by James W. Zion

(Note: the following article has been edited and condensed from the original version of "The Code Development Process: Visioning Policy and Law" with the consent of the author).

Ada Pecos Melton (Jemez Pueblo) of American Indian Development Associates in Albuquerque speaks about "visioning" in the planning process. She makes the important point that if you are going to have a "vision" for your community to plan for the future, you must know a great deal about it in terms of geography, history, culture, and the wants and needs of the members of the community. However, even before that, you must take a look at the political decision-making process.

It is important to distinguish between "policy" and "law." Most Indian nations have councils or business committees as the political policy-making body that makes law. They are composed of leaders who are elected to office to do the business of the people. They are expected to make law and to exercise oversight over existing programs. The problem is, without knowledge of what it is the council or business committee is "seeing" when it exercises the oversight power, how can such a body make decisions?

Too often, a council will recognize a need and ask the tribal attorney to quickly draft a code to address that need. If the council says, "We are having problems with stray dogs, so we want a dog code," what does the attorney do? Most often the attorney will photocopy a state code or a municipal ordinance, retype it with the Indian nation's name, and present it to the council. The code, which is adopted, may not be realistic. It may provide for enforcement officers that the Indian nation cannot afford or call for fines that are unrealistic. Sometimes a council will look at a "model" code and cut out sections it does not like, only to find that the code has little meaning without the section that was cut. How can Indian leaders guide the process of code development so they know what is going on?

Indian nation councils and business committees make policy. That is, they decide the direction they feel is best for their nation. "Policy" is an act of identifying the problem you want to address, finding the choices that are available, listening to arguments about the better policy choice to make, and making decisions about the development of law and codes. "Law" means the actual law that the Indian nation chooses to adopt after the council or business committee makes its policy choices.

How do Indian nation leaders go about the process of making policy?

In the past, a federal government grant notice would arrive in the mail, and after it sat on someone's desk for a while, someone would be selected to write a grant proposal a day or two before the grant deadline. That person would simply write a grant package without having time to talk with the people who will implement the program, mail it off, and wait.

Leaders and planners should take a close look at their population. How many tribal members are within the reservation? How many live nearby in border towns or off-reservation service areas? How many non-member Indians are there? How many non-Indians are there? What are the ages of the people? Populations are listed in "age cohorts" of ten years, e.g. 0-9, 10-19, 20-29, etc. This is important because it tells you what kind of population you must serve. Many Indian nations have many young children. For example, half of the Navajo Nation population is under age 20; 41% is under age 18; and 25% is age 9 and younger. That is a very important planning consideration, because it means that you must serve the needs of a young population.

How many people are in the employment market and how many are unemployed? Often, tribal leaders may see the state or U.S. Labor Department statistic that 35% of tribal members are unemployed, while Bureau of Indian Affairs statistics may indicate that 70% are unemployed. Which figure is correct? The answer is "both." Labor department unemployment statistics are based on the number of people in the work force. That is people who have applied for jobs or are registered with the state employment office as looking for work. The unemployment figure comes from identifying how many people do not have jobs but are looking for work. The other figure comes from the total population, and it shows how many people are unemployed. That may include the elderly, children, and people whose income is from a public welfare program for the elderly, disabled, or poor.

What are the income levels of your population? What is the source of their income? This information is important because you will need to know who can afford different kinds of services and what they can pay. While most Indian nations do not have a personal tax for individuals, policy-makers need to know what they can afford when it comes to public services, housing, or other programs.

What are your social problems? Do the police report high rates of family violence, assaults, driving while intoxicated, or alcohol-related crime? Do you have gangs and vandalism? Planners need to be aware of social problems, as difficult as they may be to discuss, because they must be addressed as a factor in the planning process.

What is your history and culture? The people of different reservations may want to travel down different paths. That is, some Indian nations are "modern" and they may want to follow a municipal model of planning. That is, they may want to look at what similar non-Indian communities (in size and population) are doing.. Some Indian nations may be rural, remote, and maintain traditional ways. How many native-speaking members do you have? (This can be found from Census statistics.) Language retention is often a sign that traditional patterns are followed. Are there identified communities on your reservation? Who lives in those communities? Do people tend to live with groups of relatives? Does your community have religious practices where groups of people participate?

These are only a few of the things a good planner must consider when starting the planning process. Visioning enables leaders and planners to look into the future. It tells them what they have, what they do not have, and what they have to work with when it comes to a long-range vision of what should be done and what can be done. The next problem is the process of policy development and planning.

Transparency means keeping things in the open. It means letting people know what is going on. It means news and information. Letting the people know what is being proposed is a good way of finding out your mistakes before you make them. It is a good way to get information and to see if your plan will be acceptable. "Inclusiveness" means including everyone in the planning process who will help carry out the plan. That can include the people who will be served by the plan, relevant tribal programs, federal programs (including the Bureau of Indian Affairs in most instances), State agencies, and county government.

For example, if you are going to build a housing project in a rural area, is there existing police protection for the project?

Do you have an essentially non-Indian community within your reservation boundaries? What do its members think of the proposed plan or project? In the past, Indian nation councils have disregarded the views of non-Indians in their planning and that has been a mistake. Today, many non-Indians will challenge tribal jurisdiction on the ground that a given Indian nation cannot touch them. It is better to seek support for a project, showing how the proposal will benefit the non-Indian community. In addition, Indian nations may be able to seek and obtain the support of counties, cities, and the State for projects that will benefit everyone in the area. While there are still many difficulties to overcome in Indian-non-Indian relationships, there are new partnerships in and near Indian Country that are successful.

Transparency means getting the word out about what you are thinking of doing. It means informing people and agencies that will be involved and it means informing communities that will be affected. Inclusiveness means getting the views of those who will be affected by a plan. Planners can use door-to-door surveys, town meetings, focus groups, conferences, summits of leaders and other methods to make certain that everyone knows what is being done and that everyone's opinion and information are heard.

One of the difficulties in planning is a lack of money. Planning can be very expensive. There are some Indian nations that are small, do not receive a great deal of federal money, and do not have a large resource or tax base for income. On the other hand, States receive federal block grants for planning and community development and some states finance planning and community development initiatives from their general fund budgets. Many universities have programs that teach or research land use planning, community development, and similar subjects. Many cities and counties have planners who specialize in the given area.

Indian nation planners should consider those resources. They should also keep in mind that their tribal members are voters and have the right to public services as citizens of the State. One part of your "legal inventory" should be the identification of all possible resources in your area that are available to provide assistance.

Many State, county, and city politicians in or near Indian Country are aware of the power of the vote. Many have good feelings about the future of their community and region, and many universities have specialized programs that will help if they are asked.

There may be State or "model" codes available in the given area. Tribal leaders should be aware of the limitations of outside models.

There are advantages and disadvantages to adopting outside codes. Some of the advantages include having legislation which has survived challenges in court, passing a code which people know how to work with because others have used it, or adopting a law without controversy because it is generally acceptable. Some of the disadvantages include the fact that the outside code is too expensive to use, you cannot find qualified people to administer it, or it just won't work in your community.

A lawyer who is about to undertake code development should identify available drafting models. There are national associations and commissions that study and recommend "model" codes on a wide variety of subjects, and most such codes can be found in a law school library or a State law library. While attorneys should look for state codes in the subject area chosen by the policy-maker, attorneys should be aware that there might have been unacceptable political compromises made when the code was adopted. Attorneys who are working on new codes should always look at regional and national case decisions on the code, and law journal articles on the subject, to find out what challenges have been brought against the code and what problems there have been administering it. Often a visit with State officials who are administering a given code will be useful and save time and money. State attorneys who work with an agency that administers a code will often be able to help.

One of the difficulties with Indian nations adopting codes which are modeled after "model" or state codes is the fact that there are special twists and turns to code development in Indian country. Will the code apply to non-Indians? If the tribal court will be used to enforce the code in the event of litigation, will the court's code have to be amended to give it jurisdiction? Will the code apply to fee lands within the reservation? Will the code apply to an off-reservation "checkerboard" area? Does the council or business committee have the authority to adopt the proposed code? What is the most recent federal case law on Indian nation jurisdiction?

Some Indian nation councils or business committees consider proposed legislation directly, and others have committees to review proposed laws. Whatever method is used, the council or committee who considers new legislation should know what it is they are about adopt.

One of the worst ways a new law can be adopted is for the lawyer or expert to say, "Trust me. This is what you want. Adopt it." Another poor approach is to attempt to go through a proposed law line-by-line. As it is with policy development, the law-making body should know what is in the proposed law. What does it say? What will it do? Do we expect any problems implementing this law? Do we have people who know the law well enough to administer it?

One of the problems with legislation in Indian Country (and elsewhere) is that too often, lawmakers do not understand what they are voting on. They must know what they are doing and why they are doing it.

Another part of code review is obtaining approvals from other agencies. If, for example, the Indian nation has an Indian Reorganization Act constitution and bylaws that require Secretarial approval of resolutions and ordinances, there should be Bureau of Indian Affairs review before the code goes to the legislature. Most often, such code review is done by the Bureau of Indian Affairs Area Office solicitor, and that lawyer should be part of the development process early on. If a given code deals with an area under federal funding or program administration, the program staff and agency attorney should also be a part of the process early on. Federal or State agencies which will be involved with the implementation of the law are often valuable resources, and they can prevent mistakes before a law is adopted.

Another unfortunate mistake in Indian Country (and elsewhere) is to pass "a law" and think that takes care of the problem. Unfortunately, that is not the case. Laws most often fail where the people who administer them do not know how to do so or where people whom the law affects do not know what is in it. Code implementation requires (1) publicity, (2) orientation or training, and (3) more planning.

The general public should know when a new law is adopted, what is in it, and how that law will affect them. There should be news releases for publication in area newspapers and airing on local radio and television. There should be pamphlets in plain language, which give information on what is in the new law and how it will work. Individuals who want a copy of the law should be able to obtain it (for free or for a reasonable reproduction cost). People should know where they need to go or who they need to see if they have questions or want more information.

Obviously, there should be orientation and training for the people who will directly administer the law. Others may need to be involved. For example, if the code provides for court review in the event of a dispute, judges should have orientation on the law. If there is a new curfew ordinance that will be administered by the police, with cases heard in the courts, obviously both police and judges will need to know the ordinance well. Schoolteachers, businesses that stay open late at night, and others will also need to know what is in the law. Who should receive orientation is determined by the duties set out in the law.

When a legislature adopts a law it sets policy. The law tells people what they must do, what they must not do, or how to obtain a benefit. After a law is passed, there will need to be plans to implement the law by those who have the responsibility to administer it. The "plans" can be in the form of rules, policies, and internal agency plans to assign responsibilities and give guidance on implementing the law.

Your law is in place and there are also plans to carry it out. Is that enough? Not all laws work well. Even the best legal drafter will fail to include something, or there will be confusion about what a portion of the law means. Laws passed by legislatures are reviewed by courts, and sometimes a court may make a mistake in interpreting a law or make an interpretation which the legislature does not like. Councils and business committees should also be concerned about how the law is working. There are several ways to review legislation after it is adopted.

The most common kind of review is an agency report, which can be filed with a council or business committee on a quarterly or annual basis. The report may be reviewed by the entire council or business committee or a specialized committee. Reports can be boring and many people do not read them. To address that problem, there should be a way for the program director or its board to appear before a council or committee to give an oral report and to answer questions about the program’s report.

Another method of reviewing legislation is to conduct oversight hearings. For example, the United States Senate Committee on Indian Affairs sometimes holds oversight hearings on particular subjects. How well is the Indian Self-Determination and Education Assistance Act of 1975 (as amended after other oversight hearings) doing? What are the problems with law enforcement or Indian courts? Some oversight hearings can be scheduled on an annual or other basis, and sometimes legislatures hold oversight hearings when a problem makes the news.

Many legislatures use "sunset" provisions to review a law. That is, a legislature may create an agency that will go out of existence at a specific time. The agency may "exist" for five years and go out of existence unless the legislature reapproves it. Most often, there will be some kind of oversight and hearings before the agency expires so that the legislature can identify problems and decide whether to abolish the agency or change the law that created it.