Tribal Government in the Golden Age: Response to Mike Myers

Steve Russell

Mike Myers has, to steal a phrase from the late Russell Means, gone where white men fear to tread. Truth be told, Indians are a bit reluctant to wade into tribal governance issues themselves.

I wrote a book about it but it took me years to work up the courage. I did not think I lacked the political science chops or that the principles of political science do not apply to Indians. The problem was that there are hundreds of surviving cultures and my knowledge of them barely reaches double digits.

Like Mr. Myers, I’ve done lots of road trips though Indian country and I’ve also made contacts within the very small tribe of Indians employed by research universities. Like my travels and my contacts, digging in back numbers of most tribal newspapers I have read revealed serious institutional problems with tribal governance.

Indians are supposed to be in government-to-government relationships with Uncle Sam when their own relationships with their respective tribal governments consume a great deal of political energy. We don’t trust our own governments and we don’t trust Sam but either one seems more interested in our welfare than state governments. This is a recipe for political apathy and that cake is well baked.

If you see no governance problems in Indian country, go in peace. I don’t think you’ve been paying attention but you’ll excuse me if I want to discuss the problems with those who see the problems. I commend Mr. Myers’s op-ed to your attention and, from here forward, I’m going to assume you read his words because I’m merely crashing the party he started.

The United States Constitution works pretty well because it assumes that government often attracts persons for reasons unrelated to the public interest and because it is designed to govern a polity where the citizens don’t agree about very much and cultural differences abound.

I am as offended as Mr. Myers by the nonsense that been said about Indian governments before the Tainos discovered Columbus. Tribal constitutions were like the British constitution in that they were unwritten, but just as British courts bind themselves to unwritten principles, so had tribal decision makers.

I do not think Mr. Myers’s idea of return to tribal unwritten constitutions holds up in theory, because those understandings were reached over long periods of trial and error dedicated to governance among peoples of fairly homogeneous values.

Another theoretical problem is in his “model of the common factors that are the hallmark of original indigenous governance systems and processes.” Or maybe it’s a restatement of the problem above. A political unit that has successfully internalized all seven principles on his list needs no governance.

Representatives of families or clans or individuals who have internalized all seven principles need no checks and balances because their actions flow toward justice. As Martin Luther King, Jr. put it in Letter from the Birmingham Jail, all traditional leaders can be trusted to “Let justice roll down like waters and righteousness like a mighty stream.”

If that were a fair description of indigenous governance, (1) the particular procedures for decision-making would not matter and (2) indigenous governance could and would prosper alongside IRA constitutions and it would be from that traditional leadership that the IRA government would take its marching orders when it deals with the feds or the states or other tribal governments.

Getting to where the rubber meets the road, Mr. Myers asks, “Are elections the only valid form of democratic expression?”

Yes, they are, and Mr. Myers does not really disagree but rather asserts that the voting unit is not the individual but rather the nuclear family or the extended family or the clan.

Voting understood as some visible manifestation of the will of the voting unit (individual or otherwise) is absolutely necessary to democracy because even the philosopher-kings that have internalized the seven principles and can therefore be trusted still cannot read minds. If they could, you once more assume away the need for any governance at all.

But there are lots of ways to vote, and a secret ballot at fixed and predetermined intervals is not the only way. Consensus decisions are voting in the sense that the outcome keeps getting reimagined until nobody speaks (votes) against it.

The paragraph in Mr. Myer’s op-ed where he ticks off the disadvantages of elections could have been lifted from the discussions in The Federalist Papers about “factions.” All of us came of age observing a two party system, Republicans and Democrats. Before that, it was Whigs and Democrats. But the original revolutionaries did not argue for a two party system. The Federalist Party was thought to be the only vehicle necessary to implement the will of the people and succumbing to “factions” would lead to the results Mr. Myers describes.

Mr. Myers is right and the Federalists were right. The description is apt, and it would be why most democratic governments adopt the parliamentary form: proportional representation rather than two parties and elections any time there is no confidence in the government rather that at fixed intervals.

This is all irrelevant to indigenous governance because it’s all about dealing with “factions” and we had none. That statement is exceedingly unlikely, but I am not competent to opine about that many cultures and it really does not matter because polities that once were homogenous are no more.

First reason: the encroachment of Christianity, an aggressive belief system that demands allegiance to One True God who will tolerate no primitive superstition.

Second reason: colonial trade creating needs we never knew we had. I claim no superiority here. My people came too close for comfort to extinguishing the white tail deer taking skins for trade. Our traditional values would have made that impossible.

Third reason: well-founded disagreements about the “Goldilocks point” of assimilation—not too colonial and not too indigenous. Not everybody who wants to borrow something from colonial culture is a hang-around-the-fort and not everybody who resists some innovation is a primitive reprobate or a science denier.

I hope I may be excused for quoting Sir Winston Churchill because he didn’t really say this himself, but the attribution goes “democracy is the worst form of government except for all those other forms that have been tried from time to time.” That aphorism answers nothing, but it’s an excellent statement of the problem.

One place I differ with Mr. Myers is his assertion that there was a golden age before we discovered Europe when we had this and other governance problems whipped.

The Aztec Empire was terribly oppressive, which is why Cortez did not lack for Indian troops in his war to destroy it.

When the Spanish lost control of their livestock, the Great Plains became a much more desirable place, and we divided it up the way humans always have—by main force. That would be why Custer could have lived if he had listened to his scouts. Others resented how the Great Sioux Nation became great.

The Six Nations had very sophisticated democratic governance but arriving at it was difficult and the institutions the Six Nations created with great difficulty were fairly new when the colonists showed up. Actually, the first colonists met the Five Nations, and the confederacy was a work in progress interrupted.

I am confident predicting that we’ll not find an Indian nation now that is cohesive enough to produce a government without checks and balances that will satisfy all tribal citizens. While I’m not informed about tribal governance in Canada, there is nothing stopping a tribe in the U.S. from holding a constitutional convention and several have done so.

At their own constitutional conventions, tribal nations can solve the democracy puzzle however they wish. I think they should design their own governmental institutions as constitutional republics or parliamentary democracies or assemblies of the whole operating by consensus or by the principles of their governmental golden age if they had one.

My only predictions are that some tribal nations will fail and one size will never fit all.

Mike Myers has started an important conversation.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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