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Washburn Pushes Self-Determination Again with Final Rule on Secretarial Elections

Kevin K. Washburn, Assistant Secretary – Indian Affairs, announced the Final Rule on Secretarial elections on October 19.
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The Department of the Interior along with Assistant Secretary-Indian Affairs Kevin K. Washburn continues to make tribal sovereignty and self-determination something all federally recognized tribes can obtain.

The most recent steps toward that goal came when Washburn announced the Final Rule on Secretarial elections on October 19. Washburn shared that Interior “finalized updates to Bureau of Indian Affairs (BIA) regulations on Secretarial elections for tribal governments that will, among other things, protect the rights of tribal members living away from their communities to vote in these elections.”

A Secretarial election is a federal election conducted by the Secretary of the Interior for federally recognized tribes under a federal statute or tribal governing document (25 C.F.R. Part 81).

The amendments to the rule take into account that tribal members living in urban areas may be far from their reservations or tribal communities by providing that Secretarial elections generally be conducted by mail-out ballots.

“Though many federal responsibilities concern the lands we hold in trust for tribes and Indian people, more than 55 million acres nationwide, the United States has a moral obligation to preserve connections between Indian people and their tribes that it once sought to destroy,” Washburn said. “For the future of Native nations and the health of Indian country, American Indians in urban areas must work harder to maintain connections with their tribes. One important aspect of that relationship is participation in the civic and political life of their tribal governments. For that reason, our Secretarial election amendments seek to prevent tribal members living in urban areas from being inadvertently disenfranchised in Secretarial elections.”

Many Indians came to be living in cities because of the BIA’s mid-20th century program to relocate American Indians away from their reservations to large urban areas in hopes of assimilating them and terminating the federal relationship with the tribes. Today, almost three-quarters of American Indians live in urban areas away from their home reservations – there are 567 federally recognized tribes throughout the U.S.

The Final Rule as presented at the Federal Register states, “For many tribes, the requirement for Secretarial elections or Secretarial approval is anachronistic and inconsistent with modern policies favoring tribal self-governance. The rule includes language clarifying that a tribe reorganized under the [Indian Reorganization Act may amend its governing document to remove the requirement for Secretarial approval of future amendments.

“The Department encourages amendments to governing documents to remove vestiges of a more paternalistic approach toward tribes. Once the requirement for Secretarial approval is removed through a Secretarial election, Secretarial approval of future amendments is not required, meaning there will be no future Secretarial elections conducted for the tribe, and future elections will be purely tribal elections, governed and run by the tribe rather than BIA. Additionally, without a requirement for Secretarial approval, the constitution will no longer be governed by the other election-related requirements of the IRA, such as the minimum number of tribal voters to make an election effective. Such matters will be governed by tribal policy decisions rather than Federal ones.”

The Final Rule also states tribes that currently have Secretarial election requirements are encouraged to remove them as a step towards tribal sovereignty and self-determination.

Secretarial elections are conducted by the BIA for tribes that are required to have them if one of the four items apply:

— A federal law requires a Secretarial election to take an action;

— The tribe’s governing document requires a Secretarial election to take an action;

— A federal corporate charter requires a Secretarial approval; or

— The tribe is adopting or amending a federal charter of incorporation, and certain circumstances apply.

The update combines previous regulations that govern how the Bureau conducts Secretarial elections and which govern how tribal members can petition for a Secretarial election into one at 25 C.F.R. Part 81. The new rule also features other updates reflecting changes in statutory law, along with deadlines “triggered by a tribe’s request for a Secretarial election, within which the BIA must call and hold an election.”

According to Interior, the rule has been in development for many years and has been the subject of three consultation sessions with tribal leaders, and an extended public comment period that ended January 16, 2015.