I find myself in the ironic position of highlighting the great strides of tribal justice systems over the years for an ABA journal article while at the same time my own tribal government is in the throws of a constitutional crisis.
Recently, the Hopi Tribal Council managed to take out the entire tribal high court by resolution. The vice-chairman, who orchestrated the removal of our duly elected chairman, with the assistance of the formerly removed chairman, states that he plans to farm out our appellate judging to a regional intertribal appellate court. This, I believe, is an effort to remove the vice-chairman’s office and supporting members of the council from being immediately accountable to Hopi judges in a Hopi judicial system.
I must admit that despite the shortcomings of our governing document (originally drafted and pushed through by the U.S. Bureau of Indian Affairs in 1936), I never expected to see such a rapid deterioration of our key institutions and the rule of law. If this can happen at Hopi where we have had stable court system for over thirty years, it can happen to any tribal government operating under one of the Bureau’s governing document boilerplates. We should have reformed our constitution years ago and now we will have to take back our government.
The Hopi Tribe launched its tribal court under tribal law in 1972. Prior to that time the BIA ran its administrative court on the Hopi Reservation maintaining the Bureau’s version of law and order as defined in the Code of Federal Regulations. With the establishment of the Hopi Tribal Courts in 1972 and the appointment of trial and appellate court judges, both rule of law and the Hopi common law had begun to grow. I joined the court team in 1993 as a young law clerk to a longstanding trial judge and then later as the senior law clerk to the appellate court’s three-judge panel. I have also served as a pro tem judge on the high court since 2002. Since 1993 I have been fortunate to be a part of the growth of the Hopi common law which has blossomed to respect the sovereign villages, and to incorporate deeply held traditional values, while at the same time making court processes more transparent and reinforcing fundamental fairness at both the tribal and village levels.
If this can happen at Hopi where we have had stable court system for over thirty years, it can happen to any tribal government operating under one of the Bureau’s governing document boilerplates.
The recent Hopi Tribal Council action (Resolution H-075-2008) has freed me from my judicial duties and now makes it possible for me to speak openly about what I see as the core issues facing the Hopi government and our villages today. The political roller coaster of the past two years sheds significant light on the fact that government by resolution is bad government and that the time has come for targeted constitutional reform.
Some argue that the 1936 Hopi Constitution has never reflected Hopi/Tewa sentiments but the Hopi/Tewa people have re-adopted it three times with amendments since 1936 (in 1969, 1980 and 1993). The Tribal Council over the years has also passed more than 50 ordinances including rules governing elections and the establishment of the court system. However, within the last two years, each time the political tides have shifted (often by reshuffling council seats or by secret, last minute meetings), that particular group of council members has attempted to overwrite, without formally amending, well-considered constitutional provisions and ordinances relied upon by generations of Hopi/Tewa people and prior councils.
In the case of Benjamin Nuvamsa’s election to the office of chairman, there are procedures for challenging an election in the Election Ordinance that Resolution H-036-2007 sought to preempt. The council’s subsequent suspension resolutions naming Mr. Nuvamsa (H-074-2008) and Justice Lomayesva (H-075-2008), similarly seek to preempt Article V of the Hopi Constitution that sets out the only means by which the legislative branch may unseat members of the executive and judicial branches. Conveniently some of our council members argue that we do not have a constitutional separation of powers requiring the legislature to respect or follow a court’s finding that they have not followed their own rules (as set out in the constitution or in earlier ordinances and resolutions). I must point out that this is despite the fact that Hopi Councils in 1981 and 1996 reiterated their commitment to a separation of powers in Resolutions H-3-81 and H-14-96.
It is true that our Hopi Constitution lacks text vesting the judicial power in a separate judiciary and it is true that we must trust our legislators to follow their own stated commitment to that principle as a last resort. But I must ask - is this approach working? Are the current tribal council members being good trustees for us given the awesome powers that a one-branch government vests in its legislators? The original Hopi Constitution was drafted by BIA employees who saw themselves as the final check on tribal government corruption - a duty the BIA is no longer eager to involve itself in. Today they leave us to our own devices as a matter of respecting our right to self-govern. So it’s time for the Hopi and Tewa people to get to self-governing then.
We Hopis and Tewas need constitutional reform in three key areas: (1) creation of a separate but equal judicial branch to watch-dog that our legislature complies with our Constitution and our ordinances; (2) the setting of requirements for what it takes to legitimately enact and amend an ordinance in a transparent way, and describing what makes an ordinance different from a mere resolution; and (3) the memorializing of the right of the Villages to select and remove their representatives to Tribal Council pursuant to their local ways, standards and rules.
Under Hopi constitutional law the steps for constitutional reform are that: (1) Any Tribal Council member may propose the amendment at any meeting of the Council; (2) At a second meeting of the Council, the Council may vote to approve the amendment by a majority vote; (3) If the Council votes for the amendment then it is forwarded to the U.S. Secretary of the Interior with a request to call a referendum (to put it to the Hopi/Tewa membership for a vote); (4) The Secretary then calls for a vote; and (5) the amendment will be adopted if a majority of adult Hopi/Tewa members vote (with at least 30 percent of those entitled to vote voting).
The original drafters made our Constitution very difficult to amend but it can be done if the Hopi and Tewa public is committed to the task and is ready to make sure that our representatives get it done. Then we need to mobilize our voters. We should all remember that our tribal government is neither Hopi/Tewa in origin nor reflective of the full American model with checks and balances. We were sold a defective model which encourages, at its worst, unchecked power grabs and at its best, unaccountable day-to-day decision making.
Only we Hopi/Tewa people can fix our government. It is far better that we do it with courage now than to leave this mess with cowardice to our children.
Patricia Sekaquaptewa was a Pro Tem Justice on the Hopi Appellate Court since 2002.