Claiming Turtle Mountain's Constitution: The History, Legacy, and Future of a Tribal Nation's Founding Documents

By Keith Richotte Jr.

For Professors: Free E-Exam Copies

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Aug 4, 2017
• ISBN: 9781469634524

Keith Richotte Jr.

Keith Richotte Jr. (Turtle Mountain Chippewa) is assistant professor of American studies at the University of North Carolina at Chapel Hill. He also proudly serves as an associate justice of the Turtle Mountain Tribal Court of Appeals.

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Claiming Turtle Mountain’s Constitution

Claiming Turtle Mountain’s Constitution

The History, Legacy, and Future of a Tribal Nation’s Founding Documents

Keith Richotte Jr.

The University of North Carolina Press   CHAPEL HILL

This book was published with the assistance of the Authors Fund of the University of North Carolina Press.

© 2017 Keith Richotte Jr.

All rights reserved

Set in Espinosa Nova Regular by Westchester Publishing Services

Manufactured in the United States of America

The University of North Carolina Press has been a member of the Green Press Initiative since 2003.

Library of Congress Cataloging-in-Publication Data

Names: Richotte, Keith, author.

Title: Claiming Turtle Mountain’s constitution : the history, legacy, and future of a tribal nation’s founding documents / Keith Richotte Jr.

Description: Chapel Hill : University of North Carolina Press, [2017] | Includes bibliographical references and index.

Identifiers: LCCN 2016055626 | ISBN 9781469634500 (cloth : alk. paper) | ISBN 9781469634517 (pbk : alk. paper) | ISBN 9781469634524 (ebook)

Subjects: LCSH: Turtle Mountain Band of Chippewa Indians of North Dakota—Politics and government. | Turtle Mountain Band of Chippewa Indians of North Dakota—History. | Indians of North America—Politics and government.

Classification: LCC E99.C6 R54 2017 | DDC 970.004/97—dc23 LC record available at https://lccn.loc.gov/2016055626

Cover illustration: We the Indians by Michelle Richotte.

To Jenny and Steven

The present and the future

Contents

Acknowledgments

Introduction

CHAPTER ONE

Green Setting Feather’s World

CHAPTER TWO

Little Shell II’s World

CHAPTER THREE

The Reservation

CHAPTER FOUR

The Ten-Cent Treaty

CHAPTER FIVE

The Aftermath

CHAPTER SIX

The Claim

CHAPTER SEVEN

The Constitution

Conclusion

Appendix 1. The 1932 Turtle Mountain Tribal Constitution

Appendix 2. The Current Turtle Mountain Tribal Constitution

Notes

Bibliography

Index

Illustrations and Map

ILLUSTRATIONS

Portrait of Chief Little Shell III   59

Ad including a picture of Robert Bruce, Galveston Daily News, April 23, 1926   130

Notice from the Executive Committee of the Chippewa Tribe, Turtle Mountain Star, July 2, 1931   134

MAP

Map of North Dakota with important markers   66

Acknowledgments

I highly suspect that any vaguely self-aware academic recognizes that it is comical to the point of absurdity to credit a work such as this to a single author. A great number of hands were involved in constructing this text at a number of different points along the journey. My first acknowledgment is that I will inevitably fail to properly acknowledge everyone who helped make this a book. Nor will I fully and accurately describe the tremendous aid I received from those whom I do acknowledge. Nonetheless, I am compelled to make the effort.

I want to thank the faculty and staff of the American Indian Studies and American Studies Departments at the University of Minnesota, as well as the professors in other departments who were instrumental in my intellectual development. I want to especially thank Jean O’Brien, without whom I would have neither this book nor my career. In addition, I want to thank the many colleagues that I made during my time at Minnesota. There are too many to list, but I do have to make special mention of H-Dawg, Murder J, and Crazy C, who know why they are acknowledged. I also want to thank the faculty and staff of the Indigenous Peoples Law and Policy Program at the University of Arizona School of Law. My time in Arizona was transformative and was a critical step for me. I want to especially thank Robert A. Williams Jr., who has shown me a kindness that I am still not sure that I deserve. I also want to thank Tom Biolsi, who has also been incredibly kind and outgoing in a manner that I likely also do not deserve.

I also want to thank the faculty and staff at my previous place of employment, the University of North Dakota School of Law, and at my current place of employment, the American Studies Department at the University of North Carolina. I want to especially thank Dean Kathryn Rand at UND Law, who was an ally and a friend from the moment I arrived at the Law School. I sincerely wish that I could have taught in one of the new classrooms. I also want to acknowledge the tremendous Indian Studies community at UNC. I have been fortunate to land at an institution with a wonderful collection of scholars and good people. And even though she left me for greener and rainier pastures, I need to thank Jean Dennison for tolerating regular lunches with me and for being a critical thinker, useful resource, and beneficial conversationalist.

I also want to thank the many archives and archivists that aided my research. I learned an immeasurable amount about being a scholar and a professional from visiting or otherwise interacting with the National Archives in Washington, DC; the Kansas City Branch of the National Archives; the State Historical Society of North Dakota; the Minnesota State Historical Society; the Special Collections section of the Wichita State University Library; and the Glenn A. Black Laboratory of Archeology at Indiana University.

There are others, and I apologize for not mentioning you with more specificity (or perhaps even at all). Please recognize that I do remember you and appreciate you. Most importantly, however, I want to thank my family. I promise not to take offense when you joke (or are perhaps deadly serious) that you never thought you would actually see this book. To be truthful, I was not always so sure myself. Regardless, I do love you and would not be the man I am without your support. Finally, I am overjoyed to take special note of my wife, Jenny Tone-Pah-Hote, and my son, Steven Preston Richotte. Words fail. Just know that, more than anybody else, I hope that you both are proud of this work.

Claiming Turtle Mountain’s Constitution

Introduction

On an otherwise pleasantly temperate day in the summer of 2009 I found myself trapped inside of a quiet, wood-paneled courtroom in Belcourt, North Dakota. I was on the Turtle Mountain Band of Chippewa Indians Reservation nervously awaiting an important argument before the tribal court. Like many who are called to court, I was afraid of an uncertain future and unsure of how the day’s events would unfold. Unlike many who are called to court, I was sitting in one of the judges’ seats.

I was about a half of a year into my first term as an associate justice on the Turtle Mountain Tribal Court of Appeals when the court needed to hold an emergency session on that summer day. The dispute was of a nature to insidiously foster some of the worst assumptions about tribal government: the tribal chairperson had sought to use his authority to remove the entire tribal council, and the council responded by seeking to use its authority to remove the chairperson.¹ As the dispassionate third branch of the government, my fellow justices and I were tasked with essentially deciding whether either the chairperson or the council was legally entitled to throw the other out of office.

Perhaps succumbing to some of the stereotypes that cases like this help to perpetuate, I skittishly wondered before the hearing whether my career as an associate justice was about to be over before it really began. Would I and/or the other justices be next on the list of those that some other branch of the government sought to remove? Luckily, as the hearing began, I was able to put my fears aside and, before long, it began to feel like just another one of the oral arguments to which I was quickly beginning to become accustomed. Ultimately, the court decided that the tribal constitution allowed for the council to pass an ordinance instituting a removal process, but that no such process was currently enacted within the Tribal Code—the body of law for the tribal nation. As a consequence, neither party’s attempts at removal were valid.² When it was all said and done, everyone got to keep their jobs, including me—as of this writing I am near the end of my second term as an associate justice.

The relatively benign conclusion to these events has allowed me to often render the case into a breezy anecdote about the potential pratfalls and tribulations of working in a tribal court. Nonetheless, ever since that summer day the case has always remained within a short reach from my consciousness for reasons that go far beyond providing me with a quick story to tell in the appropriate social situations. I have always been in concurrence with the decision that the court handed down, but it has never been the most memorable aspect of the case for me, nor the reason why the case continues to strike a rich chord for me. Whenever I think about the case what stands out for me are the oral arguments—what they contained, and, most importantly, what they lacked.

During the course of the oral arguments my fellow justices and I kept questioning the attorneys for both parties about the scope of the authority for the chairperson and the council under the tribal constitution. Much to my surprise, neither attorney seemed particularly interested in discussing the constitution. In fact, they steadfastly rebuffed our efforts, preferring to argue over whether the pertinent portion of a 1976 version of the Tribal Code—which contained removal procedures—was repealed and replaced by the pertinent portion of a 1997 version of the Tribal Code—which did not contain removal procedures.³ Resembling infatuated suitors, my fellow justices and I kept offering invitation after invitation to the attorneys to discuss the constitution and what it meant for their clients’ positions. Resembling disinterested prospects, the attorneys kept declining us.

In the moment I was bewildered by what I regarded as an incomplete, if not outright irresponsible, litigation strategy. Why would these lawyers seemingly go out of their way to avoid discussing the constitution’s role in defining the scope of authority of the other branches of government? As someone who was not only born and raised in the United States but legally trained as well, I found it deeply counterintuitive to ignore the document that ostensibly stood at the very center of the tribal government. In a dispute between two branches of government, how could both parties not immediately look to entrench their arguments within the document that established and defined what they were and what they could do?

With the benefit of some time, distance, and reflection, I eventually became mildly bewildered by my original bewilderment. As what I knew then about the constitutional history of the Turtle Mountain Band of Chippewa Indians grew even clearer, the litigation strategies employed by both parties, as well as the dispute itself, took a different shape and began to make more sense. As a licensed attorney and a person influenced by the mythos of the American Constitution, I was baffled by what I witnessed in the courtroom that summer day. As a tribal member, legal historian, and member of the court, I grew to recognize that I had been regarding the tribal constitution in a much different manner than it had been historically regarded within the community since its inception. As a scholar, I have come to understand how studying tribal constitutional histories can contribute to a greater understanding of tribal histories, contemporary tribal governance, and constitutionalism in general.

Put simply, Turtle Mountain’s story rejects facile narratives and gives one pause about how we might think about the place of constitutionalism within the whole of Native America. It challenges both historical and contemporary understandings of governance and governing documents not just at Turtle Mountain but throughout Indian Country. By examining Turtle Mountain, one can readily recognize similar patterns of behavior, causes of concern, and difficult quandaries that have faced and continue to face other tribal nations. Turtle Mountain’s story is a gateway to exploring what it meant to adopt a constitution and what it means to have a constitution today on reservations throughout the United States.

On October 8, 1932, members of the Turtle Mountain Band of Chippewa Indians were called together to vote on a constitution. On that chilly October day, the Indian Reorganization Act (IRA), the most influential piece of federal legislation concerning contemporary tribal constitutionalism, was still well over a year from being introduced into Congress and Indian Country, let alone passed into law. Although a handful of prominent groups representing the major constituencies and divisions on the reservation (and just off of it) were vying for varying degrees of authority—and even though at least one group had already proposed a constitution for the community—the people were not assembled to discuss a document created and prepared by one of the competing groups. Rather, they were called together by the newly instituted tribal superintendent to vote on a document that was heavily influenced by the federal government and that sought to further the aims of the policy era by controlling tribal political activism and expression under the yoke of the superintendent. The superintendent’s actions and aims were not rare; many superintendents on other reservations were seeking to assimilate and oppress tribal communities through federally sanctioned tribal constitutions prior to the IRA.

The community members who voted on the superintendent’s constitution that day were well aware of its deficiencies and that it did more to limit the tribal nation’s political authority than expand or refine it. And yet, when it came time to take a final vote, a large majority voted to adopt the superintendent’s document as the constitution for the tribal nation. Understanding why the people of Turtle Mountain made this seemingly counterintuitive choice is the key to understanding important aspects of the pre-IRA political history of Indian Country, contemporary tribal governance, and the role that tribal constitutions can play in current discussions and debates about American constitutionalism. Understanding Turtle Mountain’s decision also begins to explain other similarly seemingly counterproductive choices made elsewhere across Native America.

In short, the people of Turtle Mountain voted to adopt the superintendent’s constitution because they came to believe that the superintendent’s constitution was a mandatory component in furthering their decades-long pursuit of a lawsuit against the federal government. In fact, the superintendent made this very claim during the ratification meeting. Although earlier generations had strongly desired and worked toward a reservation and a treaty, they and later generations felt deeply aggrieved by the process by which the federal government ushered the reservation and treaty substitute (a negotiated agreement that resembled a treaty after Congress ended treaty making in 1871) into being. As a consequence, many within the community sought to rectify the wrongs that were committed during the reservation and treaty process through a lawsuit in American courts, although these efforts were not always unified and often revealed the divisions that still existed among the groups that became the Turtle Mountain Band. In the wake of the reservation and treaty substitute, the claim became the dominant political motivating factor on the reservation; so much so that the majority of voters on that October day in 1932 were willing to overlook or accept the deficiencies in the constitution if it promised furtherance on the claim.

Unfortunately and unsurprisingly, the benefits of the constitution, as with the reservation and treaty substitute itself, were severely curtailed by the burdens that it produced. The constitution did not function well as a governing document, and it did not lead to the much-desired claim. Despite this checkered record, the people of Turtle Mountain have been living with both a constitution and the legacy of this choice ever since that fateful day in October of 1932.

A thorough examination of the origins and enactment of the constitution of the Turtle Mountain Band of Chippewa Indians will accomplish three major goals, each of which can be helpfully labeled with a simple heading: context, history, and theory. The context goal addresses this work’s place in the discourse about American constitutionalism; the history goal reexamines previous conclusions about tribal constitutionalism and governance in the late nineteenth and early twentieth centuries; the theory goal establishes a foundation for a richer development of tribal political thought. Taken together, these three goals most fully maximize the utility of Turtle Mountain’s story throughout Native America and beyond. Each deserves further elaboration.

Concerning the context goal, this study will place tribal constitutions within the increasingly mainstream body of scholarly work that considers American constitutionalism and its various expressions beyond the U.S. Constitution. Whether it be state constitutions or even constitutions that failed or only existed with limited jurisdiction and for a short period of time, these works consider questions, challenges, and possibilities that remain obscured, limited, or impossible behind the veil of mythos that shrouds the U.S. Constitution.

One of the most important and prominent constitutional scholars of the last forty years, Sanford Levinson, has recently forcefully argued in favor of an expanded vision of constitutional study and insight in the United States. Levinson notes that, any consideration of American constitutionalism must pay ample attention to America’s other fifty constitutions, those of the states. These constitutions are also the result of reflection and choice.⁴ Emphasizing that each state constitution has its own lessons to impart, Levinson also critiques the tendency to unquestioningly assume the correctness of the federal constitutional structure. There is something to learn from the willingness of states to reflect on the adequacy of their existing constitutions and to do something about perceived deficiencies, in contrast to the all too rarely reflected upon U.S. Constitution.⁵ In his recent work, America’s Forgotten Constitutions, law professor Robert L. Tsai moves even further to the margins to better understand the development of American constitutionalism. Tsai examines eight constitutional moments of limited scope and duration—including the Sequoyah Constitution—to argue that these lesser-known, lesser-appreciated documents and movements give heretofore unrecognized insight to American constitutional history and thought. Tsai notes, The usual approach is to study the history of American constitutional law as the creation of a single coherent tradition, but that the awkward truth is that the American legal tradition is an untidy phenomenon.⁶ These lesser-known constitutions, according to Tsai, tear at the veil of mythos that shrouds the American Constitution, revealing a history that is dictated less by inevitability and self-evident correctness and more by choice, opportunity, and force of authority. By studying the U.S. Constitution’s ascendance through the eyes of the discontented, it becomes possible to observe the American constitutional tradition at war with itself.⁷

Sometimes more explicitly and sometimes less so, these two scholars and others essentially invite scholarship on tribal constitutions to the movement. Levinson writes, American Indian tribes have also contributed to the American constitutional fabric.⁸ Less directly, Tsai nonetheless explains the necessity of his study in a manner that practically demands the participation of studies of tribal constitutionalism: Constitution-writing experiences are valuable because they provide windows into raging ideological battles engaged by ordinary citizens … Americans who dared to resist the tide of history by drafting a constitution rendered some of the most coherent and vibrant theories of sovereignty around.⁹

This study joins the widening discourse of American constitutionalism by exploring the choices made by the people of Turtle Mountain with the goals that they had in mind and in the limited space in which they could be made. By asking what the founding fathers—and mothers!—at Turtle Mountain had in mind, as well as the limitations placed upon them, when they chose to ratify a constitution in 1932, we gain a greater understanding of why constitutionalism has had less success than many have hoped at Turtle Mountain and elsewhere in Indian Country. More generally, this study begins to explain the legacies that these documents have left within communities and what that portends for the likelihood of success of constitutional revision or reform. By revealing what was truly at stake in the moment of constitutional creation one sees how perceptions of constitutionalism have been shaped within Indian Country. Even more broadly, this study will challenge the assumptions about the rightness, wrongness, and inherentness of American constitutional beliefs and precepts in the same ways and in different ways that studies of state constitutions and other marginalized documents will challenge them. Ultimately, Turtle Mountain’s experience demonstrates how tribal constitutions offer a far-ranging set of opportunities to complicate, deepen, and enrich American constitutional thought.

Concerning the history goal, a study of the origin of the Turtle Mountain constitution will reorient Native political history through two means—reconceptualizing the centrality of the Indian Reorganization Act to tribal constitutionalism and placing the concerns and motivations of tribal members who voted on the constitution at the heart of analysis. Each method will more fully illuminate an era of tribal politics—the late nineteenth and early twentieth centuries—that remains understudied and ill-serving to the present.

This study will decenter the Indian Reorganization Act, the federal actors engaged in its creation and passage, and the federal efforts to implement the act in the current discourse about contemporary tribal constitutionalism. While undeniably important, influential, and worthy of additional study, the IRA is only one chapter of a longer story about contemporary tribal constitutionalism. Unfortunately, the scholarly attention upon IRA, as well as the co-contaminant focus on the federal actors who brought it into being, has unintentionally obscured not only those constitutions adopted outside of the IRA framework but also the tribal members who voted upon and made difficult choices about tribal constitutions both inside and outside of the IRA framework.

In the spring of 2015 I attended the Federal Bar Association’s 40th Annual Indian Law Conference. During a break in the proceedings I engaged in a typical conversation with a fellow attendee. I asked about his latest project, and he reciprocated by inquiring about what I was working on. Shortly into my explanation that I was writing about the origins of the Turtle Mountain constitution, he interrupted me with a wholly expected question: Didn’t the federal government just impose a bunch of IRA constitutions on tribes? As has become my custom in these all-too-common situations, I gently explained that there were dozens of tribal constitutions enacted before the IRA, and that even when one considers IRA constitutions, the assertion that they were simply imposed on tribal nations neglects the considerations, choices, and agency that tribal peoples themselves understood and expressed in their votes to adopt or reject a constitution. The biggest gap in the discourse about tribal constitutions leaves out the people who actually voted on them, haphazardly papering over this critical perspective with a simplistic narrative that places all authority in the hands of federal officials.

When I finished my finely honed spiel, my colleague nodded in agreement, and I felt comfortable in assuming that I had won another convert. That which really seemed to bring him into the fold was the other means for reorienting Native political history: focusing on tribal peoples themselves and the choices that they made in the circumstances and era in which they made them. Closing the biggest gap in the discourse, where tribal peoples have been kept out of their own constitutional histories, adds a more useful analysis of an often-neglected realm of tribal political history. It provides historians and others with a more complete picture of a troubling yet dynamic time for Native people.

Testifying to the need for both means, one prominent textbook of tribal politics notes, Most commentators writing about Indian affairs, if they discuss indigenous governments at all, tend to skip from a description of traditional governing structures to the Indian Reorganization Act governments of the 1930s.… They assume that the intervening years were so cataclysmic for tribes that little was left in the way of traditional tribal governmental structures or Indian self-determination.¹⁰ While this is perhaps something of an oversimplification of the state of the conventional wisdom, it nonetheless encapsulates the sense within much scholarship that tribal peoples experienced little more than degradation, assimilation, and loss in the period of time that the textbook identifies—regularly described as the Allotment Era of federal Indian policy. Traditional tribal governments were thoroughly eroded if not otherwise completely quashed, as the story goes, with little to nothing left to fill the void until the federal government implemented the IRA.

To deny that the Allotment Era was a time of extreme and almost incalculable loss would be foolish, at best. Yet, to understand the Allotment Era as only operating upon Native peoples without any response worthy of note is to take a top-down approach that myopically looks past the people who lived at the time and the choices that they made, particularly concerning law and politics. For example, one need only consider the vast multitude of congressional acts that many different tribal nations sought in their efforts to sue the federal government prior to the Indian Claims Commission to realize that tribal peoples and communities were far from politically inert in the Allotment Era.¹¹ While this was a shaky, troublesome, uncertain time in which the federal government was actively trying to eliminate tribal nationhood, the peoples themselves responded in a multitude of ways that sought to maximize any and all of the legal and political authority that they could wrangle. Turtle Mountain’s history illustrates that while tribal communities were certainly acted upon by colonial forces in the Allotment Era, they did not merely accede to happenings of the day but made concerted choices about the political goals that were most important to the populace. Just as importantly, we also see that political acts that might look relatively uncomplicated or lacking in nuance in retrospect—such as voting on a constitution—can really be layered and full of many deeper considerations. Without Turtle Mountain’s story, and others like it, we remain incomplete in our understanding of the Allotment Era and in our understanding of the people who not only suffered through a bleak period in tribal history but made challenging decisions and left a continuing legacy throughout Native America to which we still react today.

By shifting the scholarly discourse in a manner that does not eliminate or discount the IRA and the federal officials who saw it to fruition, but rather replaces them at the center with the tribal members who thought about, struggled with, and ultimately decided upon constitutions both inside and outside of the IRA framework, we make a number of necessary shifts. We move away from the limited and limiting conversation about the efficacy of the IRA, we gain greater historical perspectives by recognizing the agency expressed by tribal peoples in the Allotment Era, and we create a space to link present discontent with tribal governments and constitutions with past decisions within the community that have remained both relevant and hidden in the here and now.

Concerning the theory goal, a study of the origins of the Turtle Mountain constitution will establish the necessary foundation upon which to further build tribal constitutional methodologies and an Indigenous Legal Theory. The theory and process must be deeply rooted in historical political knowledge in order to achieve maximum efficiency when it moves from the ivory tower down to where the rubber meets the road.

We are living in a moment when many tribal nations are at least considering constitutional reform.¹² Led by the Native Nations Institute at the University of Arizona, the scholarship that seeks to aid these efforts tends, quite understandably, to resemble something akin to a best practices model that limits the intimidatingly large range of choices a tribal nation faces when considering constitutional reform into a more manageable subset that has had proven success elsewhere.¹³

Among the many suggestions that this vein of scholarship makes, perhaps the most difficult to articulate and implement is that there be a cultural match—a fit between the formal organization of governance and people’s beliefs about how authority should be organized and exercised.¹⁴ Those who advocate for a cultural match are quick to note that it is not a naïve call to return to an idealized past uncontaminated by colonialism, where tribal nations reclaim their authentic, traditional governing structures. Rather, "The crucial issue is the degree of match or mismatch between formal governing institutions and today’s Indigenous ideas—whether these are survivals from older traditions or products of the nation’s contemporary experience—about the appropriate form and organization of political power."¹⁵

As anthropologist Jean Dennison has demonstrated, the emphasis on "today’s Indigenous ideas" of governance is well placed if one seeks to give the notion of cultural match its fullest opportunity for success.¹⁶ As any group of humans, Native peoples change, adapt, and respond to the world in which they live, creating evolving cosmologies that, by their very nature, reject the conception of the unsullied purity of the past. That which seems traditional or foundational to Native identity today—for example, powwows, jingle dresses, and fry bread—would have been foreign to those of not so many generations ago.

This study demonstrates how to maximize the efforts at a cultural match in those places seeking to engage in constitutional reform. To best understand the nation’s contemporary experience, it is necessary to understand how and why contemporary viewpoints about the tribal government and constitution developed. These tribal systems were not established in a vacuum, nor were they merely the products of federal officials who imposed them upon communities. The tribal constitutions that many nations are considering replacing are the products of choices by an older generation of the nation, and those choices and the documents have left a traceable legacy. Any effort at reform and at a cultural match in a proposed alternative requires understanding how and why the relationship between a constitution and a tribal nation developed in the first place.

Similarly, to the extent that scholars are studying and developing theory that not only critiques colonial law that is placed upon indigenous peoples but are also articulating and creating legal theory that emerges from indigenous epistemological understandings of justice, rights, order, equality, and other legal and social matters, it must rest upon the history of indigenous legal experience. Thus, the theory must include and be based upon not only that which we (troublesomely) often label traditional knowledge about what could be considered law, but also the legal structures put in place by tribal communities in more recent times—such as constitutions—as well as the history and development of those legal structures.

In a recent essay, legal scholar Gordon Christie claimed, There is as yet no distinct and vibrant body of scholarship identifiable as Indigenous Legal Theory (ILT).¹⁷ This is also perhaps something of an oversimplification, as Christie himself seems to acknowledge.¹⁸ Nonetheless, a central tenet stands behind Christie’s useful contemplation of the many questions that confront a more robust development of Indigenous Legal Theory: Indian Country would be well served by more scholars engaging in the important work of theorizing indigenous perspectives of the law and its function. Christie notes, Whether engaged in a project meant to be primarily descriptive or one centered more directly on presenting essentially prescriptive outcomes, the Indigenous legal scholar will be building explanations of legal systems or concepts as these speak from and relate to Indigenous communities and individuals.¹⁹

One recent text that responds to Christie begins to make clear how central knowing the history of a tribal nation’s political and constitutional history is to developing the theory. Raymond D. Austin’s Navajo Courts and Navajo Common Law is a descriptive analysis of three foundational Navajo principles that guide what Austin identifies as the Navajo common law.²⁰ In this work, Austin, a former associate justice on the Navajo Supreme Court, echoes Christie’s call, noting, American Indians must understand the intricacies of their own traditional ways and powers inherent in their philosophies, customs, and traditions in order to garner benefits from them.²¹

Prior to describing these three foundational principles, Austin foregrounds the entirety of the text with a history of the Navajo nation and its political development. His reasoning for doing so reveals the inexorable link between knowledge of the community’s political history and the development of an effective theoretical construct: Navajo jurisprudence is better understood if one has some basic knowledge of the history … of the Navajo people.²² This history provides the context for why Austin and others have done so much work in developing, articulating, and implementing Navajo common law; it is in response to a number of historical factors, including the destructive and assimilative federal efforts in the Allotment Era, the termination policies in the mid-twentieth century, and political corruption within the community in the later twentieth century, to name a few.²³ With this background, one better understands not just the foundational principles that Austin describes, but why he chose these particular principles and why he and the courts have worked so diligently on them.

This study establishes a critical launching point from which theorists and reformers can most fully develop the ideas and techniques that will aid and explain tribal governance in the present at Turtle Mountain and elsewhere in Indian Country as well as how tribal knowledge and experiences can speak to the community itself and to others. This difficult but necessary work has to begin with an understanding of not just traditional knowledge but with a tribal nation’s political history as well. And that history itself will be incomplete if it only contemplates traditional governing structures, yet lacks a serious contemplation of more contemporary governing structures—such as those established by pre-IRA or IRA constitutions. The theory called for by Christie and produced by Austin and the Native Nations Institute requires that we ask and answer why the people of Turtle Mountain decided to ratify the superintendent’s constitution.

To achieve the context, history, and theory goals, this study traces the political history of the Turtle Mountain Band of Chippewa Indians from the origins of the tribal nation through the enactment of its first constitution. Chapter 1 briefly describes the parent groups of the Turtle Mountain Band—the Plains Ojibwe and the Métis—and the often cooperative, sometimes contentious nature of their relationship. Chapter 2 describes the early treaty and social history that defined the political stakes for the Plains Ojibwe and Métis into the future. Chapter 3 describes the establishment of the reservation and how that process laid a foundation for first the claim and eventually the constitution. Chapter 4 identifies how the negotiations for a treaty substitute exposed the cracks within the community and disrupted the leadership structure at Turtle Mountain, while the treaty substitute itself further established grounds for a claim against the federal government. Chapter 5 articulates the aftermath of the establishment of the reservation and treaty substitute, the difficult conditions on the reservation and elsewhere, the myriad ways the people of Turtle Mountain were subject to coercion and continued threat, and the ways in which members of the community responded to the conditions in which they found themselves. Chapter 6 describes the community’s strong desire for a claim against the United States and the various efforts toward a claim, beginning shortly after the establishment of the reservation and continuing through the ratification of the constitution. Chapter 7 details the adoption of the superintendent’s constitution, the various groups vying for power at the time, and the community’s reaction and decision on the IRA.

Interestingly, a study of the origin of the Turtle Mountain Constitution faces a remarkably similar major problem to any study of the U.S. Constitution: the fact that firsthand sources are challenging, frustrating, and limited. Scholars of the U.S. Constitutional Convention have had to make much from James Madison’s notes and the notes of a few others, none of which provides a complete transcript or nearly as much detail or information as one would like.²⁴ Unfortunately, firsthand resources of the 1932 Turtle Mountain Constitution are even more deficient. The challenging nature of firsthand and other primary sources concerning Turtle Mountain is further exacerbated by their creators. Madison and others producing primary documents surrounding the U.S. Constitution were decidedly of the class of political elites who were creating, debating, and ratifying the document. More colloquially, they were insiders. Most of the primary sources about Turtle Mountain’s 1932 constitution were written by non-Natives who, if they detailed tribal thoughts or reactions to the events of the day at all, did so through their own filtered perspectives. The producers of these primary sources were, again colloquially, outsiders.

Fortunately, Indian studies scholars have developed ethnohistorical approaches to similarly challenging source materials in other contexts. Two of these techniques are most important to this study. First, scholars in this field have demonstrated how to critically read government documents, newspaper articles, and other primary sources produced by non-Natives to find the Native voice and perspective. These critical readings of the sources are not merely helpful, they are indispensable. As historian Rebecca Kugel has noted, An astonishing amount of material can be mined from documents whose purpose was rarely to provide [Native peoples] with a public forum. The written record, so often disparaged in Native American history as incapable of presenting the Native view, has proven itself remarkably able and revealing.²⁵ By reading the non-Native sources with an eye toward discerning tribal perspectives, a surprising number of voices and a robust picture of Turtle Mountain concerns with governance and other aspects of reservation life emerges. For example, frustrated letters from superintendents (of which I found many) often not only describe the irritations and consternations of the writer, but also the actions, exhortations, and motivations of the Native charges causing the superintendent’s discomfort. There is much to be found between the lines.

Second, scholars in the field have demonstrated how to sophisticatedly understand the Native primary sources that do exist. Again, challenges abound. These are generally less official sources, such as letters to the superintendent, that were routinely neglected and disregarded by earlier generations of scholars. Additionally, such sources might describe issues or grievances that, on first glance, may seem