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Developing and Reviewing Tribal Constitutions and Amendments

Developing and Reviewing Tribal Constitutions and Amendments. Chapter 1 - Tribal Organization and BIA Responsibility. I. Terms A. Document/Governing Document B. Adoption C. Ratification D. Approval E. Effective Date II. Organizational Status

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Developing and Reviewing Tribal Constitutions and Amendments

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  1. Developing and Reviewing Tribal Constitutions and Amendments

  2. Chapter 1 - Tribal Organization and BIA Responsibility • I. Terms • A. Document/Governing Document • B. Adoption • C. Ratification • D. Approval • E. Effective Date • II. Organizational Status • A. Indian Reorganization Act (IRA) • B. Alaska Act • C. Oklahoma Indian Welfare Act (OIWA)

  3. Chapter 1 continued….. • III. BIA Responsibilities • A. Drafting • B. Informal Review • C. Formal Review • D. Secretarial Elections

  4. Chapter 2 - Constitutional Concepts • I. Establishing Relationships • II. Achieving Significant Objectives • A. Protecting Tribal Rights and Stating Fundamental Principles • 1. Preserving Governing Powers • 2. Effective Self-Determination • B. Protecting Individual Rights • 1. Will of the Electorate • 2. Rights of Members • 3. Bilateral Relationship • 4. Apportionment • 5. Popular Participation in Government

  5. Chapter 2 continued….. • i. Initiative • ii. Referendum • iii. Recall • iv. Secretarial Petitioning • C. Governing by Law and Promoting Order • 1. Compliance with Federal Law and Policy • 2. Fundamental Fairness • 3. Separation of Powers and Judicial Authority

  6. Chapter 2 continued….. • 4. Indian Child Welfare Act (ICWA) of 1978 (25 USC 1901) • 5. Objective Election Procedures • 6. Staggered Terms of Office • 7. Private-Sector Economy • Chapter 3 - Constitutional Elements • I. Title • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • II. Preamble • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  7. Chapter 3 continued….. • III. Territory and Jurisdiction • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • IV. Civil Rights • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • V. Governing Body • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  8. Chapter 3 continued….. • VI. Powers • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • VII. Judiciary • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • VIII. Elections • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  9. Chapter 3 continued….. • IX. Vacancies • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • X. Popular Participation • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • XI. Duties of Officers • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  10. Chapter 3 continued….. • XII. Meetings • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • XIII. Savings Clause • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • XIV. Severability • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  11. Chapter 3 continued….. • XV. Amendment • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • XVI. Adoption or Ratification • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • XVII. Certificate of Election Results • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations

  12. Chapter 3 continued….. • XVIII. Certificates of Approval or Ratification • A. Description and Purpose • B. Reason for Inclusion • C. Recommendations • Chapter 4 - Reviewing Proposed Constitutions • I. Review Procedures • A. Step 1: Tribal Request • B. Step 2: Agency and Area Review • C. Step 3: Central Office Review • II. Field Responsibilities • III. Review Guidelines

  13. Chapter 5 - Revising and Amending Tribal Constitutions • I. Revision or Amendment? • II. Amendment Procedures • A. Step 1: Tribal Request • B. Step 2: Agency and Area Review • C. Step 3: Secretarial Election • III. Field Responsibilities and Review Guidelines

  14. Chapter 6 - Secretarial Elections • SECRETARIAL ELECTION CHECK LIST • Secretarial elections--that is, those authorized by the Secretary of the Interior (as opposed by tribal elections authorized by the tribe)-are held to provide an opportunity for tribal voters on proposed or revised constitutions, adopt constitutional amendments, ratify and amend charters, and revoke constitutions. Secretarial elections are held pursuant to regulation found in 25 CFR 81. The following is a checklist to follow in conducting a Secretarial election: _____ Receive authorization to conduct the election from the Area Director. _____ Order a printout and two sets of labels for eligible voters. _____ Review the regulations in 25 CFR 81. _____ Send a notice to the tribe to name Election Board members.

  15. Continued….. _____ Meet with the Election Board. _____ Order printing of registration forms and return envelopes. _____ Order printing of ballots and two envelopes for absentee ballots. _____ Contact poling places. _____ Publish election notice at least 30--but not more than 60--days before the election. _____ Post the full text of the document within two days of the election notice. _____ Mail letters to all eligible voters with a registration blank. _____ (It my be prepared as an absentee ballot request, notice of election, and return envelope.) Mailing about 45 to 50 days before the election with the registration deadline set for 30 days before works well.

  16. Continued….. _____ Mail ballots and the full text (if not on the ballot) to absentees with instructions and two envelopes. _____ Prepare and post lists of registered voters at least 20 days before the election. _____ Acknowledge receipt of registrations received after the deadline with an explanatory letter. _____ Secure polling place workers. _____ Instruct polling place workers on regulations and procedures. _____ Prepare ballot boxes with essentials for conducting the election. _____ Prepare materials for general election board tallying, posting, and certifying.

  17. Continued….. _____ Conduct the election and count the votes. _____ Post the election results. _____ Prepare certification, transmitting the original to the Area Director and sending a copy to the tribe. _____ Gather ballots, lists, etc., and package for storage for one year. _____ Transmit the original text of the approved item to the tribe. _____ Incorporate approved amendments into the constitution and forward copies to the tribe, the Area Office, and the Central Office.

  18. REVIEWING PROPOSED TRIBAL CONSTITUTIONS: A CHECKLIST YESNO TITLE The title does not contain the words “amended” or “revised.” The title does not contain the phrase “constitution and by-laws” but simply the tribe’s complete name and the word “constitution.” PREAMBLE The statement is written so that the objective of and basis for the organization are easily understood. The preamble cites the specific authority under which the constitution will be adopted or ratified. If the tribe was organized under an earlier governing document, the earlier document is acknowledged along with an explanation that it is now superseded by the current proposed constitution.

  19. CONTINUED . . . . . TERRITORY AND JURISDICTION Statements accurately describe the tribe’s geographical territory and the extend of jurisdiction. Reference is made to all treaties, Executive Orders, and/or specific congressional acts relating to establishment of the reservation or area within which the tribe has jurisdiction. This article includes a statement that jurisdiction over the tribe’s territory is subject to Federal law.

  20. CONTINUED….. MEMBERSHIP (ENROLLMENT) The article clearly describes the requirements for tribal enrollment by addressing all the following: Base Roll identification. Vested rights of previously recognized members. Authority to resolve enrollment questions. Application requirements. Content of ordinance for enrollment procedures. Adoption into membership. Disenrollment.

  21. Continued….. Procedures for appeals or enrollment decisions. The article spells out viable procedures for resolving questions of membership in a fair and impartial manner (free of pressure from the political officers or other elements within the tribe). Provision is made for appeal of enrollment decision to an objective forum. CIVIL RIGHTS The article sets forth those individual rights that the tribe must respect in exercising its power of self-government (as stated in the Indian Civil Rights Act of 1968). The article provides for a constitutionally-based judicial forum that is equal to but separate from the legislative and executive branches of government.

  22. GOVERNING BODY The article clearly and thoroughly describes the nature of the entity (or entities) empowers to exercise the tribe’s legislative and executive powers. The article specifically provides for: The title and number of positions that constitute the governing body. The means through which office holders are election (from within or by running for a particular office). Staggered terms of office. Incumbents to continue in office until their successors are duly elected and installed. Filling vacancies.

  23. POWERS The article clearly delineates those authorities delegated to the governing entity or entities (legislative and executive branches or tribal council and general council). If more than one governing entity is established, the article specifies which powers are vested in each entity. The article includes a reserve powers clause that provides that any powers not specifically listed will be exercised only upon appropriate amendment to the constitution. The means through which office holders are election (from within or by running for a particular office). Staggered terms of office. Incumbents to continue in office until their successors are duly elected and installed. Filling vacancies.

  24. CONTINUED….. JUDICIARY The article clearly provides for exercise of the tribe’s judicial authorities. The article requires creation of a judiciary that is independent from the legislative and executive functions of tribal government. The article enumerates accurately the scope of judicial powers. The article provides for election or appointment of judges by a process that frees the judiciary from potential pressures and influences of the tribal government.

  25. CONTINUED….. ELECTIONS This article explains fundamental principles for the conduct of tribal elections including: Qualifications of voters and candidates. Provision for an election board. A tribal election ordinance including: Ongoing voter registration. Majority vote. Secret ballot. Absentee voting. Procedures for settling election disputes. Appeal procedures. The concept of “one man, one vote” is preserved. The article as written promotes order in the choice of tribal officials.

  26. CONTINUED….. VACANCIES The article specifies procedures for filling positions in the event of death, resignation, removal, forfeiture, and recall. The article is clear and thorough enough to promote order in filling vacancies and to prevent undue confusion from arising around the loss of tribal officials. POPULAR PARTICIPATION The article provides for tribal election other that the regular elections of tribal officials–i.e., initiative, referendum, recall. Provisions established a viable “checks and balance” system. Procedures make it possible to achieve a recall when necessary but not so easy that officials can be unduly harassed.

  27. CONTINUED….. DUTIES OF OFFICERS The article clearly defines the major duties of various officials. The article describes how tribal members can gain access to tribal records. Provisions are included for transfer of documents and records to newly elected officials upon expiration of the incumbent’s terms. Authorities of various officials are clearly defined.

  28. CONTINUED….. MEETINGS The article clearly provides for calling and conducting regular and special meetings including specific instructions regarding: What constitutes a quorum. When and where regular meetings are to be held. Who is responsible for calling the sessions. How many special or emergency meetings can be called. Use of Robert’s Rules of Order in conducting meetings. Voting by secret ballot.

  29. CONTINUED….. SAVINGS CLAUSE The article provides that all tribal legislation enacted under any previous constitutions will remain in force to the extent that those enactments are consistent wit the new constitution. SEVERABILITY The article provides that if any part of the constitution is held by a Federal court to be invalid or contrary to the U.S. Constitution or Federal law, the remainder of the document will continue in effect. AMENDMENT The article clearly sets forth procedures for modifying or amending the constitution.

  30. OUTLINE OF SECRETARIAL ELECTION PROCESS Tribe: (1) requests election accompanied with: (a) proposed document, and (b) resolution or petition. BIA: (1) reviews documents; (2) requests legal review; (3) issues technical comments and advises tribe if any section of document is contrary to federal law. Tribe: (1) accepts or rejects comments; (2) submits final request based on decision to accept or reject comments accompanied by: (a) document to be voted upon; and (b) resolution.

  31. CONTINUED….. BIA: (1) authorizes the Area Director or Agency Superintendent to call and conduct the election; (2) the officer is charge is appointed Chairman of the election board. Tribe: (1) appoints at least two members to serve on the election board. Election Board: (1) sets date, time, site, and appropriate deadlines for election; (2) requests the tribe to provide a list of all members who will be 18 years of age on the date of the election and who are within the eligible class of voters;

  32. CONTINUED….. (3) prepares election notice package containing: (a) the election notice: (i) date of election (ii) polling site (iii) explanation of reason for election (iv) deadline for registration (v) address of office to return registration form (b) document to be voted upon; (c) registration form; (d) request for absentee ballot; (e) self-addressed return envelope; (4) receives registration forms;

  33. CONTINUED….. (5) posts the registered voters list; (6) determines challenges to the registered voters list; (7) posts corrected registered voters list, if necessary; (8) sends out absentee ballots, if necessary; (9) monitors election process on election day; (10) counts ballots cast at polling place and absentee ballots; (11) certifies election results; (12) posts election results at local BIA office, tribal office and any other designated location; (13) receives any challenge to the election results; and (14) submits to the officer in charge: (a) copy of election package sent to eligible members; (b) registered voters list; (c) copy of ballot and absentee ballot;

  34. CONTINUED….. (d) certification of election results; (e) challenges to the election results; and, (f) report on the election. BIA: (1) authorizing officer determines whether or not the challenges are valid and warrant a recount of the ballots or a new election. (2) approves or disapproves the document and election results; (3) sends original document to the tribe; and (4) retains all election documents for constitution file.

  35. OUTLINE FOR PETITIONING PROCESS Tribe - Spokesperson: (1) requests number of signatures needed before submitting petition Local BIA Official: (1) consults with tribe’s governing body regarding current number of tribal voters (2) determines number of signatures needed for petition based on: (a) number submitted by tribal governing body; or (b) number of members 18 years of age and older for those tribes who have reorganized pursuant to federal statute. (3) advises spokesperson for petitioners of: (a) number of signatures needed; and (b) cut-off date for the addition of signatures to petition.

  36. CONTINUED….. Tribe - Spokesperson (1) declares intent to make official filing of petition; (2) submits petition package to local bureau office containing: (a) reason for petition; (b) signatures of eligible tribal members; (c) date tribal members signed petition; (d) current mailing address of signers; and (e) signatures that have been notarized either: (i) individually; or (ii) by collectors signing a notarized statement. Local BIA Official: (1) enters date petition received (official filing date); (2) informs spokesperson that no names can be added or deleted;

  37. CONTINUED….. (3) acknowledges in writing receipt of petition along with: (a) exact number of signatures on petition; and (b) official filing date. (4) posts a statement of the matter proposed in petition for 30 days from date of official filing; (5) makes copies of petition and signatures available for examination at request of authorized voters for a period of 15 days from date of official filing; (6) strikes through duplicate names on the petition Tribe - Eligible Voters: (1) may file a challenge to the signatures with the local BIA official within 15 days of official filing date, based on: (a) forgery; or (b) signer lacked proper qualifications

  38. CONTINUED….. (2) must submit supporting evidence with challenge Local BIA Official: Submits petition package to next line officer within 30 days of official filing date (i.e. Agency Superintendent to Area Director, or Area Director to Deputy Commissioner). Package must contain: (1) petition; (2) signatures; (3) recommendations on challenges; (4) conclusions regarding: (a) proposed amendments/revisions; (b) validity of signatures; (c) adequacy of signatures; and (d) propriety of petitioning procedures.

  39. CONTINUED….. BIA Area Director/Deputy Commissioner: (1) must within 45 days of official filing date: (a) decide each challenge; (b) decide sufficiency of number of signatures; (c) announce whether petition will be acted upon; (2) informs spokesperson and tribal governing body if petition is insufficient for any reason; or, (3) informs spokesperson and tribal governing body if petition warrants action by the Assistant Secretary or Commissioner.

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