Developing and Reviewing
Tribal Constitutions and
Amendments
Chapter 1 - Tribal Organization and BIA
Responsibility

I.

II.
Terms
 A. Document/Governing Document
 B. Adoption
 C. Ratification
 D. Approval
 E. Effective Date
Organizational Status
 A. Indian Reorganization Act (IRA)
 B. Alaska Act
 C. Oklahoma Indian Welfare Act (OIWA)
Chapter 1 continued…..

III.
BIA Responsibilities
 A. Drafting
 B. Informal Review
 C. Formal Review
 D. Secretarial Elections
Chapter 2 - Constitutional Concepts


I. Establishing Relationships
II. Achieving Significant Objectives
 A.
Protecting Tribal Rights and Stating Fundamental
Principles
 1. Preserving Governing Powers
 2. Effective Self-Determination
 B.
Protecting Individual Rights
 1. Will of the Electorate
 2. Rights of Members
 3. Bilateral Relationship
 4. Apportionment
 5. Popular Participation in Government
Chapter 2 continued…..
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
C.

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
i. Initiative
ii. Referendum
iii. Recall
iv. Secretarial Petitioning
Governing by Law and Promoting Order
1. Compliance with Federal Law and Policy
2. Fundamental Fairness
3. Separation of Powers and Judicial Authority
Chapter 2 continued…..
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4.
5.
6.
7.
Indian Child Welfare Act (ICWA) of 1978 (25 USC 1901)
Objective Election Procedures
Staggered Terms of Office
Private-Sector Economy
Chapter 3 - Constitutional Elements


I.
Title
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
II. Preamble
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 3



continued…..
III. Territory and Jurisdiction
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
IV. Civil Rights
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
V. Governing Body
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 3



continued…..
VI. Powers
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
VII. Judiciary
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
VIII. Elections
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 3



continued…..
IX.
Vacancies
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
X. Popular Participation
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
XI. Duties of Officers
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 3



continued…..
XII. Meetings
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
XIII. Savings Clause
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
XIV. Severability
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 3
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continued…..
XV.
 A.
 B.
 C.
XVI.
 A.
 B.
 C.
XVII.
 A.
 B.
 C.
Amendment
Description and Purpose
Reason for Inclusion
Recommendations
Adoption or Ratification
Description and Purpose
Reason for Inclusion
Recommendations
Certificate of Election Results
Description and Purpose
Reason for Inclusion
Recommendations
Chapter 3


continued…..
XVIII. Certificates of Approval or Ratification
 A.
Description and Purpose
 B.
Reason for Inclusion
 C.
Recommendations
Chapter 4 - Reviewing Proposed Constitutions



I.
Review Procedures
 A.
Step 1: Tribal Request
 B.
Step 2: Agency and Area Review
 C.
Step 3: Central Office Review
II. Field Responsibilities
III. Review Guidelines
Chapter 5 - Revising and Amending Tribal
Constitutions



I. Revision or Amendment?
II. Amendment Procedures
 A.
Step 1: Tribal Request
 B.
Step 2: Agency and Area Review
 C.
Step 3: Secretarial Election
III. Field Responsibilities and Review Guidelines
Chapter 6 - Secretarial Elections


SECRETARIAL ELECTION CHECK LIST
Secretarial elections--that is, those authorized by the Secretary of the
Interior (as opposed by tribal elections authorized by the tribe)-are
held to provide an opportunity for tribal voters on proposed or
revised constitutions, adopt constitutional amendments, ratify and
amend charters, and revoke constitutions. Secretarial elections are
held pursuant to regulation found in 25 CFR 81. The following is a
checklist to follow in conducting a Secretarial election:
_____ Receive authorization to conduct the election from the
Area Director.
_____ Order a printout and two sets of labels for eligible voters.
_____ Review the regulations in 25 CFR 81.
_____ Send a notice to the tribe to name Election Board
members.
Continued…..
_____
_____
_____
_____
_____
_____
_____
_____
Meet with the Election Board.
Order printing of registration forms and return envelopes.
Order printing of ballots and two envelopes for absentee
ballots.
Contact poling places.
Publish election notice at least 30--but not more than 60-days before the election.
Post the full text of the document within two days of the
election notice.
Mail letters to all eligible voters with a registration blank.
(It my be prepared as an absentee ballot request, notice of
election, and return envelope.) Mailing about 45 to 50
days before the election with the registration deadline set
for 30 days before works well.
Continued…..
_____
_____
_____
_____
_____
_____
_____
Mail ballots and the full text (if not on the ballot) to
absentees with instructions and two envelopes.
Prepare and post lists of registered voters at least 20 days
before the election.
Acknowledge receipt of registrations received after the
deadline with an explanatory letter.
Secure polling place workers.
Instruct polling place workers on regulations and
procedures.
Prepare ballot boxes with essentials for conducting the
election.
Prepare materials for general election board tallying,
posting, and certifying.
Continued…..
_____
_____
_____
_____
_____
_____
Conduct the election and count the votes.
Post the election results.
Prepare certification, transmitting the original to the Area
Director and sending a copy to the tribe.
Gather ballots, lists, etc., and package for storage for one
year.
Transmit the original text of the approved item to the tribe.
Incorporate approved amendments into the constitution
and forward copies to the tribe, the Area Office, and the
Central Office.
REVIEWING PROPOSED TRIBAL
CONSTITUTIONS: A CHECKLIST
YES NO
TITLE
The title does not contain the words “amended” or “revised.”
The title does not contain the phrase “constitution and by-laws” but
simply the tribe’s complete name and the word “constitution.”
PREAMBLE
The statement is written so that the objective of and basis for the
organization are easily understood.
The preamble cites the specific authority under which the
constitution will be adopted or ratified.
If the tribe was organized under an earlier governing document, the
earlier document is acknowledged along with an explanation that it is
now superseded by the current proposed constitution.
CONTINUED . . . . .
TERRITORY AND JURISDICTION
Statements accurately describe the tribe’s geographical territory and
the extend of jurisdiction.
Reference is made to all treaties, Executive Orders, and/or specific
congressional acts relating to establishment of the reservation or area
within which the tribe has jurisdiction.
This article includes a statement that jurisdiction over the tribe’s
territory is subject to Federal law.
CONTINUED…..
MEMBERSHIP (ENROLLMENT)
The article clearly describes the requirements for tribal enrollment
by addressing all the following:
Base Roll identification.
Vested rights of previously recognized members.
Authority to resolve enrollment questions.
Application requirements.
Content of ordinance for enrollment procedures.
Adoption into membership.
Disenrollment.
Continued…..
Procedures for appeals or enrollment decisions.
The article spells out viable procedures for resolving questions of
membership in a fair and impartial manner (free of pressure from the
political officers or other elements within the tribe).
Provision is made for appeal of enrollment decision to an objective
forum.
CIVIL RIGHTS
The article sets forth those individual rights that the tribe must
respect in exercising its power of self-government (as stated in the
Indian Civil Rights Act of 1968).
The article provides for a constitutionally-based judicial forum that is
equal to but separate from the legislative and executive branches of
government.
GOVERNING BODY
The article clearly and thoroughly describes the nature of the entity
(or entities) empowers to exercise the tribe’s legislative and
executive powers.
The article specifically provides for:
The title and number of positions that constitute the governing body.
The means through which office holders are election (from within or
by running for a particular office).
Staggered terms of office.
Incumbents to continue in office until their successors are duly
elected and installed.
Filling vacancies.
POWERS
The article clearly delineates those authorities delegated to the
governing entity or entities (legislative and executive branches or
tribal council and general council).
If more than one governing entity is established, the article specifies
which powers are vested in each entity.
The article includes a reserve powers clause that provides that any
powers not specifically listed will be exercised only upon
appropriate amendment to the constitution.
The means through which office holders are election (from within
or by running for a particular office).
Staggered terms of office.
Incumbents to continue in office until their successors are duly
elected and installed.
Filling vacancies.
CONTINUED…..
JUDICIARY
The article clearly provides for exercise of the tribe’s judicial
authorities.
The article requires creation of a judiciary that is independent from
the legislative and executive functions of tribal government.
The article enumerates accurately the scope of judicial powers.
The article provides for election or appointment of judges by a
process that frees the judiciary from potential pressures and
influences of the tribal government.
CONTINUED…..
ELECTIONS
This article explains fundamental principles for the conduct of tribal
elections including:
Qualifications of voters and candidates.
Provision for an election board.
A tribal election ordinance including:
Ongoing voter registration.
Majority vote.
Secret ballot.
Absentee voting.
Procedures for settling election disputes.
Appeal procedures.
The concept of “one man, one vote” is preserved.
The article as written promotes order in the choice of tribal
officials.
CONTINUED…..
VACANCIES
The article specifies procedures for filling positions in the event of
death, resignation, removal, forfeiture, and recall.
The article is clear and thorough enough to promote order in filling
vacancies and to prevent undue confusion from arising around the
loss of tribal officials.
POPULAR PARTICIPATION
The article provides for tribal election other that the regular elections
of tribal officials–i.e., initiative, referendum, recall.
Provisions established a viable “checks and balance” system.
Procedures make it possible to achieve a recall when necessary but
not so easy that officials can be unduly harassed.
CONTINUED…..
DUTIES OF OFFICERS
The article clearly defines the major duties of various officials.
The article describes how tribal members can gain access to tribal
records.
Provisions are included for transfer of documents and records to
newly elected officials upon expiration of the incumbent’s terms.
Authorities of various officials are clearly defined.
CONTINUED…..
MEETINGS
The article clearly provides for calling and conducting regular and
special meetings including specific instructions regarding:
What constitutes a quorum.
When and where regular meetings are to be held.
Who is responsible for calling the sessions.
How many special or emergency meetings can be called.
Use of Robert’s Rules of Order in conducting meetings.
Voting by secret ballot.
CONTINUED…..
SAVINGS CLAUSE
The article provides that all tribal legislation enacted under any
previous constitutions will remain in force to the extent that those
enactments are consistent wit the new constitution.
SEVERABILITY
The article provides that if any part of the constitution is held by a
Federal court to be invalid or contrary to the U.S. Constitution or
Federal law, the remainder of the document will continue in effect.
AMENDMENT
The article clearly sets forth procedures for modifying or amending
the constitution.
OUTLINE OF SECRETARIAL ELECTION
PROCESS
Tribe:
(1) requests election accompanied with:
(a) proposed document, and
(b) resolution or petition.
BIA:
(1) reviews documents;
(2) requests legal review;
(3) issues technical comments and advises tribe if any section of
document is contrary to federal law.
Tribe:
(1) accepts or rejects comments;
(2) submits final request based on decision to accept or reject comments
accompanied by:
(a)
document to be voted upon; and
(b)
resolution.
CONTINUED…..
BIA:
(1) authorizes the Area Director or Agency Superintendent to call and
conduct the election;
(2) the officer is charge is appointed Chairman of the election board.
Tribe:
(1) appoints at least two members to serve on the election board.
Election Board:
(1) sets date, time, site, and appropriate deadlines for election;
(2) requests the tribe to provide a list of all members who will be 18 years
of age on the date of the election and who are within the eligible class
of voters;
CONTINUED…..
(3)
(4)
prepares election notice package containing:
(a) the election notice:
(i) date of election
(ii) polling site
(iii) explanation of reason for election
(iv) deadline for registration
(v) address of office to return registration form
(b)
document to be voted upon;
(c)
registration form;
(d)
request for absentee ballot;
(e)
self-addressed return envelope;
receives registration forms;
CONTINUED…..
(5) posts the registered voters list;
(6) determines challenges to the registered voters list;
(7) posts corrected registered voters list, if necessary;
(8) sends out absentee ballots, if necessary;
(9) monitors election process on election day;
(10) counts ballots cast at polling place and absentee ballots;
(11) certifies election results;
(12) posts election results at local BIA office, tribal office and any other
designated location;
(13) receives any challenge to the election results; and
(14) submits to the officer in charge:
(a) copy of election package sent to eligible members;
(b) registered voters list;
(c) copy of ballot and absentee ballot;
CONTINUED…..
(d)
(e)
(f)
certification of election results;
challenges to the election results; and,
report on the election.
BIA:
(1) authorizing officer determines whether or not the challenges are valid
and warrant a recount of the ballots or a new election.
(2) approves or disapproves the document and election results;
(3) sends original document to the tribe; and
(4) retains all election documents for constitution file.
OUTLINE FOR PETITIONING PROCESS
Tribe - Spokesperson:
(1) requests number of signatures needed before submitting petition
Local BIA Official:
(1) consults with tribe’s governing body regarding current number of tribal
voters
(2) determines number of signatures needed for petition based on:
(a) number submitted by tribal governing body; or
(b) number of members 18 years of age and older for those tribes
who have reorganized pursuant to federal statute.
(3) advises spokesperson for petitioners of:
(a) number of signatures needed; and
(b) cut-off date for the addition of signatures to petition.
CONTINUED…..
Tribe - Spokesperson
(1) declares intent to make official filing of petition;
(2) submits petition package to local bureau office containing:
(a) reason for petition;
(b) signatures of eligible tribal members;
(c) date tribal members signed petition;
(d) current mailing address of signers; and
(e) signatures that have been notarized either:
(i)
individually; or
(ii)
by collectors signing a notarized statement.
Local BIA Official:
(1) enters date petition received (official filing date);
(2) informs spokesperson that no names can be added or deleted;
CONTINUED…..
(3)
(4)
(5)
(6)
acknowledges in writing receipt of petition along with:
(a)
exact number of signatures on petition; and
(b)
official filing date.
posts a statement of the matter proposed in petition for 30 days from
date of official filing;
makes copies of petition and signatures available for examination at
request of authorized voters for a period of 15 days from date of
official filing;
strikes through duplicate names on the petition
Tribe - Eligible Voters:
(1) may file a challenge to the signatures with the local BIA official
within 15 days of official filing date, based on:
(a) forgery; or
(b) signer lacked proper qualifications
CONTINUED…..
(2)
must submit supporting evidence with challenge
Local BIA Official:
Submits petition package to next line officer within 30 days of official filing
date (i.e. Agency Superintendent to Area Director, or Area Director to
Deputy Commissioner). Package must contain:
(1) petition;
(2) signatures;
(3) recommendations on challenges;
(4) conclusions regarding:
(a) proposed amendments/revisions;
(b) validity of signatures;
(c) adequacy of signatures; and
(d) propriety of petitioning procedures.
CONTINUED…..
BIA Area Director/Deputy Commissioner:
(1) must within 45 days of official filing date:
(a) decide each challenge;
(b) decide sufficiency of number of signatures;
(c) announce whether petition will be acted upon;
(2) informs spokesperson and tribal governing body if petition is
insufficient for any reason; or,
(3) informs spokesperson and tribal governing body if petition warrants
action by the Assistant Secretary or Commissioner.