I was genuinely excited about Constitutional reform.  I firmly believe that only a self-determined statement of our governing principles could work for our people.  While I know the current Constitution of the Minnesota Chippewa Tribe has contributed to our continued existence, our situation has changed since it was put in place.  I think it is necessary to put into our own words what our sovereignty means, for ourselves as a people and as we interact with other nations, communities, and governments.

My excitement grew when I heard who was involved in the writing.  Gerald Vizenor is a strong influence on me through his critical writing, philosophy, and activism.  Jill Doerfler is a colleague and respected friend, and I agree with her essays on the tragedy of blood quantum published in Anishinaabeg Today.  David Wilkins has influenced my understanding of tribal sovereignty at both the philosophical and practical levels.  I’m sure the others involved are also good, strong, caring people.

Unfortunately, I cannot support the proposed Constitution for the following reasons:

  1. It does not consider our sovereignty first, and it extends outside power over White Earth citizens, without recourse.
  2. It does not build upon our traditional practices.  In fact, it actively denies some of these practices.
  3. It does not adequately define who it applies to, and makes possible disruptions from outside “persons.”
  4. It denies White Earth citizens the powers that define constitutional democracy.

 

It does not consider our sovereignty first, and it extends outside power over White Earth citizens, without recourse.

Legal writing goes in order of importance, giving the first consideration the most force.  This is a big deal, because without clear priorities the force of the law can be misdirected.

Chapter 2, Article 2 reads as follows:

“Services and entitlements provided by government agencies to citizens, otherwise designated members of the White Earth Nation, shall be defined according to treaties, trusts, and diplomatic agreements, state and federal laws, rules and regulations, and in policies and procedures established by the government of the White Earth Nation.”

This article places White Earth sovereignty last.  It is giving priority to state and federal rules over our own policies.

It gets worse.  Chapter 3, Article 8 reads:

“No person shall be denied or deprived of life or liberty, except certain serious misdemeanors and felony convictions, and no criminal penalties shall be imposed without due process of law and judicial procedures."

Unless this article is limited to White Earth jurisdiction, then this article grants every other government the power to determine our life and liberty on our land.  This allows outside power over us without the challenge—or benefit—of White Earth’s judicial review of “probable cause,” “warrants,” and arrest.

The proposed Constitution does not allow White Earth to protect the rights of its own citizens, gives up the right to grant asylum, and gives up the right to challenge a politically-motivated use of state or federal law against one of our citizens.

This takes on a practical consequence in Article 10 of Chapter 8:

“The people shall have the right to possess firearms except for convicted felons in accordance with state and federal laws.”

White Earth has no reason to simply allow outside jurisdictions to deny a person their right to hunt or defend him- or herself.  If this denial arose from White Earth Court, I would support it, but then I would like to see a review process.  If the felony had nothing to do with firearms, or bodily threat, then I see no reason to automatically take away someone’s right to hunt for food.

 

 

It does not build upon our traditional practices.  In fact, it actively denies some of these practices.

White Earth has the living memory of Elders and ongoing traditions.  We also have access to historical, ethnographic, linguistic, journalistic, and audiovisual records.  We do not need to defer to outside authorities to decide what is best for ourselves.

Chapter 2, Article 1, only considers external authorities:

“Citizens of the White Earth Nation shall be descendants of Anishinaabeg families and related by linear descent to enrolled members of the White Earth Reservation and Nation, according to genealogical documents, treaties and other agreements with the government of the United States.”

There is also no way to prevent enrollment.  While blood quantum is a ridiculous—and racist—policy, the shift to lineal descent does not add to our sovereignty.  Lineal descent, like blood quantum, reduces enrollment to something inherent and undeniable.  White Earth has no power over the matter.  Sovereignty must include the power to both include and exclude membership.

Chapter 3, Article 16, gives up a traditional right.  “Citizens shall never be banished from the White Earth Nation.”

I can’t understand why we would give up the right to banish a chronic sex offender, an inveterate meth lab operator, or even a multiple-repeat drunk driver.  I’d rather this article spell out a procedure for banishment.

It also leaves out customary adoption, removing a historically significant means for self-determining membership.

 

 

It does not adequately define who it applies to, and makes possible disruptions from outside “persons.”

Chapter 2 defines citizenship for the White Earth Nation in its first article.  However, Article 3 states:

“The Anishinaabeg and their descendants shall have the right to appeal to the President and to the White Earth Court any decisions that deny citizenship in the White Earth Nation.”

This does not specify which Anishinaabeg.  As written, anyone with Anishinaabeg ancestry (which includes more than Ojibwes) can appeal to our Court for citizenship.  I do not think that our Court can deal with that.

The use of the term “person” or “the people” throughout the proposed Constitution is problematic, but especially in Chapter 3.  That is basically a bill of rights, but it does not grant rights exclusively to citizens of White Earth.  Matters related to “the free expression of religion, speech, or of the press and electronic communication,” the right to assemble, and “the right to petition the government for restitution, amendments, or redress of grievances” should require citizenship.

Article 3, Chapter 3, states, “The people shall not be denied the fundamental human rights of citizenship in the White Earth Nation.”  Without limiting the definition of “the people,” this Article threatens to extend all of these rights to everyone, even corporate persons.  Remember, corporations are now “people” under US law.

This matter becomes dire once we consider our land base.  Chapter 3, Article 7 states:

“The right to own and transfer of private property is inviolable. The rights of property shall be protected, and private property expropriated for public use shall be according to due process of law and just compensation."

Control over the transfer of property, especially land, is a sovereign right.  Here, the proposed Constitution gives up control by calling ownership and transfer of lands an inviolable right.  These rights are not limited to citizens or the government of White Earth.  Much of the land within our borders is held by noncitizen “persons” both human and corporate.  The proposed Constitution removes the power of White Earth to regulate questionable, or even illegal, land transfer by calling it an inviolable right.

Defining personal rights without specifying what a person is carries other problems.  Chapter 3, Article 5 states:

“The freedom of thought and conscience, academic, artistic irony, and literary expression, shall not be denied, violated or controverted by the government.”

Ironically, this gives up the right to officially criticize.  It prevents White Earth from officially condemning hate speech, cultural appropriation, native mascots, or any other misrepresentation of natives in general.  If some artist claimed to be a White Earth Tribal Member, then our government could not say, “No, he’s not.”  It also prohibits official corrections of media misrepresentations of White Earth or White Earth citizens.

The next article reads, in part, “no censorship shall be practiced or maintained by the government.”

So if some hate group decided to buy up every billboard on the rez, the White Earth government would not be able prevent it, or officially support resistance against it.

 

 

It denies White Earth citizens the powers that define constitutional democracy.

The proposed Constitution limits the sovereignty of the White Earth Nation, and its citizens.  This is ironic given Chapter 2, Article 4:

“No person or government has the privilege or power to diminish the sovereignty of the White Earth Nation.”

This statement is untenable; no sovereignty is ever absolute.  Sovereignty depends upon recognition by others according to the rules of nations.  The rules used for international relationships are negotiated, so sovereignty includes compromise.  This article denies White Earth the power to negotiate with anyone.  What about the Minnesota Chippewa TribeAnd what about Congressional plenary power?

More importantly, beginning this article with “No person” denies the rights of White Earth citizens to influence our own government.  It’s inherently undemocratic.

Or worse.  Look at Chapter 12, Article 9:

“The Legislative Council shall have residual powers, and the powers of governance provided, specified and entrusted in the Constitution shall not be construed as the limitation of legislative power or authority. The powers of the government not specifically expressed or entrusted to the Legislative Council shall be reserved to the citizens of the White Earth Nation.”

Granting the Legislative Council residual powers first, and then denying any limitations on their power or authority, makes the secondary reservation of powers to the citizenry meaningless.

Compare Article 9’s language with the Tenth Amendment to the US Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

A constitutional democracy is supposed to define the powers of all branches (or federated segments) of government first and then uphold residual powers for the citizenry.  As proposed, it is potentially despotic.

I support the White Earth Nation, and I agree that the current constitution needs reform.  But the proposed Constitution presents far more problems than power to the White Earth Anishinaabeg.

 

 

 

 

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