Could a structural change in the U.S. Constitution enable indigenous peoples, like the Hawaiians, to secure political representation in a way that would protect their interests and promote cordial relations between them and the dominant majority of Americans? The same question can be posed for many other unrepresented communities in the United States, including all the indigenous (Indian) peoples, and many ethnic minorities living widely dispersed as small minorities. I believe it is possible to imagine such a change but, of course, it will very difficult to find ways to make it a reality. Nevertheless, I think the time has come when we should be thinking about desirable changes in our constitutional arrangements and exploring possible ways to bring them about. I also think fundamental changes can be made without formal amendments to the Constitution, a process that is fraught with great risks and many obstacles.

The BIA Scandal. My current thoughts about this matter were influenced by a recent 60 Minutes program in which the plight of American Indians was discussed. Specifically, many of them are entitled to benefits under the Indian Trust Funds program, but for a long time they have received little or nothing from the leases made on their properties. Senator John McCain, as chairman of the Senate Committee on Indian Affairs, said on the 60 Minutes show that "[The government] cannot account for $2.4 billion...If $2.4 billion for any other group of Americans could not be accounted for, there would be an outcry," "There would be a national scandal." When, in response to Congressional pressure, Paul Homan, was named trustee to investigate the matter, he subsequently quit because he was "clearly hamstrung by the Department of Interior and Department of Treasury," says McCain. The 60 Minutes story is summarized at: 60 Minutes .

Seeing McCain's name in this context led me to think that, perhaps, since he has had to abandon his quest for the presidency, and has declared his determination to make a real mark as a Senator, he might be able, if he wished to do so, to sponsor legislation designed to establish a foundation or institute for research on problems of "constitutional democracy." I'm not suggesting a specific title, but what I have in mind is something like the U. S. Institute for Peace, which was promoted by Senator Matsunaga and funds the Matsunaga Institute for Peace, at the University of Hawaii. It occurs to me that the Hawaii delegation might we willing to work with Senator McCain to encourage him to take the lead -- I suspect he has the visibility and clout to mobilize enough support for such an effort to succeed. Perhaps there are other members of Congress who might be willing to be co-sponsors.

With this in mind I have written a open letter to McCain and posted it on my Home Page, together with links to related sites.

Background. As background information, here is some data the Indian Trust Fund -- it must currently be on McCain's mind. In 1944, Congress created the position of a Special Trustee "to ensure that the Bureau of Indian Affairs (BIA) properly accounts for the daily and annual balances of all funds held in trust by the United States for the benefit of Indian Tribes or individual Indians." Paul Homans was appointed to this position. He was charged with "developing a strategic plan for the proper management and oversight of oil and gas, timber, ranch and farm land, and other Indian trust assets that the Department of the Interior holds and manages as a trust responsibility for Tribes. In this capacity, the Special Trustee will coordinate trust policies within the BIA, the Mineral Management Service and the Bureau of Land Management". Details can be found at: BIA

The Senate Committee on Indian Affairs received Paul Homan's report on July 30, 1997. It called for a Strategic Plan that would rectify the long-standing and very complex problems involved in administering the Indian trusts -- for details see: Homan

The U.S. District Court in the Cobel case has considered charges against the administration and I shall not talk about it here, but one can find details at: Cobel

The Canadian Aboriginal news summarizes related events better than any U.S. source I have found. It reports that, "On January 5,1999, Secretary of the Interior Bruce Babbitt reorganized the Office of Special Trustee (OST) by way of Secretary Order 3208, significantly reducing the powers and independence of the Special Trustee, Paul Homan. Homan, a presidential appointee and one of the main engines of reform, resigned in protest.

"December 6, 1999- A report released by he U.S. District Court, revealed that lawyers for the U.S. Department of Treasury destroyed 162 boxes of documents relevant to the trust funds case and then covered it up." Further details can be found at: cover up

A critical narrative that reviews this whole sordid history can be found in the journal Native AMERICAS published at Cornell University. Its issue for September 1997 [scroll down to find it] contains a lead article called The BIA as Banker: Trust is Hard when Billions Diasppear." by Bruce E. Johansen, Native American Studies, University of Nebraska, Omaha.

Taking Action. I don't want to dwell on this one issue. Rather, I use it to illustrate a much broader question -- our constitutional system simply blinds us to the problems of unrepresented minorities. I am thinking not only about Indians but also many ethnic minorities, peoples in American possessions overseas, and others who cannot benefit from the "rule of law" because they are excluded from its benefits. Actually, unborn Americans can never, in principle, be represented politically, yet they will be deeply affected by today's political and administrative decisions -- as will animals, trees, the atmosphere, water, air, and many other entities whose condition will, of course, also have immediate effects on living people.

If a United States Institute for Constitutionalism (or some similar name) could be created by Congress,, it could sponsor and support grants, as does the U. S. Institute of Peace Grants from such an institution would both motivate and enable universities, research centers, think tanks, and citizens' groups to look more deeply into our constitutional situation and think about ways that the noble ideals of the Founding Fathers could be rescued from the abuses that now entail abuses and hamper responsiveness to necessary reforms.

Some incremental changes might actually move our clumsy system of governance toward a more realistic and workable model. One small example: the President could elevate the Chief of Staff to a Cabinet level position -- a step that was easily accomplished for the US ambassador to the United Nations. Surely the office of Chief of Staff is even more important politically. Making this office a Cabinet position would not only elevate its stature and help the President as Head of Government, but it would also bring the Senate into the process and enhance relations between the Executive and Legislative branches. No doubt such a step would create problems, but tackling them incrementally could, I believe, lead to significant structural changes that would not require a formal amendment to the Constitution.

An Influential Board. The proposed Institute could even initiate change by the way it is organized. It could, of course, take the initiative to organize studies by creating "panels" to look into important problems, such as how unrepresented minorities or constituencies might be recognized and empowered. Even without formal representation in Congress, would it be possible to give them a significant voice in the making of public policies. Failure to do so will lead to further resentments and discontents that, in turn, will provoke the mobilization of resistance movements and even violent conflicts.

Another step would involve naming nominees from the unrepresented communities to serve as members of the Institute's Board of Directors. More broadly, various unrepresented interests -- such a those of unborn Americans, or the fauna and flora of our environment -- could even be represented on such a Board. A glance at the list of members on the Board of the USIP will suggest the high qualifications and influence its members can exert. When naming a Board for the proposed Institute on Constitutionalism, it should be possible to think not only of distinguished scholars and public officials, but also persons who would represent important unrepresented communities and concerns affected by the Government of the United States. This would actually be only a small step forward, but incrementally, it might prod our clumsy governmental system toward significant reforms that would overcome some of the abuses of power that Senator McCain has spoken and written about so forcefully.

Readers interested in the ideas offered above are invited to share their ideas with the author by writing to Fred Riggs .

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Updated: 1999