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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 15-078

General Memorandum 15-078
BIA Issues Final Rule Amending Secretarial Elections and Petitioning Procedures

On October 19, 2015, the Bureau of Indian Affairs (BIA) published a final rule amending its regulations governing Secretarial elections and the procedures for petitioning to request a Secretarial election (copy attached). 80 Fed. Reg. 63094. The BIA states that the clarifications relating to Secretarial elections encourage tribes reorganized under the Indian Reorganization Act (IRA) to amend their governing documents so that future elections will be "purely tribal elections, governed and run by the tribe rather than BIA." Appropriately, tribal policy – and not federal management – will form the backbone of election-related requirements in Indian Country. Notably, the final rule also clarifies that only members of federally recognized tribes may petition for a Secretarial election to be held—a departure from prior federal policy. The final rule will become effective November 18, 2015.

Context for the Final Rule. A Secretarial election is a federal election conducted by the Secretary of the Interior (at the request of a tribe) that involves the adoption, modification, or revocation of a tribe's governing document or the adoption or modification of a tribe's charter of incorporation. Because a Secretarial election is a federal election, the election is held pursuant to tribal law in addition to certain federal laws and regulations. The governing documents of most tribes reorganized under either the Indian Reorganization Act (IRA) or the Oklahoma Indian Welfare Act (OIWA) require a Secretarial election in order to be amended. Further, there are some tribes who are not reorganized under the IRA or the OIWA but whose governing documents require Secretarial approval. The final rule is significant because it clarifies how tribes reorganized under the IRA may amend their governing documents to remove the requirement for future Secretarial elections.

The final rule amends 25 C.F.R. parts 81 (Tribal Reorganization under a Federal Statute) and 82 (Petitioning Procedures for Tribes Reorganized under Federal Statute and Other Organized Tribes) by unifying them in a single Code of Federal Regulations at 25 C.F.R. Part 81 (Secretarial Elections). There are some key differences between the IRA and the OIWA, so 25 C.F.R. Part 81 contains some subparts which apply to all Secretarial elections: Subpart A (Purpose and Scope), Subpart B (Definitions), Subpart C (Provisions Applicable to All Secretarial Elections) and Subpart F (Formulating Petitions to Request Secretarial Election) as well as other subparts which apply only to the Secretarial election process under the IRA (Subpart D) or only to the Secretarial election process under the OIWA (Subpart E). The final rule amends subparts which apply to all Secretarial elections as well as the Subpart which is specific to the Secretarial election process under the IRA.

The final rule reflects amendments made to the IRA in 1988, 1990, and 1994. The BIA reports that efforts to revise 25 C.F.R. Part 81 to reflect these amendments date back to 1992 when the first tribal consultation sessions were held. Additional consultation sessions occurred more recently in 2009, 2010, and then in 2014 after the proposed rule was published in the FEDERAL REGISTER on October 9, 2014.

Changes the Final Rule Makes to Existing Regulations. The final rule clarifies how a tribe reorganized under the IRA may modify its governing documents to eliminate the need for Secretarial approval of and involvement in future amendments or elections. To do so, a final Secretarial election with Bureau involvement must be held on the issue, after which no future Bureau involvement will be necessary. Instead, the individual tribe will govern election-related policies such as voting procedures and substantive requirements without a federal overlay. However, once a tribe removes the Secretarial election requirement, the tribe, rather than the Department of Interior, must pay for all subsequent elections to amend its governing document. Moreover, the tribe's governing document will no longer be considered to have been adopted pursuant to federal statute. Such a change does not diminish the government-to-government relationship or displace federal trust responsibilities.

The final rule also clarifies that the Secretary will only accept petitions for Secretarial elections from members of federally recognized tribes. Prior to the promulgation of the final rule, the regulations provided that individuals who were members of a federally recognized tribe or a tribe eligible to be federally recognized could petition for a Secretarial election to organize under federal statute.

Additional Changes the Final Rule Makes to Existing Regulations:

• Provides that the BIA will conduct an informal compliance review of tribal documents before a Secretarial election is duly requested without triggering statutory deadlines;
• Establishes timeframes within which the Secretary must call and conduct Secretarial elections after one has duly been requested;
• Provides that all Secretarial elections will be handled by mailout ballot unless polling places are expressly required by a tribe's governing document;
• Clarifies that additional tribes may petition for charters of incorporation; and
• Removes the requirement for an election to ratify the approval of new charters issued after May 24, 1990 (unless required by tribal law).

Please let us know if we may provide any additional information regarding the BIA's final rule modifying the Secretarial elections process and the procedures for formulating petitions to request a Secretarial election, now found at 25 C.F.R. Part 81.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com)
Lisa Meissner (lmeissner@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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