Drafting the Constitution
The criticism that the St. Regis Mohawk Tribe did not have a written constitution with checks and balances would never go away until it actually had one. Land disputes, which had always been handled by the chiefs, probably would have been less contentious throughout the years if the Tribal Council had a separate judiciary in place. Nevertheless, the Tribal Council was evolving…but perhaps not at the pace all would have liked. This evolution was hindered at times by the inherent weakness of the “2 out of 3” formula of power, whereby the yearly election often resulted in dramatic changes of policy.
The Membership Code was an example of this. It was passed by a resolution signed by Chiefs Julius Herne and Rosemary Bonaparte in May of 1986, but its implementation was suspended at the next monthly tribal meeting in a resolution signed by Chiefs Julius Herne and Lawrence Pyke. When Pyke was replaced by Brenda Lafrance at the next election, the resolution which suspended the implementation of the code was declared null and void by the Lafrance and Bonaparte, who also signed a resolution enacting rules and procedures governing the implementation of referendum votes at this time.119
In 1989, the St. Regis Mohawk Tribe began the work of creating a tribal police force to replace the one that had been dissolved during the Racquette Point crisis of the late 1970’s and early 1980’s. In 1990, the Tribe received funding from the BIA to establish a tribal court system to go along with the tribal police force.
Meanwhile, work continued on the much-needed tribal constitution. On March 25, 1993, the Constitution Committee met to discuss the latest draft. Members included Leonard V. Garrow, Charlie Terrance, Lois Thomas, Carol T. Herne, Marianne Bero, Tracy Terrance, Rosalie Jacobs, and Ben Kelly. From the minutes of this meeting, we find the opening statement by former Chief Leonard Garrow:
My intention was to go through this item (constitution) item by item and go through the entire document and if we are still satisfied with the content—we can adopt it here but then it has to go through the Tribal Council and the people. I am curious about what you thought about the workshop. I felt it was good but we have to remember where the instructor is coming from. Governments are still pushing for tribal constitutions and there are tribes out there in indian country that do not have constitutions. Whether the feds want it or not, it will happen…or maybe not. It would be good for us to help Carol Herne and Council. To me they are putting the cart before the horse; this constitution is more important.120
Carol T. Herne:
I approved of a lot of the things the instructor mentioned but I believe we should form our own constitution. It is good to look at other constitutions and see what they have in theirs but I would like to see some of our own language and feelings.121
I would still like a constitution. It would have to be acceptable to us and nobody else. Look at the U.S. Constitution; you can sit and read it and know what the original intent was. Nowadays there are lawyers who sit and study the US Constitution and come up with all different kinds of interpretations. What we have to remember is if we draft something up it has to be acceptable for our people and our judicial system. That is just my idea and I do not want to try and influence what you people might feel.
Look at the Quasi-sovereignty situation that we are in now. It shows how limited we are and whether we like it or not that is the way it is. The degree and severity of punishments will have to be given a great deal of consideration.122
By June of 1993, a referendum was held to see if the tribal membership supported the creation of a tribal constitution. The membership of the Tribe voted by a four-to-one margin— 626 to 137— to support this initiative. (28 of the 791ballots were void.)123
By December of 1993, two of the people who were tasked with the drafting of a constitution, Tracy Terrance and consultant Henry Flood, gave an update about their work at the monthly tribal meeting. Concerns expressed by community members covered a broad range of topics, from privacy of records to what would be required to pass the constitution and make changes to it as time went by.
HENRY FLOOD – There has to be 51% percent majority present voting. That means if 500 show up and 251 vote yes and 249 vote no, it is adopted, not to amend it however that it is a different power. To amend the constitution in the future 30% of registered voters who are valid on the rolls.
COMMUNITY MEMBER – Is it this constitution when adopted by the tribes qualified voters of the tribe which at least 30% of those entitled to vote have been certified as having voted.
HENRY FLOOD – It is only supposed to be only majority to adopt and 30% of the total voter list has to vote to amend. It is supposed to be majority to adopt.124
Some community members expressed concern about the transition of power from the old system to a new one, which the presenters suggested would take about six months.
RANDY CONNERS – This is abrupt though, if you look at it this abrupt. If there is anything that scares us is change. To do something like that in six months.
TRACY TERRANCE – We have been struggling for 20 years. Talking about whether or not we should have a constitution, look at all the problems we have been having. Are we going to sit on our hands that much longer.125
(As this history will show, some of those concerns would prove to be well-founded, as the magical number, 51%—the percentage of votes needed to pass the constitution—would come back to haunt tribal members with its exact meaning for the next ten years.)
On September 15, 1994, members of the Constitution Committee met with Chiefs Norman Tarbell and Phil Tarbell to discuss their progress. Present were the committee’s chairman, Charlie Terrance, and committee members Lois Thomas, Alma Ransom, Lincoln White, and Harry Benedict. (Committee member Ben Kelly, Sr. was absent.) Also present were the tribal employees assigned to the project, Tracy Terrance and P.J. Herne.
Highlights from the meeting minutes reveal that the driving force behind the constitution was the need to change the way the St. Regis Mohawk Tribal Council conducted business.
After P.J. Herne led an initial discussion about a community survey the committee conducted, the senior chief of the Tribal Council, Norman Tarbell, suggested that some of the changes should be implemented in stages instead of all at once: “You’re going to find opposition to it,” he said. Herne suggested that concerns about it could be addressed in a survey. Tarbell agreed. “Well let the voters out there decide.”126
Former Chief Lincoln White:
Gentlemen: I’ve served periodically as Chairman of this group here and we certainly don’t know all the answers, don’t even know the questions. But, I think that the one thing that’s missing, I think you’re talking about it now, is that, if you can give us…I’m talking (the) committee here, give us a critique, an evaluation or some suggestions as to how we can put into a proposed constitution, checks and balances, with the current structure that you have. To eliminate, absolutely eliminate the difficulties that we had last year where we had no checks and balances: Two against One, Two against One, Two against One and sort of a dictatorial situation where we’re in a midst, otherwise we’d have a lot of things going for us now. That’s where the cry is.127
And in the general community, they like that, they want a change. They want a change to eliminate this thing we’ve had for a number of years.128
…the committee that sits here is doing it because we think it’s important. And we are getting a lot of feedback from people that will never be able to speak in the middle of the Tribal Council meeting here. We hear from people like that to say that this is so important because we’re at a loss. You’ve been Head Chief before, all hell breaks loose and its all your fault. You know where a lot of the decision and hassles could be shared by those people and you wouldn’t have to take all the negative stuff, because you never hear the good stuff. Nobody ever comes back and tells you. So that’s the thing is not so bad, is that you would be able to have support of your, either the sub-chiefs, the rest of the chiefs, or whatever the number changes, but it would take a lot of that heat away…You’ve been there before, you’ve had to tolerate all of the nonsense from the floor, whether its relevant or not, and it’s all your fault or his fault.129
Harry Benedict commented that the chiefs, who knew firsthand how bad things can get, should support the constitution:
It would help our efforts greatly if you got behind this thing and help us push it to the public. If the public (knows), you being elected officials, that you support this thing, then it’s going to make it that much easier to get it passed.130
Chief Phil Tarbell:
…I was as frustrated last year as the rest of you were! And I saw what we can physically do as a group in this country. Everything is right there in front of us! But we have to have a mechanism. And I’ll tell you personally, and Lincoln (White) will tell you, Norman (Tarbell) will tell you, and Charlie (Terrance) will tell you: we go into discussions with State of New York, into discussions with the federal government, and the one thing they always throw at us, “you guys don’t have a written constitution!” And that’s always, Lincoln’s nodding his head, you’re always treated differently, they look down at you, you don’t have those rules to operate under, and they pat you on the head. We have to take care of you because you don’t have this constitution…131
Charlie Terrance addressed the transition period from one form of government to the next:
You know I felt when we started this committee, this time. Being a former chief, I was thinking of the possibility of using the same system which we’ve had for a couple hundred years…This would not be such a shock to the people to change your government completely, to use the 3 Chiefs, the same elective system and the Head Chief being the Executive authority to have the other two, the second and third Chiefs in the council. And they would serve out their terms. They would still be considered Chiefs. But they, having knowledge of what has been going on, could put input into the structure of the sub-chiefs, which would form the council. I’m saying the second year and third year Chiefs, along with the three sub-chiefs would form that committee or council. I think I’ve mentioned this before. It’s a consideration. We’re not trying to take away your jobs, or your elective terms of office. But I think it might be a good idea to use that system instead of suddenly electing somebody who has no prior knowledge as a Head Chief. This way here, you will utilize the information that these people already have in to that council. Have the Head Chief act as this Executive officer.132
There was a lengthy discussion about the transitional period. The minutes reveal that a lot of careful thought had gone into the constitution and that special attention had been given to making the move from the Three Chief System to a constitutional government as smooth as possible.
The minutes also reveal that there already was opposition to the constitution in the community. Chief Phil Tarbell mentioned being “blind-sided” by members of the Longhouse.
Chief Phil Tarbell:
There was a blind-side also that was put on us as a result of the long house document that was circulating. Which I thought was unfounded. And I did approach whoever I thought put it together.133
They are really the only ones who object to this constitution. But at the same time134
Chief Phil Tarbell:
They have no alternative.135
They have no suggestions for the document itself. They are just going against the Tribe having their own constitution. And we should not let them object and prevent us from having our own constitution.136
Somebody from the Nation saw me in the parking lot here, and we had it out, and he said “you people are defining our borders”. I said, “the people on the other side of the border aren’t making any laws for us, we’re not making laws for them, we have to have some form of structure here and this is what we’re all about. We’re not applying any rules to people in Gibson or Deseronto, we’re not concerned about their welfare, it’s us. We’ve got a big thing coming down the pike and we need all the help we can get, and all the smarts of the sub-Chiefs to come in and help.”137
While it was true that Mohawk traditionalists had lined
the constitution from the beginning, opposition would also arise from
within the Tribe’s own constituents. Even some of its own authors would
have a change of heart about the document and become its most ardent
detractors. The winds are that strong in Mohawk country.