Joseph Kalt on American Indian Tribal Governments and Constitutional Reform

Interviewed by Doug Gavel and Molly Lanzarotta on December 4, 2006

The drive for true self-government is pushing many American Indian nations to undertake the delicate process of constitutional reform. The process is fraught with complexities and complications as the nations strive to make their own laws through institutions of their own making. Joseph Kaltis Ford Foundation Professor of International Political Economy at the Kennedy School and co-director of The Harvard Project on American Indian Economic Development(HPAIED), housed within the Malcolm Wiener Center for Social Policy.
Q: What are the greatest challenges currently facing American Indian governments?
Kalt: I think there are two main challenges that American Indian tribes face. First, despite the fact that they owe their legal status to the U.S. Constitution, treaties and court decisions, American Indian tribes are struggling as they get some resources to try to exert their powers. They're struggling to establish those powers relative to other governments, state and local governments in particular. So there's an awful lot of tussling that goes on at the boundary between a state's jurisdiction and a tribe's jurisdiction, and between the federal government's jurisdiction and a tribe's jurisdiction.
The other thing that tribes are struggling against is poverty. While the media highlight the success of some of the gaming tribes, the vast majority of American Indian tribes and American Indian citizens have very low incomes. American Indians living on reservations are the poorest identifiable group in the United States. Tribal governments are struggling to improve their nations' economic conditions and, along with them, the social and political conditions that poverty has been wreaking on American Indian communities.
Q: How are different tribal governments attempting to meet these different challenges?
Kalt: Well, we're in a period in history in which the tribes are exerting their political and economic muscles, and in that process are finding that they need to build their own institutions. So you have tribes out there who are doing everything from rewriting constitutions to building new court systems, new policing systems, tax systems, environmental regulatory systems. Really, from top to bottom, they are building complete systems of government that allow them to run their own affairs capably and with the interest of their own citizens in mind.
Q: What are the specific strategies available to Native nations as they rebuild the foundations of self-government?
Kalt: The very first thing is constitutional reform. Most of the tribes in the United States operate under constitutions that were adopted-really, imposed in many cases-during the Roosevelt administration of the 1930s. And if they didn't have a constitution from that era, most tribes eventually got one that looked like these Roosevelt constitutions.
Many tribes are finding that these systems don't do a very good job at truly governing the kinds of communities that they're trying to build today. Those constitutions generally had very little provision, for example, for separation of powers to protect a rule of law and tribal judicial systems. So many tribes are engaged, in one way or another, in reforming their constitutions in order to build and put in place the systems of law-law-making, law-enforcement-that can allow them to run an effective community.
Secondly, tribes are trying to gather the resources-the funding, the money-to put together capable bureaucracies: running a good housing department, running a good water department, running a good roads department, running a good fish and wildlife department. And so tribes are trying to pull together the resources to do that. At the same time, they're trying to bring along their own tribal members as the professional managers of their nations' programs. They're starting off from very deep deficits. For example, often tribal members have not been to college, yet tribes are now trying to run a good police department or a good game and fish department. Building those administrations and programs, funding them, and then ultimately founding them on a constitution that will work for the community, those are the real struggles that tribes are engaged in right now.
Q: How can constitutional reform serve to advance the efficacy and legitimacy of Native nation governments?
Kalt: American Indian tribes get romanticized a lot in the media. But today's Native people are struggling with the same problems that nations all over the world are struggling with: political independence, self-rule, self-determination, and struggling to create economic development and healthy social and cultural conditions. Constitutional reform is an important challenge for tribes because it forms the architecture by which they'll run themselves: how the laws will be made, how the laws will be enforced, what the judicial system will look like, and so on. For any nation in the world-from Poland to Potawatomi-the challenge is to put in place a system that can really serve the interests of the people. What does that mean? We find in our research that it means establishing a depoliticized rule of law so that decisions that are being made over what money is being spent, what taxes are being collected, what programs are being undertaken, what people are being hired-those things are depoliticized. If that can be done, you get competent decision-making with the interest of the people in mind. So depoliticizing that rule of law is critical for tribes, and their constitutions are the way they start.
Q: Can you point to any specific constitutional reform measures that any nations have taken that you identify as best practices, or good examples?
Kalt: For many tribes, the cutting edge for constitutional reform has been around their court systems. Many of the original 1930s constitutions of the tribes, as I mentioned, didn't have provisions for a judiciary. Today, tribes are trying to enter contracts and trying to enforce their own laws, and so more and more we see tribes trying to create an independent judiciary, often with layers-very familiar in many other countries -of the trial court, appeals court, even Supreme Courts. The Citizen Potawatomi of Oklahoma, for example, stands out for its efforts in this regard. In some cases, tribes have stepped out and created inter-tribal appeals court systems so that people in a dispute will feel they'll get a fair shake if their dispute is with a tribal member or the tribal government. So we're seeing lots and lots of reform and innovation around the legal systems and court systems of tribes.
A second area related to that is tribes are teaching the world that there may be a fourth branch of government. Many tribes are experimenting with a kind of ethics branch in which elders or spiritual leaders or community leaders serve as ethical guides or watchdogs, policing the conduct of other governmental officials, often with a firm foundation in the tribal culture. That's proving to work for some tribes in terms of keeping a government working well, with the interests of the people rather than just the interests of the elected officials in mind.
Q: What are the potential obstacles and pitfalls in the way of constitutional reform?
Kalt: It's just like every other country in the world-changing a constitution can be really hard to do. You have vested interest in the status quo. The people who are the government at any time generally think it's working all right, or at least working to give them a job. So the vested interests stand in the way of lots of constitutional reform.
In addition, the idea and process of constitutional reform is very new to Native Americans. For years, the federal government of the United States in the person of the Bureau of Indian Affairs really ran things on reservations. So now, as tribes try to flex their own muscles, they're confronting the fact that no one but themselves will change their institutions or change the constitution. So, for the first time, tribes are having to deal with these kinds of challenges, and that newness means people don't know what they're doing sometimes and they're often looking for expertise that's hard to find.
Q: The issue of indigenous peoples' self-governance is not unique to the United States-there are native tribes all over the Americas, Aboriginal communities in Australia, the Sami Nation of Artic Norway. Have the international struggles of other native peoples informed the process in the U.S., or is the U.S. setting a good example for others?
Kalt: Well, the United States, in certain ways-despite a not-so-happy history, obviously, around Indian/white relations-is probably farther along the path toward a system in which indigenous peoples on their own lands can largely govern their own affairs. If you go to some parts of the world, particularly in Latin America, and you talk about self-determination, those countries aren't even close to considering that. In the middle you have situations-Australia, for example-where gradually, Aboriginal people are asserting their rights in the courts and politically.
Many of those other nations are looking to the United States because of this history of a modicum of protection for Native rights of self-governance-and in recent decades, the use of those rights of self-determination, to turn things around and improve things economically, socially, and politically. So, a lot of people around the world are looking to the experience of the United States; not that it's a perfect experience, but they're looking to the U.S. as at least somewhat of a model for how to improve the lives of indigenous people.

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