As Indians interact with the modern world that exists outside the exterior of their own lands, there is a desperate need to reform the internal structures, workings, and processes in order to become an active participant. In doing so, tribal sovereignty will be sufficiently protected and respected.

To ensure that tribal government protects tribal member rights, many tribes have amended their constitutions to reflect a separation of power. Under this governmental model, the powers of tribal government are divided into three branches, with each branch possessing independent powers and responsibilities. The normal division of branches is the Executive, the Legislative and the Judicial.

Although tribal governments, because of their constitutionally based sovereignty, are not subject to the requirements of separation of powers, many tribes have realized that in order to obtain the full benefits of tribal sovereignty, the powers and responsibilities of tribal government must be divided.

The Ute Tribe would benefit from division of powers designed to streamline government. Currently, the tribe's governing body is vested with a Business Committee comprised of six members. The Business Committee has unfettered power to the extent allowed by the statues of the Constitution of the United States. In this capacity, the Business Committee functions as both the legislative and executive body. Since an executive body is normally charged with the responsibility of enforcing the enactment and decisions of the legislative branch, the Business Committee is tasked with two responsibilities, one as the designer of all tribal laws, ordinances and programs, and the other as the entity responsible for enforcement of all such matters.

Given the enormous resources possessed by the tribe, and the number of programs currently in existence for the benefit of its members, having the responsibility of enactment and enforcement is a daunting task. In fact, in observing the Business Committee's workings, it was obvious that the committee struggles to properly monitor and ensure its decisions are carried through and/or enforced to the fullest extent.

As mentioned, the tribe needs to seriously consider separating government into three branches. Although the powers and responsibilities of the Judicial branch are not fully vested and defined in the tribe's constitution, the Judicial branch currently operated separately from the Business Committee. However, given the constitution's failure to define the Judicial branch, and to identify it as a separate branch of government that operates independent of the Business Committee, the question remains as to whether the Business Committee can, or has at anytime, exercised its power and control over the Judiciary.

Tribal Ordinance 87-04, which has never been rescinded or amended at the time of this letter, states the organization of the tribe, in accordance with the Ute Tribe Constitution, indicates that the "Tribal Court is subordinate to the Business Committee." The ordinance further states that the supervisory authority of the Business Committee over the Tribal Court is of the same nature and "parallels the supervisory and administrative authority it exercises over all tribal agencies and enterprises."

The fact that the Ute Indian Tribal Court is created by ordinance needs to be resolved. In the scenario, the tribe's judges and other court personnel learn to realize that what the Business Committee creates, it can abolish. This power was expressly articulated in Ordinance 87-04. As such, the tribe's judges are constantly exposed to political vulnerability, and also feel the pains of dependence for financial support.

Certainly no dimension of self-government embodies political sovereignty more than a community running its own law enforcement and court system. Political independence is highly dependent on a competent tribal judicial system. Accordingly, constitutional reform should entail the adoption of explicit protections for the judiciary independence.

An independent court system, not subject to usurpation of its authority and decisions by the legislative (Business Committee), or the Chief Executive Officer, and adds substantially to tribal sovereignty, and the tribe's ability to sustain economic development. The tribe's court, created by ordinance, needs independence from any and all other branches of government in order for the tribe to realize the true benefit of its sovereignty.

Kenneth Kay Santio

Fort Duchesne, Utah