“We the Indians of the Turtle Mountain Reservation…” rethinking tribal constitutionalism beyond the colonialist/revolutionary dialectic

Abstract

Using the Turtle Mountain Band of Chippewa Indians as a case study, this dissertation argues that the body of scholarship concerning tribal constitutionalism is artificially limited and cannot adequately explain the development of constitutionalism in Indian Country. Scholarship concerning tribal constitutionalism currently exists in what this dissertation calls a colonialist/revolutionary dialectic. The discourse within this dialectic is focused almost exclusively on an examination of the Indian Reorganization Act of 1934 (IRA). On the "colonialist" side of the dialectic, scholars argue that the IRA has forced a foreign form of government on tribes and that constitutionalism is another form of colonialism. On the "revolutionary" side, scholars argue that the IRA was a positive development in Indian Country that was not allowed to fulfill its potential. This narrow focus neglects to consider the choices made by tribal peoples themselves as it concerns their own constitutional histories. This dissertation examines four episodes in the constitutional history of the Turtle Mountain Band of Chippewa Indians. The first episode concerns the McCumber Agreement, or the Ten-Cent Treaty, as it was derisively nicknamed. Tribal discontent with the McCumber Agreement led the people of Turtle Mountain to seek out constitutionalism. The second episode concerns the first tribal constitution, ratified in 1932. While it was a compromised choice, the people of Turtle Mountain decided to adopt the 1932 constitution in order to attempt to begin a claim against the United States. The third episode concerns the second tribal constitution, ratified in 1959. This constitutional moment is an example of the community seeking to reclaim autonomy over their lives and their government during a particularly onerous social and policy period. The fourth episode concerns the efforts at constitutional reform in 2002 and 2003. During an era when constitutional reform has been a growing trend in Indian Country, the people of Turtle Mountain used their constitutional votes to express their displeasure with the activities of the tribal government and with an increasingly controversial tribal chairperson. None of these four episodes fits within the colonialist/revolutionary dialectic. As such, the case study of Turtle Mountain makes clear that the dialectic does not and cannot adequately explain the development of constitutionalism in Indian Country. The Turtle Mountain example provides scholars with an opportunity to reexamine the current discourse concerning tribal constitutionalism and allows scholars to develop a more complex, deeper, richer understanding of tribal constitutionalism and tribal government.