Michael Lerma

May 12, 2008

Amer.Ind. Edu

Final Project

Navajo Constitution Feasibility Study

Introduction

Why Concepts: An Alternative to Syntax Error

What is the definition of the Navajo Constitution? The correct answer is that the reader has encountered a trick question: no such constitution currently exists that has been accepted by the Navajo nation. As such, someone interested in the posed question would have little choice than to consider all of the various proposals and opinions of what a Navajo constitution should look like. Such an endeavor is currently a tedious and distracting task which could be viewed as a “syntax” error. Syntax is defined as, “1 a: the way in which linguistic elements (as words) are put together to form constituents (as phrases or clauses) . . . 2: a connected or orderly system : harmonious arrangement of parts or elements”,(Merriam-Webster Inc. 2007). Typically a syntax error is associated with computer program language errors but, it is possible to use the syntax error analogy to gain insight regarding the reason why the Navajo Nation has failed to incorporate a constitution into its government.

Consider the second definition offered by Merriam-Webster: “a connected or orderly system : harmonious arrangement of parts or elements”,(Merriam-Webster Inc. 2007). Obviously, had policy makers within the Navajo nation believed that a string of English language words could come together in a fashion that would garner a “harmonious arrangement” of the “parts or elements” of Navajo culture, it is likely the question of what a Navajo constitution is would be a moot one. Instead, it appears that many times the Navajo nation policy makers have concluded that words in English are not capable of harmoniously stringing together the elements of Navajo culture necessary to create a satisfactory constitution. Recent efforts by individuals to write a Navajo constitution best frame the debate. A more culturally traditional argument against a constitution involves syntax error: the concept of a constitution is not an organic Navajo concept. Rather, constitutions are an anglo concept making them incapable of taking the “parts or elements” of Navajo culture and weaving those elements into harmony with an anglo outcome,(Kraker 2008). Yet, the current Navajo form of government still fails to satisfy all Navajo citizens. Consider the recent history of Navajo governance and note how there are patterns of “conceptual stretching” or taking a term and inflating its definition so vastly as to make the term meaningless or at least confusing to many Navajo citizens, (Sartori 1970).

Hardly a unique problem only witnessed in Navajo governance, the notion that terms are being asked to represent a greater diversity of applications is a phenomenon plaguing policy makers and academics of various disciplines. The roots of conceptual stretching can be traced back to the origins of colonialism itself. European colonizers felt compelled to stretch their western concepts of humanity to either include Indigenous people or exclude them. At the risk of broadly generalizing, the origins of Federal Indian Law in the United States of America details the debate on the existence of a soul with Indigenous people, (Getches, Wilkinson and Williams 1998). Although conceptual stretching was never indirectly (nor directly) tied to international colonial law, the fact of the matter is that various international actors (the Catholic Church, England, France,Portugal, Russia, and Spain), were forced to stretch their individual concept of what is human and what is heathen or soulless. Conceptual stretching occurred quite by accident as western academics for millennia assumed that their own ethnocentric languages could accurately represent cross-cultural concepts. Whenever a concept unknown to westerners was discovered by westerners, the gut reaction was to broaden a western concept that already existed so that it would expand and envelope the new concept. At least two recognized consequences of conceptual stretching are noteworthy here:

. . . conceptual stretching also represents a deliberate attempt to make [western] conceptualizations value free. Another concurrent explication is that conceptual [stretching] is largely a “boomerang effect” of the developing areas, i.e., a feedback on the Western categories of the diffuse polities of the Third World. (Sartori 1970)

Creating concepts free of cultural values may be impossible. One is hard pressed to consider the development of any democratic government without associating the resultant administrative body as a product of some Greek or otherwise Western culture. Secondly, the notion that not so value free governing principles have filtered into third world polities should force non-Westerners to have an academic “double take” when considering how U.S. governmental influence is just as powerful in the third world as it is in Navajo country. A brief history of the impact the United States has had on Navajo governance will explain how syntax error and conceptual stretching are relevant.

A Brief History of Modern Navajo Governance

Currently, the Navajo nation is governed by the “Navajo Tribal Code” which was first established in 1938 and is based loosely on the U.S. system of legislative/representative government, (Wilkins 1987). To be clear, the Navajo Tribal Code is NOT a constitution. The first opportunity for the Navajo nation to adopt a constitution came in 1935 in the wake of the Indian Reorganization Act of 1934. As an alternative to a constitution, a set of rules were instead adopted to govern the behavior of a Navajo tribal council. The rules created in 1935 were then collected and codified in 1962 into the first version of what is now called the Navajo Tribal Code and remains subject to amendment by the Navajo tribal council, (Wilkins 1987). Rather than record the origin of Navajo authority and link such authority as deriving from the Navajo citizenry, the Navajo tribal code instead derives its authority from a set of what modern day political sociologists might call norms and sanctions. Socially constructed norms and sanctions often are reflected in societies which choose not to record and codify rules in a form which resembles a European constitution. Rather, as is the case in Navajo governance, norms are unwritten and observed by tribal leaders and violations of such unwritten norms are subject to sanctioning when a norm is not followed as according to Navajo custom. By the mid-1930’s, the U.S. was more interested in promoting general reorganization of tribal governance which is why the Navajo nation first adopted the “Rules for the Navajo Tribal Council” in the first place, (Wilkins 1987). The theory of social constructivism may illuminate why the IRA era took place.

Once again, in an effort to universalize and generalize, the concept of “constitution” was stretched to fit the mode of governance used by the Navajo people prior to 1935. The theory of social constructivism holds that a form of governance is really the product of the subjective decision making of the leaders of a culture. As such, colonial governments socially constructed their own forms of government to include and rely on constitutional characteristics. Navajo’s of the IRA era, however, were skeptical of adopting such a scheme of governance and reasoned that the system of governance which pre-existed the rules for the Navajo Tribal Council worked better than a constitution would. It appears that John Collier, the commissioner of Indian Affairs of the era, compromised by stretching the definition of “rules” and “council” to fit the socially constructed norms and sanctions which already existed in Navajo country. While the above explains the origin of modern Navajo governance, it does not describe modern Navajo governance.

Building a Concept of Traditional Dine Governance

For all of its good, the peoplehood concept as it stands serves as a great advance in determining who is Indigenous. It is a great step forward compared to the currently used blood quantum method in which people are forced to use only one trait (blood quantum) to establish ties to an Indigenous tribe.5 These blood quantum designs are inherently colonial and, therefore, biased in favor of diminishing the actual population of American Indians. The blood quantum method also does not recognize a person if that person belongs to a tribe the Federal government does not recognize. Finally, such a design ignores the well known phenomena of “traditional” tribal members purposely evading being counted by census takers who visited the reservations. As such, we can neither be satisfied with just one or another scheme of determining Indigenousness. Rather, several need to be considered and combined in a systematic fashion that is transparent and replicable.

The Goertz method of concept development is a well developed model by which complex and ill defined terms can be properly represented and formally expressed in order to increase consistency in its use and make clear distinct characteristics. Based on the notion that deep knowledge of specific cases will aid in making concept building decisions, the Goertz model may be susceptible to selection bias yet, given its transparency in development, such a bias would be more easily pointed out by observers. Social science concept building is a method of social science inquiry created to disaggregate ill defined concepts in social sciences, (Goertz 2006). The most important benefit of this approach is that consistency in identification would more easily attained. Researchers would more easily catch their own inconsistencies, and readers could more easily replicate and build upon past research.

Relying on the rules of philosophical logic, the social science concept building method encompasses a number of tools meant to simultaneously keep logical arguments consistent and also clarify terms that are confusing or used very broadly. The basics of the concept building method involve breaking concepts into three levels of aggregation. The “basic” level is a name and can be as arbitrary or as precise as one wishes it to be. The actual meaning of the basic level term comes from other levels. The “secondary” level of a concept is put together as a set of necessary and/or sufficient conditions. Depending on the complexity of the concept, the number of secondary level necessary and/or sufficient conditions can expand to any number although too many conditions may be an indication that the concept is really two separate concepts. The secondary level conditions aggregate up to the presence or absence of the basic level concept. The data/indicator level is the basis for the entire concept allowing a researcher to tap into some observable condition. Concepts are most useful when they are built from the data/indicator level up meaning that careful thought is given to what the presence or absence of a condition really means. Other times, it may be necessary to build a concept from the middle outward. Concepts of Indigenousness are one such concept.

As will be stated time and again, the various decisions to be made concerning concept building will necessarily come from a researcher’s knowledge of the cases under scrutiny. Concerning Indigenousness, there cannot be a rebuilding of the concept from the data/indicator level up because so much of US policy was created to destroy such data/indicators. In fact, all of the data/indicators that once contributed to the presence of an Indigenous group or person were systematically replaced by a single trait; blood quantum. Since research on Indigenous identity has only now started to grapple with the realities of various inconsistent definitions as well as confusing usages of the term, it is now possible to build the concept of Indigenousness from the middle up and down. That is, a concept of Indigenousness must today be constructed first at the secondary level followed by a search for the proper use of data/indicators in the context of colonial and globalization activity. The best place to start a concept of Indigenousness is from the concept of peoplehood, (Holm, Pearson et al. 2003).

Build a concept of current state of constitution

Build a written concept

Continuum of IRA models

Ideal type of working model represented by 1

Ideal type of failure model represented by 0

Build a normative constitution model: Necessary and sufficient conditions would be based on current model, and ethnographic input at a later time

Future Research: Ethnographic Research for Necessary and Sufficient conditions

Conclusion

  1. What is a constitution? What does it serve? Its purpose? As someone says “It would serve as a “solution” to our common Navajo issues.” In some respects, that is hardly a reason.
  2. Build a concept model ala Goertz - method
  3. Does the Navajo Nation need a constitution? If not, why not? If we do, what are the pros and cons?
  4. Build a concept of current state of constitution
  5. Build a written concept

May not need a constitution because attempts have failed as many as three times. Is our current unwritten constitution by resolutions sufficient?Does the current Navajo Bill of Rights or the 1968 Indians Civil Rights Act genuinely serve the constitutional needs of the Navajo Nation?

  1. See 2a
  1. If we need it, what reasons would be accepted as legitimate by the Navajo people?
  2. To answer this question would likely require ethnographic research. Let’s relegate this section to future research.

Some public opinion says that Navajo Nation just needs it. If that is the case, will we adopt a constitution that is a mirror image of the US model constitution? Other Indians Nations who adopted the IRA model constitution, are they satisfied or not with that model?

  1. Find ideal types for IRA models
  2. Continuum of IRA models
  3. Ideal type of working model represented by 1
  4. Ideal type of failure model represented by 0
  1. If a constitutional model is to be developed that is “culturally relevant”, then what would it look like? In this context, what would culturally relevant mean? What steps should be developed within the Navajo Nation legislative process to make the constitutional adoption possible?
  2. Build a normative constitution model
  3. Necessary and sufficient conditions would be based on current model, and ethnographic input at a later time
  4. If there’s there to be any meaning to a Dine’ constitution, it should reflect a piece of organic document that will be our “Navajo” thinking, or speech, our planning, our life, our protection? How can such a model be achieved? How can such a model be designed to address issues most pressing to the Navajo Nation?
  5. Too general a question and is answered in the course of questions 1-4. Maybe can be used to conclude

Getches, David H., Charles F. Wilkinson, and Robert A. Williams. 1998. Cases and materials on Federal Indian law. St. Paul, Minn.: West Group.

Kraker, Daniel. 2008. "Navajo Seeks Support for Tribal Constitution." edited by National Public Radio/KNAU. Flagstaff: National Public Radio.

Merriam-Webster Inc. 2007. Merriam-Webster's dictionary and thesaurus. Springfield, Mass.: Merriam-Webster.

Sartori, Giovanni. 1970. "Concept Misformation in Comparative Politics." American Political Science Review 64:1033-1053.

Wilkins, David. 1987. Diné bibeehaz*áanii : a handbook of Navajo government. Tsaile, Ariz.: Navajo Community College Press.