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Reviews
| On the Drafting of Tribal Constitutions. By Felix S. Cohen. Edited by David E. Wilkins. Norman: University of Oklahoma Press, 2007. xxxii + 200 pp. Appendices, bibliography, and index. $34.95 (cloth).
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The most basic principle in federal Indian law is that those powers which are lawfully vested in an Indian tribe are neither delegated nor an affirmative grant of power by Congress but are inherently sovereign. The essential element of tribal sovereignty—the authority of each tribe to make its own laws according to its own form of government—has never been extinguished but has been notably eroded over time through Supreme Court decisions that diminished tribal status and federal policies leading to sweeping losses of Indian land ownership and the irreparable breakup of Indian families. To halt further erosion of tribal sovereignty and to help revitalize tribal governments and promote cultural and economic self-determination, Congress passed the Indian Reorganization Act (IRA) of 1934. To shore up weakened and destabilized tribal governments, the IRA provided that tribes could adopt constitutions that would, after approval by the secretary of the interior, be formally recognized by the federal government. Within ten years, scores of tribes had adopted IRA constitutions. |
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In his examination of Felix S. Cohen's "Basic Memorandum on Drafting of Tribal Constitutions," the central question for David E. Wilkins is whether Cohen—the much-lauded architect of the IRA—respected this fundamental legal premise and the pluralistic cultural and governing values of diverse tribal entities. In other words, did he disseminate his model constitution to newly organizing tribes with the goal of "forcing a constitutional uniformity" (p. xxii), which thereby effectively displaced extant traditional forms of tribal governance in another coercive assimilation maneuver by the federal government? Wilkins's preface to Cohen's previously unpublished "Basic Memorandum" and accompanying notes readily recognizes this controversy and the widespread criticisms of Cohen's boilerplate constitutions on the grounds that they were structurally deficient, subjected tribes to pervasive federal oversight, and eventually contributed to further weakening of tribal government stability as a consequence of their rushed implementation processes. Wilkins points out, however, that the historical record on tribal constitutional development is "fraught with uncertainty and ambiguity" (p. xxii), and he describes Cohen's personal efforts to educate himself about the cultural and political origins of tribal governing systems. Wilkins also finds evidence that Cohen merely intended his model constitution—a copy of which is included in the book's appendix—as an educational administrative aid to his staff and as a guide to tribes in crafting their own organic documents. Cohen's own introductory remarks to his "Basic Memorandum" indicate that it was intended as "useful suggestions to Indians engaged in drawing up constitutions" (p. 3). Moreover, Cohen specifically directed that the model constitution not be furnished to tribes since "so variable" is tribal self-government, "that no single constitution prepared by the Indian Office could possibly fit the varied need of the different Indian tribes" (p. 3). |
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Aside from the unsettled question of whether tribes actually were given model constitutions and instructed to use them in organizing their governments, Wilkins skillfully provides both an enlightened and intellectually probing perspective on one of the most significant legal reforms in federal Indian policy. Cohen's "Basic Memorandum," his notes on principles of governance, and comparisons with other tribal constitutions collectively demonstrate that not only did he truly understand and appreciate the vested autonomous and self-governing status of tribes, but also that he was intent on learning and incorporating traditional forms of governance into modern tribal constitutions. Moreover, the "Basic Memorandum" will be of strategic importance to contemporary tribal governments who are undertaking sweeping constitutional reforms and seeking to revitalize traditional forms and concepts of tribal governance. This book undoubtedly will garner Cohen new appreciation for his contribution to the revival and advancement of tribal sovereignty.
Patrice H. Kunesh
University of South Dakota
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