Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 6, 1 June 1993 — News from Washinston D.C. [ARTICLE+ILLUSTRATION]

News from Washinston D.C.

Mai Wakinekona Mai

by Paul Alexander Washington, D.C. Counsel for OHA

lngredients of a constitution — Part 2

Last month's eolumn began discussing the creation of a eonstitution. A modern native eonstitution for a native government usually covers: jurisdiction; membership; division of power between the nation/state or tribe/village: the make-up of the goveming bodies, including districts; elections, including removal, recall.

reterendum. and petition procedures: the powers of the governing institutions; special provisions. such as land assignments. land use, or cultural rights; a bi 11 of rights for the citizens; adoption procedures for the eon-

stitution; and the amendment process. •JURISDICTION includes the territory over whieh the govemment seeks to assert authority, the people subject to that authority and the range of powers that the govemment seeks to exercise. Statements of jurisdiction are often very broad and cover the full range of potential powers. A

narrow or very specific statement of jurisdiction might leave out things that may be necessary in the future. For example, the government's power to tax ineome was added to the U.S. Constitution by amendment. • MEMBERSHIP is often a very critical and controversial part of constitutions. It defines the criteria for citizenship

and frequently sets out the process or system to add new citizens. For native governments. this often involves the framers of the eonstitution setting out clear policies on how to reflect the nation's unique eultural and political

status in its membership. Many native govemments, particularly Indian tribes, use various blood quantum formulae. Others use a descendancy method, for example, everyone descended from a roll or from a certain time may be a member of the nation or tribe. The United States most often defers to a native government's

rules for membership, even where these rules might not be acceptable in the larger society. For example, some pueblos will allow membership only to ehildren of male tribal members, but not the children of female members, in cases of mixed marriages. This practice has held up in the federal courts. • DIVISION OF PO WERS refers to constitutions that describe a multi-layered system of government. The United States Constitution reflects a separation of powers between states and the federal government. For natives, this division of powers may take many forms. For example, self-goveming villages share power with the central government at the Hopi Nation in Arizona. In some native nations, there is a division of power between the general eouneil (voting members of the tribe) and the tribal eouneil (a governing body), whereby the general eouneil retains supervision over all major activities. For native Hawaiians, the division of powers section could be a plaee to address the role of eaeh of the islands, in terms of self-

governance, of loeal self-govem-ing entities similar to the homestead communities, or of other traditional native communities. • GENERAL ELECTION requirements are usually provided in constitutions, including: qualification of candidates, length of term of office, and staggered elections. Short electoral terms may make for instability, but excessively long terms run the risk of isolating elected officials from voters. Constitution arafters have ihe difficult task of developing a functional government that best reflects the eommunity needs. • REFERENDUM refers to a process by whieh voters ean require that a governmental action be brought before all the voters for approval or rejection. When a legislative item is brought to referendum, its effect is often suspended until a vote is taken. • PETITION (more commonly known in Hawai'i as initiative) refers to a process in whieh voters ean add their own legislative proposal to the ballot for all voters to approve or reject. Referendum and petition ean pro-

tect against arbitrary government; some or all devices may be appropriate in any given constitution. • RECALL AND REMOVAL provisions often provide protection against bad elected officials. Recall refers to a process where voters by petition and then eleetion remove an elected official. Removal usually refers to a process by whieh elected officials remove one of their own, often through impeachment and conviction process. Recall and removal are usually set up so that they don't cause instability every time political winds shift. Governing Bodies usually function in some combination of executive, legislative and judicial branches. In smaller tribal govemments, all three functions may reside in a single elected tribal eouneil. This arrangement, however, has been criticized by those who think an independent judieial branch of government assures fair govemment. To be continued.