Andrew Martinez: Constitutional Reform: The Secretarial Election Process

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Native Nations Institute
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NNI intern Andrew Martinez (Salt River Pima-Maricopa Indian Community) gives participants a concise and informative overview of how the secretarial election process works when Native nations amend their constitutions, and what happens (and doesn't) when Native nations remove the Secretary of Interior approval clause from their constitutions.

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Martinez, Andrew. "Constitutional Reform: The Secretarial Election Process." Tribal Constitutions seminar, Native Nations Institute for Leadership, Management & Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

Andrew Martinez:

"Good afternoon. My name is Andrew Martinez. I'm originally from San Diego, California. I grew up on the Mesa Grande Indian Reservation out there. And just for scale, it takes about two minutes to drive through on the highway. It's pretty small. I came to NNI last semester as an intern. I just kind of wandered into the office, spoke to Joan, she decided to take me on. I was given the task to look into the secretarial election process and the first thing she said is like, "˜Go to the 25 CFR.' I'm a business major; I'm a minor in public policy and management. I'd never look at 25 CFR. I was very, very lost and the more I read it or the first time I looked at it I was very confused, but I had to continue to go over it and go over it and through numerous Google searches I started to discover a pathway through it and that's what I'm here to clarify for you today.

So getting started I'm going to cover the objectives that I was given last semester to basically understand, once I'm going through this process, cover some background on the secretarial election process, specifically to remove the secretarial approval clause from the IRA constitutions, the Indian Reorganization Act constitutions. After the background, I'll step into the legal process in Section 82 and 81 of the Code of Federal Regulations hitting on the actual code and then also discussing tribal action that happens during that time. And these are basically observations that I've made from the tribes that have gone through this process. And I'll end with some documents that I feel that will be helpful for those of you who are undergoing this process right now and drafting your constitutions, and then also show you some more legal documents that Dr. [Robert] Hershey was talking about and open the floor up to questions. And if you would, I'll be asking my own questions. This is the first time I'm giving this presentation to an audience who really has experience in this process. So if you're willing to help me out here, help me understand the process that much better, that would be great.

So starting out, I was tasked with understanding the timeline, basically the framework that exists with the secretarial election process right now. There was no established timeline prior to 1988. That came with an amendment. I found out the amendment happened, looked at the timeline. My next question was, what brought on that amendment? Looked further, I found one case, Coyote Valley Band. Three tribes sued the United States, basically because they wanted to reform their constitutions, submitted documentation to the BIA [Bureau of Indian Affairs] agency, and got no action. One of the tribes waited a couple months; another tribe waited a couple years, no action at all. The ruling was in favor of the tribes and now we have the established framework that I'll be presenting today.

The second is to understand the interactions that happen within the secretarial election process, from the petitioning process, the tribal council interactions, the tribal membership and citizenship, even with the constitutional reform task force or committees that are initiated. And then once the official documents have been submitted to the local agency office, where do they go, how far up do they go? This is where I really started to get interested, and I have to say I got quite excited when I was able to find official BIA paperwork online.

So getting to the background. These points that are on the slide I pulled from presentations that were given during information sessions by tribes to their citizens. A secretarial election is not a tribal election, it's a federal election; therefore, you have to register separately. Second, it's authorized by the Secretary of Interior. That's what the language says. However, the paperwork only works up to the regional director unless there's an issue that needs to be clarified past that. And to clarify that, the Pueblo of Laguna who -- I think both of their representatives have left already, that's okay. Thank you for that. Thank you for posting that. That was very helpful for me, clarifying that it is the regional director that calls the election. And then why is it conducted? For the purpose of allowing tribes to reorganize under a federal statue, specifically the IRA [Indian Reorganization Act], to amend, ratify, revoke their constitutions, bylaws or tribal charters.

And I know that we have some representatives that are not from the U.S., so I put this in here to clarify the language. This is what the typical BIA constitution amendment section looks like and what a lot of us are hitting on today is removing the Secretary of Interior approval clause from that. As you can see, it's noted four times within this section. And this is the BIA template constitution. When you look at other IRA constitutions around the U.S., it looks very similar and when tribes are going through the secretarial election process now, this is the main concern, removing this so that they can put themselves into the driver's seat.

So getting into Section 82, the petitioning process. This is a lot of back-end work for the tribes. This is where the constitutional reform task force is formed. Sticking with the objectives that I was given, I'll only be hitting the points that discuss deadlines and interactions. Starting with 85, the official text of the Code of Federal Regulations notes that there will be a cutoff date once the petition has begun circulating, however it doesn't really specify that.

Filing a petition: Once all signatures have been collected, adequate amount of signatures have been collected, it's submitted to the local agency office by the tribal representative, they choose to make comments, return it back to the tribe, the tribe can accept or reject those comments and then it's returned back for the official filing date. Any challenges to the signatures on the petition must be brought within 15 days. This is the first...well, actually this isn't the first, but this is one of the many points where this process can be stopped, once these challenges are brought. Then, action on the petition. The area director or commissioner, regional director when reviewing has 45 days to review the documents and decide and also assess all the challenges that have been brought.

So tribal action during this point. The tribe will have identified whether it wants to reform its entire constitution during this process or simply hit one amendment or article. And I've seen successes and failures with the searches that I've done, the research, on both ends. Some tribes are successful, some tribes are not. Lac du Flambeau [Band of Lake Superior Chippewa Indians] just went through this process earlier this year, I think January or February, just to remove that approval clause, secretarial approval clause, failed. White Earth [Nation] reformed their entire constitution, passed. So there's no simple path to success during this process.

Again, Ian [Record] spoke about holding tribal education sessions, keeping tribal members informed, keeping them engaged and keeping them motivated. Make sure that they understand what's happening. Make sure that they understand their constitution how it is right now. Compile a membership list. I put that up there so that those who are actually going through this process specifically on the task force or constitutional reform committee, that they know the exact numbers that they have to hit, the adult members and the petitions, their signatures they need on petitions. And also consider, at this point you haven't submitted documents to the local agency office, consider at this point to who's going to serve on the secretarial election board once approval is given and I'll speak about that more later on. Circulate the petition -- 180 days to circulate the petition from the date of the first signature.

Now I pulled this date off of a document loaded to the BIA website. It's noted' DRAFT 2009.' Can anyone confirm this or deny this for me? Does anyone have any info? No? Okay. If anyone happens to come across any language that clarifies that, please send it to me. And then you will be submitting all documents to the local agency office.

At this point, setting tribally imposed deadlines, I think, is appropriate. Again keeping people motivated. Currently, Pascua Yaqui [Tribe] is going through this process. When I first gave this talk last semester to the managers at the Native Nations Institute, it was the week after they held their first education session. They continued to do this and one of the focus on amending one of the articles is removing the Secretarial approval clause from their amendment section. There are a lot of lawsuits that come out of this process. This is one of them and bringing the attention to the second point, the text of the proposed amendment was numbered rather than labeled alphabetically. Again, there's a lot of steps that can hang up tribes when trying to go through this process. If the petition or official documents once submitted are not deemed appropriate, the process needs to start all over again.

Now moving onto Section 81, Secretarial Election Process. This is once authorization has been given, official documents have been approved. Again, sticking with only the deadlines and interactions, picks up at 81.5 that 45-day period. At this now authorizing official is reviewing the documents. This picks up right after 82. If approved, the secretarial election board will be...will convene for the first time and set the dates for the election. This election needs to happen within the next 90 days and they will then set the dates for registration deadlines, absentee ballot voting if that's the case, and then also the posting of the official voter's list.

Once the secretarial election board is formed, they will convene, meet, set the deadlines at 30 days, no earlier than 30 days I should say, the election packets notices need to be mailed out to tribal citizens because at 20 days prior to the election the official voters list must be posted. That is so citizens can bring challenges forward to the official voting list to verify if the names on the...the names of the citizens who registered to vote are eligible to vote. If the tribe chooses to do absentee ballot voting, the absentee ballots need to be mailed out 10 days prior to the date of the election. And again, any challenges that are brought forth need to be brought forth three days after the election, date of the election.

And then the authorizing official, again regional director, will cover and assess challenges and rule on the sufficiency of the election. And really this was very confusing to me when I first looked into it, but then when I started finding the official documentation that was mailed out to tribal citizens it made it much more clear and for me referring back to certain sections, 82.5 and 81.11, you'll see these notices once you go through this process.

Tribal action during this period. Select representatives for the secretarial election board. Will you have the same representatives that are serving on your reform committee serving on the election board at that time? Do you have...consider the amount of districts that you have. Will you have a representative from each district serving at that point? Continue to hold education sessions, verify that registration's gong out on time, make sure that tribal members are registering and vote. I've seen a couple elections where they just didn't meet the numbers. They didn't meet that 30 percent criteria. So in that the election failed. Submit all absentee ballots on time. And then the election board, following the date of the election, will post the unofficial results and that's when the challenges can be brought forth by the tribal citizens.

So some of the found documents, and I got again real excited when I found these. This is a letter dated 2009 addressed to tribal leaders informing them of education sessions to note the changes that have happened to the IRA, specifically noting first that there's a timeframe established within that first bullet point up there. The second includes language clarifying that an IRA tribe may amend its constitution to remove secretarial approval of future amendments. There you go. There's your official language and the official document. And that led me then to the Native American Technical Corrections Act. I wanted to find out where that's at.

Section 103: Tribal Sovereignty. Each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section. You can remove the language, you're not going to lose your sovereignty, you're not going to lose federal recognition. Here's a document from Pueblo Laguna and if anyone has a chance and is going through this process and wants to see the official documents prior to submitting anything, check out their tribal website. It was actually very helpful for me because they have their documents still loaded from their 2012 secretarial election. This letter here, again, one of their articles that they were amending was removing the secretarial approval clause from their amendment section. This will not affect the status of their current standing as an IRA tribe. The Pueblo will continue to be an IRA tribe with a non-IRA constitution. Again, there it is for you."

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