The Tribal Constitution Unveiled
It should be noted that while the constitution committee worked on their document, the St. Regis Mohawk Tribal Council—Head Chief John S. Loran, Chief Norman J. Tarbell, and Chief Philip H. Tarbell—continued to strengthen their existing political infrastructure by passing the Tribal Law Development, Interpretation and Codification Procedures Act of 1994, and the Tribal Council Procedures Act of 1994.138 Before the year ended they passed the Judiciary Act of 1994.139
When the 12-page document, officially dubbed Constitution of the Saint Regis Mohawk Tribe On-kwa-ia-ne-ren-she-ra (Our Laws), was finally released to the public, it was found to contain details similar to other constitutions that had been developed for other governments throughout the native and non-native world. First of all, it began with a preamble that had been labored over by it’s Mohawk Thomas Jeffersons:
We, the members of the Saint Regis Mohawk Tribe, in order to secure to us and to our posterity the political and civil rights we possess from time immemorial; to guarantee individual rights and freedom of religion; to exercise the right to self-government; to promote the betterment of our tribe; to administer our affairs, both as a self-governing body and as a proprietor of our tribal assets, to maintain our tribal customs and traditions; to utilize, increase and protect our tribal resources; to secure educational advantages and vocational opportunities, do ordain and establish this Constitution.140
This was followed by the first article, which dealt with the name, organization, and jurisdiction of the St. Regis Mohawk Tribal Council, as well as coverage of Mohawk laws, and residency of non-members on Mohawk lands. The second article dealt with membership. The third dealt with the rights of members, broken up into two sections: individual rights and community rights. The fourth article covered civil rights. The fifth dealt with elections and voting and highlighted the significant changes that would be made to the structure of the government:
Section 6. Election of Officers. Elections of the Saint Regis Mohawk Tribe shall be held annually on the first Saturday in June. At the initial election held following the adoption of this Constitution, (June, 1996) qualified voters of the Saint Regis Mohawk Tribe shall by secret ballot elect two (2) members to the Tribal Council, a Tribal Chief, a Tribal Vice-Chief. Eligible voters must be duly enrolled members of the Saint Regis Mohawk Tribe and be at least eighteen (18) years of age. Enrolled members of the Saint Regis Mohawk Tribe are entitled to vote in Tribal elections by Absentee Ballot in accord with the Tribal Election Laws. The Tribal Chief and Vice Chief shall be elected for four year terms. The Tribal Clerk shall be elected to a three year term. The members of the Tribal Council shall be elected to staggered terms. The initial Tribal Council shall consist of not less than five (5) members but may be enlarged to seven (7) members as provided in Section 7 of this Article.
This article also contained provisions for vacancies as well as a list of qualifications for office. Candidates had to be “validly enrolled members on the American side of the Mohawk reservation.” They could not have been convicted of a felony under the Major Crimes Act in the past five years. They also had to be 30 years of age to run for Tribal Chief and at least 25 to run for Tribal Council and Tribal Clerk.142
That there was now a differentiation between Tribal Chief and members of the Tribal Council was introduced in Article VI: Division of the Powers of Tribal Government:
The Saint Regis Mohawk Tribal government shall be divided into three (3) separate and independent branches of government consisting of the Legislative, Executive and Judicial Departments. No person or group of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except as this Constitution may otherwise expressly direct or permit.143
These new divisions were outlined in Article VII: Executive Authority, Article VIII: Legislative Authority, Article IX: Tribal Clerk, and Article X: Judicial Authority.
The seventh article designated the Tribal Chief as the executive branch. It also called for the creation of a “Vice Chief” and described their terms of office:
(a) To oversee the administration and management of the tribal government.
(b) To have veto power over enactments of the Tribal Council.
(c) To oversee the carrying out of all laws, ordinances, resolutions and other enactments of the Tribal Council.
(d) To act as the official representative of the Tribe.
(e) To apply for or accept grants, cooperative agreements, and donations from any person, firm, Corporation, Foundation, foreign country, organization, State, local government or the United States, for the benefit of the tribe.
(f) With the approval of the Tribal Council, to appoint a Tribal Administrator, other officers and heads of government departments, who shall serve until replaced at the request of the Chief.
(g) To communicate to the Tribal Council the condition of the Tribe and recommend such other matters as the Chief shall deem appropriate.
(h) To call the Tribal Council into special session.
(i) To exercise all other powers delegated to the Chief by the Tribal Council.
The eighth article described the new legislative powers of the Tribal Council:
(a) To promote and protect the health, safety, education and general welfare of the Saint Regis Mohawk Tribe.
(b) To enact ordinances, and adopt resolutions not inconsistent with this Constitution, and to enforce the same;
(c) To negotiate with Tribes, Tribal Organizations, Federal, State, and Local Governments, and other entities;
(d) To charter subordinate organizations, including housing, financial and health boards, and to delegate to such organizations or to any subordinate boards or officials of the organizations, the power to manage the economic affairs and enterprises of the Saint Regis Mohawk Tribe, reserving the right to review any action taken by virtue of such delegated power;
(e) To establish a Tribal Education System exclusively for the benefit of its members and residents.
(f) To employ legal counsel, and fix compensation and fees. In fixing the compensation of counsel, cost plus a percentage of cost and success fee contracts are prohibited.
(g) To regulate its own procedures for the management of Tribal Council business through the adoption of ordinances and resolutions.
(h) To regulate the use and disposition of all land within the jurisdiction of the Tribe, Including but not limited to the enactment of ordinances providing for the manner of making, holding and revoking assignments of tribal lands or interests therein;
(i) To enact ordinances providing for the removal or exclusion of any nonmembers who may remain within the territory of the Tribe. Provided, that all actions of exclusion or removal shall be done by filing an action for removal in Tribal Court;
(j) To provide by ordinance for the establishment and regulation of organizations or entities, including public and private corporations, for any lawful purpose, which may be profit or non-profit-making.
(k) To borrow money and issue bonds and other evidences of indebtedness, for the public purposes of the Tribe, to issue both general obligation bonds and bonds secured by the revenues of specific income producing properties, and to qualify such bonds as tax exempt under the Internal Revenue Laws of the United States.
(l) To negotiate and Contract with the Federal, state, local and other governments; and with the councils and governing authorities of other Indian tribes, or Indian organizations, and private organizations, corporations and other entities.
(m) To levy and collect fees, general and special assessments from any member or other person, firm or entity residing on, or engaged in an activity on the lands of the Saint Regis Mohawk Tribe and to the lands of the Tribe, and to raise revenue for the needs of Tribe.
(n) To veto any sale disposition, lease or encumbrance of Tribal lands, interests in lands, or other tribal assets without the formal consent of the Tribe;
(o) To request the Secretary of the Interior to confer trust or reservation status on lands reserved for, granted to or purchased by the tribe;
(p) To advise the Secretary of the Interior or his representative on all activities that may affect the Saint Regis Mohawk Tribe, and on all appropriation estimates and Federal projects for the benefit of the Tribe before such estimates and projects are submitted to the Office of Management and Budget and to Congress;
(q) To provide by ordinance for the jurisdiction of the Tribe over Indian Child Welfare matters and all other domestic relations matters: and
(r) To conduct inquiries and hearing on the activities and performance of the Executive Branch of the government.
(s) To take action, not inconsistent with this constitution, which shall be necessary and proper to carry out the sovereign powers of the Saint Regis Mohawk Tribe.Section 2. Membership. The Tribal Council shall consist initially of five (5) elected members. The elected council shall elect a Chairman from among its members to preside at meetings of the Tribal Council.
Section 3. Term of Office. Council members shall be elected for three year terms.145
The ninth article designated the Tribal Clerk as a “Constitutional office” but did not specify which of the three branches it fell under. The tenth article dealt with the judicial branch of the tribal government:
Section 1. The Judiciary. The judicial power of the Saint Regis Mohawk Tribe shall be vested in the judicial branch of tribal government which shall consist of a Tribal Court, a Court of Appeals and such other lower courts as deemed necessary by the Tribal Council.
Section 2. Jurisdiction.
(a) Tribal Court. The Tribal Court shall have original jurisdiction extending to all cases, matters or controversies arising under this Constitution and the laws, ordinances, regulations, customs and judicial decisions of the Saint Regis Mohawk Tribe
(b) Court of Appeals. The Court of Appeals shall have both original and appellate jurisdiction. The Court of Appeals shall have jurisdiction to hear all appeals from the Tribal Court. Decisions of the Court of Appeals on all matters within its appellate jurisdiction shall be final.
(c) Peacemaker Court. The Peacemaker Court shall have such original and subject matter jurisdiction as may be authorized by the Saint Regis Mohawk Tribe Judiciary Act.
(a) Interpret, construe and apply the Constitution, laws and regulations of the Tribe.
(b) Declare the laws and regulations of the Saint Regis Mohawk Tribe void if such laws or regulations conflict with the Constitution.
(c) Issue injunctions, attachments, writs of mandamus, quo warranto, review, extradition, certiorari and prohibition, and to issue writs of habeas corpus upon petition by, or on behalf of any person held in actual custody.
(d) Establish court rules, forms and procedures for the Saint Regis Mohawk Tribal Courts except that the Tribal Council may enact a judiciary ordinance consistent with this Constitution.
Section 5. Election and Qualification of Judges
Tribal judges shall be elected for seven (7) year terms. Judges shall be at least twenty five (25) years old, of good moral character and not have been convicted of a felony within the past ten (10) years. Judges who run for office shall meet one or more of the following professional qualifications to be eligible to serve as a tribal judge:
(a) Graduation from an American law school accredited under the American Bar Association;
(b) Admission to practice law before any State or Federal Court;
(c) Previous experience as a magistrate or lay judge in any local or tribal court;
(d) Possession of an advanced degree with substantial law-related experience.
The Tribal Council in consultation with the Chief Judge of the Tribal Court shall implement the requirements of this section through a tribal ordinance.146
(It should be noted that although the tribal constitution mentioned the Tribal Court, it had already been created by earlier Tribal Council resolutions such as the Judiciary Act of 1994.)147
Article XI dealt with council meetings and official acts. It authorized the Tribal Council to hold regular, special and emergency meetings; pass permanent ordinances and temporary resolutions; outlined the form by which these decisions would be documented. It also called for public access and retention of the government’s records.
The tenth article provided something community members had desired for some time—a mechanism by which to recall errant officials other than waiting until their term expired!
ETHICS AND REMOVAL OF OFFICIALS
(a) Conviction by a Tribal, State or Federal Court of competent jurisdiction for the commission of a felony or serious misdemeanor:
(b) Conviction of any sex-related felony or misdemeanor
(c) Three (3) misdemeanor convictions, excluding traffic offenses, while serving on the Tribal Council.(d) Conviction in the Tribal Court for any offense in violation of the tribal ethics code where the penalty for such violation is removal from office.
Section 2. Due Process Consideration. Elected officials may not be suspended or removed from office unless the actions in question take place during the elected official’s term of office. All actions to suspend or remove an appointed or elected official of the Tribe shall be in accordance with the Saint Regis Mohawk laws which shall afford due process of law.148
Article XIII: Popular Participation in Tribal Government provided regulations for referendums, community-based petitions and initiatives, and the recall of elected officials. and tribal intergovernmental relations.
Article XIV: Tribal Intergovernmental Relations called for “self-determination” as the policy for all dealings with federal, state, local governments, and other tribal governments.
Article XV preserved “sovereign immunity” of the government, its officials and employees from lawsuits unless the tribe specifically waived those rights in any given case.
The last four articles of the constitution merit complete citation here:
AMENDMENTS TO THE CONSTITUTION
Ultimately, it would be this last article (and its requirement of a 51% approval) that would undermine the future of the document. This fatal flaw would undo years of hard work, create political turmoil, and result in the expenditure of millions of community dollars in legal fees.