P. J. Herne, Former Tribal Court Employee

April 7, 2007

Asked Herne about early referendums on constitution.

There should have been something earlier around ‘87.  There was a referendum and they were asked if they wanted a written constitution. The vote was like 687 to 13 or something.  If you can get your hands on that.  That to me was like…that’s the strongest statement you can make, because you get back into the Tribal Council gets its authority from the consent of the people.  They give their consent every June.  And on that June they showed up and said, “We want a written constitution.”  I think the ‘90-‘91 vote was regarding the court system.  They had asked if they wanted a court system, and the answer again was yes and it was a big margin.  So they kind of went to work on those two things and what I recollect.  I came into the process pretty late and with blinders on. Age and wisdom and experience will tell me that now.  Because I got out of the Marine Corps in ‘90, I started going to school, I got summer jobs at the Tribe, mostly with JOM, then when I graduated they offered me a job at the tribal courts program. The tribal courts program at the time took these two referendums as their directive.  Get a court system going and get a constitution going.  Muddying the waters in that, which you kind of got to be mindful of the whole way, is that the Tribe was in the middle of a nasty dispute with the state over gaming, over a compact, and the state’s insistence at the time that the Tribe establish its own police force.  At the time, the mood was, police, assign it to the courts.  And so you had, I think, Shinnock was the first guy in there. His office was shared with the court offices.  At that time the court administrator was Tracy Terrance, and so I was actually working for her.  They set up a law library, they tried to get some research going, baby technology at the time, the internet wasn’t on, but fax machines were and the internet was just kind of coming on so it was getting easier and easier to do research, like  Westlaw and all that stuff. But the overriding thing during that whole time, you probably couldn’t get council’s attention unless you had a gaming proposal.  And then you had a group that saw what was going on with the gaming, and wasn’t happy with it, agreed to get on the constitution committee. Those kind of were the camps at the time that I can remember.

When you developed the draft, was that just Mohawk people doing that?  I understand you had consultants coming in? 

They had consultants.  When I started working for them they already had Henry Flood on board as a consultant.  He’s got a law degree.  I don’t know if he’s admitted to any bars, but he had a small company that had done this before, he had gotten referred. They retained him. They were actually working on ordinances first before the constitution, because again, the court mandate.  The court administrator, the job duties, that whole thing.  And when it came down to drafting the constitution, he sat down with the committee, asked them what they wanted, what they were looking for.  They gave it to him, and he came back with the first draft, and they started doing their draft revisions and all that.           

What do you recall of the early committee members, Charlie Terrance, people like that?

Charlie Terrance, Harry Benedict, Alma Ransom, Hilda Smoke used to stop in, Nummie [Norman Tarbell] used to stop in, Phil [Tarbell] was I think a committee member. There was a whole list of them.  Ben Kelly.  They got on the committee because I think they wanted to see the system reformed.  I think that’s what was motivating them.  You got to throw in everything else that was going in at the time, that’s what kept I think the attendance at the meeting so high.  The gaming thing.  You’re coming off 1990, two deaths, this was what, three, four years later at the most?  You had what they thought were tribal council chiefs signing away the reserve to jump on board with certain gaming companies, it just added fuel to the fire.

What involvement did the chiefs have at the time?

Minimal is what I can remember because they would stop in from time to time to see what was going on, where it was in the process.

Who were they?  Was it Dave [Jacobs]?

Dave, Lincoln (White), John (Loran)…let me see who else…

Did they ever give any input?

Yes.  There was a lot of minutes.  Tracy was real good at keeping minutes. There was a lot of back and forth between ideas and issues, of what should be in there, what should not be in there.  Lot of public meetings.  

Where did the idea of having break it up into a legislature, an executive, and a judicial…?

I don’t know for sure.  I think it came from the initial sit-down between the committee members and Henry Flood.  

Did they actively look at the US Constitution?

I think it was nothing more than creatures of comfort…you’re comfortable with what you know, and that’s the way they went.  I can say that there was talks of parliamentary type, there was talks of parliamentary type elections.  There was talks about getting away from our “winner take all” elections.  Those discussions occurred, that I do remember.  So there was a lot of ideas put on the table.

When you drafted…

Not me!  The committee.

When they had the document, and this is what the chiefs asked me to kind of zero in on, was the whole thing about the 51%…

Oh God!  (Laughs.)

Which is the buggaboo.  How did that go from being a simple majority thing which is always how we did things…how did it…somebody put that specific language in there?  Do you remember?

Through committee discussions.  Because there was talk that they wanted 75%.  There was talk that a simple majority.  There was talk 50/50 plus one.  I remember all those conversations.

So did they equate 50/50 plus one to be 51% ?

I think it was a conscious thing at 51% after a while.  But they had discussions on that, numerous discussions on that.

This is before the vote happened?

Way before the vote happened.

While they’re drafting the document?

Yeah, ‘92, ‘93, ‘94...from what I can recollect of those meetings.

So then after the vote was held…and I don’t know what nerd brought out the calculator…and said “Wait a minute, we don‘t have 51%!”  How did that go over?  From the minutes that I saw, it was like the majority were shrugging, like “So what?  Whatever.”

It was mixed, and it was mixed right from the get-go.  There was a lot of good discussions.  The minutes you got, and this was an interesting thing, the only reason those minutes exist is because Carol (Herne) was there, and Carol brought the recorder in, to record, and that was only one meeting of what I can recollect were many meetings.  After the vote, I think it was the following Monday, the constitution committee was brought back in and had numerous meetings starting on that date. “What’s this mean?  Where do we go?  Who makes the decision?”  All that was brought to the table.

Was there any…my understanding was that with the existing system that you already had, three demigods sitting there, their signature…and it didn’t even matter what it said on the document, about how it passed or not, until they signed it, it wouldn’t go.

Two out of three.

So the whole point of the 51% was a lot of verbiage as far as I could see, and it had to get their signature, and they decided, “Yeah, it’s close enough.  You can’t see it from the road, let’s sign it.”

Yeah, two out of three.

And later, it seemed to me, that 51% became the trench in the Death Star that they were able to blow it up with.

I think there’s more to the story than that.   I honestly believe there’s more to the story than that. People get involved in the political process for two reasons: either you want to make things happen, or you want to make sure things don’t happen.  That’s what happened to the constitution.  I think the votes it got, the people who were involved, they wanted to change the system.  And there’s still—did you go to last Saturday’s meeting?—you can’t sit there and go to last Saturday’s meeting and tell me there’s people who don’t want to change the system, because it’s not true.  They’re looking for the same thing what I can remember the committee looking for.  They’re looking for transparency.  They’re looking for accountability.  They’re looking for responsibility.  They’re looking for a means to get a person out of office when they’re not happy with them.  That’s still there today.  The council and the constitutional group can make a lot of great speeches, but when you step away from them and you look at the people that stay involved in the process,  they’re still looking for that.  I do recall one of the more poignant things that Charlie Terrance used to say: “This document isn’t for everyone.  It’s not intended to be for everyone.  It’s intended for this building.” And he would say that when we were sitting in the committee meeting rooms.  He’d say, “It’s to clean this place up.”  How prophetic have them words become?

What about the people that didn’t want it change? That like the system to be malleable, where you can buy a chief or whatever?  Have a puppet.  Do you think they had a big role in derailing the whole thing?  Did they actively do it or did they prop people up to do it?

Both.  Combination.  One of the interesting things, and I don’t know if you have enough leeway to do this, but what’s amazed me over the years is the money that poured in prior to that vote and that election, and the money that poured in after that vote and that election.  These are non-natives pouring in hundreds of thousands of dollars into the outcome of a tribal election because either they had a casino, they were in trouble with liquor, they got thrown out of a bingo palace, you go right down the whole list.   That should be brought out.  You can’t clean up the system without mentioning that.  That’s my view.  

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