FLAGSTAFF, Ariz. – Vine Deloria Jr. wrote in the introduction to his book, “Tribes, Treaties, and Constitutional Tribulations,” “American Indians … face the worst of all possible situations when they attempt to clarify their status and rights.”
The Navajo people arguably face the worst of the worst conditions because not only is their relationship to the federal government fraught with legal inconsistencies and ill-defined rights and responsibilities, their relationship to their own tribal government is equally confusing since the Navajo Nation does not have – and never has had – a constitution, a document that formally defines the relationship between the individual citizen and the governing body of a nation. The nation rejected a constitution that was presented to them by the U.S. government in the 1930s.
What promises to be the long and complex task of writing a constitution for the Navajo Nation may, as it goes forward, have important implications for all of Indian country.
A small group that includes former Navajo Nation presidents Peter MacDonald and Peterson Zah supports Ivan Gamble, of LeChee Chapter near Page, as he begins to negotiate the legal system’s requirements to get a referendum on the question of writing a Navajo constitution on the November ballot. In November, Navajo will also elect a president.
The referendum would simply ask the Navajo people if they approved a grass-roots process by which a constitution could be developed. The hitch is that federal law gives the Navajo Nation Council the responsibility of writing a constitution, and the council would need to cede that right to the people in order to proceed in the way that MacDonald and others believe is correct.
“We could do this without going through the referendum process by just holding meetings at the chapter houses,” MacDonald said, “But instead we want a referendum on the November ballot to give us an idea of how the people feel about writing a constitution.”
That the document should be written not just for the people, but by the people, is of critical importance to Gamble, who has been coordinating the effort.
“My belief is that the constitution should be created by the Navajo people, for the Navajo people and no one else,” he said.
Gamble applied to the Navajo Election Administration to have a carefully worded statement presented on the ballot, which people could approve or not. The statement is not itself a constitution, but rather an opportunity for the people to agree to go forward with writing a constitution. The statement on which Gamble wants people to vote reads, in part, “We as Dinetah declare the need for a Constitution Committee to be called, to create the Body on which the rights of Dinetah are founded.”
Gamble explained that the referendum language was crafted so that it could be accurately translated back and forth between Navajo and English so everyone would have equal access to its meaning. Gamble also said that the referendum purposely does not say anything at all about what the content of the constitution itself might be. That is the discussion that he believes should be held in every chapter house on Navajo, with representatives selected to build consensus and write a document that could then be ratified by the people and presented by the Navajo Nation Council to the U.S. Secretary of the Interior.
Zah said he is lending his name to the effort because he believes that elders should encourage younger people who want to become involved in tribal government and in resolving some of the challenging issues facing the Navajo people. “It is our responsibility as elderly people to support the young people. This is their government,” he said.
He also brought up a point that leads to the wider implications of what is happening. “I don’t know,” he said, “even if the word ‘constitution’ is the appropriate term. ‘Constitution’ has a meaning that implies a certain government structure. … Probably there is a better way for us to govern, and we need to look at options and alternative ways of governance.”
Zah pointed out that the federal government’s principles of governance are not necessarily those of other peoples, and that the very form of government that the United States foisted on Indian tribes in the 1930s during reorganization is the same one that the government is now trying to set up in Iraq.
“The United States is repeating the same mistakes they made with the American Indians,” he said. “The U.S. went in and conquered the Iraqi people, and now they’re saying here is a constitution you should have. It is identical to what they did with the American Indians. Should we be satisfied with that kind of approach?”
So where could a Navajo Nation constitutional effort lead? “So long as I was president I tried to assert tribal sovereignty to the best of my ability, trying to unshackle the Navajo Nation from the Bureau of Indian Affairs chains that have been holding us down for years,” MacDonald said.
Gamble expressed a similar point of view.
“For years tribes across the United States have been playing in a sandbox created by the BIA. The Navajo Nation is a nation with the sovereign power to create its own form of government. Once we create our constitution and the people approve it, hopefully we will have a smooth transition from a BIA form of government to a real Navajo Nation government,” he said.
The Navajo Election Administration declined to put the statement Gamble presented on the November ballot. The committee appealed to the Office of Hearing and Appeals. After a four-hour hearing, the office asked for further arguments on June 9. Gamble has represented the constitution supporters himself so far in the proceedings but feels they will need to hire an attorney if the case is referred to the Navajo Nation Supreme Court, which he expects will happen soon.