David Murray

dmurray@greatfallstribune.com

For two years, between the spring of 2012 and summer of 2014, the Blackfeet people suffered through one of the most chaotic and divisive periods of self-governance the tribe had experienced since its constitution was enacted in 1935.

Personal attacks, repeated allegations of criminal misconduct, manipulation of constitutional authority, a refusal to negotiate — all contributed to a prolonged breakdown in the Blackfeet government that only ended with the installation of new tribal leadership in July 2014.

During that troubled time, various shifting political factions voted to suspend or expel 10 different council members, and 13 different people claimed legitimate membership within the nine-member Blackfeet Tribal Business Council.

There were repeated street protests, some verging upon riots, and confusion over which political faction could claim lawful authority prompted the Native American Bank to suspend authorization for the issuance of tribal checks. Tribal employees went unpaid, and the delivery of goods and services was delayed.

Those chaotic times have now passed, however, many Blackfeet leaders both inside and outside the current administration argue broad constitutional reform must take place to ensure the type of governmental meltdown that occurred between 2012 and 2014 not be repeated.

“What we saw in 2012 was that the law became whoever had the most votes, that they could interpret the Constitution any damn way they wanted to,” said Joe McKay, Blackfeet tribal councilmember and a driving force behind a new effort to rewrite the Blackfeet Constitution. “That’s why we had people being expelled on votes of three and four council members. The law became whatever the hell I want it to be if I have enough votes to get it done. The only thing that ended that chaos was the election.”

During a two-day symposium held in Browning on Jan. 11 and 12, a broad assortment of tribal business leaders, educators, land and resource managers, government officials and community representatives met to discuss constitutional reform on the Blackfeet Indian Reservation.

“The symposium was an effort to educate the tribal membership about the process for change and the issues to be aware of going forward,” McKay said.

Guest presenters included the co-director of the Harvard (University) Project on American Indian Economic Development, a former deputy assistant secretary of Indian affairs who is also an enrolled member of the Crow Tribe, and a University of Minnesota professor actively involved in constitutional reform for the White Earth (Ojibwe) Nation.

The plans for constitutional reform on the Blackfeet Reservation are both urgent and ambitious. McKay said there is a limited window of opportunity for sweeping constitutional change, and that nothing less than a complete redrafting of the Blackfeet Constitution is required.

“This is a rewrite of the entire governmental structure,” he added. “The goal of this group is, by the end of this calendar year, to have a document that the Blackfeet people can vote on.”

Flaws in the Blackfeet Constitution were recognized almost from its inception. Promulgated following Congressional passage of the Indian Reorganization Act in 1934, the Blackfeet were one of approximately 160 U.S. tribes that were handed ready-made constitutions drafted by representatives of the federal government.

Though intended to re-establish the sovereignty of American Indian tribes, these IRA constitutions cemented an imposed system of self-government alien to the traditional institutions the tribes had operated under for centuries.

“Indian tribes like the Blackfeet had their own unwritten forms of social democratic governments by which we regulated our own conduct – long before your folks ever got here,” McKay said. “Rather than look beyond the councils and see what tribes historically did, they looked and they saw tribal councils.”

McKay said the tribal council form of government was imposed as a mechanism of control. It concentrated authority within a small group of appointed tribal leaders compliant to the manipulations of federal Indian agents.

These IRA constitutions vested nearly all authority within the tribal councils, with no legislative branch of government or provisions for independent judiciaries.

In much of Indian country today, tribal councils draft all the laws, control tribal assets, write public policy, can hire or dismiss tribal employees, and oversee the administration all the government offices – right down to a tribal court system where judges can be fired at will by a majority vote of the council.

“It (the Blackfeet Constitution) doesn’t work, not just because of its legal provisions,” McKay said. “It doesn’t work because all the power of the tribe is vested in the tribal council. There’s no separation of powers, no checks and balances, and no ultimate accountability.”

Less than a decade after its passage, social activists within the Blackfeet Tribe began to advocate for constitutional reform. Those efforts have been largely unsuccessful.

“We’ve amended our constitution 11 times since 1935,” McKay said. “Most of those amendments had to do with the number on the tribal council and how we elect them. One had to do with membership – that was in 1962 – and one adopted the Plan of Operations. That was the only one that even looked at the power of the council and all it did was give them more power to administrate things.”

McKay views the enactment of a “clear separation of powers” and the establishment of “an independent tribal court system with clear and fair rules” as fundamental to improving the quality of life for the Blackfeet people.

“The best thing that we can do for our people in terms of creating jobs and hope is to create an environment where people will want to come and do business with us,” McKay said. “We want to send a message, not only to our own people, but to outsiders and non-Indians as well that they will be treated fairly in Blackfeet country.”

Two big obstacles have repeatedly stood in the way of meaningful constitutional reform in Browning: the self-interest of sitting tribal councils to preserve their authority and the contentious issue of tribal membership.

A freshman tribal councilman, McKay sits in the odd position of leading an effort to reduce the powers of his own office. To reconcile that apparent contradiction, he emphasizes that the movement for constitutional reform is not driven from within the Blackfeet Tribal Business Council, but is led by a core group of about 20 community volunteers loosely organized as the Committee for Constitutional Change.

“I have said this from the very beginning, we are not going to go to the council and get a resolution sanctioning us,” McKay said. “For the simple reason that if the council gets mad and decides to rescind their resolution, the theory would be that they could kill the effort. That’s what happened to the last effort in 2010. We’re not going to do that. The tribal council supports it, but it is not an effort that the tribal council itself created.”

A major stumbling block for many of the prior reform efforts has been the contentious issue of tribal membership.

Since 1962, the Blackfeet Constitution has defined those eligible for tribal membership as “all children having one-fourth degree of Blackfeet Indian blood or more born after the adoption of this amendment to any blood member of the Blackfeet Tribe.”

In the intervening 53 years, debate over who is entitled to the benefits and privileges of tribal enrollment have frequently overshadowed attempts at broader constitutional reform. To avoid that pitfall, the Committee for Constitutional Changes has purposefully excluded debate on tribal membership.

“This is not about redefining tribal membership,” McKay said. “This is solely about how we govern ourselves.”

However, there is no denying that a legislative process so broad and inclusive has the potential to provoke strong opposition.

“The resistance to change is great, and generally it is driven by fear,” McKay said. “Those who fear change are then willing to engage in misinformation and in outright lies to try to prevent the people from having the opportunity to vote. People will be out there spreading those lies and trying to rob tribal members of their right to make an independent decision. We understand and will deal with that.”

To oppose an efforts at misinformation, McKay said that all meetings of the Committee for Constitutional Change are open to tribal membership, and that meetings of the recent symposium were videotaped and are now accessible on YouTube under the search title “Blackfeet Governance.”

“Nothing that we’re doing is behind closed doors or secret in any way,” he said. “The next step is to begin the writing process. As we draft, we’ll put that out to the people and get their feedback – and we’ll continue that process until we have a document that we can present to the council that could get approved.”