A tale of two constitutions
Thu, 08/03/2017 - 5:00am admin
Crow government split after Chairman Not Afraid questions foundational document
By Andrew Turck / Big Horn County News
Sharp political lines were drawn Saturday between the Crow Legislative Branch and many members of Executive Branch leadership as they held competing general council meetings. Leaders from both meetings – located less than a mile apart in Crow Agency – stated they were working in the best interest of the people, drawing applause from their crowds.
A hand count of both meetings indicated there were about 200 people attending the Executive meeting and about 300 in the Legislative at one time. People were coming and going, however, and more than 800 plates of food were taken from the Legislative Branch-hosted feed.
On the Executive side at the Multipurpose Building, Chairman Alvin “A.J.” Not Afraid Jr. admitted to “opening a can of worms” when he called into question the tribe’s governing document, the 2001 Crow Constitution. He said it was important nonetheless for the tribe to address the issues of the past so they could progress into the future.
According Dr. Alden Big Man Jr., director for the Crow Tribe Water Resource Department, officials intend to distribute information on the 2001 Crow Constitution and Crow Tribe Water Rights Settlement Act of 2010. Then, they will let the general council vote whether to keep either document on Saturday, Aug. 12.
“Giving the power back to the people is Priority No. 1 for all of us,” Big Man said. “The biggest complaint I hear around [the Crow Reservation] is that ‘nobody listens to us,’ and I feel that way.
“We’ve seen our drug problem skyrocket. What are we doing about it? What part is legislation [playing]?”
On the Legislative side at a park along Makawasha Avenue, senators denounced Not Afraid’s actions as dangerous to the stability of the tribe. A legislature was added to the tribe’s 1948 Constitution, according to Not Afraid’s examination of meeting minutes, though it wasn’t an element in the original document as with the 2001 version.
Speaker of the House Eric Birdinground, mentioning that he swore an oath to uphold the 2001 Constitution when he was elected, said he wanted to dispel misinformation and update the public on the work senators were doing for the general council.
One example of legislative work was explained before the crowd by Sen. Harold Male Bear Stone, chairman for the Economic Development Committee. He plans to continue a push by former Chairman Darrin Old Coyote to “separate business from politics” through an entity called Apsaalooke Inc. Hiring – and firing – in that company would be based on skill, he said, and not subject to changing Executive administrations.
Coincidentally, both Bear Stone and Chairman Not Afraid stressed the importance of entrepreneurship for the future of tribal development.
In addition to providing information, the Legislative Branch drafted an injunction for tribal court against Not Afraid, his Executive Committee, and David “Davey” Turns Plenty and Jessica Old Elk.
Turns Plenty, following the vote for the 2001 Constitution, had been elected as chairman unofficially by a group of tribal members at the nearby rodeo grounds under the 1948 Constitution. In present day, Old Elk – also unofficially – was chosen as his secretary.
“Plaintiffs seek a permanent injunction against the defendants from using any tribal resources of the 2001 Constitution to…affirm the 1948 Constitution; to invalidate the 2001 Constitution; and to direct tribal resources outside the authority of the 2001 Constitution to ‘renegotiate’ the Settlement Act,” the injunction states. “Not only does this conduct violate the 2001 Constitution, such conduct also conflicts with the ratification vote of the people in 2011, federal law and tribal budget acts[.]”
The tribe’s general council voted for the present constitution by a margin of 670-449 on July 14, 2001, replacing the 1948 Constitution and establishing separate Executive, Legislative and Judicial branches with elected members.
Critics at the time stated the 2001 Constitution had been “ram-rodded” through when members were forced to vote publically, rather than by secret ballot. They also took issue with the fact that the new document didn’t allow members of the Legislative Branch to work for the tribe or any federal agency.
Former Vice Secretary Pauline Small, who in 1966 became the first woman to be elected to Crow tribal office, was less than pleased about the conditions present during the vote. Reflecting on the scene in a July 19, 2001 letter to the editor, she said administration officials refused to acknowledge her.
“In my 40 years as a Crow tribal politician, I have never seen a Crow tribal administration barricaded and surrounded by security officers, lined up shoulder-to-shoulder, from the Crow Tribal Council,” she wrote. “We never had a caged-in area for the administration to sit; we sat out in the open on the council floor.”
While the 2001 Constitution specifies the use of a secret ballot for petitions, initiatives and more, the 1948 version has additional options for voting including “by voice, standing [or] hand-raising.”
When Not Afraid read through the minutes of past council meetings, he said, he found that former Chairman Clifford Birdinground and the council’s tribal committee had decided to use the secret ballot method for all motions and business.
The 1948 Constitution, as explained by Not Afraid, requires an agenda to be submitted through the committee at least seven days before a meeting. An article published July 19, 2001 in the Big Horn County News stated that notice of the change should have been written 15 days before the meeting as per 1965 procedures.
The notice for the meeting to repeal the 1948 Constitution is dated July 3, 2001 – which falls under the seven days required by the original document, though not under the 15 required by 1965 rules.
Despite this possible oversight, tribal court stated in the 2005 case Beverly Greybull Huber v. Carl Venne et. al. that proper notice had been given prior to the meeting. Huber’s attempt to challenge the 2001 Constitution at the time, according to former Judge Angela Russell, was “untimely and must be dismissed with prejudice on that basis.”
For their July Quarterly Session, the Legislative Branch drafted a resolution upholding the 2001 Constitution that mentioned recognition of the document by former Assistant Secretary of Interior Neil McCaleb. When he recognized the document’s adoption and signed it in December 2001, the resolution states, it “‘removed any legal authority’ to continue under the 1948 Constitution.”
Not Afraid differed from the legislature in his outlook, citing an exchange with Darryl LeCounte, regional director for the Bureau of Indian Affairs in Billings. Due to questions regarding the drafting of the 2001 Constitution, Not Afraid said, LeCounte told him that, technically, both constitutions could be valid. When Not Afraid asked if he could “have that on tape,” he continued, LeCounte smiled.
“The Interior has no authority to approve the Crow Tribe’s constitution,” Not Afraid said as the crowd applauded. “It’s up to the people to approve that constitution.”
As for the Huber v. Venne case, Russell stated if approval from McCaleb “was required, it was obtained” and if not required, “acknowledgement was mere surplusage.”
“In either event,” she wrote, “this issue is not relevant to the matters now decided by this court.”
Next week’s issue of the Big Horn County News will examine the tribal response to the Water Rights Settlement Act of 2010.