since the Indian Reorganization Act when many tribes drafted their constitutions, there have been major changes in federal Indian law, including the Indian Self-Determination and Education Assistance Act, as well as evolving trends in tribal enrollment—and the resultant impact on tribal elections. We’ve also had nearly a century to observe on a large scale which constitutional tribal government structures promote stable, strong governance and which lead to problems like political corruption, instability, and the promotion of tribal factions.

In this important class we’ll look at all of this and more as we walk you through the considerations your tribe should weigh when revising its constitution. Come ready to learn about some of the challenges you can expect and strategies for more smoothly implementing the changes, how your constitution is impacted by growth and change, and questions you should ask when defining membership issues in your constitution.

We’ll also discuss how tribes can use codes and ordinances to provide details for tribal government structures and procedures. We'll examine current issues that your tribe may want to address through new or revised ordinances, including policies on sovereign immunity and addressing risk management and potential liability for individual tribal employees in light of the Supreme Court’s decision in Lewis v. Clarke, enrollment and elections procedures, regulation of marijuana and more.


T O P I C S   I N C L U D E
Tribal Cultures and Constitutions
  • Balancing tradition with current demands
  • Incorporating cultural values
  • Maintaining your history
Federal Control of Tribal Constitutions
  • Indian Reorganization Act (IRA)
  • Amendments to the IRA
  • Common features of IRA era constitutions:
    • Lack of separation of powers
    • No independent tribal courts
    • Secretarial approval
  • Common issues under IRA constitutions:
    • Council micromanagement of government
    • Promotion of political favors over economic development
    • Infringement on individual rights in regards to tribal enrollment, tribal eviction and tribal banishment
  • Indian Civil Rights Act (ICRA)
  • Case law
Constitution Functions and Purposes
  • Traditional forms of organization:
    • Separation of powers
    • Tribal government models
  • Promoting good government
  • Removal of federal intervention provisions
  • Interpreting constitutional language:
    • Constitutions as seen by courts
    • Avoiding conflict
  • Stability of tribal governments:
    • Tribal members' expectations
    • Unrealistic goals
Writing the Constitution
  • Drafting the constitution
  • The outline - what to include
  • Legal writing using plain language
Features and Considerations
  • Preamble
  • Territory and jurisdiction
  • Adoption and certification
  • Membership and rights of members
  • Enrollment and elections process:
    • Blood quantum
    • Certificate of results of election
  • Sovereign immunity
  • Tribal governmental power:
    • Roles of officers
    • Removal from office and forfeiture
    • Filling of vacancies
  • Council meetings
  • Popular participation in tribal government
Beyond Constitutions
  • The use of ordinances, bylaws and charters
  • Authority, purpose and scope
Resolving Conflicts and Challenges
  • Strengthening tribal sovereignty
  • Transitions of power
  • Enforcing the constitution
  • Informing tribal members
  • Case studies
Checks and Balances
  • Separation of powers:
    • The tribal general council
    • Executive, legislative and judicial authority
  • Role of elders, clans and societies
  • Role of men and women
Revising and Amending the Constitution
  • Bringing the constitution up to date:
    • Modern era changes in federal Indian law (ISDEAA)
    • Enrollment issues
    • Elections issues
  • Determining needs and outcomes:
    • Public input
    • Impact on existing constitution
    • Intended and unintended consequences
  • The process
  • Adoption procedures
  • Harmony within the constitution
The Ratification Process
  • Organizing and staffing for adoption success
  • Analyzing your community
  • The constitution survey
  • Political support for change
  • Education and community meetings
  • What can go wrong?
  • Updating your ordinances:
    • Policies on sovereign immunity
    • Enrollment procedures
    • Elections procedures
    • Adoption policies
    • Regulation of marijuana
    • Providing details for tribal government structures

     

      *Topics subject to change.
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