Constitutional Changes

By Luella Brien

The Crow Tribe of Indians repealed its 1948 Constitution and By-Laws in July 2001, replacing it with a Constitution designed to provide a stable and professional tribal government and provide due process and equal protection rights to the tribal membership. The Crow Constitution and By-Laws of 2001 establish three branches of government, the Executive, Legislative, and Judicial branches, for the governance of the Crow Tribe.

The new Constitution provides for a separation of powers to allow for a balance of power between branches and an independent Tribal Court. The powers of the Executive and Legislative branches are expressly enumerated in an attempt to provide orderly governance. Further, the terms of office for members of the Executive and Legislative branches have been lengthened to four years from the previous two year terms to achieve consistency in leadership. The Removal provisions for elected members of the Executive and Legislative branches have been revised to require cause and a higher voting quorum to further achieve stability and consistency of leadership.

The Crow Constitution provides for a separate and distinct Judicial Branch of Government that shall be specifically governed by the Crow Tribal Law and Order Code. The Crow Tribal Court, prior to the passage of the new Constitution, existed as an entity under the authority of the Crow Tribal Council. Without a separation of powers doctrine, the Tribal Council had final order authority over the Crow Tribal Court. The Tribal Council had the authority to review Tribal Court actions, which created a concern of political interference with the disposition of legal disputes.

Although numerous rulings from the Crow Tribal Court recognizing the sovereignty of the Crow Tribe have been upheld by the federal court system, the opportunity for political interference with the Court caused a lack of confidence that the Court was a fair and just forum for dispute resolution, particularly for non-Indian parties. Further, a lack of confidence in the Crow Tribal Court among potential litigants did not facilitate a business-friendly environment.

After recent revisions to the Crow Law and Order Code, passed by the Legislative Branch and approved by the Executive Branch, the Tribal Judges must possess either a juris doctorate degree or must have 5 years experience in a judicial system after passage of the Crow Tribal Bar Exam. After selection of a qualified candidate for a judgeship by the Executive, the Legislature will confirm the appointment after hearing to a life term. However, the judge may be removed for causes that are expressly stated in the Law and Order Code.

The development of a Tribal Court structure that brings professionalism to the judiciary and that stands independent of oversight by the Tribal Council will create an effective legal dispute resolution forum that, in turn, will facilitate a business-friendly environment. Such an environment should encourage economic development, effective law enforcement, and a heightened protection of the individual rights of tribal members.