Bismarck Tribune

By LAUREN DONOVBy LAUREN DONOVAN

FORT BERTHOLD INDIAN RESERVATION - People who live on the reservation live in some of North Dakota's most wide open and beautiful places, but they still don't have the right to free speech.

If a tribal official wrongs them, the judge is someone appointed by that same official.

In a culturally complex society, they don't have the right to free exercise of religion.

It is a great irony that these members of a sovereign nation are far less free inside their nation than outside.

And it is another irony, almost an insult, that they are not even citizens of their nation. They are members, as if their country were Sam's Club, or the American Legion.

It just isn't right anymore, say some elders and members of the Three Affiliated Tribes.

It's time for a new constitution.

A constitution revision committee has been at work for more than two years, and a proposed new constitution has been discussed at 25 public meetings around the reservation in recent weeks.

The committee hopes to bring it to a vote before the September primary election.

They say it's time for a Bill of Rights that guarantees essential rights, like free speech, a speedy , and protection against unreasonable search and seizures.

It's time for a constitution that divides government into three separate but equal branches - an executive, legislative and judicial - like we all memorized in elementary school.

It's a system that provides checks and balances, so that a grievance against a tribal councilman, for example, would not be adjudicated by a judge appointed by and beholden to that tribal councilman.

The new constitution would change their very name. The Three Affiliated Tribes would officially become the Mandan, Hidatsa and Arikara Nation. They already answer the phone that way at the tribal administration offices at New Town.

The Three Affiliated Tribes has operated under a boilerplate constitution since 1936. It was written for them and for all tribes by the Department of Interior, along with a corporate charter, under authority of the Indian Reorganization Act of 1934.

Tribal Chairman Tex Hall said the old document doesn't fit anymore. It's like a grown man on his childhood pony, ill fitting and painful for the long ride.

The tribes have come a long way since those days in 1936, when they handled $4,000 in money from the Bureau of Indian Affairs, to today, when the council oversees a $47 million budget, the size of the city of Minot's.

Hall said they also have come a long way since the time when the tribal council should be able to micromanage every area of the tribe's business, right down to hiring the last clerk and secretary.

"We don't have time to do that anymore," he said.

The old boilerplate constitution didn't envision a modern tribe, vigorously engaged in casino operations, with contracts for everything from employment to construction to water pipelines, to economic development and health and education.

The tribes weren't quite the "children of the great white father" of earlier treaty language, yet it was hardly realized what they would become.

What they would become, in terms of self-direction, changed in the mid-'70s, when Congress passed a law that allowed the tribes to enter into contracts themselves for goods and services.

Until then, all that business had been handled by various Bureau of Indian Affairs agencies.

The new constitution would allow tribal citizens the opportunity to elect a president, vice president and legislature, as well as a supreme court.

The office of president would be what's known now as chairman.

The president would function similarly to a governor, or U.S. president, in that he or she would head the executive branch and his or her only influence over the legislative branch would be through veto power, which the legislature could override.

The vice president, also elected at large, would preside over the legislature, vote in case of a tie and fill in were the president to die, become incapacitated, or to be impeached.

The new constitution sets out terms of office - four years, except for judges, who serve six.

As importantly, it gives tribal citizens the right to impeach the president and recall elected officials. It also gives them the right to refer legislation to a popular vote.

"This is the first complete revision in tribal history," said Hall. "It's a complete overhaul."

The old constitution was amended seven times, the last time in 1986, when two council members from each district were reduced to one.

The new constitution proposes to go back to two representatives from five of the districts, and three representatives from the New Town district because its population exceeds 750. The number of representatives from a district would not exceed three but would be increased anytime any district reached that population number.

The district representatives would serve as the legislature, which could meet for six months annually, including for legislative committee meetings.

Hall said some tribal council members resist the idea of being in session, as opposed to full-time officers on full-time salary.

Tribal attorney Tom Fredericks said the tribes' budget for governance is around $1.5 million now.

The new constitution would require a balanced budget and also creates an ethics committee.

The constitution revision is the result of a push by some of the elders, who got the wheels turning and since have been surveyed and are nearly unanimous in their desire to make the change, Hall said.

That's different than some of the feedback from tribal members, who not only think the old constitution was written by their elders, instead of by bureaucrats in the Interior, but also believe it's worked well enough, so why change now.

Hall said the new constitution "would bring accountability to the government," something tribal citizens, as it were, hardly have the tools to bring about now.

Fredericks said the new constitution would do away with the present "spoils" system. Under it, tribal councilmen know who supported them in elections and have the power to reward them.

Fredericks said there would be more transparency in government on the reservation and citizens would have the right to be part of the process, at events like legislative budget hearings.

"The most important thing is that it gives the power back to the people," Fredericks said.

The next 60 days are critical.

A final version of the revised constitution should be approved next month. It could then be presented to the tribal council in April.

If five councilmen - two-thirds of the present seven - vote in favor of the constitution, it will go to the Department of Interior for what's called a "secretarial election." That's a mail-out ballot to all legible voters.

If there aren't enough votes on the council, the issue could be referred for a secretarial election by petition of 10 percent of eligible voters.

In either case, the constitution election must involve 30 percent of eligible voters and the question must pass by a simple majority.

Fredericks said the committee would like to hold the constitution election this summer, so that the September primary election ballot would reflect the changes in representation.

The intent is to have the new constitution go into effect this year, and the first legislative assembly of the Mandan, Hidatsa and Arikara Nation would start in January.

Fredericks said he believes that if the measure gets to the people, it will pass.

"We're going to give it our best shot," he said. "It really gives the people more authority." He also thinks it will end the cycle of spoils and suffering that have accompanied elections in the past.

Hall said he's worried that more than two years of work and energy will be wasted, if the constitutional revision doesn't pass the council or reach the people for a vote.

"That would take the wind out of this sail," he said.

(Reach reporter Lauren Donovan at 888-303-5511, or lauren@;westriv.com.)