Sovereignty Project Partners with Tribal Constitutions Project

Starting in Fall 2021, the NYU-Yale American Indian Sovereignty Project began working with Northwestern Professor of Law Erin Delaney and Northwestern Assistant Professor of Sociology Beth Red Bird on The Tribal Constitutions Project. Since then, numerous Sovereignty Project students and faculty have assisted in the evolution of this collaboration.

Delaney and Redbird started the Constitutions Project in order to examine the evolution of tribal sovereignty through constitutionalization. The project has access to over 2000 tribal constitutions—including original documents and subsequent amendments—that span a 150-year period. These constitutions draw from over 300 tribal nations.

In coordination with the Sovereignty Project, Delaney and Redbird and worked with students from across NYU and Yale to code each constitution and draw comparisons from across tribal nations, as they have with students at Northwestern and Harvard universities. Such comparative analysis reveals a series of themes in the development of tribal sovereignty.

First, the project considers the colonial origins of tribal constitutionalization. Many tribes adopted constitutions following the passage of the Indian Reorganization Act in 1934, a Congressional statute that began a series of reforms of federal Indian policy during the New Deal. While the IRA encouraged tribes to adopt constitutions through appropriations, the scholarly literature on IRA constitutions is unclear and often contradictory about the intentions of the federal government in enacting this legislation. Thus, the project aims to better understand the origins of these constitutions and their ultimate relationship with federal authority.

Second, the project seeks to understand the development of tribal citizenship. Tribal sovereignty includes the right of a tribe to define its citizenship; however, membership requirements have been heavily influenced by the imposed, racial constructs of “blood quantum” which were designed to reduce tribal enrollment and, in the process, create more available reservation lands for white settlement. The project traces evolving definitions of tribal citizenship.

Finally, the project examines the different ways legislative power is constructed in tribal constitutions. The structuring of legislative authority varies significantly across tribal communities. In some cases, legislative authority lies with all tribal members and in others it lies with delegated representatives. Often tribal legislation can be structured through tribal councils or delegated to subject-matter specific committees. The project will assess the impact different structures of legislative authority have had on the expansion as well as diminution of tribal sovereignty.

First year Yale Law School student Helen Malley is a member of the project’s law student research team. Most recently Malley has been coding constitutions and constitutional amendments for the Catawba and Cheyenne River Sioux tribes, a process which includes both textual quantitative and qualitative components. “One exciting part about working on this project has been seeing the coding document evolve over time, as we amend it to account for the nuances of the constitutions we’re coding,” explained Malley.

The database will be publicly accessible and searchable. All codes and findings will be accessible to tribal leaders to explore how other tribes are addressing a variety of shared issues. In addition, the team will create an interactive data visualization tool to allow policy makers and stake holders opportunities to explore the data in-depth. Delaney and Redbird also hope this project brings tribal governance into the scholarly discussion of comparative constitutional development. “I think this project will have significant implications for practical governance and constitution writing, as well as the broader field of comparative constitutional law,” said Malley.