Alternatives to Constitutional Revision May 17, 2011 SD Indian Business Alliance Rapid City, South Dakota

The Way It Was Historically, Tribal constitutions had much federal oversight worked into them –“Subject to any limitations imposed by statutes or Constitution of the United States...” –“Subject to approval by the Secretary of Interior…” –Felix Cohen’s model tribal constitution from 1935( Courtesy of Professor David Wilkins)

Times Have Changed Indian Self-Determination and Education Assistance Act of 1975 Cobell litigation and new view of trust responsibility Federal government wants to let tribes self-govern more More of an advisory role for feds

It’s a Brand New Day Tribes can and should exercise their never-extinguished power of self- determination Don’t look at federal approval requirements in Constitution as ceiling – look at it as floor What does your Constitution allow?

Constitutional Reform Laws Requiring Federal Approval Laws not Requiring Federal Approval The Spectrum of Possibilities….

Some limitations Many Tribal Constitutions have some version of the following restrictions: “May exercise powers subject to limitations imposed by statutes or Constitution of the US” OR “May exercise powers subject to restrictions contained in this Constitution.”

Some limitations Example of common limitations: “Council has power to promulgate ordinances subject to review by Secretary of Interior covering future membership of Tribe” “To raise revenue through taxation subject to review by Secretary of Interior”

Constitutional Reform Laws Requiring Federal Approval Laws not Requiring Federal Approval The Spectrum of Possibilities….

The Sky is the Limit Broad Powers – some examples: “To regulate commerce” “To promulgate ordinances to safeguard peace and safety of residents of rez” “To regulate use and disposition of property of members of tribe” “To administer any funds or property within control of the tribe”

The Sky is the Limit More examples of broadly worded authorities: “The duties and jurisdiction of tribal court shall be more fully prescribed by appropriate ordinances” “Tribal Council may establish police force and outline its authorities and duties” “Tribal Council may re-establish districts and voting precincts based on population”

The Sky is the Limit Many Tribal Constitutions specifically authorize the creation and enforcement of laws governing: HuntingFishingMining Social welfareEducationMinors GuardianshipEcon DevWork

“Future powers” Many Constitutions also contain a “future powers” provision that allows Councils to take actions authorized by Tribal membership or by federal government Example: environmental laws (CWA, CAA)

What Does the Sky Look Like? * Natural Resources* Land Use*Taxation * Business Transactions* Child Welfare * Employment* Corporations* Housing * Cultural Preservation * Historic Preservation * Recognition of Foreign Law*Criminal Law * Liquor* Tobacco * Economic Development

What Does the Sky Look Like? Laying out and memorializing structure of government: Process for making laws and regulations Financial reporting requirements Conflicts of interest Codes of ethics Establishing subordinate entities Delegation of authority

How High is the Sky? How much freedom does your Constitution give you now? Look at what laws other tribes have enacted and compare to your Constitution as currently written What will the BIA not approve under current Constitution? The BIA will give you advisory opinions on proposed changes to laws – will review proposed revisions in light of your current constitution and federal law

Stretch your Constitution as far as you can You may have more room for Nation- building within it than you may realize How High is the Sky?

Questions? Tracey Fischer, Esq. Fredericks, Peebles and Morgan, LLP 2040 West Main Street, Suite 110 Rapid City, SD Phone: (605) Thank you!!