COMMENTARY: How do you fix a constitution?

by Jul 10, 2023OPINIONS0 comments


Yellowhill Community


I write today not as a Judge in the Tribal Court but as an enrolled member of this Tribe.  I had the opportunity to watch the most recent work session on the constitution.  I heard consistently from everyone around the horseshoe and even from members on the Constitution Committee that this constitution is not perfect.  That this constitution has issues.  That this constitution will have to be fixed almost as soon as it goes into effect.

It sounds so simple to just say we will “fix” the constitution, but how?

I have reviewed the proposed constitution thoroughly and I am unclear as to exactly how changing this constitution will work.  I will lay out what I understand to be the process and pose several questions.  I welcome any insight from the Constitution Committee on this.

Only Article XV-Amendments contains the guidance for how one would go about amending this constitution. Section 1 of this article speaks to a Constitutional Convention.  Section 2 speaks to a referendum amendment.  Looking first to Section 1, a few things jump out to me and raise questions for me as a member of this Tribe.

First, the delegates in attendance at the Constitutional Convention will include an equal number of representatives from each branch of government: legislative, executive, judicial, and community club council.  I’ve read over this constitution thoroughly and it does clearly lay out a legislative, executive and judicial branch of government.  This constitution even lays out how those branches of government will be established, how people will fill those branches, and how they can be removed.  What the constitution fails to lay out is the new fourth branch of government—the community club council.  The constitution seems to grant them a lot of power but doesn’t address how its membership is established or how the people can go about removing an unethical member of this branch of government.  What is the check and balance on this new fourth branch of government?

Second, there must be an equal number of representatives from each branch.  There was a point in time, in our very recent history, that our Judicial Branch was operating with one judge.  Should that occur again would this mean that only one member of executive, one member of council, and one member of the community club council can serve as a delegate?  If there is a vote to approve or deny a proposed change—how would one handle a tie in this scenario where only four delegates can serve?

Third, the chosen delegates must be Tribal citizens.  While the constitution doesn’t truly define what a Tribal citizen is, it does make clear that members of the executive, legislative, and community club council will be Tribal citizens.  However, this is not a requirement for members of the judicial branch.  Will this mean if there are no Tribal citizens serving in the judicial branch that this branch cannot be represented at the convention?  Does this make it impossible to have a convention at all as there cannot possibly be representatives from each branch?

Fourth, the Constitutional Convention shall meet to examine the Constitution and propose any changes to the Constitution.  How does this process work?  Is this a vote of the delegates? Is this a vote of those Tribal citizens that attend?  What happens if the Constitutional Convention does not approve a change?  Does a change approved by the Constitutional Convention go to the people for a vote or does it immediately go into effect?

This leads us to Section 2, the referendum amendment.  The constitution can be amended by a simple majority of the registered voters in an election called for that purpose by the Tribal Council.  The amendment will pass if 33 percent of those registered to vote turn out for the election.  I am inferring from this that at least 33 percent of the registered voters must vote to affirmatively approve the amendment, but the constitution is not clear—it merely states that “…thirty-three (33%) of those registered to vote shall vote in such election, and the amendment shall become effective after the results are certified by the Election Board.”

Additionally, is a Constitutional Convention mandatory before the public can vote on an amendment?  Does this mean that if the Constitutional Convention does not approve an amendment to the constitution first that the people will not get to vote on that amendment?  Or does this section on referendum amendment provide to Tribal Council the power to put an amendment out for referendum without the approval of the Constitutional Convention?

While the constitution on its face may seem straightforward there are a lot of unanswered questions and unknowns that put us at risk as a people and as a government.  I have heard the responses that this is a living, breathing document that can be changed—but I want concrete answers as to how it can be changed.  I also want to know how quickly this change can occur.  What if we learn there is in fact a catastrophic flaw in this constitution that grinds our government to a halt upon passage—how long will it take to call a convention, or have council call an election to vote on a referendum amendment?  Will it be fast enough to avoid lasting damage to our people?

The Constitution Committee worked hard on this constitution.  I appreciate all the effort the group put in and for taking on such a momentous task, however it is important to that we seek to do no harm—particularly when it comes to the future of our Tribe and its members.