Development of a Tribal Constitution will provide the Navajo people with an agreed upon set of principles for governance of the Navajo NationGerilyn L. Tsosie
New Mexico Highlands University
MGT 621 – Business & Society
Constitutions are derived from the consent of citizens of a sovereign nation or state to serve as the supreme law of the sovereign and provides government structure with checks and balances of power. For the Navajo Nation, the development of a tribal constitution, an agreement or covenant by the people, will provide a legitimate government with an agreed upon set of principles for governance of the Navajo Nation. As with all governments, the Navajo government continues to operate amid broad corruption activities by certain elected officials. By developing a constitution, the Navajo people could define the powers and authorities of all elected officials and provide various provisions to check against unethical behavior and abuse of power.
In a democracy, the power of the government is derived from agreement and consent of the governed. Contrary to the principle of agreement by the governed, the Navajo Nation government was created by the Commissioner of Indian Affairs, a federal agent, in 1923. The Navajo people were not consulted in the creation of their government nor did they agree to or approve the form of government established by the Commissioner of Indian Affairs. Because the people did not create and approve the Navajo government, the legitimacy of the government is often questioned by tribal members and most notably during news of corruption by elected officials.
History has proven that government officials in power continue to push the limits of their powers and authorities. Recently, many tribal officials have engaged in corruption to bolster their personal gain resulting in charges of corruption and bribery. In the past ten years, Navajo Nation leaders have been in the news media for ethical violations and abuse of power. In 2010, almost 88% of the 88 Navajo Nation Tribal Council members were indicted by a Special Prosecutor for a variety of criminal offenses. Navajo people were shocked by the charges and wanted prosecution and accountability for the behavior of the elected officials. The Navajo people further reduced the composition of the Navajo Nation Council from 88 delegates to 24 delegates and gave the Navajo Nation President line-item-veto power over budget and appropriations. According to the Desert News article written by Felicia Fonseca in 2010, “At least 77 current delegates to the 88-member Navajo Nation Tribal Council are charged with offenses including theft and fraud in the use of tribal funds”. “The lawmakers have face heavy scrutiny since it was revealed last week that the majority of them have been charged in tribal court with any of five offenses – conspiracy, theft, abuse of office, forgery and fraud”. “The more than 270 criminal complaints released Wednesday in Window Rock charge lawmakers and two other with illegally taking nearly $1.9 million, according to court officials.” This newspaper article revealed that in 2010 over 80% of the Navajo Nation elected officials engaged in unethical behavior and corrupted practices.
In most constitutions, the people anticipate unethical behavior or abuse of power exemplified by Navajo elected officials and agree upon general principles which will deter unethical behavior and abuse of power. In 2014, Dr. Robert Owens acknowledged in his article the reasons for a constitution. He stated that, “Constitutions are meant to act as a check on the ability of a temporary majority from imposing its will in any manner it chooses. In other words, the social contract agreed to by the people who allow the governance of temporary and shifting majorities in particular situations is based upon the belief that every majority implicitly agrees to abide by the general principles which embody the higher law.” Constitutions serve as the agreed upon set of principles for the foundation of government and governance. A general feature of a constitution is to curb or prevent the abuse of power by those in power. This is generally accomplished by separating the powers or authorities granted to a certain branch of government. By delegating defined powers and authorities to the different branches of government ensures a check and balance of fairness and equality. Dr. Robert Owens also believed that the purpose of the United States Constitution was to provide the people with a foundational governance structure. He states that “the very essence of constitutionalism rests upon the foundational belief that all power and authority will be exercised within the framework of the general principles and higher law that the constitution creates. People are chosen to assume power to legislate, govern, or adjudicate because it is believed they will do what is right. Not because it is believed that whatever they do is right. Legitimate authority in a constitutional system rests on the belief that power is not a physical fact, but a decision on the part of the people to willingly obey.”
Furthermore, in a YouTube video developed by the Institute for Democracy and Electoral Assistance (IDEA) in 2014 it previews a live video about how the people developed a fairer society by stating that the “constitution organizes and constrains powers for all people equally and fairly. It defines the powers of differing parties and leaders. It defines a strict separation of powers between differing parties. And constrains powers for governments and protects the majority. They have a nation building body of rules that the democratic aspirations of the people become a reality.” (IDEA YouTube, 2014). Of course if the development of a constitution does not happen then actually it does not stop any government or entity with implementing other policies and rules. Such as the development of additional policies or procedures that address a certain kind of behavior. Similar to a constitution for a sovereign nation, business entities develop policies such as Corporate Code of Conduct, Anti-Corruption & Bribery policies, and other necessary rules to address ethical violations in the workplace.
In a book written by Stephan L. Pevar (2012, Chapter 1, page 15) he writes that Indian Tribes have the power of self-governance. He acknowledges that “The source of an Indian tribe’s power is its people. Indian tribes have the inherent right to govern themselves, a right they have possessed “from time immemorial.” As a federal appellate court stated in 2002, “Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the U.S, which they predate. Indian tribe are qualified to exercise powers of self-government by reason of their original tribal sovereignty”.
Despite the recognition by the United States Courts that Indian tribes are sovereign political entities possessed of sovereign authority not derived from the United States, the current Navajo Nation government derives from regulations created by the Commissioner of Indian Affairs called Regulations Related to the Navajo Tribe of Indians. (Wikipedia). The regulations were not developed to address unethical issues affecting the Navajo Nation and its leaders. Contrary to historical tribal practices, the Commissioner concentrated power in the hands of a few elected officials on the Tribal Council without provisions for succession. The size or composition of Tribal Council has changed with time but the power continues to be concentrated in the hands of the Tribal Council.
According to David Wilkins (2002, pages 82-84) he states that there have been several attempts to develop a Navajo Nation tribal constitution, but the last attempt was not approved because it strengthened the powers of the Bureau of Indian Affairs. David Wilkins complicates matters further when he writes that “Let us return to the issue of a constitution. In 1953, a more fully developed constitution was completed and sent to the BIA for review and approval. Like the constitutional attempt in 1934, it also was similar to those of Indian Reorganization Act tribes who had approved constitutions. However, several years of negotiating with BIA officials convinced the tribal council that “under the language of the Navajo-Hopi Long-Range Rehabilitation Act, if the constitution is adopted, it would strengthen the veto power of the Secretary rather than weaken it.” This fear of secretarial power would remain an obstacle to the approval of a constitution for a number of years, though ironically the council’s foundation itself continues to rest upon secretarial regulations that give the Secretary of the Interior veto power over tribal ordinances in a number of major areas. Thus, the tribal council has continued to exercise a growing array of powers through resolutions that remain subject to secretarial veto. In 1962, the tribe’s resolutions were codified into a tribal code modeled after federal codes. In a broad sense, the codified tribal code was the Navajo constitution, though it has never been ratified by the tribal electorate.” (Wilkins, David. 2002)
Basically, David Wilkins says that The Navajo people were never consulted in the creation of their government, nor did an agreement occur to approve the form of government established by the Commissioner of Indian Affairs. He goes on to state that “Despite these important and much needed reforms (see Appendix-A for a representation of the current government structure) the Navajo people still were not given the opportunity to have any input into these changes, and the Title Two Amendments have not yet been taken before the Navajo electorate for their approval. In effect, even as the Navajo Nation government becomes more democratic, these changes lack fundamental political legitimacy because the Navajo people have yet to sanction the government’s existence in a formal manner.” (Wilkins, David 2002).
David Wilkins believes that “a constitution is an agreed upon set of principles for governance of the sovereign. However, the United States of America authorized and established the Navajo tribal government in 1923 by issuing the Regulations Related to the Navajo Tribe of Indians. Furthermore, the Commissioner of Indian Affairs, Charles Burke, did not consult with the Navajo people about the proposed regulations and did not seek agreement from the Navajo people about the structure of the proposed government. Mostly importantly, the Commissioner of Indian Affairs did not seek approval by vote of the Navajo people regarding the government he created for the Navajo Nation.” (Wilkins, David 2002).
Both Stephan Pevar and David Wilkins believe that only time will tell whether the United States will continue to support and promote tribal sovereignty in the years ahead or will once again actively seek to destroy Indian tribes and take their land. Federal Indian Policy continues to fluctuate based on the majority in power in the United States Congress and Office of the President. Pevar and Wilkins both support individual tribal members and tribes who seek to garner support for tribal self-government, self-determination, and economic stability.
David Wilkins acknowledges that the Navajo people have not had nor have they taken the opportunity via a referendum/initiative to express their collective will about what shape Diné democracy should be like, and this must be rectified. But even after this is accomplished, assuming that it will be, everything will not be settled. Democracies, no matter their location, are not perfect governments. It is up to successive Navajo generations to nurture and strengthen the foundation of Navajo government” (Wilkins, David 2002).
By developing a constitution for the Navajo Nation, the Navajo people will consent, agree and approve the general principles for the structure of their government, their collective rights, their individual rights and duties and most importantly, principles to identify and deter ethical misconduct and abuse of power. The new government structure would replace the centralized government created by the Commissioner of Indian Affairs which included oversight and mistrust of Navajo people’s aspirations for a government by and for the Navajo people.
Fonseca, Felicia. (2010). “Navajo leaders turn to prayer amid investigation”. Desert News. Associated Press published: October 29, 2010. Retrieved from World Wide Web: https://www. Desertnews.com/article/700077468/Navajo-leaders-turn-to-prayer-amid-investigation.html
Owens, Dr. Robert. (2014). “Why did we write the Constitution in the First Place?” Retrieved from World Wide Web: https://freedomoutpost.com/write-us-constitution-first-place/
International IDEA – published October 30, 2014. “What is a Constitution” YouTube. Retrieved from https://duckduckgo.com/?q=what+is+a+constitution+utube+international+idea&t=ffab&atb=v62-6__&ia=videos&iax=videos&iai=0UzKD8rZCc0Pevar, Stephen L. (2012). “The Rights of Indians and Tribes” – Fourth Edition. Chapter I – A History of Federal Indian Policy. Page 15 – Section H. The Future.
Pevar, Stephen L. (2012). “The Rights of Indians and Tribes” – Fourth Edition. Chapter VI – Tribal Self-Government. Page 82 – Section A. The Source and Limits of Tribal Power. What is the Source of Tribal Power?Wilkins, David E. (2002). “The Navajo Political Experience”. Part I- Foundations of Dine’ Government and Relations with the United States. Chapter 4 – Navajo National Government: An Historical Overview (pages 82-84). The First Navajo Tribal Council.
Wilkins, David. (2002). “Governance within the Navajo Nation. Have Democratic Traditions Taken Hold?” page 125 – Conclusion, page 114 & table of three branch government. Retrieved from World Wide Web: https://faculty.utep.edu/LinkClick.aspx?link=17.1wilkins.pdf&tabid=11451&mid=92572Wikipedia – Free encyclopedia. Bureau of Indian Affairs. Retrieved on 11/28/18 from World Wide Web: https://en.wikipedia.org/wiki/Bureau_of_Indian_Affairs
(Wilkins, David. Page 114)