Secretarial Election Procedures, 61021-61035 [2014-24118]
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Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules
See the SUPPLEMENTARY INFORMATION
section of this document for locations of
tribal consultation sessions.
FOR FURTHER INFORMATION CONTACT:
Laurel Iron Cloud, Chief, Division of
Tribal Government Services, Central
Office, Bureau of Indian Affairs at
telephone (202) 513–7641. Individuals
who use a telecommunications device
for the deaf (TDD) may call the Federal
Information Relay Service at 1–800–
877–8339 between 8 a.m. and 4 p.m.
Monday through Friday, excluding
Federal holidays.
SUPPLEMENTARY INFORMATION:
that may be made to the streamline
refinance section of the Handbook.
Dated: October 3, 2014.
Carol J. Galante,
Assistant Secretary for Housing—Federal
Housing Commissioner.
[FR Doc. 2014–24069 Filed 10–8–14; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 81 and 82
I. Background
[BIA–2014–0006; K00103 12/13 A3A10;
134D0102DR–DS5A300000–
DR.5A311.IA000113]
RIN 1076–AE93
Secretarial Election Procedures
Bureau of Indian Affairs,
Interior.
ACTION: Proposed rule.
AGENCY:
The Bureau of Indian Affairs
is proposing to amend its regulations
governing Secretarial elections and
procedures for tribal members to
petition for Secretarial elections. This
proposed rule reflects changes in the
law and the requirement that
regulations be written in plain language.
DATES: Comments must be received on
or before December 17, 2014. See the
SUPPLEMENTARY INFORMATION section of
this document for dates of tribal
consultations.
SUMMARY:
You may submit comments
by any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. The rule is listed
under the agency name ‘‘Bureau of
Indian Affairs.’’ The rule has been
assigned Docket ID: BIA–2014–0006.
—Email: laurel.ironcloud@bia.gov.
Include ‘‘Part 81’’ in the subject line of
the message.
—Mail or hand-delivery: Chief,
Division of Tribal Government Services,
Office of Indian Services, Bureau of
Indian Affairs, Department of the
Interior, 1849 C Street NW., Mail Stop
4513–MIB, Washington, DC 20240.
Comments on the Paperwork
Reduction Act information collections
contained in this rule are separate from
comments on the substance of the rule.
Submit comments on the information
collection requirements in this rule to
the Desk Officer for the Department of
the Interior by email at OIRA_
Submission@omb.eop.gov or by
facsimile at (202) 395–5806. Please also
send a copy of your comments to
laurel.ironcloud@bia.gov.
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ADDRESSES:
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The Bureau of Indian Affairs (BIA) is
amending 25 CFR parts 81 (Secretarial
Elections) and 82 (Petitioning
Procedures), combining them into one
Code of Federal Regulations part at 25
CFR part 81. The Secretarial Elections
regulations were originally adopted in
1964, and the Petitioning Procedures
regulations were originally adopted in
1967. See 29 FR 14359 (October 17,
1964); 32 FR 11779 (August 16, 1967).
The Department has not updated either
of these regulations since 1981. See 46
FR 1668 (January 7, 1981).
A Secretarial election is a Federal
election conducted by the Secretary of
the Interior (Secretary) under a Federal
statute or tribal governing document
under 25 CFR part 81. See Cohen’s
Handbook of Federal Indian Law
section 4.06[2][a]–[b], at 286–297 (Nell
Jessup Newton ed., 2012). See also
Cheyenne River Sioux Tribe v. Andrus,
566 F. 2d 1085 (8th Cir. 1977), cert.
denied, 439 U.S. 820 (1978). The
proposed rule:
• Responds to the amendments made
to section 16 of the Indian
Reorganization Act (IRA) (June 18, 1934,
48 Stat. 984) (25 U.S.C. 476), as
amended, which established time
frames within which the Secretary must
call and conduct Secretarial elections
and provided that all elections will be
handled by mailout ballot unless polling
places are expressly required by the
amendment or adoption article of the
tribe’s governing document.
• Responds to the amendments made
to Section 17 of the IRA by the Act of
May 24, 1990 (104 Stat. 207) (25 U.S.C.
477) under which additional tribes may
petition for charter of incorporation and
removes the requirement of an election
to ratify the approval of new charters
issued after May 24, 1990, unless
required by tribal law.
• Reflects the 1994 addition of two
subsections to section 16 of the IRA by
Technical Corrections Act of 1994 (108
Stat. 707) (25 U.S.C. 476(f) & (g)) that
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prohibit the government from making a
regulation or administrative decision
‘‘that classifies, enhances, or diminishes
the privileges and immunities available
to a federally recognized Indian tribe
relative to the privileges and immunities
available to other federally recognized
tribes by virtue of their status as Indian
tribes.’’
When Congress enacted Oklahoma
Indian Welfare Act (OIWA) in 1936, the
language it used to guarantee the right
of tribes to organize and adopt
constitutions and bylaws was different
from that used in the IRA. The OIWA
language requires the Secretary to
approve the constitution before it is
submitted to the tribal membership for
a vote to ratify it. These regulations
reflect the difference in language
between the IRA and the OIWA.
The proposed rule includes language
clarifying that a tribe reorganized under
the IRA may amend its governing
document to remove the requirement for
Secretarial approval of future
amendments. Once the requirement for
Secretarial approval is removed through
a Secretarial election, Secretarial
approval of future amendments is not
required.
The proposed rule also clarifies that
the Secretary will accept petitions for
Secretarial elections only from federally
recognized tribes included on the list of
recognized tribes published by the
Secretary pursuant to section 479a–1.
II. Comments From Tribal
Representatives
As discussed in section III of this
document, we held several tribal
consultation sessions on draft
regulations addressing Secretarial
elections and petitioning procedures.
The following summarizes comments
received during that consultation
process.
Definitions
Several tribes questioned the
definition of ‘‘Indian’’ included in the
consultation draft. Because the term is
not used in the body of the regulation
other than as defined in the IRA, we
have deleted this definition. We have
also clarified the definition of ‘‘tribe’’ as
those federally recognized tribes
included on the list of recognized tribes
published by the Secretary pursuant to
Section 479a–1.
One tribe questioned the definition of
‘‘member’’ because the consultation
draft included an additional provision
stating that, in the absence of the tribe’s
written criteria for membership, a
member is a person the tribal members
recognize as belonging to that tribe. The
tribe noted that there may not be
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agreement among tribal members as to
who belongs to the tribe. For this
reason, we deleted that portion of the
definition, so that a member is a person
who is duly enrolled in the tribe.
One tribe suggested adding a
definition of ‘‘notary.’’ We were unable
to locate a definition of this term in
other regulations and determined that
the term is self-evident. This tribe also
asked if a tribe can enact an ordinance
authorizing people to become notaries,
rather than being confined to using
State-authorized notaries. Tribes
presumably have the inherent power to
create notary regimes. If a tribe has
established an adequate regulatory
framework to ensure the integrity of
their notary process, we would approve
use of the tribe’s notaries in lieu of other
established notaries. If a tribe has a
question about whether its notary
process is adequately regulated, it
should contact us.
We received a few comments asking
about the definition for ‘‘reorganized
tribe’’ in the consultation draft. Under
the consultation draft, ‘‘reorganized
tribe’’ would mean a tribe whose
members have adopted a governing
document under a Federal statute.
Tribes also requested clarification of
the definitions of ‘‘reservation’’ and
‘‘Rancheria.’’ The proposed rule deletes
the definition of ‘‘Rancheria’’ because it
is not used in the body of the regulation.
The proposed rule deletes the definition
of ‘‘reservation’’ because its meaning is
self-evident where used.
Several tribes noted there is no
definition for ‘‘resident.’’ We did not
define this term because it is not used
in the regulation. A tribe asked how
tribal governing document’s definitions
of residency will affect who may vote in
a Secretarial election. We have clarified
at § 81.8 of the proposed rule when
tribal governing document
qualifications (such as residency) for
voting govern who may vote in a
Secretarial election.
Tribal Choice To Require Secretarial
Approval
One tribe asked about the
consequences to a tribe of removing the
requirement for Secretarial approval of
future amendments from its governing
document. As explained by a Federal
representative at the consultation,
removing the requirement for Secretarial
approval of future amendments means
that Secretarial approval will no longer
be required for additional amendments
to the tribe’s governing document.
One tribe asked whether a tribe that
has reorganized under the IRA and
decides to remove the requirement for a
Secretarial election must hold a
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Secretarial election to remove that
requirement. The tribe must hold a
Secretarial election to remove the
requirement for a Secretarial election
from its governing document if a tribal
law or Federal statute requires such an
election. Section 81.2(h) of the proposed
rule addresses this issue.
Who May Vote in a Secretarial Election
Several tribes asked questions
regarding who may vote in a Secretarial
election. For example, at least one tribe
asked for language stating that the
tribe’s governing documents may
establish eligibility for voting.
Secretarial elections are Federal
elections, and, as such, anyone who is
18 years of age or older and otherwise
qualified is eligible to vote, even if the
tribal governing document requires
voters to be 21 to be eligible to vote in
tribal elections. The 26th Amendment to
the Federal constitution lowered the
minimum voting age for Federal
elections from 21 to 18. This provision
is at § 81.9 of the proposed rule.
Another tribe asked under what
circumstances only the class of citizens
who voted on the original tribal charter
or governing document may vote. If the
tribe’s governing documents do not
establish qualifications for voting, then
the only members who may vote are
those who meet the same qualifications
as those entitled to vote in the
Secretarial Election that effected the
tribe’s reorganization.
A few tribes noted that there are no
provisions for voting by tribal members
who are serving in the military, at
college, or incarcerated. These
individuals may be eligible to vote by
mail or by absentee ballot if they
otherwise meet the requirements of
§ 81.9 of the proposed rule.
Absentee Voting
Several tribes asked about who may
vote by absentee ballot. The proposed
regulation provides that all Secretarial
election voting is to be done by mail
with use of a mailout ballot, except
where the amendment or adoption
articles of the tribe’s governing
document require in-person voting. (See
§ 81.35 of the proposed rule.) If polling
places are required, an absentee ballot
may be requested.
A tribe asked that the regulations
specify that voters can request a new
absentee ballot, if necessary. See § 81.40
of the proposed rule.
A tribe asked that the regulations
specify whether voters receiving an
absentee ballot may choose to vote in
person. See § 81.40 of proposed rule.
A tribe asked if the envelope for
absentee ballots will be pre-addressed
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and have prepaid postage. The proposed
regulations clarify that the envelope will
be pre-addressed but will not have
prepaid postage. See § 81.23 of proposed
rule.
Registered Voters and Registration to
Vote
Tribes asked for clarification on the
‘‘registered voter’’ definition and its
difference from ‘‘eligible voter.’’ We
simplified these definitions and explain
the registered voters list further in
§§ 81.26 through 81.32 of the proposed
rule. A tribe also asked about the
definition of ‘‘qualified voter’’ in the
consultation draft. We have deleted the
definition of ‘‘qualified voter’’ because it
was unnecessary.
A few tribes asked whether the
registration process is required and
noted that it is a task for voters to
register for Secretarial elections in
addition to other elections. Section
81.29 describes why the Registered
Voters List is necessary.
A tribe asked what happens if the
tribe does not have a registration
process. The Secretarial Election Board
is responsible for the registration
process for Secretarial elections.
Request for Secretarial Election
The consultation draft of the
regulations stated that the tribe must
provide an ‘‘appropriate request’’ to
request a Secretarial election. A tribe
requested clarification of that definition.
The proposed regulation instead uses
the term ‘‘tribal request’’ and clarifies
what qualifies as such a request at
§ 81.4.
Tribes also questioned the procedures
set out in the consultation draft, which
included an initial request for election
and then a final request for election, and
the timing of those procedures. The
proposed rule simplifies the process by
requiring only one request for
Secretarial election.
Ballots
There were several questions on the
different types of ballots. The
consultation draft had mentioned
spoiled, damaged, mutilated, valid and
invalid ballots. We determined that the
only necessary category is ‘‘spoiled’’
ballots and describe the effect of a
spoiled ballot in Sections 81.39 and
81.40. (See definition for ‘‘spoiled’’
ballot in § 81.4.)
Timelines
One tribe asked what a tribe’s
recourse is if BIA does not act within
the 90-day deadline for calling and
holding an election on a constitutional
amendment. If BIA fails to act within
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the 90-day deadline, the affected tribe
may bring suit, after exhausting its
administrative remedies, if any, to
compel agency action under the
Administrative Procedure Act.
The consultation draft included a
provision that stated that if BIA failed
to act on an authorization to conduct an
election within 90 days, then the
authorization is considered void.
Several tribes commented that this
expiration punishes the tribe for BIA’s
failure to act. Since the tribal
representatives on the Secretarial
Election Board charged with the
responsibility for calling and holding
the election outnumber the BIA
representative, the expiration of the
authorization was not intended to
punish the tribe in any way but rather
simply to ensure that the tribal request
had not become stale. The legal
authority to call and conduct a valid
election does not disappear after 90
days so we have deleted this provision.
A tribe noted that the regulations do
not hold the Secretarial Election Board
accountable for holding the election
within 90 days. The deadline for
holding an election is established by
statute; the proposed rule does not
restate the deadline, but the Secretarial
Election Board remains subject to it.
Several tribes asked for clarification
on the time frame in which results of an
election may be challenged. Section
81.43 of the proposed rule clarifies that
challenges must be received within
three days (which are defined to be
calendar days) after the Certificate of
Results of Election is posted. If the third
day falls on the weekend or a holiday,
the challenge must be received by the
close of business (COB) the next
business day.
One tribe suggested that three
business days, rather than calendar
days, be the time frame allotted for
challenges. Another tribe stated that
indicating business days in some
provision but calendar days in others is
inconsistent and may result in
confusion. For this reason, the proposed
rule counts all days as calendar days.
Several tribes had questions about the
consultation draft’s timeframes with
regard to the 90-day deadline for calling
and holding an election for an
amendment, and the 180-day deadline
for calling and holding an election for
a new proposed governing document,
including an amendment to a governing
document in the nature of an entire
substitute, or revocation of a governing
document. These timelines are
statutorily established (25 U.S.C.
476(c)(1) and are reflected in the
regulation. (See § 81.19(a) of proposed
rule.)
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Secretarial Election Board
Several tribes asked questions
regarding the Secretarial Election Board.
One tribe asked whether there are any
restrictions on who may be appointed to
the Secretarial Election Board. The only
restriction is that those persons be
members of the tribe with the exception
of the Chairman of the Secretarial
Election Board, who must be a BIA
employee.
Another asked who makes the
determination as to who serves on the
Secretarial Election Board. The
Authorizing Official appoints a BIA
employee as the chair of the Secretarial
Election Board. The tribal governing
body chooses at least two tribal
members to serve on the Secretarial
Election Board. If the tribe declines to
appoint two tribal members then the
Local BIA Official would make the
appointments.
A tribe asked for clarification on
whether the chair is Federal or tribal
official. The Authorizing Official will
appoint a BIA employee to serve as the
Federal chair of the Secretarial Election
Board. (See § 81.19(b) of proposed rule.)
This tribe also asked whether there are
limits to the appointment. Because the
Secretarial Election Board is established
for a single Secretarial election, it
dissolves after it completes all the
duties associated with that election. The
tribe also asked for clarification on
whether ‘‘recognized governing body’’
means the governor or the tribal council.
‘‘Recognized governing body’’ refers to
the representative body that has
legislative authority. Ordinarily, it
would be neither the tribal governor,
chief, nor chair; nor would it be the
entire adult membership of the tribe.
One tribe asked for clarification on
the Secretarial Election Board’s duties.
Duties are clarified in § 81.22 of the
proposed rule.
One tribe asked what the criteria are
for the Board to deny an applicant status
as a registered voter. The Board may
deny an applicant registered voter status
only if the applicant does not meet the
requirements to cast a vote or if the
registration form was not submitted
before the deadline.
Privacy Concerns
Several tribes expressed concern
about the privacy of individuals whose
names are listed on the registration list,
because the registration list is posted.
The proposed rule provides that the
registration list contains only the
individuals’ names and voting districts,
if applicable. We believe that this
information is the minimum necessary
to a meaningful opportunity to
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challenge the eligibility of a voter and
therefore does not constitute an
unwarranted intrusion into the
individual’s privacy.
Several tribes asked what happens to
election information after the election is
closed and who has access to the
information. Sections 81.45(d) and
81.50(d) establish that BIA will forward
certain documents to the tribe and
retain a copy of records as required by
the Federal Records Act. Those records
may be subject to exemptions from the
Freedom of Information Act for personal
privacy and confidentiality. The records
retained by the BIA will be available for
inspection and copying in accordance
with the Freedom of Information Act
and the Privacy Act.
Another tribe expressed concern
about the Secretarial Election Board
keeping registration packets
confidential. The registration packets
contain general election information
that is sent to all tribal members 18
years of age or older at their last known
address. These packets are not
confidential. However, the returned
registration forms contain personal
information that is covered by the
Privacy Act and may be subject to
exemptions from the Freedom of
Information Act for personal privacy
and confidentiality.
Challenges
Several tribes asked who may
challenge the Registered Voters List.
Under § 81.32 of the proposed rule, any
tribal member may challenge the
inclusion or exclusion of a name from
the Registered Voters List as long as he
or she provides supporting
documentation for the challenge.
A tribe asked for clarification on the
time period for challenges to the
Registered Voters List. The Secretarial
Election Board establishes the time
period for challenges. (See § 82.33 of
proposed rule.)
A tribe asked how much time the
election board has to rule on a
challenge. The proposed rule, at § 81.33,
clarifies that the Secretarial Election
Board has three days after the challenge
deadline to rule on the challenge.
Petitioning
Several tribes questioned why
petitions had to be signed by at least 60
percent of the tribe’s eligible voters
where the tribe is not reorganized (i.e.,
where the tribe is adopting a governing
document under Federal statute for the
first time). The 60 percent requirement
was adopted in 1981. See 46 FR 1669
(January 7, 1981). We have re-examined
this requirement in light of the
questions raised at consultation, and are
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now proposing that petitions must be
signed by at least 20 percent of the
tribe’s eligible voters where the tribe is
not reorganized. The rationale for
lowering the threshold to 20 percent is
that a smaller percentage should be
entitled to raise the question to a vote
by petition than the percentage required
to vote for an election to be valid. The
IRA requires only 30 percent of eligible
voters to vote for an election to be valid.
See 25 U.S.C. 478a. We are specifically
seeking comment on this proposed
revision.
Several tribes objected to posting the
petition because individuals’ addresses
are included on the petition. Addresses
are redacted before posting.
Several tribes asked for additional
information on what makes a petition
valid and/or a checklist to ensure that
petitions are complete. Sections 81.58
and 81.65 explain how the BIA reviews
petitions.
One tribe asked for confirmation that
the Authorizing Official’s determination
as to the validity of the petition is final
for the Department of the Interior. For
the purposes of calling and conducting
the Secretarial Election the regulations
establish that this determination is final
at § 81.65.
Other Comments
One tribe stated that 25 U.S.C. 476(h),
which establishes that each tribe has
inherent sovereign power to adopt
governing documents under procedures
other than those specified in the IRA, is
not expressly addressed in the
regulations. The regulations govern
procedures for Secretarial elections;
they do not diminish tribes’ inherent
sovereign power to adopt governing
documents when Secretarial elections
are not required.
One tribe stated that applicability of
the regulations needs to be clearer. We
have attempted to clarify applicability at
§ 81.2 of the proposed rule.
One tribe asked for clarification on
when technical assistance is available
for the tribe and for petitioners. The
proposed rule clarifies this availability
in § 81.6.
Several tribes requested additional
information on charters. We clarify the
applicability of the regulations to
charters in § 81.2.
One tribe asked whether Secretarial
elections must follow tribal law.
Secretarial Elections are governed by
Federal law. The Secretary shall defer to
specific variations noted in the adoption
or amendment articles of a tribe’s
governing document that are not
otherwise inconsistent with Federal
law.
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A tribe expressed concern about how
to prevent one individual from casting
multiple votes. Similarly, a tribe asked
whether votes hand-delivered by one
individual on behalf of several need to
be scrutinized. The proposed regulation
includes several safeguards to ensure
that each individual receives only one
ballot, and mailout or absentee ballots
require the registered voter to sign a
certification on the back of the return
envelope.
A tribe suggested the regulations
include consequences for violating the
ban on electioneering. Tribes may enact
and enforce tribal law governing the
orderly conduct of elections, which
would apply to Secretarial elections to
the extent they do not conflict with
these regulations. Interference in a
Secretarial election may be a violation
of Federal civil rights and voting laws
and punishable under Federal law, as
well as tribal law.
A tribe asked what happens if the
Secretarial Election Board itself is
involved in voter fraud. Anyone who
commits fraud in connection with the
conduct of a Secretarial election may be
subject to prosecution under Federal
law. If actual election fraud makes it
impossible to determine the results of
the election, the Secretary must
disapprove the election results and call
for a new election as soon as corrective
action can be taken. Election fraud
which does not change the ultimate
results of an election does not require
disapproval of the election results. For
example, if 80 of 100 eligible voters cast
votes in the affirmative and election
fraud was shown with regard to 20
votes, the Secretary would not need to
disapprove the election as those 20
votes would not change the ultimate
results of the election.
A tribe suggested that the regulations
address assistance for illiterate voters.
The proposed regulations describe the
types of assistance available at § 81.12;
an illiterate voter may request
reasonable accommodations, which may
include having the interpreter read to
the voter, audio aids, or some other
accommodation.
One tribe stated that it should be a
requirement to hold education meetings
with the public regarding each
Secretarial election and the process. We
have considered this comment but
determined it is not appropriate to
include an express requirement for
educational meetings in the regulation
because of the wide variety of governing
documents and possible amendments
that tribes may want to consider. We
strongly encourage tribes, however, to
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conduct their own voter education
programs.
A few tribes asked that the proposed
rule include a cross-reference to 25 CFR
1.2, which allows for waivers of
requirements when in the best interest
of the Indians. These regulations are
intended to establish procedures in the
conduct of Federal elections that by
statute include specific deadlines.
Therefore, the Secretary’s authority to
grant waivers would be limited. It is not
anticipated that waivers would
routinely be appropriate and the
regulations themselves are being drafted
so that they are effective in the vast
majority of cases; thus, 25 CFR 1.2 is not
cross-referenced.
We received a number of suggestions
for items to add to a handbook
including: how to verify or authenticate
signatures, what are acceptable forms of
registration (email, mail, etc.), how the
Secretarial Election Board handles
hand-delivered ballots, a chart outlining
the petitioning process and the
Secretarial election process, template
letters regarding the status of the
request, checklists to help meet
timeframes, and information on
challenges to petition signatures based
on an allegation of forgery. We will
consider including these items
following finalization of the regulations.
III. Consultations
A. Past Consultations
Efforts to revise this regulation date
back to 1992, when the first
consultations were held. The
Department most recently hosted a set
of tribal consultation sessions in 2009
and 2010. These sessions were held on
December 1, 2009, in Anchorage,
Alaska; Brooks, California, on January
12, 2010; Minneapolis, Minnesota, on
January 20, 2010; Oklahoma City,
Oklahoma, on January 26, 2010; Pala,
California, on February 2, 2010; and
Albuquerque, New Mexico, on February
4, 2010. The Department also accepted
written comments to the regulations.
The Department reviewed the comments
and made significant changes to the
draft in response to tribes’ comments
and suggestions. Publication of this
proposed rule triggers an additional
tribal consultation period where tribes
may submit additional comments orally
at tribal consultation sessions, or in
writing.
B. Future Consultations
We will hold consultations at the
following locations on the dates and
times specified:
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Date
Time (all times local)
Location
Venue
Sunday, October 26, 2014 ...............
1 p.m.–4 p.m. ...................................
Atlanta, GA ...........................
Tuesday, November 18th, 2014 ......
8:30 a.m.–12 p.m. ............................
Oklahoma City, OK ..............
National Congress of American Indians (NCAI) Annual Convention
Hyatt Regency Atlanta 265
Peachtree St NE Atlanta, GA
30303.
Embassy Suites Oklahoma City Airport 1815 S. Meridian Ave. Oklahoma City, OK 73108.
The Department will provide tribes
with notice of any additional tribal
consultation sessions.
IV. Procedural Matters
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A. Regulatory Planning and Review
(E.O. 12866)
Executive Order (E.O.) 12866 provides
that the Office of Information and
Regulatory Affairs (OIRA) at the Office
of Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this rule is not
significant. E.O. 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The E.O.
directs agencies to consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public where these
approaches are relevant, feasible, and
consistent with regulatory objectives.
E.O. 13563 emphasizes further that
regulations must be based on the best
available science and that the
rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements. This rule is also
part of the Department’s commitment
under the Executive Order to reduce the
number and burden of regulations and
provide greater notice and clarity to the
public.
B. Regulatory Flexibility Act
The Department certifies that this rule
will not have a significant economic
effect on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). It does not
change current funding requirements or
regulate small entities.
C. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. It
will not result in the expenditure by
State, local, or tribal governments, in the
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aggregate, or by the private sector of
$100 million or more in any one year.
Secretarial elections are funded by the
BIA. Nor will this rule have significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of the U.S.based enterprises to compete with
foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or tribal
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
E. Takings (E.O. 12630)
Under the criteria in Executive Order
12630, this proposed rule does not affect
individual property rights protected by
the Fifth Amendment nor does it
involves a compensable ‘‘taking.’’ A
takings implication assessment is not
required.
F. Federalism (E.O. 13132)
Under the criteria in Executive Order
13132, this proposed rule has no
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. This rule clarifies
the procedures for conducting a
Secretarial election, which is a Federal
election, for federally recognized Indian
tribes.
G. Civil Justice Reform (E.O. 12988)
This proposed rule complies with the
requirements of Executive Order 12988.
Specifically, this rule has been reviewed
to eliminate errors and ambiguity and
written to minimize litigation; and is
written in clear language and contains
clear legal standards.
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H. Consultation With Indian Tribes
(E.O. 13175)
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments,’’ Executive Order 13175
(59 FR 22951, November 6, 2000), and
512 DM 2, we have held several
consultation sessions with
representatives of federally recognized
tribes throughout the development of
this proposed rule. Details on these
consultation sessions and the comments
received are described above.
I. Paperwork Reduction Act
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., prohibits a
Federal agency from conducting or
sponsoring a collection of information
that requires OMB approval, unless
such approval has been obtained and
the collection request displays a
currently valid OMB control number.
Nor is any person required to respond
to an information collection request that
has not complied with the PRA. In
accordance with 44 U.S.C. 3507(d), BIA
has submitted the information
collection and recordkeeping
requirements of this proposed rule to
OMB for review and approval. The
following describes the information
collection requirements in each section
of the proposed rule and any changes
from the current rule.
Title: Secretarial elections (25 CFR
part 81)
OMB Control Number: 1076–NEW
Requested Expiration Date: Three
years from the approval date.
Summary: This information collection
requires tribes that are requesting a
Secretarial election to provide a formal
request for election, including the
language to be voted on and a certified
list of tribal members who will be age
18 at the time of the Secretarial election
and their current addresses or a certified
Eligible Voters List with addresses. This
list is necessary to ensure that all
eligible voters receive notice of the
Secretarial election and the opportunity
to register and vote in the election. This
information collection also requires that
tribal members who petition for a
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Secretarial election provide certain
information in the petition, that tribal
members who wish to vote in the
election to register for the election, that
registered voters submit a ballot to vote
in the election, and that anyone wishing
to challenge the results of an election
provide substantiating evidence for the
challenge.
Frequency of Collection: On occasion.
Description of Respondents: Indian
tribes, Indian tribal members.
Total Annual Responses: 252,041.
Total Annual Burden Hours: 64,305
(1,280 hours for tribal submissions,
63,025 hours for member submissions).
Total Annual Cost Burden: $110,880.
The BIA invites comments on the
information collection requirements of
this proposed rule. You may submit
comments to the Desk Officer for the
Department of the Interior by email at
OIRA_Submission@omb.eop.gov or by
facsimile at (202) 395–5806. Please also
send a copy of your comments to BIA
at the location specified under the
heading ADDRESSES.
You can receive a copy of BIA’s
submission to OMB by contacting the
person listed in the FOR FURTHER
INFORMATION CONTACT section, or by
requesting the information from the
Indian Affairs Information Collection
Clearance Officer, Office of Regulatory
Affairs & Collaborative Action, 1849 C
Street NW., MS–4141, Washington, DC
20240. You may also view the
information collection request as
submitted to OMB at www.reginfo.gov.
Comments should address: (1)
Whether the collection of information is
necessary for the proper performance of
the Program, including the practical
utility of the information to the BIA; (2)
the accuracy of the BIA’s burden
estimates; (3) ways to enhance the
quality, utility, and clarity of the
information collected; and (4) ways to
minimize the burden of collection of
information on the respondents,
including the use of automated
collection techniques or other forms of
information technology.
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J. National Environmental Policy Act
This proposed rule does not
constitute a major Federal action
significantly affecting the quality of the
human environment.
K. Information Quality Act
In developing this proposed rule we
did not conduct or use a study,
experiment, or survey requiring peer
review under the Information Quality
Act (Pub. L. 106–554).
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L. Effects on the Energy Supply (E.O.
13211)
This proposed rule is not a significant
energy action under the definition in
Executive Order 13211. A Statement of
Energy Effects is not required.
Director for Indian Services, Great
Plains Region, Bureau of Indian Affairs;
and Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative
Action—Indian Affairs, Department of
the Interior.
M. Clarity of This Regulation
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use clear language rather than
jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you believe that we have not met
these requirements, send us comments
by one of the methods listed in the
‘‘COMMENTS’’ section. To better help
us revise the rule, your comments
should be as specific as possible. For
example, you should tell us the
numbers of the sections or paragraphs
that are unclearly written, which
sections or sentences are too long, the
sections where you believe lists or
tables would be useful, etc.
List of Subjects in 25 CFR Parts 81 and
82
Indians—tribal government.
For the reasons given in the preamble,
under the authority of 5 U.S.C. 301 and
25 U.S.C. 2 and 9, the Department
proposes to amend chapter I, title 25, as
follows:
■ 1. Revise part 81 to read as follows:
PART 81—SECRETARIAL ELECTION
PROCEDURES
Subpart A—Purpose and Scope
Sec.
81.1 What is the purpose of this part?
81.2 When does this part apply?
81.3 Information collection.
Subpart B—Definitions
81.4 What terms do I need to know?
N. Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
We cannot ensure that comments
received after the close of the comment
period (see DATES) will be included in
the docket for this rulemaking and
considered. Comments sent to an
address other than those listed above
will not be included in the docket for
this rulemaking.
Subpart C—General Provisions
81.5 What should a tribe do when
anticipating adopting or amending its
governing document?
81.6 What technical assistance will the
Bureau provide?
81.7 What happens if a governing Federal
statute and this part disagree?
81.8 Will the Secretary give deference to
the Tribe’s interpretation of its own
documents?
81.9 Who may cast a vote in a Secretarial
Election?
81.10 May a tribe establish a voting age
different from 18 years of age for
Secretarial elections?
81.11 What type of electioneering is
allowed before and during a Secretarial
Election?
81.12 What types of voting assistance are
provided for a Secretarial Election?
81.13 May Secretarial elections be
scheduled at the same time as tribal
elections?
81.14 How are conflicting proposals to
amend a single document handled?
81.15 Who pays for holding the Secretarial
Election?
81.16 May a tribe use its funds to pay nonFederal election officials?
81.17 Who can withdraw a request for a
Secretarial Election?
O. Drafting Information
The primary authors of this document
are De Springer, Former Acting Chief,
Division of Tribal Government Services,
Bureau of Indian Affairs; Karen Ketcher,
Former Deputy Regional Director,
Eastern Oklahoma Region, Bureau of
Indian Affairs; Suzanne Chaney, Former
Community Services Officer, Southern
Plains Region, Bureau of Indian Affairs;
Danelle Daugherty, Deputy Regional
Subpart D—The Secretarial Election
Process Under the Indian Reorganization
Act (IRA)
81.18 How is a Secretarial Election
requested?
81.19 What does the Bureau do after
receiving a request for a Secretarial
Election?
81.20 What is the first thing that the Chair
of the Election Board does?
81.21 Who conducts the Secretarial
Election?
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81.22 How is the Secretarial Election
conducted?
81.23 What documents are included in the
Secretarial Election Notice Packet?
81.24 What information must be included
on the Secretarial Election notice?
81.25 Where will the Secretarial Election
Notice be posted?
81.26 How does BIA use the information I
provide on the registration form?
81.27 Do I have to re-register if I have
already registered for a tribal or
Secretarial Election?
81.28 How do I submit my registration
form?
81.29 Why does the Secretarial Election
Board compile a Registered Voters List?
81.30 What information is contained in the
Registered Voters List?
81.31 Where is the Registered Voters List
posted?
81.32 May the Registered Voters List be
challenged?
81.33 How does the Secretarial Election
Board respond to challenges?
81.34 How are the official ballots prepared?
81.35 When must the Secretarial Election
Board send ballots to voters?
81.36 What will the mailout or absentee
ballot packet include?
81.37 How do I cast my vote at a polling
site?
81.38 When are ballots counted?
81.39 How does the Board determine
whether the required percentage of
registered voters have cast ballots?
81.40 What happens if a ballot is spoiled
before it is cast?
81.41 Who certifies the results of the
Election?
81.42 Where are the results of the Election
posted?
81.43 How are the results of the Election
challenged?
81.44 What documents are sent to the
Authorizing Official?
81.45 When are the results of the
Secretarial Election final?
Subpart E—The Secretarial Election
Process Under the Oklahoma Indian
Welfare Act (OIWA)
81.46 What should a tribe do to adopt or
amend its governing document?
81.47 What technical assistance does the
Bureau provide?
81.48 What does the Bureau do upon
receiving the request for an Election?
81.49 How is the Secretarial Election
conducted?
81.50 When are the results of the Election
final?
Subpart F—Formulating Petitions To
Request a Secretarial Election
81.51 What is the purpose of this subpart?
81.52 Who must follow these
requirements?
81.53 How do tribal members circulate a
petition to adopt or amend the tribe’s
governing document?
81.54 What technical assistance will the
Bureau provide?
81.55 Who may initiate a petition?
81.56 Who may sign a petition?
81.57 Who is authorized to submit a
petition to the Secretary?
81.58 How is the petition formatted and
signed?
81.59 Do petitions have a minimum or
maximum number of pages?
81.60 How do I find out how many
signatures are needed for a petition to be
valid?
81.61 How long do tribal members have to
gather the signatures?
81.62 How does the spokesperson file a
petition?
81.63 How does the Local Bureau Official
process the petition?
81.64 How can signatures to the petition be
challenged?
81.65 How is the petition validated?
81.66 May the same petition be used for
more than one Secretarial Election?
Authority: 25 U.S.C. 473a, 476, 477, as
amended, and 503.
Subpart A—Purpose and Scope
§ 81.1
What is the purpose of this part?
This part prescribes the Department’s
procedures for authorizing and
conducting elections when Federal
statute or the terms of a tribal governing
document require the Secretary to
conduct and approve an election to:
(a) Adopt, amend, or revoke tribal
governing documents; or
(b) Adopt or amend charters.
§ 81.2
When does this part apply?
This part applies only to federally
recognized tribes, in the circumstances
shown in the following table.
If a tribe wants to . . .
And . . .
(a) Adopt a new governing document to reorganize under Federal statute.
(b) Adopt a new governing document to reorganize outside Federal statute.
(c) Amend or revoke a governing document
adopted under Federal statute.
(d) Amend or revoke a governing document
adopted outside Federal statute.
(e) Ratify a federal charter of incorporation .......
The Federal statute requires an election before or after Secretarial approval.
(f) Amend a federal charter of incorporation ......
(g) Take other action ..........................................
(h) Remove the requirement for a Secretarial
approval from a governing document.
§ 81.3
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61027
Information collection.
The information collection
requirements contained in this part are
approved by the Office of Management
and Budget under the Paperwork
Reduction Act of 1995, 44 U.S.C.
3507(d), and has been assigned OMB
control number 1076–XXX. This
information is collected when, under
Federal statute or the tribe’s governing
documents, the Secretarial Election is
authorized to adopt, amend, or revoke
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The governing document requires approval under the Secretary’s general authority to approve.
The Federal statute requires an election and approval for amendment or revocation.
The governing document requires Secretarial approval of an amendment or revocation.
The charter requires Secretarial approval or is being ratified under the Ok lahoma Indian Welfare Act (OIWA).
(1) The charter was ratified before the May 24, 1990, amendments to the India n Reorganization Act (IRA); or
(2) The charter was ratified after May 24, 1990, amendments to the Indian Reorganization Act
(IRA), and the charter requires a Secretarial Election to amend.
A Federal statute or tribal law requires a Secretarial Election in order to take that action.
A Federal statute or tribal law requires a Secretarial Election in order to take that action.
governing documents; or adopt or
amend charters. This information is
required to obtain or retain benefits. A
Federal agency may not collect or
sponsor an information collection
without a valid OMB control number.
Subpart B—Definitions
§ 81.4
What terms do I need to know?
For purposes of this part:
Absentee or Mailout ballot means a
ballot the Secretarial Election Board
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provides to a registered voter to allow
him or her to vote by mail.
Amendment means any modification
or change to one or more provisions of
an existing governing document or
charter.
Applicable law means any treaty,
statute, Executive Order, regulation,
opinion of the Solicitor or final decision
of the Interior Board of Indian Appeals
or a Federal court, which is applicable
to the tribe.
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Authorizing Official means the
Bureau official with delegated Federal
authority to authorize a Secretarial
Election.
Bureau means the Bureau of Indian
Affairs, Department of the Interior.
Cast means the action of a registered
voter, when the ballot is received
through the mail by the Secretarial
Election Board, or placed in the ballot
box at the polling site, when polling
sites are required by the amendment or
adoption articles of the tribe’s governing
document.
Charter means a charter of
incorporation issued under a Federal
statute and ratified by the governing
body in accordance with tribal law or,
if adopted before May 24, 1990, by a
majority vote in an election conducted
by the Secretary.
Day means a calendar day. A
Secretarial Election may be held on a
Saturday, Sunday or Federal holiday.
Department means the Department of
the Interior.
Director means the Director of the
Bureau of Indian Affairs or his or her
authorized representative.
Electioneering means campaigning for
or against the adoption, ratification,
revocation or amendment of a proposed
governing document or a charter.
Eligible voter means a tribal member
who will be 18 years of age or older on
the date of the Secretarial Election.
Eligible Voters List means a list of
eligible voters, including their
birthdates and their last known mailing
addresses. The Eligible Voters List is
compiled and certified by the tribe’s
governing body or the Bureau if the
Bureau maintains the current
membership roll for the tribe.
Federal statute means the Indian
Reorganization Act (IRA), 25 U.S.C. 476,
477, as amended, the Oklahoma Indian
Welfare Act (OIWA), 25 U.S.C. 503, and
any tribe-specific statute that requires a
Secretarial Election for the adoption of
a governing document.
Governing document means any
written document which prescribes the
extent, limitations, and manner in
which the tribe exercises its sovereign
powers.
Local Bureau office means the local
administrative office of the Bureau.
Local Bureau Official means the
Superintendent, Field Representative, or
other official having delegated Federal
administrative responsibility under this
part.
Member means any person who meets
the written criteria of and is duly
enrolled with a tribe.
Petition means the official document
submitted by the petitioners to the
Secretary to call a Secretarial Election
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for the purpose of adopting or ratifying
a new governing document, amending
the tribe’s existing governing document,
or revoking the tribe’s existing
governing document.
Polling site ballot means the ballot the
Secretarial Election Board provides to a
registered voter, allowing him or her to
vote when polling sites are required by
the amendment and adoption article of
the tribe’s governing document.
Recognized governing body means the
tribe’s governing body recognized by the
Bureau for the purposes of governmentto-government relations.
Registered Voter means an eligible
voter who has registered to vote in the
Secretarial Election.
Registered Voters List means the list
of all Registered Voters. A redacted
version showing only names, and where
applicable voting districts, shall be used
for posting purposes.
Registration means the process by
which an eligible voter is determined
eligible to vote in the Secretarial
Election.
Revocation means that act whereby
the registered voters of a tribe vote to
revoke their current governing
document.
Secretarial Election means a Federal
election conducted by the Secretary
under a Federal statute or tribal
governing document under this part.
Secretarial Election Board means the
body of officials appointed by the
Bureau and the tribe to conduct the
Secretarial Election.
Secretary means the Secretary of the
Interior or his or her authorized
representative.
Spoiled ballot means the ballot is
mismarked, mutilated, rendered
impossible to determine the voter’s
intent, or marked so as to violate the
secrecy of the ballot.
Spokesperson for the petitioners
means a tribe’s eligible voter who
provides a document signed by tribal
members that provides him or her
authority to speak or submit a petition
on their behalf.
Tribal request means a request
composed of all of the following:
(1) A duly adopted tribal resolution,
tribal ordinance, other appropriate tribal
document requesting the Secretary to
call a Secretarial Election, or, in the
absence of an existing governing
document or if authorized or required
by the existing governing documents, a
petition that has been verified by the
Bureau as having the minimum required
signatures of tribal members;
(2) The exact document or amended
language to be voted on; and
(3) A list of all Tribal members who
will be 18 years age or older within 120
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days of the date of this request,
submitted in an electronically sortable
format with names, last known
addresses, dates of birth, and voting
district, if any.
Tribe means any Indian or Alaska
Native tribe, band, nation, pueblo,
village or community that is listed in
the Federal Register under 25 U.S.C.
479a–1(a), as recognized and receiving
services from the Bureau of Indian
Affairs.
Voting district means a geographic
area established to facilitate the voting
process, if required, by the amendment
and adoption articles of the tribe’s
governing document.
Subpart C—General Provisions
§ 81.5 What should a tribe do when
anticipating adopting or amending its
governing document?
The tribe should submit the proposed
document to the Local Bureau Official
for review and comment. Bureau
personnel may help the tribal
government in drafting governing
documents, bylaws, charters,
amendments and revocations. They will
also explain the Secretarial Election
process.
§ 81.6 What technical assistance will the
Bureau provide?
(a) Upon completing the initial review
of the proposed document or
amendment, the Local Bureau Official
will make a recommendation on the
proposed document or amendment,
prepare background information on the
tribe, and submit to the Authorizing
Official.
(b) The Authorizing Official must do
all of the following:
(1) Review the proposed governing
document or amendment and offer
technical assistance and comments to
the tribe.
(2) Consult with the Office of the
Solicitor to determine whether any of
the provisions of the proposed
governing document or amendment may
be contrary to applicable law.
(3) Notify the tribe in writing if a
provision is or may be contrary to
applicable law. This notification must:
(i) Explain how the provision may be
contrary to applicable law; and
(ii) Be sent to the tribe promptly but
in no case less than 30 days before
calling the election.
(c) Once the tribe has responded to
the Bureau’s technical assistance,
comments and notice of any provision
that may be contrary to applicable law,
it may submit a tribal request for a
Secretarial Election.
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§ 81.7 What happens if a governing
Federal statute and this part disagree?
If a conflict appears to exist between
this part and a specific requirement of
the Federal statute, this part must be
interpreted to conform to the statute.
§ 81.8 Will the Secretary give deference to
the Tribe’s interpretation of its own
documents?
The Secretary will give deference to
the tribe’s reasonable interpretation of
the amendment and adoption articles of
the tribe’s governing documents. The
Secretary retains authority, however, to
61029
interpret tribal law when necessary to
carry out the government-to-government
relationship with the tribe or when a
provision, result, or interpretation may
be contrary to Federal law.
§ 81.9 Who may cast a vote in a Secretarial
Election?
If the tribe:
Then the following individuals may cast a vote:
(a) Is reorganizing under Federal statute for the
first time,
Any member of the tribe who:
(1) Will be 18 years of age or older on the date of the Secretarial Election; and
(2) Has duly registered, regardless of residence or other qualifications contained in the tribe’s
governing documents or charter.
Any member of the tribe who:
(1) Will be 18 years of age or older on the date of the Secretarial Election; and
(2) Otherwise meets the qualifications established by the tribe’s governing documents or charter or, if the tribe’s governing documents and charter do not define the qualifications for voting in a Secretarial Election, then meets the same qualifications as those entitled to vote in
the Secretarial Election that effected the tribe’s reorganization; and
(3) Has duly registered.
Any member of the tribe who:
(1) Will be 18 years of age or older on the date of the Secretarial Election; and
(2) Otherwise meets the qualifications, if any, established by the tribe’s governing documents
or charter or, if the tribe’s governing documents and charter do not define the qualifications
for voting in a Secretarial Election; and
(3) Has duly registered.
(b) Is already reorganized under Federal statute,
(c) Is not organized under a Federal statute but
tribal law requires a Secretarial Election.
§ 81.10 May a tribe establish a voting age
different from 18 years of age for Secretarial
elections?
§ 81.13 May Secretarial elections be
scheduled at the same time as tribal
elections?
No. A Secretarial Election is a Federal
election. According to the 26th
Amendment of the U.S. Constitution,
adopted July 1, 1971, all individuals 18
years of age and older must be able to
vote in Federal elections.
The Secretarial Election Board will,
generally, avoid scheduling Secretarial
Elections at the same time as tribal
elections to avoid confusion. If the
Secretarial Election Board decides to
schedule a Secretarial Election at the
same time as a tribal election, the
Secretarial Election Board must clearly
inform eligible voters of any differences
between the tribal election and the
Secretarial Election and separate ballots
must be used for each type of election.
§ 81.11 What type of electioneering is
allowed before and during Secretarial
election?
There shall be no electioneering
within 50 feet of the entrance of a
polling site.
§ 81.14 How are conflicting proposals to
amend a single document handled?
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§ 81.12 What types of voting assistance
are provided for a Secretarial Election?
If polling sites are required by the
amendment or adoption article of the
tribe’s governing document, the Chair of
the Secretarial Election Board will:
(a) Appoint interpreters;
(b) Ensure that audio or visual aids for
the hearing or visually impaired are
provided;
(c) Ensure that reasonable
accommodations are made for others
with impairments that would impede
their ability to vote; and
(d) Allow the interpreter or Secretarial
Election Board member to explain the
election process and voting instructions.
At the request of the voter, the
interpreter or Board member may
accompany the voter into the voting
booth, but must not influence the voter
in casting the ballot.
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When conflicting proposals to amend
a single provision of a tribal governing
document or charter provision are
submitted, the proposal first received by
the Local Bureau Official, if properly
submitted as a complete tribal request,
must be voted on before any
consideration is given other proposals.
Other proposals must be considered in
order of their receipt if they are
resubmitted following final action on
the first submission. This procedure
applies regardless of whether the
proposal is a new or revised tribal
governing document.
§ 81.15 Who pays for holding the
Secretarial Election?
A Secretarial Election is a Federal
election; therefore, Federal funding will
be used to cover the cost. The Bureau
will pay for the costs, unless the tribe
has received funding through contracts
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or self-governance compacts entered
into under the Indian SelfDetermination and Education
Assistance Act, as amended, 25 U.S.C.
450f, et seq.
§ 81.16 May a tribe use its funds to pay
non-Federal election officials?
A tribal recognized governing body
may use tribal funds to compensate nonFederal personnel to protect the tribe
and respond to the needs of the tribal
government in the conduct of the
Secretarial Election.
§ 81.17 Who can withdraw a request for a
Secretarial Election?
The tribe or spokesperson for the
petitioners may withdraw the request
for Secretarial Election in the same
manner in which the Secretarial
Election was requested. However, the
request for a Secretarial Election cannot
be withdrawn after the established
deadline for voter registration.
Subpart D—The Secretarial Election
Process Under the Indian
Reorganization Act (IRA)
§ 81.18 How is a Secretarial Election
requested?
A tribe may make a request to the
Local Bureau Official for a Secretarial
Election by submitting:
(a) A tribal request from the
recognized governing body, or
(b) A petition from the spokesperson
for the petitioners.
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§ 81.19 What does the Bureau do after
receiving a request for a Secretarial
Election?
(a) Upon receiving a request for a
Secretarial election, the Authorizing
Official will issue a memorandum to the
Local Bureau official. The memorandum
will do all of the following:
(1) Direct the Local Bureau official to
call and conduct a Secretarial Election
by one of the following deadlines:
(i) If the tribal request is to amend an
existing governing document, within 90
days from the date of receipt of the
request;
(ii) If the tribal request is to adopt a
new governing document (including an
amendment to a governing document in
the nature of an entire substitute) or to
revoke an existing governing document,
within 180 days after receiving the
request.
(2) Include as an attachment the
document or proposed language to be
voted upon;
(3) Include as an attachment the
Certificate of Results of Election with
instructions to return it after the
Secretarial Election. The Certificate
shall read as follows:
CERTIFICATE OF RESULTS OF ELECTION
Under a Secretarial Election authorized by
(name and title of authorizing official) on
(date), the attached [insert: Governing
document and Bylaws, charter of
incorporation, amendment or revocation] of
the (official name of tribe) was submitted to
the registered voters of the tribe and on (date)
duly (insert: adopted, ratified, rejected or
revoked) by a vote of (number) for and
(a) Mailout Balloting ............................................
(1) The Secretarial Election notice; ....................
(2) A registration form with instructions for returning the completed form by mail;.
(3) An addressed envelope with which to return
the completed registration form; and.
(4) A copy of the proposed document. ...............
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 81.24 What information must be included
on the Secretarial Election notice?
The Secretarial Election notice must
contain all of the following items.
(a) The date of the Secretarial
Election;
(b) The date which registration forms
must be received by the Secretarial
Election Board;
(c) A description of the purpose of the
Secretarial Election;
(d) A description of the statutory and
tribal authority under which the
Secretarial Election is held;
(e) The deadline for filing challenges
to the Registered Voters List;
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(number) against and (number) cast ballots
found spoiled in an election in which at least
30 percent (or such ‘‘percentages’’ as may be
required to amend according the governing
document) of the (number) registered voters
cast their ballot in accordance with
(appropriate Federal statute).
Signed: lllll
(by the Chair of the Secretarial Election
Board and Board Members)
Date: lll; and
§ 81.22 How is the Secretarial election
conducted?
Within 5 days after the Secretarial
Election Board representatives are
appointed, the Chair must hold the first
meeting of the Secretarial Election
Board to set the election date.
The Secretarial Election Board:
(a) Uses the list provided in the tribal
request to create an Eligible Voters List;
(b) Assembles and mails the
Secretarial Election Notice Packet at
least 60 days before the date of the
Secretarial Election to all persons on the
Eligible Voters List;
(c) Confirms that registration forms
were received on or before the deadline
date;
(d) Retains the completed registration
form as part of the record;
(e) Develops the Registered Voters List
for posting;
(f) Notes on a copy of the Registered
Voters List, by the individual’s name,
the date his or her ballot request was
received, the date the ballot was mailed,
and the date the ballot was returned;
and
(g) If polling sites are required by the
amendment or adoption article of the
tribe’s governing document, notes on a
copy of the Registered Voters List, by
the individual’s name, the date his or
her absentee ballot request was
received, the date the absentee ballot
was mailed, and the date the absentee
ballot was returned.
§ 81.21 Who conducts the Secretarial
Election?
§ 81.23 What documents are included in
the Secretarial Election Notice Packet?
The Secretarial Election Board
conducts the Secretarial Election.
The Secretarial Election Notice Packet
includes the following.
(4) Advise that no changes or
modifications can be made to any
attached document, without the
Authorizing Official’s prior approval.
(b) The Local Bureau Official will
appoint a Bureau employee to serve as
the Chair of the Secretarial Election
Board and notify the tribe of the need
to appoint at least two tribal members
to the Secretarial Election Board. If the
tribe declines or fails for any reason to
make this appointment within10 days
after the notice letter is issued, the Chair
of the Secretarial Election Board must
appoint two representatives on the 11th
day after the notice letter is issued.
§ 81.20 What is the first thing that the
Chair of the Election Board does?
(b) Polling Sites (if required by the amendment or adoption ar
ticles of the tribe’s governing
document).
(1) The Secretarial Election notice;
(2) A registration form with instructions for returning the completed form by mail;
(3) An absentee ballot request form with instructions for returning the completed form by mail;
(4) An addressed envelope with which to return the completed registration fo rm and absentee
ballot request form; and
(5) A copy of the proposed document.
(f) The date a ballot request must be
received by the Secretarial Election
Board;
(g) A statement as to whether the
Secretarial Election is being held
entirely by mailout ballot or with
polling sites, in accordance with the
tribe’s governing document’s
amendment or adoption articles; and
(h) The locations and hours of
established polling sites, if any.
§ 81.25 Where will the Secretarial Election
notice be posted?
The Secretarial Election notice will be
posted at the local Bureau office, if any,
the tribal headquarters, and other public
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places determined by the Secretarial
Election Board.
§ 81.26 How does BIA use the information
I provide on the registration form?
We use the information you provide
on the registration form to determine
whether you may be register for and
vote in the Secretarial Election. The
registration form must include the
following statements:
(a) Completing and returning this
registration is necessary if you desire to
vote in the forthcoming Secretarial
Election;
(b) This form, upon completion and
return to the Secretarial Election Board,
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will be the basis for determining
whether your name will be placed upon
the list of registered voters, and
therefore may receive a ballot, and
(c) Completion and return of this form
is voluntary, but failure to do so will
prevent you from participating in the
Secretarial election.
§ 81.27 Do I have to re-register if I have
already registered for a tribal or Secretarial
Election?
Yes. A Secretarial Election is a
Federal election and you must register
for each Secretarial Election.
§ 81.28
form?
How do I submit my registration
You must submit your registration
form to the Secretarial Election Board by
mail.
§ 81.29 Why does the Secretarial Election
Board compile a Registered Voters List?
The Registered Voters List is a list of
eligible voters who have registered and
are, therefore, entitled to vote in the
Secretarial Election. We use this list,
after all challenges have been resolved,
to determine whether voter
participation in the Secretarial Election
satisfies the minimum requirements of
the tribe’s governing documents and
Federal law.
(b) Failure to register on time is not
a valid basis for an individual to
challenge the omission of his/her name
from the list.
§ 81.33 How does the Secretarial Election
Board respond to challenges?
All challenges must be resolved
within three days of the challenge
deadline established by the Secretarial
Election Board and all determinations of
the Secretarial Election Board are final
for the purpose of determining who can
vote in the Secretarial Election.
(a) If the challenge was received after
the deadline, the Secretarial Election
Board must deny the challenge.
(b) If the challenge was received on or
before the deadline, the Secretarial
Election Board will decide the challenge
by reviewing the documentation
submitted. Thereafter, the Secretarial
Election Board will include the name of
any individual whose name should
appear or remove the name of any
individual who should not appear on
the Registered Voters List.
§ 81.34 How are the official ballots
prepared?
A copy of the Registered Voters List,
showing names only, must be posted at
the local Bureau office, if any, the tribal
headquarters, and other public places
the Secretarial Election Board
designates.
(a) The Secretarial Election Board
must prepare the official ballot so that
it is easy for the voters to indicate a
choice between adopting or rejecting the
proposed language. Separate ballots
should be prepared for each proposed
amendment or a single ballot for
adoption of a proposed document (with
a reference to the document provided in
the Secretarial Election notice).
(b) The following information must
appear on the face of the mailout or
absentee ballot:
OFFICIAL BALLOT
(Facsimile Signature)
CHAIR, SECRETARIAL ELECTION
BOARD
(c) When polling places are required
by the tribe’s governing document, the
official ballot may be a paper ballot,
voting machine ballot, or other type of
ballot supporting the secret ballot
process.
§ 81.32 May the Registered Voters List be
challenged?
§ 81.35 When must the Secretarial Election
Board send ballots to voters?
(a) It is possible to challenge in
writing the inclusion or exclusion or
omission of a name on the Registered
Voters List. The written challenge must
be received by the Secretarial Election
Board by the established deadline and
include the following:
(1) The individual whose name does
or does not appear on the Registered
Voters List;
(2) The reason why the individual’s
name should or should not be included;
and
(3) Supporting documentation.
(a) The Secretarial Election Board
must send mailout or absentee ballots to
registered voters:
(1) When the list of Registered Voters
is complete; or
(2) Any time a request for an absentee
ballot is received before Secretarial
Election date if polling sites are required
by the amendment or adoption articles
of the tribe’s governing document.
(b) All mailout or absentee ballot
transactions must be via U.S. Mail
before the date of the Secretarial
Election.
§ 81.30 What information is contained in
the Registered Voters List?
The Registered Voters List must
contain the names, in alphabetical
order, of all registered voters and their
voting districts, if voting districts are
required by the tribe’s governing
document’s amendment or adoption
articles.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 81.31 Where is the Registered Voters
List posted?
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§ 81.36 What will the mailout or absentee
ballot packet include?
The mailout or absentee ballot packet
contains:
(a) A mailout or absentee ballot;
(b) Instructions for voting by mailout
or absentee ballot including the date the
ballot must be received by the
Secretarial Election Board;
(c) An inner envelope with the words
‘‘Mailout Ballot’’ or ‘‘Absentee Ballot’’
printed on the outside;
(d) A copy of the proposed governing
document or amendment, if the full text
is not printed on the mailout ballot; and
(e) A pre-addressed outer envelope
with the following certification printed
on the back:
I, (print name of voter), hereby certify I am
a registered voter of the (name of Tribe); I
will be 18 years of age or older on the day
of the Secretarial Election; I am entitled to
vote in the Secretarial Election to be held on
(date of Secretarial Election). I further certify
that I marked the enclosed mailout ballot in
secret.
Signed: lllll (voter’s signature)
§ 81.37
site?
How do I cast my vote at a polling
If polling sites are required by the
tribe’s governing document’s
amendment or adoption articles, the
Secretarial Election Board will establish
procedures for how polling site ballots
will be presented and collected,
including, but not limited to, paper
ballots, voting machines, or other
methods supporting a secret ballot.
§ 81.38
When are ballots counted?
The ballots will be counted under the
supervision of the Secretarial Election
Board, after the deadline established for
receiving all ballots or closing of the
polls, if polling sites are required by the
tribe’s governing document’s
amendment or adoption articles.
§ 81.39 How does the Board determine
whether the required percentage of
registered voters have cast ballots?
The Secretarial Election Board must
count the number of valid ballots and
cast spoiled ballots to determine total
voter participation. The Board must take
the total voter participation and divide
it by the total number of Registered
Voters. This total is used to determine
whether the percentage of Registered
Voters who cast votes meets the
requirements of the tribe’s governing
documents or Federal statute that
requires at least 30 percent voter
participation. For example:
(a) If there were 200 registered voters
of which 75 cast valid ballots and 5 cast
spoiled ballots for a total of 80 cast
ballots (75 + 5 = 80). The percentage of
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voter participation would be determined
as follows:
Total number of votes cast (80)
divided by the total number registered
voters (200) or 80 ÷ 200 = 0.40 or 40
percent voter participation.
(b) This example meets the Federal
statutory requirement of at least 30
percent voter participation.
§ 81.40 What happens if a ballot is spoiled
before it is cast?
If a ballot is spoiled before it is cast,
this section applies.
(a) The registered voter may return the
spoiled ballot to the Secretarial Election
Board by mail or in person with a
request for a new ballot before the
election date. The new ballot will be
promptly provided to the registered
voter. The Secretarial Election Board
must retain all ‘‘spoiled uncast ballots’’
for recordkeeping purposes.
(b) If polling sites are required, the
voter may return the spoiled ballot to
the polling site worker and request a
new ballot. Upon receiving the new
ballot, the voter must then complete the
voting process. The polling site worker
will mark the spoiled ballot ‘‘spoiled
uncast’’ and record that the ballot has
been spoiled. The polling site worker
must retain all ‘‘spoiled uncast ballots’’
for recordkeeping purposes.
§ 81.41 Who certifies the results of the
Election?
The Chair and all members of the
Secretarial Election Board must be
present during the counting of the
ballots and must sign the Certificate of
Results of Election.
§ 81.42 Where are the results of the
Election posted?
The Secretarial Election Board must
post a copy of the Certificate of Results
of Election at the local Bureau office, the
tribal headquarters, and at other public
places listed in the Election notice.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 81.43 How are the results of the Election
challenged?
Any person who submitted a voter
registration form may challenge the
results of the Secretarial Election. The
written challenge, with substantiating
evidence, must be received by the
Chairman of the Secretarial Election
Board within 3 days after the Certificate
of Results of Election is posted.
Challenges received after the deadline
for filing challenges will not be
considered. If the third day falls on a
weekend or holiday, the challenge must
be received by close of business on the
next business day.
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§ 81.44 What documents are sent to the
Authorizing Official?
The Chair of the Secretarial Election
Board must transmit all documents
pertaining to the Secretarial Election to
the Authorizing Official, including:
(a) The original text of the material
voted on;
(b) The Eligible Voters List;
(c) The Registered Voters List;
(d) The Secretarial Election Notice
Packet;
(e) Any challenges to the Secretarial
Election results; and
(f) The Certificate of Results of
Election.
(2) Retain, as required by the Records
Disposition Schedule, a copy of all
document(s) relevant to the Secretarial
Election.
(e) If the certified election results
show that the tribal members ratified
the documents, but the Authorizing
Official does not approve or disapprove
the governing document or amendment
within 45 days of the Secretarial
Election, the Secretary’s approval of the
documents must be considered as given.
Subpart E—The Secretarial Election
Process Under the Oklahoma Indian
Welfare Act (OIWA)
§ 81.45 When are the results of the
Election final?
§ 81.46 What should a tribe do to adopt or
amend its governing document ?
The Authorizing Official will review
election results and challenges, if any,
as follows:
(a) If a challenge is sustained and may
have an impact on the outcome of the
election, the Authorizing Official must
authorize a recount or call for a new
Secretarial Election. The Authorizing
Official will take the appropriate steps
necessary to provide for a recount or a
new Secretarial Election. The results of
the recount or new Secretarial Election
will be final for the Department.
(b) If all challenges are denied or
dismissed, the Authorizing Official will
review and make a decision based on
the following:
(1) The percentage of total votes cast
was at least 30 percent, or other
percentages required according to the
tribe’s governing document’s
amendment or adoption articles.
(2) The voters rejected or accepted the
proposed document or each proposed
amendment; and
(3) The proposed documents or
amendments are not contrary to Federal
law.
(c) The Authorizing Official must
notify, in writing, the recognized
governing body of the tribe, and the
Director of the Bureau, of the following:
(1) The decisions on challenges;
(2) The outcome of the voting;
(3) Whether the proposed governing
document, proposed amendment(s) or
charter or charter amendments are
approved or ratified, or if the proposed
documents contain language that is
contrary to Federal law and, therefore,
disapproved; and
(4) That the decision is final for the
Department.
(d) The Authorizing Official must:
(1) Forward the original text of the
document, Original Certificate of
Approval or Disapproval, and the
Certificate of Results of Election to the
tribe and a copy of all documents to the
Bureau Director; and
If a tribe expects to adopt or amend
its governing document, it should
submit the proposed document to the
Local Bureau Official for review and
comment. The Bureau may help the
tribal government in drafting governing
documents, bylaws, charters,
amendments and revocations. The
Bureau will also explain the Secretarial
Election process.
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§ 81.47 What technical assistance does
the Bureau provide?
(a) Upon completing the initial review
of the proposed document or
amendment, the Local Bureau Official
will make a recommendation on the
proposed document or amendment,
prepare background information on the
tribe, and submit it to the Authorizing
Official.
(b) The Authorizing Official will:
(1) Review the proposed governing
document or amendment and offer
technical assistance and comments to
the tribe;
(2) Consult with the Office of the
Solicitor to determine if any of the
provisions of the proposed governing
document or amendment may be
contrary to applicable law; and
(3) If it appears that a provision is or
may be contrary to applicable law,
notify the tribe in writing how the
provision may be contrary to applicable
law.
(c) The Authorizing Official must
promptly notify the tribe under
paragraph (b)(3) of this section at least
30 days before calling the election;
(d) Once the tribe has responded to
the Bureau’s technical comments, and
any notice of a provision that may be
contrary to applicable law, the
Authorizing Official may approve the
proposed document. The tribe may then
submit a request for a Secretarial
Election. The Authorizing Official may
not authorize a Secretarial Election on
any proposed document that contains
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provisions that may be contrary to
applicable law.
§ 81.48 What does the Bureau do upon
receiving the request for an Election?
(a) The Authorizing Official will issue
a memorandum to the Local Bureau
Official:
(1) Approving the proposed document
or proposed amendments;
(2) Authorizing the Local Bureau
Official to call and conduct a Secretarial
Election, within 90 days from the date
of receiving the tribal request;
(3) Attaching the document or
proposed language to be voted upon;
(4) Attaching the Certificate of Results
of Election, with instructions to return
it at the conclusion of the Secretarial
Election. The Certificate shall read as
follows:
CERTIFICATE OF RESULTS OF ELECTION
Under a Secretarial Election authorized by
(name and title of authorizing official) on
(date), the attached [insert: Governing
document and Bylaws, charter of
incorporation, amendment or revocation] of
the (official name of tribe) was submitted to
the registered voters of the tribe and on (date)
duly (insert: adopted, ratified, rejected or
revoked) by a vote of (number) for and
(number) against and (number) cast ballots
found spoiled in an election in which at least
30 percent (or such ‘‘percentages’’ as may be
required to amend according the governing
document) of the (number) registered voters
cast their ballot in accordance with
(appropriate Federal statute).
Signed: lllll
(by the Chair of the Secretarial Election
Board and Board Members)
Date: lll.; and
(5) Advising that no changes or
modifications can be made to any of the
attached documents, without prior
approval from the Authorizing Official.
(b) The Local Bureau Official will
appoint the Chair of the Secretarial
Election Board and notify the tribe of
the need to appoint at least two tribal
members to the Secretarial Election
Board. If the tribe fails to make such
appointment within 10 days after the
notice letter is issued, the Chair of the
Secretarial Election Board must appoint
two representatives on the eleventh day
after the notice letter is issued.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 81.49 How is the Secretarial Election
conducted?
After the Chair of the Election Board
receives the authorization of the
Election, the Chair of the Secretarial
Election Board will conduct the election
following the procedures set out in
§§ 81.19 through § 81.45.
§ 81.50 When are the results of the
Election final?
(a) If a challenge is sustained and has
an effect on the outcome of the election,
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the Authorizing Official must authorize
a recount or call for a new Secretarial
Election. The Authorizing Official will
take the appropriate steps necessary to
provide for a recount or a new
Secretarial Election. The results of the
recount or new Secretarial Election will
be final for the Department.
(b) If the challenges are denied or
dismissed, the Authorizing Official will
review and determine whether:
(1) The percentage of total votes cast
was at least 30 percent, or such
percentages as may be required
according to the tribe’s governing
document’s amendment or adoption
articles; and
(2) The voters ratified or rejected the
proposed document, proposed
amendment or revocation.
(c) The Authorizing Official must
notify, in writing, the recognized
governing body of the tribe, and the
Director of the Bureau, of the following:
(1) The decisions on challenges;
(2) The outcome of the voting;
(3) That the proposed document,
proposed amendments or revocation
becomes effective as of the date of the
Secretarial Election; and
(4) That the decision is final for the
Department.
(d) The Authorizing Official must:
(1) Forward the original text of the
document, Original Certificate of
Approval, and the Certificate of Results
of Election to the tribe and a copy of all
documents to the Director of the Bureau;
and
(2) Retain, as required by the Records
Disposition Schedule, a copy of all
document(s) relevant to the Secretarial
Election.
Subpart F—Formulating Petitions To
Request a Secretarial Election
§ 81.51 What is the purpose of this
subpart?
This subpart establishes requirements
for formulating and submitting petitions
to request the Secretary to call a
Secretarial Election as required by the
governing documents or charters of
incorporation of tribes issued under the
Indian Reorganization Act (IRA), 25
U.S.C. 476 and 477, as amended, and
the Oklahoma Indian Welfare Act
(OIWA), 25 U.S.C. 503. This Subpart
may also be used by a federally
recognized tribe that is adopting a
governing document, under Federal
statute, for the first time.
§ 81.52 Who must follow these
requirements?
Any tribe meeting the criteria in
paragraphs (a) or (b) of this section must
follow the requirements of this subpart.
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(a) A tribe whose governing document
or charter of incorporation provides for
petitioning the Secretary to call a
Secretarial Election for any of the
following purposes:
(1) Amending or revoking the
governing document;
(2) Amending a charter of
incorporation ratified under 25 U.S.C.
477 of the IRA before May 24, 1990;
(3) Amending or ratifying a charter of
incorporation under 25 U.S.C. 503 of the
OIWA; or
(4) Taking any other action authorized
by the governing document or charter of
incorporation.
(b) A federally recognized tribe,
without an existing governing
document, adopting a governing
document under Federal statute, for the
first time.
§ 81.53 How do tribal members circulate a
petition to adopt or amend the tribe’s
governing document?
Tribal members wishing to circulate a
petition to adopt or amend the tribe’s
governing document should submit the
proposed document to the Local Bureau
Official for review and comment. This
may help the petitioners in drafting
governing documents, bylaws, charters,
amendments and revocations. The
Bureau will also explain the Secretarial
Election process.
§ 81.54 What technical assistance will the
Bureau provide?
(a) The Bureau will provide technical
assistance for a petition only upon
request of the spokesperson. Bureau
personnel will provide a courtesy copy
to the tribe’s governing body of all
correspondence regarding technical
assistance to the petitioners. The
spokesperson will be responsible for
obtaining the approval of the tribal
members it represents on changes to the
content of the petition.
(b) Upon completing the initial review
of the proposed document or
amendment, the Local Bureau Official
will make a recommendation on the
proposed document or amendment,
prepare background information on the
tribe, and submit his recommendation
to the Authorizing Official.
(c) The Authorizing Official will:
(1) Review the proposed governing
document or amendment and offer
technical assistance and comments to
the tribe;
(2) Consult with the Office of the
Solicitor to determine if any of the
provisions of the proposed governing
document or amendment may be
contrary to applicable law; and
(3) If it appears that a provision is or
may be contrary to applicable law,
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notify the tribe in writing how the
provision may be contrary to applicable
law.
(d) The Authorizing Official must
promptly notify the tribe under
paragraph (b)(3) of this section at least
30 days before calling the election;
(e) Once the petitioners have
responded to the Bureau’s technical
assistance, comments and notice of any
provision that may be contrary to
applicable law, they may submit their
petition requesting a Secretarial
Election.
§ 81.55
Who may initiate a petition?
A member of the tribe who is 18 years
of age or older whose governing
document or charter of incorporation
permits tribal members to petition the
Secretary to authorize a Secretarial
Election.
§ 81.56
Who may sign a petition?
A member of the tribe who is 18 years
of age or older.
§ 81.57 Who is authorized to submit a
petition to the Secretary?
The petitioners must designate a
spokesperson to submit the petition and
act on their behalf for the petitioning
process.
§ 81.58 How is the petition formatted and
signed?
(a) Each page of the petition must
contain:
(1) A summary of the purpose of the
petition, or proposed document, or
proposed amendment language;
(2) Numbered lines for each
individual to print their legal name,
current mailing address, date, and
signature, and;
(3) The following declaration at the
bottom of each page to confirm the
collector was present when each
signature was collected:
tkelley on DSK3SPTVN1PROD with PROPOSALS
‘‘I, (Collector’s Printed Name), hereby declare
that each individual whose name appears
above signed and dated the petition. To the
best of my knowledge, the individual signing
the petition is a member of the tribe and is
18 years or older.
(Signature of Collector)
(Notary Certification)’’,
(b) Each individual must print their
legal name, current mailing address,
date, and sign on a numbered line.
(c) Each collector must complete and
sign the declaration on each page in
front of a notary, who will sign and
certify.
§ 81.59 Do petitions have a minimum or
maximum number of pages?
A petition can have as many pages as
necessary to obtain the required
signatures, however, each page must
have the information shown in § 81.58.
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§ 81.60 How do I find out how many
signatures are needed for a petition to be
valid?
(a) For a tribe whose governing
document or charter of incorporation
provides for petitioning the Secretary to
call a Secretarial Election:
(1) The spokesperson for the
petitioners may ask the tribe or the
Local Bureau Official how many
signatures are required.
(2) The Local Bureau Official will:
(i) Contact the tribal governing body
to obtain the current number of tribal
members, 18 years of age or older, to
determine the number of tribal members
who must sign a petition as required by
the tribe’s governing document; and
(ii) Notify the petitioners’
spokesperson how many signatures are
required and that the number is valid
for 180 days from the date of this
notification.
(b) For a federally recognized tribe
adopting a governing document under
Federal statute for the first time, the
petition must have signatures of 20
percent of the tribal members who are
18 years of age or older.
§ 81.61 How long do tribal members have
to gather the signatures?
Tribal members have one year from
the date of the first signature to gather
the required signatures.
§ 81.62 How does the spokesperson file a
petition?
The spokesperson must submit the
original petition to the Local Bureau
Official.
§ 81.63 How does the Local Bureau Official
process the petition?
(a) The Local Bureau Official must, on
the date of receipt, date stamp the
petition to record the Official Filing
Date, and make three copies of the
petition for use as follows:
(1) Posting at the local Bureau office
for 30 days from the Official Filing Date,
including a statement of the proposal
contained in the petition and
instructions for filing a challenge;
(2) Use in determining sufficiency of
petition; and
(3) For viewing at the Local Bureau
Office by a member of the tribe, 18 years
of age or older.
(b) The Local Bureau Official must,
within one week of the Official Filing
Date:
(1) Provide the spokesperson written
acknowledgment of receiving the
petition, which contains the Official
Filing Date, the exact number of
signatures submitted on the petition,
and the statement ‘‘The petitioners may
not add or withdraw any signatures
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Fmt 4702
Sfmt 4702
from the petition after the Official Filing
Date’’; and
(2) Provide a copy of the written
acknowledgment of receipt and petition
to the recognized tribal governing body.
(c) The Local Bureau Official must:
(1) Consult with the Office of the
Solicitor to determine if any of the
provisions that are the subject of the
petition are or may be contrary to
applicable law; and
(2) If it appears that a provision is or
may be contrary to applicable law,
notify the petitioner’s spokesperson in
writing how the provision may be
contrary to applicable law.
(d) The Local Bureau Official must
promptly notify the petitioners of any
problems identified under paragraph (c)
of this section at least 30 days before
calling the election.
§ 81.64 How can signatures to the petition
be challenged?
Any member of the tribe, 18 years of
age or older, may challenge in writing
the signatures appearing on the petition.
The challenge must be submitted to the
Local Bureau Official, within 30 days of
the Official Filing Date of the petition
and must:
(a) Identify the page and line on
which a signature appears; and
(b) Provide documentation supporting
a challenge that at least one of the
following is true:
(1) A signature was forged;
(2) An individual was ineligible to
sign the petition;
(3) A petition page is inconsistent or
improperly formatted; or
(4) A petition page contains an
incomplete declaration statement.
§ 81.65
How is the petition validated?
(a) The Local Bureau Official must:
(1) Confirm the petition has the
required number of signatures;
(2) Indicate any signatures appearing
more than once and include only one in
the count;
(3) Make recommendations regarding
any challenge to the validity of
signatures based upon the
documentation provided by the
challenger; and
(4) Verify the petitioning procedures
complied with this Subpart.
(5) Transmit within 45 calendar days
of the Official Filing Date the original
petition, challenges, and
recommendations to the Authorizing
Official.
(b) The Authorizing Official must
within 60 calendar days of the Official
Filing Date:
(1) Determine whether the petition
complies with the requirements of this
Subpart;
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(2) Inform the spokesperson for the
petitioners and the recognized tribal
governing body, in writing, whether the
petition is valid, the basis for that
determination, and a statement that the
decision of the Authorizing Official is
final for the Department.
(i) If the petition is determined valid
for the purposes of calling a Secretarial
election, the Authorizing Official will
instruct the Local Bureau Official to call
and conduct the Secretarial Election in
accordance with §§ 81.19 through 81.45.
(ii) If the petition is determined
invalid, the Authorizing Official will
notify the spokesperson for the
petitioners, with a courtesy copy to the
tribe’s governing body, that the petition
was not valid and a Secretarial Election
will not be called.
§ 81.66 May the same petition be used for
more than one Secretarial Election?
No. A petition may not be used for
more than one Secretarial Election. Each
request for a Secretarial Election
requires a new petition.
PART 82—[REMOVED AND
RESERVED]
■
2. Remove and reserve part 82.
Dated: October 3, 2014.
Kevin K. Washburn,
Assistant Secretary—Indian Affairs.
[FR Doc. 2014–24118 Filed 10–8–14; 8:45 am]
BILLING CODE 4310–4J–P
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 5
[Docket No. MSHA–2014–0016]
RIN 1219–AB82
Fees for Testing, Evaluation, and
Approval of Mining Products
Mine Safety and Health
Administration, Labor.
ACTION: Proposed rule.
AGENCY:
The Mine Safety and Health
Administration (MSHA) proposes to
amend the Agency’s regulations for
administering fees for testing,
evaluation, and approval of products
manufactured for use in mines. This
proposed rule would revise the fees
charged for these services. The proposed
rule also would include a fee for
approval services that MSHA provides
to applicants or approval holders under
the existing rule, but for which the
Agency currently does not charge a fee,
and for other activities required to
support the approval process.
tkelley on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
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Comments must be received or
postmarked by midnight Eastern
Daylight Saving Time on November 10,
2014.
ADDRESSES: Submit comments and
informational materials, identified by
RIN 1219–AB82 or Docket No. MSHA–
2014–0016, by one of the following
methods:
• Federal E-Rulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments for Docket No. MSHA–2014–
0016.
• Electronic mail: zzMSHAcomments@dol.gov. Include RIN 1219–
AB82 or Docket No. MSHA–2014–0016
in the subject line of the message.
• Mail: MSHA, Office of Standards,
Regulations, and Variances, 1100
Wilson Boulevard, Room 2350,
Arlington, Virginia 22209–3939.
• Facsimile: 202–693–9441.
• Hand Delivery or Courier: MSHA,
Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia,
between 9:00 a.m. and 5:00 p.m.
Monday through Friday, except Federal
holidays. Sign in at the receptionist’s
desk on the 21st floor.
• Instructions: All submissions must
include RIN 1219–AB82 or Docket No.
MSHA–2014–0016. Do not include
personal information that you do not
want publicly disclosed; MSHA will
post all comments without change to
https://www.regulations.gov, and https://
www.msha.gov/currentcomments.asp,
including any personal information
provided.
FOR FURTHER INFORMATION CONTACT:
Sheila A. McConnell, Acting Director,
Office of Standards, Regulations, and
Variances, MSHA, at
mcconnell.sheila.a@dol.gov (email);
202–693–9440 (voice); or 202–693–9441
(facsimile). (These are not toll-free
numbers).
SUPPLEMENTARY INFORMATION:
DATES:
Table of Contents
MSHA is including the following
outline to assist the public in finding
information in this preamble.
I. Availability of Information
II Background
III. Section-by-Section Analysis
IV. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
V. Feasibility
VI. Regulatory Flexibility Act, Small
Business Regulatory Enforcement
Fairness Act, and Executive Order
13272: Proper Consideration of Small
Entities in Agency Rulemaking
VII. Paperwork Reduction Act of 1995
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Fmt 4702
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61035
VIII. Other Regulatory Considerations
I. Availability of Information
Docket: For access to the docket to
read comments received, go to https://
www.regulations.gov or https://
www.msha.gov/currentcomments.asp.
To read background documents, go to
https://www.regulations.gov. Review the
docket in person at MSHA, Office of
Standards, Regulations, and Variances,
1100 Wilson Boulevard, Room 2350,
Arlington, Virginia, between 9:00 a.m.
and 5:00 p.m. Monday through Friday,
except Federal Holidays. Sign in at the
receptionist’s desk on the 21st floor.
Email notification: To subscribe to
receive an email notification when
MSHA publishes rules in the Federal
Register go to https://www.msha.gov/
subscriptions/subscribe.aspx.
II. Background
As part of the U.S. Department of
Labor, under the Federal Mine Safety
and Health Act of 1977 (Mine Act), as
amended, MSHA’s mission is to prevent
death, disease, and injury from mining
and promote safe and healthy
workplaces for the Nation’s miners.
Since 1911, MSHA and its predecessor
agencies have evaluated and tested
products for use in mines to prevent
fires, explosions, and accidents.
Under various authorities,1 MSHA
historically has collected fees for its
services in evaluating, testing, and
approving products. Originally, the U.S.
Bureau of Mines, an MSHA predecessor
agency, billed applicants for approval
services using published individual fee
schedules, e.g., each approval part in
Title 30, Chapter I, provided a list of flat
fees for different tests, evaluations, and
other services performed for approval
activities (30 FR 3752–3757). On May 8,
1987, MSHA eliminated the individual
fee schedules and established part 5
which created an hourly rate for
administration and calculation of fees
for services in Title 30, Chapter I,
Subchapter B, Testing, Evaluation, and
Approval of Mining Products (52 FR
17506). On August 9, 2005, MSHA
revised part 5 and its fee procedures.
That rule eliminated the application fee,
allowed preauthorization of
expenditures for processing
applications, and allowed outside
organizations conducting part 15 testing
1 These authorities are: Public Law 61–525, Ch.
285, 36 Stat. 1419 (1911); Public Law 62–386, Ch.
72, Sec. 5, 37 Stat. 682 (1913); Public Law 72–212,
Ch. 314, Sec. 311, 47 Stat. 410 (1932); 30 U.S.C.
961(c)(2); and Title V of the Independent Offices
Appropriations Act of 1952, Public Law 82–137, 65
Stat. 290 (1951), as amended, 31 U.S.C. 9701.
E:\FR\FM\09OCP1.SGM
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Agencies
[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Proposed Rules]
[Pages 61021-61035]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24118]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 81 and 82
[BIA-2014-0006; K00103 12/13 A3A10; 134D0102DR-DS5A300000-
DR.5A311.IA000113]
RIN 1076-AE93
Secretarial Election Procedures
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs is proposing to amend its
regulations governing Secretarial elections and procedures for tribal
members to petition for Secretarial elections. This proposed rule
reflects changes in the law and the requirement that regulations be
written in plain language.
DATES: Comments must be received on or before December 17, 2014. See
the SUPPLEMENTARY INFORMATION section of this document for dates of
tribal consultations.
ADDRESSES: You may submit comments by any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. The rule
is listed under the agency name ``Bureau of Indian Affairs.'' The rule
has been assigned Docket ID: BIA-2014-0006.
--Email: laurel.ironcloud@bia.gov. Include ``Part 81'' in the
subject line of the message.
--Mail or hand-delivery: Chief, Division of Tribal Government
Services, Office of Indian Services, Bureau of Indian Affairs,
Department of the Interior, 1849 C Street NW., Mail Stop 4513-MIB,
Washington, DC 20240.
Comments on the Paperwork Reduction Act information collections
contained in this rule are separate from comments on the substance of
the rule. Submit comments on the information collection requirements in
this rule to the Desk Officer for the Department of the Interior by
email at OIRA_Submission@omb.eop.gov or by facsimile at (202) 395-5806.
Please also send a copy of your comments to laurel.ironcloud@bia.gov.
See the SUPPLEMENTARY INFORMATION section of this document for
locations of tribal consultation sessions.
FOR FURTHER INFORMATION CONTACT: Laurel Iron Cloud, Chief, Division of
Tribal Government Services, Central Office, Bureau of Indian Affairs at
telephone (202) 513-7641. Individuals who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Monday through
Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
I. Background
The Bureau of Indian Affairs (BIA) is amending 25 CFR parts 81
(Secretarial Elections) and 82 (Petitioning Procedures), combining them
into one Code of Federal Regulations part at 25 CFR part 81. The
Secretarial Elections regulations were originally adopted in 1964, and
the Petitioning Procedures regulations were originally adopted in 1967.
See 29 FR 14359 (October 17, 1964); 32 FR 11779 (August 16, 1967). The
Department has not updated either of these regulations since 1981. See
46 FR 1668 (January 7, 1981).
A Secretarial election is a Federal election conducted by the
Secretary of the Interior (Secretary) under a Federal statute or tribal
governing document under 25 CFR part 81. See Cohen's Handbook of
Federal Indian Law section 4.06[2][a]-[b], at 286-297 (Nell Jessup
Newton ed., 2012). See also Cheyenne River Sioux Tribe v. Andrus, 566
F. 2d 1085 (8th Cir. 1977), cert. denied, 439 U.S. 820 (1978). The
proposed rule:
Responds to the amendments made to section 16 of the
Indian Reorganization Act (IRA) (June 18, 1934, 48 Stat. 984) (25
U.S.C. 476), as amended, which established time frames within which the
Secretary must call and conduct Secretarial elections and provided that
all elections will be handled by mailout ballot unless polling places
are expressly required by the amendment or adoption article of the
tribe's governing document.
Responds to the amendments made to Section 17 of the IRA
by the Act of May 24, 1990 (104 Stat. 207) (25 U.S.C. 477) under which
additional tribes may petition for charter of incorporation and removes
the requirement of an election to ratify the approval of new charters
issued after May 24, 1990, unless required by tribal law.
Reflects the 1994 addition of two subsections to section
16 of the IRA by Technical Corrections Act of 1994 (108 Stat. 707) (25
U.S.C. 476(f) & (g)) that prohibit the government from making a
regulation or administrative decision ``that classifies, enhances, or
diminishes the privileges and immunities available to a federally
recognized Indian tribe relative to the privileges and immunities
available to other federally recognized tribes by virtue of their
status as Indian tribes.''
When Congress enacted Oklahoma Indian Welfare Act (OIWA) in 1936,
the language it used to guarantee the right of tribes to organize and
adopt constitutions and bylaws was different from that used in the IRA.
The OIWA language requires the Secretary to approve the constitution
before it is submitted to the tribal membership for a vote to ratify
it. These regulations reflect the difference in language between the
IRA and the OIWA.
The proposed rule includes language clarifying that a tribe
reorganized under the IRA may amend its governing document to remove
the requirement for Secretarial approval of future amendments. Once the
requirement for Secretarial approval is removed through a Secretarial
election, Secretarial approval of future amendments is not required.
The proposed rule also clarifies that the Secretary will accept
petitions for Secretarial elections only from federally recognized
tribes included on the list of recognized tribes published by the
Secretary pursuant to section 479a-1.
II. Comments From Tribal Representatives
As discussed in section III of this document, we held several
tribal consultation sessions on draft regulations addressing
Secretarial elections and petitioning procedures. The following
summarizes comments received during that consultation process.
Definitions
Several tribes questioned the definition of ``Indian'' included in
the consultation draft. Because the term is not used in the body of the
regulation other than as defined in the IRA, we have deleted this
definition. We have also clarified the definition of ``tribe'' as those
federally recognized tribes included on the list of recognized tribes
published by the Secretary pursuant to Section 479a-1.
One tribe questioned the definition of ``member'' because the
consultation draft included an additional provision stating that, in
the absence of the tribe's written criteria for membership, a member is
a person the tribal members recognize as belonging to that tribe. The
tribe noted that there may not be
[[Page 61022]]
agreement among tribal members as to who belongs to the tribe. For this
reason, we deleted that portion of the definition, so that a member is
a person who is duly enrolled in the tribe.
One tribe suggested adding a definition of ``notary.'' We were
unable to locate a definition of this term in other regulations and
determined that the term is self-evident. This tribe also asked if a
tribe can enact an ordinance authorizing people to become notaries,
rather than being confined to using State-authorized notaries. Tribes
presumably have the inherent power to create notary regimes. If a tribe
has established an adequate regulatory framework to ensure the
integrity of their notary process, we would approve use of the tribe's
notaries in lieu of other established notaries. If a tribe has a
question about whether its notary process is adequately regulated, it
should contact us.
We received a few comments asking about the definition for
``reorganized tribe'' in the consultation draft. Under the consultation
draft, ``reorganized tribe'' would mean a tribe whose members have
adopted a governing document under a Federal statute.
Tribes also requested clarification of the definitions of
``reservation'' and ``Rancheria.'' The proposed rule deletes the
definition of ``Rancheria'' because it is not used in the body of the
regulation. The proposed rule deletes the definition of ``reservation''
because its meaning is self-evident where used.
Several tribes noted there is no definition for ``resident.'' We
did not define this term because it is not used in the regulation. A
tribe asked how tribal governing document's definitions of residency
will affect who may vote in a Secretarial election. We have clarified
at Sec. 81.8 of the proposed rule when tribal governing document
qualifications (such as residency) for voting govern who may vote in a
Secretarial election.
Tribal Choice To Require Secretarial Approval
One tribe asked about the consequences to a tribe of removing the
requirement for Secretarial approval of future amendments from its
governing document. As explained by a Federal representative at the
consultation, removing the requirement for Secretarial approval of
future amendments means that Secretarial approval will no longer be
required for additional amendments to the tribe's governing document.
One tribe asked whether a tribe that has reorganized under the IRA
and decides to remove the requirement for a Secretarial election must
hold a Secretarial election to remove that requirement. The tribe must
hold a Secretarial election to remove the requirement for a Secretarial
election from its governing document if a tribal law or Federal statute
requires such an election. Section 81.2(h) of the proposed rule
addresses this issue.
Who May Vote in a Secretarial Election
Several tribes asked questions regarding who may vote in a
Secretarial election. For example, at least one tribe asked for
language stating that the tribe's governing documents may establish
eligibility for voting. Secretarial elections are Federal elections,
and, as such, anyone who is 18 years of age or older and otherwise
qualified is eligible to vote, even if the tribal governing document
requires voters to be 21 to be eligible to vote in tribal elections.
The 26th Amendment to the Federal constitution lowered the minimum
voting age for Federal elections from 21 to 18. This provision is at
Sec. 81.9 of the proposed rule.
Another tribe asked under what circumstances only the class of
citizens who voted on the original tribal charter or governing document
may vote. If the tribe's governing documents do not establish
qualifications for voting, then the only members who may vote are those
who meet the same qualifications as those entitled to vote in the
Secretarial Election that effected the tribe's reorganization.
A few tribes noted that there are no provisions for voting by
tribal members who are serving in the military, at college, or
incarcerated. These individuals may be eligible to vote by mail or by
absentee ballot if they otherwise meet the requirements of Sec. 81.9
of the proposed rule.
Absentee Voting
Several tribes asked about who may vote by absentee ballot. The
proposed regulation provides that all Secretarial election voting is to
be done by mail with use of a mailout ballot, except where the
amendment or adoption articles of the tribe's governing document
require in-person voting. (See Sec. 81.35 of the proposed rule.) If
polling places are required, an absentee ballot may be requested.
A tribe asked that the regulations specify that voters can request
a new absentee ballot, if necessary. See Sec. 81.40 of the proposed
rule.
A tribe asked that the regulations specify whether voters receiving
an absentee ballot may choose to vote in person. See Sec. 81.40 of
proposed rule.
A tribe asked if the envelope for absentee ballots will be pre-
addressed and have prepaid postage. The proposed regulations clarify
that the envelope will be pre-addressed but will not have prepaid
postage. See Sec. 81.23 of proposed rule.
Registered Voters and Registration to Vote
Tribes asked for clarification on the ``registered voter''
definition and its difference from ``eligible voter.'' We simplified
these definitions and explain the registered voters list further in
Sec. Sec. 81.26 through 81.32 of the proposed rule. A tribe also asked
about the definition of ``qualified voter'' in the consultation draft.
We have deleted the definition of ``qualified voter'' because it was
unnecessary.
A few tribes asked whether the registration process is required and
noted that it is a task for voters to register for Secretarial
elections in addition to other elections. Section 81.29 describes why
the Registered Voters List is necessary.
A tribe asked what happens if the tribe does not have a
registration process. The Secretarial Election Board is responsible for
the registration process for Secretarial elections.
Request for Secretarial Election
The consultation draft of the regulations stated that the tribe
must provide an ``appropriate request'' to request a Secretarial
election. A tribe requested clarification of that definition. The
proposed regulation instead uses the term ``tribal request'' and
clarifies what qualifies as such a request at Sec. 81.4.
Tribes also questioned the procedures set out in the consultation
draft, which included an initial request for election and then a final
request for election, and the timing of those procedures. The proposed
rule simplifies the process by requiring only one request for
Secretarial election.
Ballots
There were several questions on the different types of ballots. The
consultation draft had mentioned spoiled, damaged, mutilated, valid and
invalid ballots. We determined that the only necessary category is
``spoiled'' ballots and describe the effect of a spoiled ballot in
Sections 81.39 and 81.40. (See definition for ``spoiled'' ballot in
Sec. 81.4.)
Timelines
One tribe asked what a tribe's recourse is if BIA does not act
within the 90-day deadline for calling and holding an election on a
constitutional amendment. If BIA fails to act within
[[Page 61023]]
the 90-day deadline, the affected tribe may bring suit, after
exhausting its administrative remedies, if any, to compel agency action
under the Administrative Procedure Act.
The consultation draft included a provision that stated that if BIA
failed to act on an authorization to conduct an election within 90
days, then the authorization is considered void. Several tribes
commented that this expiration punishes the tribe for BIA's failure to
act. Since the tribal representatives on the Secretarial Election Board
charged with the responsibility for calling and holding the election
outnumber the BIA representative, the expiration of the authorization
was not intended to punish the tribe in any way but rather simply to
ensure that the tribal request had not become stale. The legal
authority to call and conduct a valid election does not disappear after
90 days so we have deleted this provision.
A tribe noted that the regulations do not hold the Secretarial
Election Board accountable for holding the election within 90 days. The
deadline for holding an election is established by statute; the
proposed rule does not restate the deadline, but the Secretarial
Election Board remains subject to it.
Several tribes asked for clarification on the time frame in which
results of an election may be challenged. Section 81.43 of the proposed
rule clarifies that challenges must be received within three days
(which are defined to be calendar days) after the Certificate of
Results of Election is posted. If the third day falls on the weekend or
a holiday, the challenge must be received by the close of business
(COB) the next business day.
One tribe suggested that three business days, rather than calendar
days, be the time frame allotted for challenges. Another tribe stated
that indicating business days in some provision but calendar days in
others is inconsistent and may result in confusion. For this reason,
the proposed rule counts all days as calendar days.
Several tribes had questions about the consultation draft's
timeframes with regard to the 90-day deadline for calling and holding
an election for an amendment, and the 180-day deadline for calling and
holding an election for a new proposed governing document, including an
amendment to a governing document in the nature of an entire
substitute, or revocation of a governing document. These timelines are
statutorily established (25 U.S.C. 476(c)(1) and are reflected in the
regulation. (See Sec. 81.19(a) of proposed rule.)
Secretarial Election Board
Several tribes asked questions regarding the Secretarial Election
Board. One tribe asked whether there are any restrictions on who may be
appointed to the Secretarial Election Board. The only restriction is
that those persons be members of the tribe with the exception of the
Chairman of the Secretarial Election Board, who must be a BIA employee.
Another asked who makes the determination as to who serves on the
Secretarial Election Board. The Authorizing Official appoints a BIA
employee as the chair of the Secretarial Election Board. The tribal
governing body chooses at least two tribal members to serve on the
Secretarial Election Board. If the tribe declines to appoint two tribal
members then the Local BIA Official would make the appointments.
A tribe asked for clarification on whether the chair is Federal or
tribal official. The Authorizing Official will appoint a BIA employee
to serve as the Federal chair of the Secretarial Election Board. (See
Sec. 81.19(b) of proposed rule.) This tribe also asked whether there
are limits to the appointment. Because the Secretarial Election Board
is established for a single Secretarial election, it dissolves after it
completes all the duties associated with that election. The tribe also
asked for clarification on whether ``recognized governing body'' means
the governor or the tribal council. ``Recognized governing body''
refers to the representative body that has legislative authority.
Ordinarily, it would be neither the tribal governor, chief, nor chair;
nor would it be the entire adult membership of the tribe.
One tribe asked for clarification on the Secretarial Election
Board's duties. Duties are clarified in Sec. 81.22 of the proposed
rule.
One tribe asked what the criteria are for the Board to deny an
applicant status as a registered voter. The Board may deny an applicant
registered voter status only if the applicant does not meet the
requirements to cast a vote or if the registration form was not
submitted before the deadline.
Privacy Concerns
Several tribes expressed concern about the privacy of individuals
whose names are listed on the registration list, because the
registration list is posted. The proposed rule provides that the
registration list contains only the individuals' names and voting
districts, if applicable. We believe that this information is the
minimum necessary to a meaningful opportunity to challenge the
eligibility of a voter and therefore does not constitute an unwarranted
intrusion into the individual's privacy.
Several tribes asked what happens to election information after the
election is closed and who has access to the information. Sections
81.45(d) and 81.50(d) establish that BIA will forward certain documents
to the tribe and retain a copy of records as required by the Federal
Records Act. Those records may be subject to exemptions from the
Freedom of Information Act for personal privacy and confidentiality.
The records retained by the BIA will be available for inspection and
copying in accordance with the Freedom of Information Act and the
Privacy Act.
Another tribe expressed concern about the Secretarial Election
Board keeping registration packets confidential. The registration
packets contain general election information that is sent to all tribal
members 18 years of age or older at their last known address. These
packets are not confidential. However, the returned registration forms
contain personal information that is covered by the Privacy Act and may
be subject to exemptions from the Freedom of Information Act for
personal privacy and confidentiality.
Challenges
Several tribes asked who may challenge the Registered Voters List.
Under Sec. 81.32 of the proposed rule, any tribal member may challenge
the inclusion or exclusion of a name from the Registered Voters List as
long as he or she provides supporting documentation for the challenge.
A tribe asked for clarification on the time period for challenges
to the Registered Voters List. The Secretarial Election Board
establishes the time period for challenges. (See Sec. 82.33 of
proposed rule.)
A tribe asked how much time the election board has to rule on a
challenge. The proposed rule, at Sec. 81.33, clarifies that the
Secretarial Election Board has three days after the challenge deadline
to rule on the challenge.
Petitioning
Several tribes questioned why petitions had to be signed by at
least 60 percent of the tribe's eligible voters where the tribe is not
reorganized (i.e., where the tribe is adopting a governing document
under Federal statute for the first time). The 60 percent requirement
was adopted in 1981. See 46 FR 1669 (January 7, 1981). We have re-
examined this requirement in light of the questions raised at
consultation, and are
[[Page 61024]]
now proposing that petitions must be signed by at least 20 percent of
the tribe's eligible voters where the tribe is not reorganized. The
rationale for lowering the threshold to 20 percent is that a smaller
percentage should be entitled to raise the question to a vote by
petition than the percentage required to vote for an election to be
valid. The IRA requires only 30 percent of eligible voters to vote for
an election to be valid. See 25 U.S.C. 478a. We are specifically
seeking comment on this proposed revision.
Several tribes objected to posting the petition because
individuals' addresses are included on the petition. Addresses are
redacted before posting.
Several tribes asked for additional information on what makes a
petition valid and/or a checklist to ensure that petitions are
complete. Sections 81.58 and 81.65 explain how the BIA reviews
petitions.
One tribe asked for confirmation that the Authorizing Official's
determination as to the validity of the petition is final for the
Department of the Interior. For the purposes of calling and conducting
the Secretarial Election the regulations establish that this
determination is final at Sec. 81.65.
Other Comments
One tribe stated that 25 U.S.C. 476(h), which establishes that each
tribe has inherent sovereign power to adopt governing documents under
procedures other than those specified in the IRA, is not expressly
addressed in the regulations. The regulations govern procedures for
Secretarial elections; they do not diminish tribes' inherent sovereign
power to adopt governing documents when Secretarial elections are not
required.
One tribe stated that applicability of the regulations needs to be
clearer. We have attempted to clarify applicability at Sec. 81.2 of
the proposed rule.
One tribe asked for clarification on when technical assistance is
available for the tribe and for petitioners. The proposed rule
clarifies this availability in Sec. 81.6.
Several tribes requested additional information on charters. We
clarify the applicability of the regulations to charters in Sec. 81.2.
One tribe asked whether Secretarial elections must follow tribal
law. Secretarial Elections are governed by Federal law. The Secretary
shall defer to specific variations noted in the adoption or amendment
articles of a tribe's governing document that are not otherwise
inconsistent with Federal law.
A tribe expressed concern about how to prevent one individual from
casting multiple votes. Similarly, a tribe asked whether votes hand-
delivered by one individual on behalf of several need to be
scrutinized. The proposed regulation includes several safeguards to
ensure that each individual receives only one ballot, and mailout or
absentee ballots require the registered voter to sign a certification
on the back of the return envelope.
A tribe suggested the regulations include consequences for
violating the ban on electioneering. Tribes may enact and enforce
tribal law governing the orderly conduct of elections, which would
apply to Secretarial elections to the extent they do not conflict with
these regulations. Interference in a Secretarial election may be a
violation of Federal civil rights and voting laws and punishable under
Federal law, as well as tribal law.
A tribe asked what happens if the Secretarial Election Board itself
is involved in voter fraud. Anyone who commits fraud in connection with
the conduct of a Secretarial election may be subject to prosecution
under Federal law. If actual election fraud makes it impossible to
determine the results of the election, the Secretary must disapprove
the election results and call for a new election as soon as corrective
action can be taken. Election fraud which does not change the ultimate
results of an election does not require disapproval of the election
results. For example, if 80 of 100 eligible voters cast votes in the
affirmative and election fraud was shown with regard to 20 votes, the
Secretary would not need to disapprove the election as those 20 votes
would not change the ultimate results of the election.
A tribe suggested that the regulations address assistance for
illiterate voters. The proposed regulations describe the types of
assistance available at Sec. 81.12; an illiterate voter may request
reasonable accommodations, which may include having the interpreter
read to the voter, audio aids, or some other accommodation.
One tribe stated that it should be a requirement to hold education
meetings with the public regarding each Secretarial election and the
process. We have considered this comment but determined it is not
appropriate to include an express requirement for educational meetings
in the regulation because of the wide variety of governing documents
and possible amendments that tribes may want to consider. We strongly
encourage tribes, however, to conduct their own voter education
programs.
A few tribes asked that the proposed rule include a cross-reference
to 25 CFR 1.2, which allows for waivers of requirements when in the
best interest of the Indians. These regulations are intended to
establish procedures in the conduct of Federal elections that by
statute include specific deadlines. Therefore, the Secretary's
authority to grant waivers would be limited. It is not anticipated that
waivers would routinely be appropriate and the regulations themselves
are being drafted so that they are effective in the vast majority of
cases; thus, 25 CFR 1.2 is not cross-referenced.
We received a number of suggestions for items to add to a handbook
including: how to verify or authenticate signatures, what are
acceptable forms of registration (email, mail, etc.), how the
Secretarial Election Board handles hand-delivered ballots, a chart
outlining the petitioning process and the Secretarial election process,
template letters regarding the status of the request, checklists to
help meet timeframes, and information on challenges to petition
signatures based on an allegation of forgery. We will consider
including these items following finalization of the regulations.
III. Consultations
A. Past Consultations
Efforts to revise this regulation date back to 1992, when the first
consultations were held. The Department most recently hosted a set of
tribal consultation sessions in 2009 and 2010. These sessions were held
on December 1, 2009, in Anchorage, Alaska; Brooks, California, on
January 12, 2010; Minneapolis, Minnesota, on January 20, 2010; Oklahoma
City, Oklahoma, on January 26, 2010; Pala, California, on February 2,
2010; and Albuquerque, New Mexico, on February 4, 2010. The Department
also accepted written comments to the regulations. The Department
reviewed the comments and made significant changes to the draft in
response to tribes' comments and suggestions. Publication of this
proposed rule triggers an additional tribal consultation period where
tribes may submit additional comments orally at tribal consultation
sessions, or in writing.
B. Future Consultations
We will hold consultations at the following locations on the dates
and times specified:
[[Page 61025]]
----------------------------------------------------------------------------------------------------------------
Date Time (all times local) Location Venue
----------------------------------------------------------------------------------------------------------------
Sunday, October 26, 2014.......... 1 p.m.-4 p.m.............. Atlanta, GA.......... National Congress of
American Indians (NCAI)
Annual Convention Hyatt
Regency Atlanta 265
Peachtree St NE Atlanta,
GA 30303.
Tuesday, November 18th, 2014...... 8:30 a.m.-12 p.m.......... Oklahoma City, OK.... Embassy Suites Oklahoma
City Airport 1815 S.
Meridian Ave. Oklahoma
City, OK 73108.
----------------------------------------------------------------------------------------------------------------
The Department will provide tribes with notice of any additional
tribal consultation sessions.
IV. Procedural Matters
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant. E.O. 13563 reaffirms the principles
of E.O. 12866 while calling for improvements in the nation's regulatory
system to promote predictability, to reduce uncertainty, and to use the
best, most innovative, and least burdensome tools for achieving
regulatory ends. The E.O. directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements. This rule is also part of the
Department's commitment under the Executive Order to reduce the number
and burden of regulations and provide greater notice and clarity to the
public.
B. Regulatory Flexibility Act
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It does not change
current funding requirements or regulate small entities.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. It will not result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year.
Secretarial elections are funded by the BIA. Nor will this rule have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of the U.S.-based enterprises
to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
Under the criteria in Executive Order 12630, this proposed rule
does not affect individual property rights protected by the Fifth
Amendment nor does it involves a compensable ``taking.'' A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in Executive Order 13132, this proposed rule has
no substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. This rule
clarifies the procedures for conducting a Secretarial election, which
is a Federal election, for federally recognized Indian tribes.
G. Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of Executive
Order 12988. Specifically, this rule has been reviewed to eliminate
errors and ambiguity and written to minimize litigation; and is written
in clear language and contains clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000),
and 512 DM 2, we have held several consultation sessions with
representatives of federally recognized tribes throughout the
development of this proposed rule. Details on these consultation
sessions and the comments received are described above.
I. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.,
prohibits a Federal agency from conducting or sponsoring a collection
of information that requires OMB approval, unless such approval has
been obtained and the collection request displays a currently valid OMB
control number. Nor is any person required to respond to an information
collection request that has not complied with the PRA. In accordance
with 44 U.S.C. 3507(d), BIA has submitted the information collection
and recordkeeping requirements of this proposed rule to OMB for review
and approval. The following describes the information collection
requirements in each section of the proposed rule and any changes from
the current rule.
Title: Secretarial elections (25 CFR part 81)
OMB Control Number: 1076-NEW
Requested Expiration Date: Three years from the approval date.
Summary: This information collection requires tribes that are
requesting a Secretarial election to provide a formal request for
election, including the language to be voted on and a certified list of
tribal members who will be age 18 at the time of the Secretarial
election and their current addresses or a certified Eligible Voters
List with addresses. This list is necessary to ensure that all eligible
voters receive notice of the Secretarial election and the opportunity
to register and vote in the election. This information collection also
requires that tribal members who petition for a
[[Page 61026]]
Secretarial election provide certain information in the petition, that
tribal members who wish to vote in the election to register for the
election, that registered voters submit a ballot to vote in the
election, and that anyone wishing to challenge the results of an
election provide substantiating evidence for the challenge.
Frequency of Collection: On occasion.
Description of Respondents: Indian tribes, Indian tribal members.
Total Annual Responses: 252,041.
Total Annual Burden Hours: 64,305 (1,280 hours for tribal
submissions, 63,025 hours for member submissions).
Total Annual Cost Burden: $110,880.
The BIA invites comments on the information collection requirements
of this proposed rule. You may submit comments to the Desk Officer for
the Department of the Interior by email at OIRA_Submission@omb.eop.gov
or by facsimile at (202) 395-5806. Please also send a copy of your
comments to BIA at the location specified under the heading ADDRESSES.
You can receive a copy of BIA's submission to OMB by contacting the
person listed in the FOR FURTHER INFORMATION CONTACT section, or by
requesting the information from the Indian Affairs Information
Collection Clearance Officer, Office of Regulatory Affairs &
Collaborative Action, 1849 C Street NW., MS-4141, Washington, DC 20240.
You may also view the information collection request as submitted to
OMB at www.reginfo.gov.
Comments should address: (1) Whether the collection of information
is necessary for the proper performance of the Program, including the
practical utility of the information to the BIA; (2) the accuracy of
the BIA's burden estimates; (3) ways to enhance the quality, utility,
and clarity of the information collected; and (4) ways to minimize the
burden of collection of information on the respondents, including the
use of automated collection techniques or other forms of information
technology.
J. National Environmental Policy Act
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
K. Information Quality Act
In developing this proposed rule we did not conduct or use a study,
experiment, or survey requiring peer review under the Information
Quality Act (Pub. L. 106-554).
L. Effects on the Energy Supply (E.O. 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211. A Statement of Energy Effects is
not required.
M. Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in the ``COMMENTS'' section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you believe lists or tables would be
useful, etc.
N. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for this
rulemaking and considered. Comments sent to an address other than those
listed above will not be included in the docket for this rulemaking.
O. Drafting Information
The primary authors of this document are De Springer, Former Acting
Chief, Division of Tribal Government Services, Bureau of Indian
Affairs; Karen Ketcher, Former Deputy Regional Director, Eastern
Oklahoma Region, Bureau of Indian Affairs; Suzanne Chaney, Former
Community Services Officer, Southern Plains Region, Bureau of Indian
Affairs; Danelle Daugherty, Deputy Regional Director for Indian
Services, Great Plains Region, Bureau of Indian Affairs; and Elizabeth
Appel, Director, Office of Regulatory Affairs & Collaborative Action--
Indian Affairs, Department of the Interior.
List of Subjects in 25 CFR Parts 81 and 82
Indians--tribal government.
For the reasons given in the preamble, under the authority of 5
U.S.C. 301 and 25 U.S.C. 2 and 9, the Department proposes to amend
chapter I, title 25, as follows:
0
1. Revise part 81 to read as follows:
PART 81--SECRETARIAL ELECTION PROCEDURES
Subpart A--Purpose and Scope
Sec.
81.1 What is the purpose of this part?
81.2 When does this part apply?
81.3 Information collection.
Subpart B--Definitions
81.4 What terms do I need to know?
Subpart C--General Provisions
81.5 What should a tribe do when anticipating adopting or amending
its governing document?
81.6 What technical assistance will the Bureau provide?
81.7 What happens if a governing Federal statute and this part
disagree?
81.8 Will the Secretary give deference to the Tribe's interpretation
of its own documents?
81.9 Who may cast a vote in a Secretarial Election?
81.10 May a tribe establish a voting age different from 18 years of
age for Secretarial elections?
81.11 What type of electioneering is allowed before and during a
Secretarial Election?
81.12 What types of voting assistance are provided for a Secretarial
Election?
81.13 May Secretarial elections be scheduled at the same time as
tribal elections?
81.14 How are conflicting proposals to amend a single document
handled?
81.15 Who pays for holding the Secretarial Election?
81.16 May a tribe use its funds to pay non-Federal election
officials?
81.17 Who can withdraw a request for a Secretarial Election?
Subpart D--The Secretarial Election Process Under the Indian
Reorganization Act (IRA)
81.18 How is a Secretarial Election requested?
81.19 What does the Bureau do after receiving a request for a
Secretarial Election?
81.20 What is the first thing that the Chair of the Election Board
does?
81.21 Who conducts the Secretarial Election?
[[Page 61027]]
81.22 How is the Secretarial Election conducted?
81.23 What documents are included in the Secretarial Election Notice
Packet?
81.24 What information must be included on the Secretarial Election
notice?
81.25 Where will the Secretarial Election Notice be posted?
81.26 How does BIA use the information I provide on the registration
form?
81.27 Do I have to re-register if I have already registered for a
tribal or Secretarial Election?
81.28 How do I submit my registration form?
81.29 Why does the Secretarial Election Board compile a Registered
Voters List?
81.30 What information is contained in the Registered Voters List?
81.31 Where is the Registered Voters List posted?
81.32 May the Registered Voters List be challenged?
81.33 How does the Secretarial Election Board respond to challenges?
81.34 How are the official ballots prepared?
81.35 When must the Secretarial Election Board send ballots to
voters?
81.36 What will the mailout or absentee ballot packet include?
81.37 How do I cast my vote at a polling site?
81.38 When are ballots counted?
81.39 How does the Board determine whether the required percentage
of registered voters have cast ballots?
81.40 What happens if a ballot is spoiled before it is cast?
81.41 Who certifies the results of the Election?
81.42 Where are the results of the Election posted?
81.43 How are the results of the Election challenged?
81.44 What documents are sent to the Authorizing Official?
81.45 When are the results of the Secretarial Election final?
Subpart E--The Secretarial Election Process Under the Oklahoma Indian
Welfare Act (OIWA)
81.46 What should a tribe do to adopt or amend its governing
document?
81.47 What technical assistance does the Bureau provide?
81.48 What does the Bureau do upon receiving the request for an
Election?
81.49 How is the Secretarial Election conducted?
81.50 When are the results of the Election final?
Subpart F--Formulating Petitions To Request a Secretarial Election
81.51 What is the purpose of this subpart?
81.52 Who must follow these requirements?
81.53 How do tribal members circulate a petition to adopt or amend
the tribe's governing document?
81.54 What technical assistance will the Bureau provide?
81.55 Who may initiate a petition?
81.56 Who may sign a petition?
81.57 Who is authorized to submit a petition to the Secretary?
81.58 How is the petition formatted and signed?
81.59 Do petitions have a minimum or maximum number of pages?
81.60 How do I find out how many signatures are needed for a
petition to be valid?
81.61 How long do tribal members have to gather the signatures?
81.62 How does the spokesperson file a petition?
81.63 How does the Local Bureau Official process the petition?
81.64 How can signatures to the petition be challenged?
81.65 How is the petition validated?
81.66 May the same petition be used for more than one Secretarial
Election?
Authority: 25 U.S.C. 473a, 476, 477, as amended, and 503.
Subpart A--Purpose and Scope
Sec. 81.1 What is the purpose of this part?
This part prescribes the Department's procedures for authorizing
and conducting elections when Federal statute or the terms of a tribal
governing document require the Secretary to conduct and approve an
election to:
(a) Adopt, amend, or revoke tribal governing documents; or
(b) Adopt or amend charters.
Sec. 81.2 When does this part apply?
This part applies only to federally recognized tribes, in the
circumstances shown in the following table.
------------------------------------------------------------------------
If a tribe wants to . . . And . . .
------------------------------------------------------------------------
(a) Adopt a new governing The Federal statute requires an election
document to reorganize under before or after Secretarial approval.
Federal statute.
(b) Adopt a new governing The governing document requires approval
document to reorganize under the Secretary's general authority
outside Federal statute. to approve.
(c) Amend or revoke a The Federal statute requires an election
governing document adopted and approval for amendment or
under Federal statute. revocation.
(d) Amend or revoke a The governing document requires
governing document adopted Secretarial approval of an amendment or
outside Federal statute. revocation.
(e) Ratify a federal charter The charter requires Secretarial approval
of incorporation. or is being ratified under the Oklahoma
Indian Welfare Act (OIWA).
(f) Amend a federal charter (1) The charter was ratified before the
of incorporation. May 24, 1990, amendments to the Indian
Reorganization Act (IRA); or
(2) The charter was ratified after May
24, 1990, amendments to the Indian
Reorganization Act (IRA), and the
charter requires a Secretarial Election
to amend.
(g) Take other action........ A Federal statute or tribal law requires
a Secretarial Election in order to take
that action.
(h) Remove the requirement A Federal statute or tribal law requires
for a Secretarial approval a Secretarial Election in order to take
from a governing document. that action.
------------------------------------------------------------------------
Sec. 81.3 Information collection.
The information collection requirements contained in this part are
approved by the Office of Management and Budget under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3507(d), and has been assigned OMB
control number 1076-XXX. This information is collected when, under
Federal statute or the tribe's governing documents, the Secretarial
Election is authorized to adopt, amend, or revoke governing documents;
or adopt or amend charters. This information is required to obtain or
retain benefits. A Federal agency may not collect or sponsor an
information collection without a valid OMB control number.
Subpart B--Definitions
Sec. 81.4 What terms do I need to know?
For purposes of this part:
Absentee or Mailout ballot means a ballot the Secretarial Election
Board provides to a registered voter to allow him or her to vote by
mail.
Amendment means any modification or change to one or more
provisions of an existing governing document or charter.
Applicable law means any treaty, statute, Executive Order,
regulation, opinion of the Solicitor or final decision of the Interior
Board of Indian Appeals or a Federal court, which is applicable to the
tribe.
[[Page 61028]]
Authorizing Official means the Bureau official with delegated
Federal authority to authorize a Secretarial Election.
Bureau means the Bureau of Indian Affairs, Department of the
Interior.
Cast means the action of a registered voter, when the ballot is
received through the mail by the Secretarial Election Board, or placed
in the ballot box at the polling site, when polling sites are required
by the amendment or adoption articles of the tribe's governing
document.
Charter means a charter of incorporation issued under a Federal
statute and ratified by the governing body in accordance with tribal
law or, if adopted before May 24, 1990, by a majority vote in an
election conducted by the Secretary.
Day means a calendar day. A Secretarial Election may be held on a
Saturday, Sunday or Federal holiday.
Department means the Department of the Interior.
Director means the Director of the Bureau of Indian Affairs or his
or her authorized representative.
Electioneering means campaigning for or against the adoption,
ratification, revocation or amendment of a proposed governing document
or a charter.
Eligible voter means a tribal member who will be 18 years of age or
older on the date of the Secretarial Election.
Eligible Voters List means a list of eligible voters, including
their birthdates and their last known mailing addresses. The Eligible
Voters List is compiled and certified by the tribe's governing body or
the Bureau if the Bureau maintains the current membership roll for the
tribe.
Federal statute means the Indian Reorganization Act (IRA), 25
U.S.C. 476, 477, as amended, the Oklahoma Indian Welfare Act (OIWA), 25
U.S.C. 503, and any tribe-specific statute that requires a Secretarial
Election for the adoption of a governing document.
Governing document means any written document which prescribes the
extent, limitations, and manner in which the tribe exercises its
sovereign powers.
Local Bureau office means the local administrative office of the
Bureau.
Local Bureau Official means the Superintendent, Field
Representative, or other official having delegated Federal
administrative responsibility under this part.
Member means any person who meets the written criteria of and is
duly enrolled with a tribe.
Petition means the official document submitted by the petitioners
to the Secretary to call a Secretarial Election for the purpose of
adopting or ratifying a new governing document, amending the tribe's
existing governing document, or revoking the tribe's existing governing
document.
Polling site ballot means the ballot the Secretarial Election Board
provides to a registered voter, allowing him or her to vote when
polling sites are required by the amendment and adoption article of the
tribe's governing document.
Recognized governing body means the tribe's governing body
recognized by the Bureau for the purposes of government-to-government
relations.
Registered Voter means an eligible voter who has registered to vote
in the Secretarial Election.
Registered Voters List means the list of all Registered Voters. A
redacted version showing only names, and where applicable voting
districts, shall be used for posting purposes.
Registration means the process by which an eligible voter is
determined eligible to vote in the Secretarial Election.
Revocation means that act whereby the registered voters of a tribe
vote to revoke their current governing document.
Secretarial Election means a Federal election conducted by the
Secretary under a Federal statute or tribal governing document under
this part.
Secretarial Election Board means the body of officials appointed by
the Bureau and the tribe to conduct the Secretarial Election.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Spoiled ballot means the ballot is mismarked, mutilated, rendered
impossible to determine the voter's intent, or marked so as to violate
the secrecy of the ballot.
Spokesperson for the petitioners means a tribe's eligible voter who
provides a document signed by tribal members that provides him or her
authority to speak or submit a petition on their behalf.
Tribal request means a request composed of all of the following:
(1) A duly adopted tribal resolution, tribal ordinance, other
appropriate tribal document requesting the Secretary to call a
Secretarial Election, or, in the absence of an existing governing
document or if authorized or required by the existing governing
documents, a petition that has been verified by the Bureau as having
the minimum required signatures of tribal members;
(2) The exact document or amended language to be voted on; and
(3) A list of all Tribal members who will be 18 years age or older
within 120 days of the date of this request, submitted in an
electronically sortable format with names, last known addresses, dates
of birth, and voting district, if any.
Tribe means any Indian or Alaska Native tribe, band, nation,
pueblo, village or community that is listed in the Federal Register
under 25 U.S.C. 479a-1(a), as recognized and receiving services from
the Bureau of Indian Affairs.
Voting district means a geographic area established to facilitate
the voting process, if required, by the amendment and adoption articles
of the tribe's governing document.
Subpart C--General Provisions
Sec. 81.5 What should a tribe do when anticipating adopting or
amending its governing document?
The tribe should submit the proposed document to the Local Bureau
Official for review and comment. Bureau personnel may help the tribal
government in drafting governing documents, bylaws, charters,
amendments and revocations. They will also explain the Secretarial
Election process.
Sec. 81.6 What technical assistance will the Bureau provide?
(a) Upon completing the initial review of the proposed document or
amendment, the Local Bureau Official will make a recommendation on the
proposed document or amendment, prepare background information on the
tribe, and submit to the Authorizing Official.
(b) The Authorizing Official must do all of the following:
(1) Review the proposed governing document or amendment and offer
technical assistance and comments to the tribe.
(2) Consult with the Office of the Solicitor to determine whether
any of the provisions of the proposed governing document or amendment
may be contrary to applicable law.
(3) Notify the tribe in writing if a provision is or may be
contrary to applicable law. This notification must:
(i) Explain how the provision may be contrary to applicable law;
and
(ii) Be sent to the tribe promptly but in no case less than 30 days
before calling the election.
(c) Once the tribe has responded to the Bureau's technical
assistance, comments and notice of any provision that may be contrary
to applicable law, it may submit a tribal request for a Secretarial
Election.
[[Page 61029]]
Sec. 81.7 What happens if a governing Federal statute and this part
disagree?
If a conflict appears to exist between this part and a specific
requirement of the Federal statute, this part must be interpreted to
conform to the statute.
Sec. 81.8 Will the Secretary give deference to the Tribe's
interpretation of its own documents?
The Secretary will give deference to the tribe's reasonable
interpretation of the amendment and adoption articles of the tribe's
governing documents. The Secretary retains authority, however, to
interpret tribal law when necessary to carry out the government-to-
government relationship with the tribe or when a provision, result, or
interpretation may be contrary to Federal law.
Sec. 81.9 Who may cast a vote in a Secretarial Election?
------------------------------------------------------------------------
Then the following individuals may cast a
If the tribe: vote:
------------------------------------------------------------------------
(a) Is reorganizing under Any member of the tribe who:
Federal statute for the (1) Will be 18 years of age or older on
first time, the date of the Secretarial Election;
and
(2) Has duly registered, regardless of
residence or other qualifications
contained in the tribe's governing
documents or charter.
(b) Is already reorganized Any member of the tribe who:
under Federal statute, (1) Will be 18 years of age or older on
the date of the Secretarial Election;
and
(2) Otherwise meets the qualifications
established by the tribe's governing
documents or charter or, if the tribe's
governing documents and charter do not
define the qualifications for voting in
a Secretarial Election, then meets the
same qualifications as those entitled to
vote in the Secretarial Election that
effected the tribe's reorganization; and
(3) Has duly registered.
(c) Is not organized under a Any member of the tribe who:
Federal statute but tribal (1) Will be 18 years of age or older on
law requires a Secretarial the date of the Secretarial Election;
Election. and
(2) Otherwise meets the qualifications,
if any, established by the tribe's
governing documents or charter or, if
the tribe's governing documents and
charter do not define the qualifications
for voting in a Secretarial Election;
and
(3) Has duly registered.
------------------------------------------------------------------------
Sec. 81.10 May a tribe establish a voting age different from 18 years
of age for Secretarial elections?
No. A Secretarial Election is a Federal election. According to the
26th Amendment of the U.S. Constitution, adopted July 1, 1971, all
individuals 18 years of age and older must be able to vote in Federal
elections.
Sec. 81.11 What type of electioneering is allowed before and during
Secretarial election?
There shall be no electioneering within 50 feet of the entrance of
a polling site.
Sec. 81.12 What types of voting assistance are provided for a
Secretarial Election?
If polling sites are required by the amendment or adoption article
of the tribe's governing document, the Chair of the Secretarial
Election Board will:
(a) Appoint interpreters;
(b) Ensure that audio or visual aids for the hearing or visually
impaired are provided;
(c) Ensure that reasonable accommodations are made for others with
impairments that would impede their ability to vote; and
(d) Allow the interpreter or Secretarial Election Board member to
explain the election process and voting instructions. At the request of
the voter, the interpreter or Board member may accompany the voter into
the voting booth, but must not influence the voter in casting the
ballot.
Sec. 81.13 May Secretarial elections be scheduled at the same time as
tribal elections?
The Secretarial Election Board will, generally, avoid scheduling
Secretarial Elections at the same time as tribal elections to avoid
confusion. If the Secretarial Election Board decides to schedule a
Secretarial Election at the same time as a tribal election, the
Secretarial Election Board must clearly inform eligible voters of any
differences between the tribal election and the Secretarial Election
and separate ballots must be used for each type of election.
Sec. 81.14 How are conflicting proposals to amend a single document
handled?
When conflicting proposals to amend a single provision of a tribal
governing document or charter provision are submitted, the proposal
first received by the Local Bureau Official, if properly submitted as a
complete tribal request, must be voted on before any consideration is
given other proposals. Other proposals must be considered in order of
their receipt if they are resubmitted following final action on the
first submission. This procedure applies regardless of whether the
proposal is a new or revised tribal governing document.
Sec. 81.15 Who pays for holding the Secretarial Election?
A Secretarial Election is a Federal election; therefore, Federal
funding will be used to cover the cost. The Bureau will pay for the
costs, unless the tribe has received funding through contracts or self-
governance compacts entered into under the Indian Self-Determination
and Education Assistance Act, as amended, 25 U.S.C. 450f, et seq.
Sec. 81.16 May a tribe use its funds to pay non-Federal election
officials?
A tribal recognized governing body may use tribal funds to
compensate non-Federal personnel to protect the tribe and respond to
the needs of the tribal government in the conduct of the Secretarial
Election.
Sec. 81.17 Who can withdraw a request for a Secretarial Election?
The tribe or spokesperson for the petitioners may withdraw the
request for Secretarial Election in the same manner in which the
Secretarial Election was requested. However, the request for a
Secretarial Election cannot be withdrawn after the established deadline
for voter registration.
Subpart D--The Secretarial Election Process Under the Indian
Reorganization Act (IRA)
Sec. 81.18 How is a Secretarial Election requested?
A tribe may make a request to the Local Bureau Official for a
Secretarial Election by submitting:
(a) A tribal request from the recognized governing body, or
(b) A petition from the spokesperson for the petitioners.
[[Page 61030]]
Sec. 81.19 What does the Bureau do after receiving a request for a
Secretarial Election?
(a) Upon receiving a request for a Secretarial election, the
Authorizing Official will issue a memorandum to the Local Bureau
official. The memorandum will do all of the following:
(1) Direct the Local Bureau official to call and conduct a
Secretarial Election by one of the following deadlines:
(i) If the tribal request is to amend an existing governing
document, within 90 days from the date of receipt of the request;
(ii) If the tribal request is to adopt a new governing document
(including an amendment to a governing document in the nature of an
entire substitute) or to revoke an existing governing document, within
180 days after receiving the request.
(2) Include as an attachment the document or proposed language to
be voted upon;
(3) Include as an attachment the Certificate of Results of Election
with instructions to return it after the Secretarial Election. The
Certificate shall read as follows:
CERTIFICATE OF RESULTS OF ELECTION
Under a Secretarial Election authorized by (name and title of
authorizing official) on (date), the attached [insert: Governing
document and Bylaws, charter of incorporation, amendment or
revocation] of the (official name of tribe) was submitted to the
registered voters of the tribe and on (date) duly (insert: adopted,
ratified, rejected or revoked) by a vote of (number) for and
(number) against and (number) cast ballots found spoiled in an
election in which at least 30 percent (or such ``percentages'' as
may be required to amend according the governing document) of the
(number) registered voters cast their ballot in accordance with
(appropriate Federal statute).
Signed: ____--
(by the Chair of the Secretarial Election Board and Board Members)
Date: __--; and
(4) Advise that no changes or modifications can be made to any
attached document, without the Authorizing Official's prior approval.
(b) The Local Bureau Official will appoint a Bureau employee to
serve as the Chair of the Secretarial Election Board and notify the
tribe of the need to appoint at least two tribal members to the
Secretarial Election Board. If the tribe declines or fails for any
reason to make this appointment within10 days after the notice letter
is issued, the Chair of the Secretarial Election Board must appoint two
representatives on the 11th day after the notice letter is issued.
Sec. 81.20 What is the first thing that the Chair of the Election
Board does?
Within 5 days after the Secretarial Election Board representatives
are appointed, the Chair must hold the first meeting of the Secretarial
Election Board to set the election date.
Sec. 81.21 Who conducts the Secretarial Election?
The Secretarial Election Board conducts the Secretarial Election.
Sec. 81.22 How is the Secretarial election conducted?
The Secretarial Election Board:
(a) Uses the list provided in the tribal request to create an
Eligible Voters List;
(b) Assembles and mails the Secretarial Election Notice Packet at
least 60 days before the date of the Secretarial Election to all
persons on the Eligible Voters List;
(c) Confirms that registration forms were received on or before the
deadline date;
(d) Retains the completed registration form as part of the record;
(e) Develops the Registered Voters List for posting;
(f) Notes on a copy of the Registered Voters List, by the
individual's name, the date his or her ballot request was received, the
date the ballot was mailed, and the date the ballot was returned; and
(g) If polling sites are required by the amendment or adoption
article of the tribe's governing document, notes on a copy of the
Registered Voters List, by the individual's name, the date his or her
absentee ballot request was received, the date the absentee ballot was
mailed, and the date the absentee ballot was returned.
Sec. 81.23 What documents are included in the Secretarial Election
Notice Packet?
The Secretarial Election Notice Packet includes the following.
------------------------------------------------------------------------
------------------------------------------------------------------------
(a) Mailout Balloting........ (b) Polling Sites (if required by the
amendment or adoption articles of the
tribe's governing document).
(1) The Secretarial Election (1) The Secretarial Election notice;
notice;.
(2) A registration form with (2) A registration form with instructions
instructions for returning for returning the completed form by
the completed form by mail;. mail;
(3) An addressed envelope (3) An absentee ballot request form with
with which to return the instructions for returning the completed
completed registration form; form by mail;
and.
(4) A copy of the proposed (4) An addressed envelope with which to
document.. return the completed registration form
and absentee ballot request form; and
(5) A copy of the proposed document.
------------------------------------------------------------------------
Sec. 81.24 What information must be included on the Secretarial
Election notice?
The Secretarial Election notice must contain all of the following
items.
(a) The date of the Secretarial Election;
(b) The date which registration forms must be received by the
Secretarial Election Board;
(c) A description of the purpose of the Secretarial Election;
(d) A description of the statutory and tribal authority under which
the Secretarial Election is held;
(e) The deadline for filing challenges to the Registered Voters
List;
(f) The date a ballot request must be received by the Secretarial
Election Board;
(g) A statement as to whether the Secretarial Election is being
held entirely by mailout ballot or with polling sites, in accordance
with the tribe's governing document's amendment or adoption articles;
and
(h) The locations and hours of established polling sites, if any.
Sec. 81.25 Where will the Secretarial Election notice be posted?
The Secretarial Election notice will be posted at the local Bureau
office, if any, the tribal headquarters, and other public places
determined by the Secretarial Election Board.
Sec. 81.26 How does BIA use the information I provide on the
registration form?
We use the information you provide on the registration form to
determine whether you may be register for and vote in the Secretarial
Election. The registration form must include the following statements:
(a) Completing and returning this registration is necessary if you
desire to vote in the forthcoming Secretarial Election;
(b) This form, upon completion and return to the Secretarial
Election Board,
[[Page 61031]]
will be the basis for determining whether your name will be placed upon
the list of registered voters, and therefore may receive a ballot, and
(c) Completion and return of this form is voluntary, but failure to
do so will prevent you from participating in the Secretarial election.
Sec. 81.27 Do I have to re-register if I have already registered for
a tribal or Secretarial Election?
Yes. A Secretarial Election is a Federal election and you must
register for each Secretarial Election.
Sec. 81.28 How do I submit my registration form?
You must submit your registration form to the Secretarial Election
Board by mail.
Sec. 81.29 Why does the Secretarial Election Board compile a
Registered Voters List?
The Registered Voters List is a list of eligible voters who have
registered and are, therefore, entitled to vote in the Secretarial
Election. We use this list, after all challenges have been resolved, to
determine whether voter participation in the Secretarial Election
satisfies the minimum requirements of the tribe's governing documents
and Federal law.
Sec. 81.30 What information is contained in the Registered Voters
List?
The Registered Voters List must contain the names, in alphabetical
order, of all registered voters and their voting districts, if voting
districts are required by the tribe's governing document's amendment or
adoption articles.
Sec. 81.31 Where is the Registered Voters List posted?
A copy of the Registered Voters List, showing names only, must be
posted at the local Bureau office, if any, the tribal headquarters, and
other public places the Secretarial Election Board designates.
Sec. 81.32 May the Registered Voters List be challenged?
(a) It is possible to challenge in writing the inclusion or
exclusion or omission of a name on the Registered Voters List. The
written challenge must be received by the Secretarial Election Board by
the established deadline and include the following:
(1) The individual whose name does or does not appear on the
Registered Voters List;
(2) The reason why the individual's name should or should not be
included; and
(3) Supporting documentation.
(b) Failure to register on time is not a valid basis for an
individual to challenge the omission of his/her name from the list.
Sec. 81.33 How does the Secretarial Election Board respond to
challenges?
All challenges must be resolved within three days of the challenge
deadline established by the Secretarial Election Board and all
determinations of the Secretarial Election Board are final for the
purpose of determining who can vote in the Secretarial Election.
(a) If the challenge was received after the deadline, the
Secretarial Election Board must deny the challenge.
(b) If the challenge was received on or before the deadline, the
Secretarial Election Board will decide the challenge by reviewing the
documentation submitted. Thereafter, the Secretarial Election Board
will include the name of any individual whose name should appear or
remove the name of any individual who should not appear on the
Registered Voters List.
Sec. 81.34 How are the official ballots prepared?
(a) The Secretarial Election Board must prepare the official ballot
so that it is easy for the voters to indicate a choice between adopting
or rejecting the proposed language. Separate ballots should be prepared
for each proposed amendment or a single ballot for adoption of a
proposed document (with a reference to the document provided in the
Secretarial Election notice).
(b) The following information must appear on the face of the
mailout or absentee ballot:
OFFICIAL BALLOT
(Facsimile Signature)
CHAIR, SECRETARIAL ELECTION BOARD
(c) When polling places are required by the tribe's governing
document, the official ballot may be a paper ballot, voting machine
ballot, or other type of ballot supporting the secret ballot process.
Sec. 81.35 When must the Secretarial Election Board send ballots to
voters?
(a) The Secretarial Election Board must send mailout or absentee
ballots to registered voters:
(1) When the list of Registered Voters is complete; or
(2) Any time a request for an absentee ballot is received before
Secretarial Election date if polling sites are required by the
amendment or adoption articles of the tribe's governing document.
(b) All mailout or absentee ballot transactions must be via U.S.
Mail before the date of the Secretarial Election.
Sec. 81.36 What will the mailout or absentee ballot packet include?
The mailout or absentee ballot packet contains:
(a) A mailout or absentee ballot;
(b) Instructions for voting by mailout or absentee ballot including
the date the ballot must be received by the Secretarial Election Board;
(c) An inner envelope with the words ``Mailout Ballot'' or
``Absentee Ballot'' printed on the outside;
(d) A copy of the proposed governing document or amendment, if the
full text is not printed on the mailout ballot; and
(e) A pre-addressed outer envelope with the following certification
printed on the back:
I, (print name of voter), hereby certify I am a registered voter of
the (name of Tribe); I will be 18 years of age or older on the day
of the Secretarial Election; I am entitled to vote in the
Secretarial Election to be held on (date of Secretarial Election). I
further certify that I marked the enclosed mailout ballot in secret.
Signed: ____-- (voter's signature)
Sec. 81.37 How do I cast my vote at a polling site?
If polling sites are required by the tribe's governing document's
amendment or adoption articles, the Secretarial Election Board will
establish procedures for how polling site ballots will be presented and
collected, including, but not limited to, paper ballots, voting
machines, or other methods supporting a secret ballot.
Sec. 81.38 When are ballots counted?
The ballots will be counted under the supervision of the
Secretarial Election Board, after the deadline established for
receiving all ballots or closing of the polls, if polling sites are
required by the tribe's governing document's amendment or adoption
articles.
Sec. 81.39 How does the Board determine whether the required
percentage of registered voters have cast ballots?
The Secretarial Election Board must count the number of valid
ballots and cast spoiled ballots to determine total voter
participation. The Board must take the total voter participation and
divide it by the total number of Registered Voters. This total is used
to determine whether the percentage of Registered Voters who cast votes
meets the requirements of the tribe's governing documents or Federal
statute that requires at least 30 percent voter participation. For
example:
(a) If there were 200 registered voters of which 75 cast valid
ballots and 5 cast spoiled ballots for a total of 80 cast ballots (75 +
5 = 80). The percentage of
[[Page 61032]]
voter participation would be determined as follows:
Total number of votes cast (80) divided by the total number
registered voters (200) or 80 / 200 = 0.40 or 40 percent voter
participation.
(b) This example meets the Federal statutory requirement of at
least 30 percent voter participation.
Sec. 81.40 What happens if a ballot is spoiled before it is cast?
If a ballot is spoiled before it is cast, this section applies.
(a) The registered voter may return the spoiled ballot to the
Secretarial Election Board by mail or in person with a request for a
new ballot before the election date. The new ballot will be promptly
provided to the registered voter. The Secretarial Election Board must
retain all ``spoiled uncast ballots'' for recordkeeping purposes.
(b) If polling sites are required, the voter may return the spoiled
ballot to the polling site worker and request a new ballot. Upon
receiving the new ballot, the voter must then complete the voting
process. The polling site worker will mark the spoiled ballot ``spoiled
uncast'' and record that the ballot has been spoiled. The polling site
worker must retain all ``spoiled uncast ballots'' for recordkeeping
purposes.
Sec. 81.41 Who certifies the results of the Election?
The Chair and all members of the Secretarial Election Board must be
present during the counting of the ballots and must sign the
Certificate of Results of Election.
Sec. 81.42 Where are the results of the Election posted?
The Secretarial Election Board must post a copy of the Certificate
of Results of Election at the local Bureau office, the tribal
headquarters, and at other public places listed in the Election notice.
Sec. 81.43 How are the results of the Election challenged?
Any person who submitted a voter registration form may challenge
the results of the Secretarial Election. The written challenge, with
substantiating evidence, must be received by the Chairman of the
Secretarial Election Board within 3 days after the Certificate of
Results of Election is posted. Challenges received after the deadline
for filing challenges will not be considered. If the third day falls on
a weekend or holiday, the challenge must be received by close of
business on the next business day.
Sec. 81.44 What documents are sent to the Authorizing Official?
The Chair of the Secretarial Election Board must transmit all
documents pertaining to the Secretarial Election to the Authorizing
Official, including:
(a) The original text of the material voted on;
(b) The Eligible Voters List;
(c) The Registered Voters List;
(d) The Secretarial Election Notice Packet;
(e) Any challenges to the Secretarial Election results; and
(f) The Certificate of Results of Election.
Sec. 81.45 When are the results of the Election final?
The Authorizing Official will review election results and
challenges, if any, as follows:
(a) If a challenge is sustained and may have an impact on the
outcome of the election, the Authorizing Official must authorize a
recount or call for a new Secretarial Election. The Authorizing
Official will take the appropriate steps necessary to provide for a
recount or a new Secretarial Election. The results of the recount or
new Secretarial Election will be final for the Department.
(b) If all challenges are denied or dismissed, the Authorizing
Official will review and make a decision based on the following:
(1) The percentage of total votes cast was at least 30 percent, or
other percentages required according to the tribe's governing
document's amendment or adoption articles.
(2) The voters rejected or accepted the proposed document or each
proposed amendment; and
(3) The proposed documents or amendments are not contrary to
Federal law.
(c) The Authorizing Official must notify, in writing, the
recognized governing body of the tribe, and the Director of the Bureau,
of the following:
(1) The decisions on challenges;
(2) The outcome of the voting;
(3) Whether the proposed governing document, proposed amendment(s)
or charter or charter amendments are approved or ratified, or if the
proposed documents contain language that is contrary to Federal law
and, therefore, disapproved; and
(4) That the decision is final for the Department.
(d) The Authorizing Official must:
(1) Forward the original text of the document, Original Certificate
of Approval or Disapproval, and the Certificate of Results of Election
to the tribe and a copy of all documents to the Bureau Director; and
(2) Retain, as required by the Records Disposition Schedule, a copy
of all document(s) relevant to the Secretarial Election.
(e) If the certified election results show that the tribal members
ratified the documents, but the Authorizing Official does not approve
or disapprove the governing document or amendment within 45 days of the
Secretarial Election, the Secretary's approval of the documents must be
considered as given.
Subpart E--The Secretarial Election Process Under the Oklahoma
Indian Welfare Act (OIWA)
Sec. 81.46 What should a tribe do to adopt or amend its governing
document ?
If a tribe expects to adopt or amend its governing document, it
should submit the proposed document to the Local Bureau Official for
review and comment. The Bureau may help the tribal government in
drafting governing documents, bylaws, charters, amendments and
revocations. The Bureau will also explain the Secretarial Election
process.
Sec. 81.47 What technical assistance does the Bureau provide?
(a) Upon completing the initial review of the proposed document or
amendment, the Local Bureau Official will make a recommendation on the
proposed document or amendment, prepare background information on the
tribe, and submit it to the Authorizing Official.
(b) The Authorizing Official will:
(1) Review the proposed governing document or amendment and offer
technical assistance and comments to the tribe;
(2) Consult with the Office of the Solicitor to determine if any of
the provisions of the proposed governing document or amendment may be
contrary to applicable law; and
(3) If it appears that a provision is or may be contrary to
applicable law, notify the tribe in writing how the provision may be
contrary to applicable law.
(c) The Authorizing Official must promptly notify the tribe under
paragraph (b)(3) of this section at least 30 days before calling the
election;
(d) Once the tribe has responded to the Bureau's technical
comments, and any notice of a provision that may be contrary to
applicable law, the Authorizing Official may approve the proposed
document. The tribe may then submit a request for a Secretarial
Election. The Authorizing Official may not authorize a Secretarial
Election on any proposed document that contains
[[Page 61033]]
provisions that may be contrary to applicable law.
Sec. 81.48 What does the Bureau do upon receiving the request for an
Election?
(a) The Authorizing Official will issue a memorandum to the Local
Bureau Official:
(1) Approving the proposed document or proposed amendments;
(2) Authorizing the Local Bureau Official to call and conduct a
Secretarial Election, within 90 days from the date of receiving the
tribal request;
(3) Attaching the document or proposed language to be voted upon;
(4) Attaching the Certificate of Results of Election, with
instructions to return it at the conclusion of the Secretarial
Election. The Certificate shall read as follows:
CERTIFICATE OF RESULTS OF ELECTION
Under a Secretarial Election authorized by (name and title of
authorizing official) on (date), the attached [insert: Governing
document and Bylaws, charter of incorporation, amendment or
revocation] of the (official name of tribe) was submitted to the
registered voters of the tribe and on (date) duly (insert: adopted,
ratified, rejected or revoked) by a vote of (number) for and
(number) against and (number) cast ballots found spoiled in an
election in which at least 30 percent (or such ``percentages'' as
may be required to amend according the governing document) of the
(number) registered voters cast their ballot in accordance with
(appropriate Federal statute).
Signed: ____--
(by the Chair of the Secretarial Election Board and Board Members)
Date: __--.; and
(5) Advising that no changes or modifications can be made to any of
the attached documents, without prior approval from the Authorizing
Official.
(b) The Local Bureau Official will appoint the Chair of the
Secretarial Election Board and notify the tribe of the need to appoint
at least two tribal members to the Secretarial Election Board. If the
tribe fails to make such appointment within 10 days after the notice
letter is issued, the Chair of the Secretarial Election Board must
appoint two representatives on the eleventh day after the notice letter
is issued.
Sec. 81.49 How is the Secretarial Election conducted?
After the Chair of the Election Board receives the authorization of
the Election, the Chair of the Secretarial Election Board will conduct
the election following the procedures set out in Sec. Sec. 81.19
through Sec. 81.45.
Sec. 81.50 When are the results of the Election final?
(a) If a challenge is sustained and has an effect on the outcome of
the election, the Authorizing Official must authorize a recount or call
for a new Secretarial Election. The Authorizing Official will take the
appropriate steps necessary to provide for a recount or a new
Secretarial Election. The results of the recount or new Secretarial
Election will be final for the Department.
(b) If the challenges are denied or dismissed, the Authorizing
Official will review and determine whether:
(1) The percentage of total votes cast was at least 30 percent, or
such percentages as may be required according to the tribe's governing
document's amendment or adoption articles; and
(2) The voters ratified or rejected the proposed document, proposed
amendment or revocation.
(c) The Authorizing Official must notify, in writing, the
recognized governing body of the tribe, and the Director of the Bureau,
of the following:
(1) The decisions on challenges;
(2) The outcome of the voting;
(3) That the proposed document, proposed amendments or revocation
becomes effective as of the date of the Secretarial Election; and
(4) That the decision is final for the Department.
(d) The Authorizing Official must:
(1) Forward the original text of the document, Original Certificate
of Approval, and the Certificate of Results of Election to the tribe
and a copy of all documents to the Director of the Bureau; and
(2) Retain, as required by the Records Disposition Schedule, a copy
of all document(s) relevant to the Secretarial Election.
Subpart F--Formulating Petitions To Request a Secretarial Election
Sec. 81.51 What is the purpose of this subpart?
This subpart establishes requirements for formulating and
submitting petitions to request the Secretary to call a Secretarial
Election as required by the governing documents or charters of
incorporation of tribes issued under the Indian Reorganization Act
(IRA), 25 U.S.C. 476 and 477, as amended, and the Oklahoma Indian
Welfare Act (OIWA), 25 U.S.C. 503. This Subpart may also be used by a
federally recognized tribe that is adopting a governing document, under
Federal statute, for the first time.
Sec. 81.52 Who must follow these requirements?
Any tribe meeting the criteria in paragraphs (a) or (b) of this
section must follow the requirements of this subpart.
(a) A tribe whose governing document or charter of incorporation
provides for petitioning the Secretary to call a Secretarial Election
for any of the following purposes:
(1) Amending or revoking the governing document;
(2) Amending a charter of incorporation ratified under 25 U.S.C.
477 of the IRA before May 24, 1990;
(3) Amending or ratifying a charter of incorporation under 25
U.S.C. 503 of the OIWA; or
(4) Taking any other action authorized by the governing document or
charter of incorporation.
(b) A federally recognized tribe, without an existing governing
document, adopting a governing document under Federal statute, for the
first time.
Sec. 81.53 How do tribal members circulate a petition to adopt or
amend the tribe's governing document?
Tribal members wishing to circulate a petition to adopt or amend
the tribe's governing document should submit the proposed document to
the Local Bureau Official for review and comment. This may help the
petitioners in drafting governing documents, bylaws, charters,
amendments and revocations. The Bureau will also explain the
Secretarial Election process.
Sec. 81.54 What technical assistance will the Bureau provide?
(a) The Bureau will provide technical assistance for a petition
only upon request of the spokesperson. Bureau personnel will provide a
courtesy copy to the tribe's governing body of all correspondence
regarding technical assistance to the petitioners. The spokesperson
will be responsible for obtaining the approval of the tribal members it
represents on changes to the content of the petition.
(b) Upon completing the initial review of the proposed document or
amendment, the Local Bureau Official will make a recommendation on the
proposed document or amendment, prepare background information on the
tribe, and submit his recommendation to the Authorizing Official.
(c) The Authorizing Official will:
(1) Review the proposed governing document or amendment and offer
technical assistance and comments to the tribe;
(2) Consult with the Office of the Solicitor to determine if any of
the provisions of the proposed governing document or amendment may be
contrary to applicable law; and
(3) If it appears that a provision is or may be contrary to
applicable law,
[[Page 61034]]
notify the tribe in writing how the provision may be contrary to
applicable law.
(d) The Authorizing Official must promptly notify the tribe under
paragraph (b)(3) of this section at least 30 days before calling the
election;
(e) Once the petitioners have responded to the Bureau's technical
assistance, comments and notice of any provision that may be contrary
to applicable law, they may submit their petition requesting a
Secretarial Election.
Sec. 81.55 Who may initiate a petition?
A member of the tribe who is 18 years of age or older whose
governing document or charter of incorporation permits tribal members
to petition the Secretary to authorize a Secretarial Election.
Sec. 81.56 Who may sign a petition?
A member of the tribe who is 18 years of age or older.
Sec. 81.57 Who is authorized to submit a petition to the Secretary?
The petitioners must designate a spokesperson to submit the
petition and act on their behalf for the petitioning process.
Sec. 81.58 How is the petition formatted and signed?
(a) Each page of the petition must contain:
(1) A summary of the purpose of the petition, or proposed document,
or proposed amendment language;
(2) Numbered lines for each individual to print their legal name,
current mailing address, date, and signature, and;
(3) The following declaration at the bottom of each page to confirm
the collector was present when each signature was collected:
``I, (Collector's Printed Name), hereby declare that each individual
whose name appears above signed and dated the petition. To the best
of my knowledge, the individual signing the petition is a member of
the tribe and is 18 years or older.
(Signature of Collector)
(Notary Certification)'',
(b) Each individual must print their legal name, current mailing
address, date, and sign on a numbered line.
(c) Each collector must complete and sign the declaration on each
page in front of a notary, who will sign and certify.
Sec. 81.59 Do petitions have a minimum or maximum number of pages?
A petition can have as many pages as necessary to obtain the
required signatures, however, each page must have the information shown
in Sec. 81.58.
Sec. 81.60 How do I find out how many signatures are needed for a
petition to be valid?
(a) For a tribe whose governing document or charter of
incorporation provides for petitioning the Secretary to call a
Secretarial Election:
(1) The spokesperson for the petitioners may ask the tribe or the
Local Bureau Official how many signatures are required.
(2) The Local Bureau Official will:
(i) Contact the tribal governing body to obtain the current number
of tribal members, 18 years of age or older, to determine the number of
tribal members who must sign a petition as required by the tribe's
governing document; and
(ii) Notify the petitioners' spokesperson how many signatures are
required and that the number is valid for 180 days from the date of
this notification.
(b) For a federally recognized tribe adopting a governing document
under Federal statute for the first time, the petition must have
signatures of 20 percent of the tribal members who are 18 years of age
or older.
Sec. 81.61 How long do tribal members have to gather the signatures?
Tribal members have one year from the date of the first signature
to gather the required signatures.
Sec. 81.62 How does the spokesperson file a petition?
The spokesperson must submit the original petition to the Local
Bureau Official.
Sec. 81.63 How does the Local Bureau Official process the petition?
(a) The Local Bureau Official must, on the date of receipt, date
stamp the petition to record the Official Filing Date, and make three
copies of the petition for use as follows:
(1) Posting at the local Bureau office for 30 days from the
Official Filing Date, including a statement of the proposal contained
in the petition and instructions for filing a challenge;
(2) Use in determining sufficiency of petition; and
(3) For viewing at the Local Bureau Office by a member of the
tribe, 18 years of age or older.
(b) The Local Bureau Official must, within one week of the Official
Filing Date:
(1) Provide the spokesperson written acknowledgment of receiving
the petition, which contains the Official Filing Date, the exact number
of signatures submitted on the petition, and the statement ``The
petitioners may not add or withdraw any signatures from the petition
after the Official Filing Date''; and
(2) Provide a copy of the written acknowledgment of receipt and
petition to the recognized tribal governing body.
(c) The Local Bureau Official must:
(1) Consult with the Office of the Solicitor to determine if any of
the provisions that are the subject of the petition are or may be
contrary to applicable law; and
(2) If it appears that a provision is or may be contrary to
applicable law, notify the petitioner's spokesperson in writing how the
provision may be contrary to applicable law.
(d) The Local Bureau Official must promptly notify the petitioners
of any problems identified under paragraph (c) of this section at least
30 days before calling the election.
Sec. 81.64 How can signatures to the petition be challenged?
Any member of the tribe, 18 years of age or older, may challenge in
writing the signatures appearing on the petition. The challenge must be
submitted to the Local Bureau Official, within 30 days of the Official
Filing Date of the petition and must:
(a) Identify the page and line on which a signature appears; and
(b) Provide documentation supporting a challenge that at least one
of the following is true:
(1) A signature was forged;
(2) An individual was ineligible to sign the petition;
(3) A petition page is inconsistent or improperly formatted; or
(4) A petition page contains an incomplete declaration statement.
Sec. 81.65 How is the petition validated?
(a) The Local Bureau Official must:
(1) Confirm the petition has the required number of signatures;
(2) Indicate any signatures appearing more than once and include
only one in the count;
(3) Make recommendations regarding any challenge to the validity of
signatures based upon the documentation provided by the challenger; and
(4) Verify the petitioning procedures complied with this Subpart.
(5) Transmit within 45 calendar days of the Official Filing Date
the original petition, challenges, and recommendations to the
Authorizing Official.
(b) The Authorizing Official must within 60 calendar days of the
Official Filing Date:
(1) Determine whether the petition complies with the requirements
of this Subpart;
[[Page 61035]]
(2) Inform the spokesperson for the petitioners and the recognized
tribal governing body, in writing, whether the petition is valid, the
basis for that determination, and a statement that the decision of the
Authorizing Official is final for the Department.
(i) If the petition is determined valid for the purposes of calling
a Secretarial election, the Authorizing Official will instruct the
Local Bureau Official to call and conduct the Secretarial Election in
accordance with Sec. Sec. 81.19 through 81.45.
(ii) If the petition is determined invalid, the Authorizing
Official will notify the spokesperson for the petitioners, with a
courtesy copy to the tribe's governing body, that the petition was not
valid and a Secretarial Election will not be called.
Sec. 81.66 May the same petition be used for more than one
Secretarial Election?
No. A petition may not be used for more than one Secretarial
Election. Each request for a Secretarial Election requires a new
petition.
PART 82--[REMOVED AND RESERVED]
0
2. Remove and reserve part 82.
Dated: October 3, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-24118 Filed 10-8-14; 8:45 am]
BILLING CODE 4310-4J-P