DCI America

As I crisscross this incredible country of ours, providing technical assistance to dozens of tribes, I am amazed at the number of tribal organizations who are in the process of completely revising or amending their constitutions, as well as enrollment and election ordinances and codes.

Apparently the need has never been greater. The boilerplate constitutions and ordinances originally developed and distributed by the BIA no longer serve the needs of the multi-faceted tribal organizations. Tribal councils and tribal members have realized that their own cultural values, geographic considerations and needs are not properly addressed by the often flawed and outdated governing documents "forced" on them by the federal government. Because of gaming and other successful tribal enterprises, some tribes now have the resources to flex their muscle and take the lead in this most important right of sovereignty and self-governance through self-determination. The time has never been better to shed the outdated, overbearing and paternalistic shadows of the past for the liberating self-governance of the future.

Constitutions are complex documents, but writing and drafting them need not be an all consuming, controversial and painful experience. With careful planning and sensitivity to the various constituencies that make up the tribal membership, a constitution can be drafted that works to achieve plurality while not giving advantage to one faction or another. Here are a few tips to help make the process a little smoother.

Should there be a constitutional committee? The answer is an unequivocal, YES.

How many people should there be on the committee? If you want a functional committee that can make effective decisions for your new or revised constitution, then keep the committee small; between 5 to 7 members can do the job more effectively than a committee of 10, 15, or worse, 20 members. Large committees tend to get caught up in the "paralysis by over-analysis" syndrome. A small committee can generally reach consensus more quickly. The members of the committee should reflect diverse opinions and in larger tribal communities, geographical diversity. At least one committee member should have considerable experience in drafting governing documents.

Should the Tribal Attorney help draft the constitution? In our experience, the best contribution that a tribal attorney can render is during the review process. The tribal attorney, or attorney appointed to help with the constitution, best serves the constitutional process by seeing to it that what has been drafted is in compliance with the federal laws that currently govern tribal constitutions. A tribal attorney may be highly qualified to serve in the position of legal counsel/advisor, but may not always be qualified to draft governing documents. It is important that the tribe (usually the Tribal Council) define and even limit the role of the attorney in this process to better meet the needs of tribal economic and cultural values.

Should the Constitutional Committee (CC) have its own set of by-laws, and/or rules? Absolutely! In order for the CC to fully understand its role, the rules governing the CC should be clearly outlined. Sometimes the CC develops these rules on its own and then has them adopted by the Tribal Council by resolution, or sometimes the Tribal Council develops and approves the rules in advance of the formation for the CC. Either way, the by-laws or rules should clearly outline meeting times, internal or external elections or appointment of CC officers, (Chairman, Vice Chairman and Secretary), stipend considerations, recall provisions and alternate members.

How can DCIAmerica help? DCI works with Constitutional Committees to help clarify the options available. In addition, we can be there to draft the constitution or ordinance to the exact specifications the tribe may want. We work closely with Tribal Councils, Enrollment Committees, Election Committees and their staff to draft constitutions, enrollment and election ordinances, walking with you every step of the way from the formation of the Constitution Committee, through legal review and the final adoption of your constitutions and/or ordinance(s).

Call us at (800) 888-1027 and find out how we can assist your tribe.

Acknowledgments:
DCI would like to thank our friends and clients in Indian Country who have helped to make us a formidable force in assisting tribes with their constitution and ordinance revisions. It is because of their support and excellent comments and references about DCI's work, that we are able to work with so many tribal organizations throughout the country. And to those tribes, who in our early days made a leap of faith in our abilities, we say thanks. We would not be where we are today if it were not for your help.