Crow Tribal constitution

Flags flank an image of the Crow Tribal Constitution in the administration building in Crow Agency.

CASEY PAGE, Gazette Staff

With a reservation-wide vote on its tribal constitution scheduled for Saturday, the two branches of the Crow Tribe’s government are at odds over the future of the governing document for a tribal nation of more than 13,000.

In late July, the tribe’s Legislative branch filed a request for an injunction in tribal court against Chairman Alvin “A.J.” Not Afraid and more than a dozen other members of his eight-month-old administration. The tribal government’s lawmakers allege the new tribal chairman is exceeding his authority as the chief executive of the reservation, and that he is improperly appropriating public funds to hold a referendum questioning the legitimacy of the Crow Nation’s governing document.

The case is before Judge Thor Hoyte, who is expected to make a ruling either Friday or early next week.

Not Afraid said Wednesday the constitutional referendum is intended only to gauge the tribe’s level of support for a constitution he believes was improperly ratified 16 years ago. He likened the vote to a survey, the results of which will help him decide whether to recommend constitutional amendments to the legislature.

“As I talk to the people, the people have specifications; it’s not that they want to go back to the ’48 (tribal constitution), but the people want another process, if you will, that keeps the Chairman of the Crow and the legislative body accountable,” he said.

The ballot will also address the possibility of re-negotiating the terms of the Crow Tribe’s water rights compact with the state and federal government. It’s not clear how that process would proceed, however, since all three parties officially ratified the negotiated settlement five years ago.

In July 2001, the tribe’s Legislative Branch voted to repeal and replace the previous 1948 constitution, after the tribal members voted in favor of ratifying the new governing document. The Department of the Interior’s former Assistant Secretary of Indian Affairs, Neal McCaleb, formally approved the new government later that year.

Not Afraid, however, notes that the legislature’s meeting that day ended with a vote to render all business during that meeting “null and void.” Dawn Gray, attorney for the Legislative Branch, acknowledges that the claim is backed up by the official minutes of the meeting. But she contends that challenge has already struck down in previous rulings by the tribal court and the U.S. District Court in Billings.

Beyond that legal question, however, the tribal lawmakers argue that Not Afraid lacks the authority to hold the vote in the first place. The injunction alleges that the chairman’s actions rely instead on rules that existed previously under the 1948 document.

“We took an oath over the 2001 constitution, and we’re still operating under the 2001 constitution and we have a process to bring these constitutional contentions,” Speaker of the House Eric Birdinground said Thursday. He added, “If they do take a vote on Saturday, it will be illegal and will require another injunction if the chairman recognizes the vote.”

Not Afraid said he scheduled the vote two weeks ago, after receiving a petition signed by 100 tribal members. The 2001 constitution requires referendums and initiatives receive a much higher number of petition signatures before a vote can be taken — 25 percent of all qualified voters.

Despite spearheading the constitutional challenge, Not Afraid said his move is simply the fulfillment of a campaign promise to put the issue to a vote of the people.

“The way I view it, I would like the Crow people to reaffirm the 2001 (constitution), with amendments,” he said, adding that a vote upholding the existing law of the land would put the government “on stable ground.”

Both sides agree the current governing document is an imperfect one. But Birdinground believes those changes should be made under an existing process to ratify constitutional amendments, which was approved by both branches of government in 2004.

Polling places will be open in each of the Crow Reservation’s six districts on Saturday, from 9 a.m. to 8 p.m.

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Morning Reporter

General assignment reporter for the Billings Gazette.