PRIA, Government Policy, Made Personal

Summary

Tribes can make and change their own constitutions and bylaws. To take effect, a proposed constitution or change must win a majority vote of the adult tribe members in a special election the Secretary of the Interior calls and then be approved by the Secretary. The tribe can also cancel a constitution or bylaws by the same voters and the same kind of election. When a tribe asks, the Secretary must hold a ratification or revocation election within 180 days, or an amendment election within 90 days. The Secretary must give help if needed, check the draft for conflicts with federal law, and tell the tribe in writing at least 30 days before the election if there are legal problems. If the tribe approves a measure, the Secretary has 45 days to approve it or say it is unlawful; if the Secretary does nothing in 45 days, approval is treated as given. Tribes get certain powers from their constitutions, like hiring lawyers, stopping sales or leases of tribal lands or assets without tribe consent, and negotiating with governments. The Secretary must also tell tribes about federal budget estimates or projects before those go to OMB and Congress. Federal agencies may not make new rules that change a tribe’s legal privileges compared to other tribes, and any such rules in effect on May 31, 1994 are void. Tribes keep the right to adopt governing documents by other methods, and documents adopted after June 18, 1934 under that right remain valid.

Title 25, §5123

Indians, Source: USLM XML via OLRC

(a)Adoption; effective date

Any Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when—

(1)ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe; and

(2)approved by the Secretary pursuant to subsection (d) of this section.

(b)Revocation

Any constitution or bylaws ratified and approved by the Secretary shall be revocable by an election open to the same voters and conducted in the same manner as provided in subsection (a) of this section for the adoption of a constitution or bylaws.

(c)Election procedure; technical assistance; review of proposals; notification of contrary-to-applicable law findings

(1)The Secretary shall call and hold an election as required by subsection (a) of this section—

(A)within one hundred and eighty days after the receipt of a tribal request for an election to ratify a proposed constitution and bylaws, or to revoke such constitution and bylaws; or

(B)within ninety days after receipt of a tribal request for election to ratify an amendment to the constitution and bylaws.

(2)During the time periods established by paragraph (1), the Secretary shall—

(A)provide such technical advice and assistance as may be requested by the tribe or as the Secretary determines may be needed; and

(B)review the final draft of the constitution and bylaws, or amendments thereto to determine if any provision therein is contrary to applicable laws.

(3)After the review provided in paragraph (2) and at least thirty days prior to the calling of the election, the Secretary shall notify the tribe, in writing, whether and in what manner the Secretary has found the proposed constitution and bylaws or amendments thereto to be contrary to applicable laws.

(d)Approval or disapproval by Secretary; enforcement

(1)If an election called under subsection (a) of this section results in the adoption by the tribe of the proposed constitution and bylaws or amendments thereto, the Secretary shall approve the constitution and bylaws or amendments thereto within forty-five days after the election unless the Secretary finds that the proposed constitution and bylaws or any amendments are contrary to applicable laws.

(2)If the Secretary does not approve or disapprove the constitution and bylaws or amendments within the forty-five days, the Secretary’s approval shall be considered as given. Actions to enforce the provisions of this section may be brought in the appropriate Federal district court.

(e)Vested rights and powers; advisement of presubmitted budget estimates

In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments. The Secretary shall advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Office of Management and Budget and the Congress.

(f)Privileges and immunities of Indian tribes; prohibition on new regulations

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.

(g)Privileges and immunities of Indian tribes; existing regulations

Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and 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 shall have no force or effect.

(h)Tribal sovereignty

Notwithstanding any other provision of this Act—

(1)each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section; and

(2)nothing in this Act invalidates any constitution or other governing document adopted by an Indian tribe after June 18, 1934, in accordance with the authority described in paragraph (1).

Notes & Related Subsidiaries

Editorial Notes

References in Text

Act of

June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) and this Act, referred to in subsecs. (f) and (h), is act

June 18, 1934, ch. 576, 48 Stat. 984, popularly known as the Indian Reorganization Act, which was classified generally to subchapter V (§ 461 et seq.) of chapter 14 of this title prior to editorial reclassification as this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 5101 of this title and Tables. Codification May 31, 1994, referred to in subsec. (g), was in the original “the date of enactment of this Act”, which was translated as meaning the date of enactment of Pub. L. 103–263, which enacted subsec. (g) of this section, to reflect the probable intent of Congress. Section was formerly classified to section 476 of this title prior to editorial reclassification and renumbering as this section.

Amendments

2004—Subsec. (h). Pub. L. 108–204 added subsec. (h). 2000—Subsec. (e). Pub. L. 106–179 struck out “, the choice of counsel and fixing of fees to be subject to the approval of the Secretary” after “To employ legal counsel”. 1994—Subsecs. (f), (g). Pub. L. 103–263 added subsecs. (f) and (g). 1988—Pub. L. 100–581 amended section generally, substituting subsecs. (a) to (e) for two former undesignated pars.

Statutory Notes and Related Subsidiaries

Definitions Applicable Pub. L. 100–581, title I, § 102, Nov. 1, 1988, 102 Stat. 2939, provided that: “For the purpose of this Act [probably means title I of Pub. L. 100–581 which amended this section and enacted provisions set out below], the term— “(1) ‘applicable laws’ means any treaty, Executive order or Act of Congress or any final decision of the Federal courts which are applicable to the tribe, and any other laws which are applicable to the tribe pursuant to an Act of Congress or by any final decision of the Federal courts; “(2) ‘appropriate tribal request’ means receipt in the Area Office of the Bureau of Indian Affairs having administrative jurisdiction over the requesting tribe, of a duly enacted tribal resolution requesting a Secretarial election as well as a copy of the proposed tribal constitution and bylaws, amendment, or revocation action; “(3) ‘Secretary’ means the Secretary of the Interior.” Amendment of Tribal Constitution and Bylaws Pub. L. 100–581, title I, § 103, Nov. 1, 1988, 102 Stat. 2939, provided that: “Nothing in this Act [probably means title I of Pub. L. 100–581 which amended this section and enacted provisions set out above] is intended to amend, revoke, or affect any tribal constitution, bylaw, or amendment ratified and approved prior to this Act.”

§5123 Organization of Indian Tribes; Constitution and Bylaws and Amendment Thereof; Special Election