United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 95-3736

 

Shakopee Mdewakanton Sioux *

(Dakota) Community, a Federally *

Recognized Indian Tribe, *

*

 Appellant, *

* Appeal from the United States

 v. * District Court for the 

 * District of Minnesota.

Bruce Babbitt, as Secretary of *

the Interior, and Ada E. Deer, *

as Assistant Secretary for *

Indian Affairs, United States *

Department of the Interior, *

*

 Appellees. *

------------------------- 

 

Louise B. Smith; Winifred S. *

Feezor; Cecilia M. Stout; *

Todd D. Brooks; Mary Jo *

Gustafson; Tina A. Hove; *

Alan M. Prescott; Cynthia L. *

Prescott; Denise Prescott; *

Leonard Prescott; Robert *

Prescott, Jr.; Tanya Prescott; *

Kimberly Amundsen; John *

Bluestone; Brian Hester; *

David Hester; Kaye Hester; *

Teresa Johnson; Beverly Kosin; *

Forest Leith; Kirk Leith; *

Shahn Leith; Gary Prescott; *

Jacqueline Prescott; Jerome *

Prescott; Stacy Prescott; *

Kathleen Rykus; Teri Schmitt; *

Richard Scott; Robert Scott; *

Karen Swann; and Dorothy Whipple, * 

 

 Amici Curiae.

 

 Submitted: October 24, 1996

 Filed: February 27, 1997 

 
 The Honorable Richard H. Kyle, United States District Judge

for the District of Minnesota. 

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Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The Shakopee Mdewakanton Sioux (Dakota) Community

("Community") appeals the district court's refusal to declare

1

effective certain proposed amendments to the Community's

constitution. We affirm. 

I.

To amend its constitution, an Indian tribe must follow the

procedures set out in the Indian Reorganization Act, 25 U.S.C. 

§§ 461-479a-1 ("IRA"), and its associated regulations, 25 C.F.R.

§§ 81.1-81.24. The tribal government must first request the

Secretary of the Interior to call and conduct an election.

25 U.S.C. § 476(c)(1). At least twenty days before the election,

an election board consisting of one Bureau of Indian Affairs

officer and two members of the tribal government is required to

post a list of registered voters, and the election board must

resolve any challenges to the list's composition at least ten days

before the election. 25 C.F.R. §§ 81.12, 81.13. 

Although the regulations state that the election board's

eligibility determinations "shall be final," 25 C.F.R. § 81.13,

they also provide that "[a]ny qualified voter ... may challenge the

election results by filing with the Secretary ... the grounds for

the challenge," along with substantiating evidence, within three

days of the posting of the election results. 25 C.F.R. § 81.22.

The regulation does not enumerate permissible grounds for

challenges, and the Secretary may order a new election if he or she

decides that the objections are valid. Id. The regulations
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contain no provisions for challenging the election board's

resolution of eligibility disputes before the election.

The amendments voted upon will become effective only if two

events occur: they must be "ratified by a majority vote of the

adult members of the tribe," 25 U.S.C. § 476(a)(1), and the

Secretary must approve them, 25 U.S.C. § 476(a)(2). The Secretary

may review amendments that have been ratified by a majority vote

only to ensure that they comply with applicable federal law. 25

U.S.C. § 476(d)(1). If they do not, the Secretary may disapprove

them within forty-five days of the election. Id. If the Secretary

neither disapproves nor approves them within that time, the

amendments are deemed approved and become effective. 25 U.S.C.

§ 476(d)(2). 

On April 19, 1995, the Secretary conducted an election so that

the Community could vote on amendments to that portion of its

constitution that sets out the qualifications for membership in the

tribe. Twenty-one days before the election, the election board

posted a registered voter list containing one hundred eleven names.

In response to objections, the board determined that forty-four

people were not eligible to vote, removed them from the list, and

posted a revised list twelve days before the election. The

amendments passed by a vote of thirty-five to twenty-seven, and the

election board certified the results the same day as the election.

Pursuant to 25 C.F.R. § 81.22, several Community members filed

challenges to forty eligibility determinations, alleging that

eighteen qualified members were prevented from voting and that

twenty-two unqualified individuals were allowed to vote. 

Forty-three days after the election, the Secretary issued a

decision letter in response to these challenges, stating that he

could not approve the election's results because the possible

errors in the voter-eligibility determinations raised substantial

doubt regarding the election's fundamental integrity and fairness.
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The Secretary deferred to the election board's decision with

respect to seventeen of the challenges, but ordered an

administrative law judge to resolve those that remained. These

challenges concerned complicated blood quantum determinations, and

the Secretary had in his possession documents with conflicting

information that were not reviewed by the election board. The

Secretary stated that there would be a new election after the

administrative law judge's resolution of those challenges. 

The Community sued the Secretary for alleged violations of

both the IRA and the Administrative Procedure Act,

5 U.S.C. §§ 551-559, seeking an order declaring the Secretary's

actions unlawful, declaring the amendments effective, enjoining the

administrative law judge's resolution of the challenges, and

enjoining the second election. The district court granted summary

judgment to the defendants. 

II. 

 On appeal, the Community contends that the district court

erred in not declaring the amended constitution approved as a

matter of law under 25 U.S.C. § 476(d)(2) because the Secretary

neither approved it nor disapproved it within forty-five days. The

Community also contends that the district court erred in holding

that the Secretary had discretion to review eligibility disputes.

A.

Although the IRA states with clarity when and why the

Secretary may reject election results that have been adopted by the

tribe (that is, ratified by a majority of the tribe's adult members

who voted), it is silent about what the Secretary can do when it is

unclear whether the results have, in fact, been ratified by a

majority of the voting members. We must therefore defer to a

reasonable interpretation of the statute by the Secretary.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 843-44 (1984).
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The Secretary interprets the statute to allow the rejection of

election results when, as here, the Secretary is unable to

determine whether an election has resulted in ratification by a

majority of the voting members of the tribe as required by 25

U.S.C. § 476(a)(1). We believe that this interpretation is

reasonable. Applying the statute's strict substantive and

procedural limitations on the Secretary's ability to reject

election results for which majority support exists to circumstances

in which that support is in doubt might well force the Secretary to

declare amendments effective for which majority support does not

exist. Such a result would be inconsistent with the IRA's broad

purpose, which charges the Secretary with supervising these

elections and ensuring their fundamental integrity. The

Secretary's interpretation of the limitations contained in 25

U.S.C. § 476 does not give him or her carte blanche to interfere

with tribal elections; the Secretary may still disapprove elections

for substantive reasons only if the proposals are contrary to

federal law. 

The Community's suggestion that we should be guided by that

canon of statutory construction that resolves statutory ambiguities

in the Indians' favor, see Bryan v. Itasca County, 426 U.S. 373,

392 (1976), does not help their case. The Community neither

explains how the canon applies when Indians are on all sides of an

issue, as here, nor demonstrates how ensuring that tribal election

results accurately reflect the eligible voters' will is not in the

Indians' favor. 

The Secretary's decision letter notified the Community that

substantial doubt existed regarding the election's fundamental

integrity and fairness, thus making it unclear whether the

amendments had, in fact, been ratified by a majority of the voting

members of the tribe. Because the Secretary's reasonable

interpretation of the statute renders its strict limitations on
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when and why the Secretary may reject election results inapplicable

in that circumstance, the district court did not err in refusing to

declare the amendments approved as a matter of law. 

B.

The Community interprets the word "final" in 25 C.F.R. § 81.13

to mean "final for the Department," thus precluding any Secretarial

review of the election board's eligibility determinations, and the

Community contends that we must reject any other interpretation as

plainly erroneous. The Community argues alternatively that any

ambiguities in the regulation must be resolved in its favor.

We note at the outset that elsewhere in the same regulations,

when the Secretary intends a decision to be final for the

Department of the Interior, the phrase "final for the Department"

often appears. See, e.g., 25 C.F.R. § 83.11(a)(2). Whether

"final" also means "final for the Department" or simply "final" for

purposes of conducting an election is ambiguous. Because either

interpretation will therefore not contradict the regulations' plain

language, we must give the Secretary's interpretation of the

Department's own regulations controlling weight unless that

interpretation is plainly erroneous. Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 114 S.Ct. 2381, 2386 (1994); Shalala v. St.

Paul-Ramsey Medical Center, 50 F.3d 522, 528 (8th Cir. 1995). 

The Secretary interprets 25 C.F.R. § 81.13 to mean that the

election board's decision is final as to who casts a ballot but not

as to whether the balloting amounts to a valid election by the

Community's qualified voters, thus allowing the Secretary to

invalidate election results under 25 C.F.R. § 81.22 due to

irregularities in voter-eligibility determinations. The Secretary

offers three rationales in support of this interpretation. 
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First, the Secretary argues that since Secretarial elections

are federal elections implicating federal rights, see Cheyenne

River Sioux Tribe v. Andrus, 566 F.2d 1085, 1088-89 (8th Cir.

1977), cert. denied, 439 U.S. 820 (1978), federal protection of

those rights is appropriate. The regulations allow the election

board to deny eligibility to a prospective voter even when that

individual has had no notice of, and opportunity to respond to, the

objection to his or her eligibility. Because the regulations

contain no provisions for challenging the election board's

resolution of eligibility disputes before the election, precluding

the Secretary from ever reviewing eligibility determinations, the

argument runs, would raise serious due process concerns. 

The Secretary also maintains that allowing him to review

eligibility determinations after the election helps ensure that

governing documents accurately reflect the Community's will, in

accordance with the IRA's purpose. Lastly, the Secretary notes

that 25 C.F.R. § 81.22 does not limit the grounds on which he can

conclude that a new election is necessary; it states that elections

can be challenged on any ground for which substantiating evidence

exists. The Secretary thus argues that interpreting § 81.22 to

allow challenges to all procedural irregularities except voter

eligibility would undermine the IRA's purpose. 

We hold that the Secretary's interpretation of the interaction

between § 81.13 and § 81.22 is not plainly erroneous. Although we

believe that the election board's composition was a carefully

constructed regulatory compromise between federal authority and

tribal sovereignty, and that perhaps a more reasonable

interpretation of § 81.13 would be that it precludes Secretarial

review of the board's eligibility determinations, we may not

substitute our interpretation for that of the Secretary. See

Miller v. United States, 65 F.3d 687, 689 (8th Cir. 1995). The

district court therefore did not err in holding that the Secretary

had discretion to review eligibility disputes. 
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III.

Because the Secretary's interpretation of the IRA and its

implementing regulations is reasonable, we affirm the district

court's grant of summary judgment to the defendants. 

HEANEY, Circuit Judge, dissenting.

Without doubt, the election process that the Shakopee

Mdewakanton Sioux Community must follow to amend its constitution

is a federal proceeding governed by federal statute and regulations

and within the oversight authority of the Secretary of the

Interior. Nonetheless, the Secretary is bound to follow the

regulations he promulgated, and the plain language of section 81.13

provides that the election board's determinations of voter

eligibility "shall be final." This finality rule recognizes that

determining tribal membership is the very essence of sovereignty

and such decisions should be made according to tribal law by a body

with at least a majority Indian vote. The Secretary's

interpretation of the rule--that the Department's duty to resolve

challenges to election results includes revisiting questions of

voter eligibility previously decided by the election board--is

plainly erroneous and inconsistent with the language of the

regulations. See Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d

522, 529 (8th Cir. 1995) (declining to defer to Secretary's

interpretation that read additional unwritten terms into an

otherwise unambiguous rule). Moreover, the agency's interpretation

has the effect of indefinitely postponing the election to amend the

Community's constitution which contravenes Congress' expressed

intent that Secretarial elections proceed within the strict time

lines set forth in 25 U.S.C. § 476. Therefore, I dissent from the

majority view that the agency interpretation of its regulations is

reasonable.
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I.

In the Indian Reorganization Act of 1934 (IRA), Congress

explicitly acknowledged Indian tribes' right to organize and to

adopt or amend their own constitutions, 25 U.S.C. § 476(a), and

instructed the Secretary of the Interior to call and conduct

federal elections for this purpose, 25 U.S.C. § 476(c). Congress

amended the IRA in 1988 adopting strict time lines to ensure that

such elections proceed without undue delay: The Secretary must

hold an election to ratify an amendment to a tribe's constitution

and bylaws within ninety days after receipt of a tribal request for

an election. 25 U.S.C. § 476(c)(1)(B). Moreover, if a Secretarial

election results in the adoption of a constitutional amendment, the

Secretary must act within forty-five days of the election to either

approve the amendment or make a finding that the amendment is

contrary to applicable laws. 25 U.S.C. § 476(d)(1). If the

Secretary fails to act on a proposed amendment within the fortyfive-day period, the statutory scheme deems the Secretary's

approval as given. 25 U.S.C. § 476(d)(2). As the Assistant

Secretary acknowledges in this case, "the need to get the issue

before the voters in a timely manner has become a congressional

mandate." (Appellee's Supp. App. at 35 (Letter from Ada Deer,

Assistant Secretary-Indian Affairs, to Denise Homer, Director of

the Minneapolis Area Office of the Bureau of Indian Affairs of

6/2/95 at 2).) 

Congress delegated to the Secretary authority to prescribe

rules and regulations to govern tribal-reorganization elections

under the IRA. Pursuant to that authority, the Secretary

promulgated the regulations at issue in this case. The

regulations establish an election board--consisting of one BIA

representative (acting as chair) and two tribal representatives--

which is charged with ensuring that an election is conducted in

compliance with the procedures set forth in the regulations. 25

C.F.R. § 81.8(a). The election board must oversee voter
 It appears that a qualified voter is any person who had been

registered to vote in the election. Although the regulations do

not explicitly define the term, they define "registration" as "the

act whereby persons, who are eligible to vote, become entitled or

qualified to cast ballots by having their names placed on the list

of persons who will be permitted to vote." 25 C.F.R. § 81.1(o)

(emphasis added). Thus, although this regulation does not permit

the Secretary to hear a challenge brought by a person who was not

registered to vote, nothing in the language explicitly prevents a

registered voter from bringing a challenge to the overall

composition of the voter registration list.

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registration, including notifying eligible voters of the need to

register, 25 C.F.R. § 81.11(a), and posting an official list of

registered voters at least twenty days prior to the election, 25

C.F.R. § 81.12. In addition, the regulations charge the election

board with resolving eligibility disputes in the following manner:

The election board shall determine the eligibility of any

written claim to vote presented to it by one whose name

does not appear on the official list of registered voters

as well as any written complaint of the right to vote of

anyone whose name is on the list. Its decision shall be

final. It shall rule on all claims no later than ten

days before the election. Any claim not presented at

least ten days before the election shall be disallowed.

25 C.F.R. § 81.13 (emphasis added). The regulations further

provide that after the election, qualified voters can contest

2

election results with the Secretary:

Any qualified voter, within three days following the

posting of the results of an election, may challenge the

election results by filing with the Secretary . . . the

grounds for the challenge, together with substantiating

evidence. If in the opinion of the Secretary, the

objections are valid and warrant a recount or new

election, the Secretary shall order a recount or new

election. The results of the recount or new election

shall be final.

25 C.F.R. § 81.22 (emphasis original).
 The initial list of enrolled members contained the names of

all persons enrolled in the Community whose membership is

recognized by the tribal leadership regardless of his or her

technical eligibility under the 1969 constitution. In contrast,

the revised list of eligible voters included only those persons who

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II.

In this case, the Community leadership initiated the process

to amend the Community's constitutional membership requirements in

1994. The Constitutional Amendment Committee of the General

Council drafted proposed amendments and, on June 10, 1994, the

General Council submitted a formal request for a secretarial

election pursuant to section 476. Due to concerns over the

proposed amendments, the Secretary did not call for or hold an

election within the ninety days mandated by the IRA. After

negotiating with the Secretary, however, the Community modified its

proposed amendments and, on February 17, 1995, the Secretary

authorized the Minneapolis Area Director of the BIA to conduct the

election. 

In accordance with the regulations, the BIA and the Community

established an election board consisting of a BIA representative

acting as chair and two tribal representatives. On March 8, 1995,

the Community provided the BIA with a list of 116 persons it

recognized as enrolled members of the Community. From that, a list

of registered voters containing 111 names (minors and non-residents

from the previous list were excluded) was posted on March 29, 1995.

The regulatory deadline for filing challenges to the registered

voter list with the election board was noon on April 6, 1995, by

which time challenges had been filed to more than 50% of the names

on the registered voter list. The election board met on April 6

and 7, 1995 and ruled on the challenges to voter eligibility. With

one exception, the election board resolved every challenge by

unanimous decision. The board posted a revised list containing the

names of sixty-seven eligible voters on April 7, 1995.3
were constitutionally eligible to vote, as dictated by federal law.

Although the Community's position was that all persons recognized

by the General Council as members should be eligible to vote in the

secretarial election, the Community representatives on the election

board deferred to the BIA position that eligibility determinations

had to be made in accordance with the membership requirements as

they were set out in Article 2 of the Shakopee Mdewakanton

Constitution. (See Appellant's App. at 129 (transcript of election

board proceedings at 36:9-18).) 

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An election was held on April 19, 1995 in which those persons

on the voter registration list of April 7, 1995 were permitted to

vote. The proposed constitutional amendment passed by a vote of

thirty-five to twenty-seven. The election results were certified

by the election board on the day of the election. Shortly after

the certification of the election results, two groups of Community

members filed challenges with the Secretary concerning the election

board's voter-eligibility determinations. Taken together, the

challenges alleged that twenty-two persons voted who should not

have been allowed to vote and that eighteen persons who were found

ineligible should have been permitted to vote. 

Forty-three days after certification (and two days before the

constitutional amendment would have been deemed effective by

operation of law) the Secretary announced that he could not approve

the election results due to irregularities in the determination of

voter eligibility. The Department's procedure to redetermine voter

eligibility is set out in a letter by the Assistant Secretary in

which she calls for the appointment of an ALJ to determine the

blood quantum of twenty-three challenged individuals. The

Assistant Secretary will review the ALJ's determinations and render

a final decision for the Department. According to the Assistant

Secretary's letter, the date of a new election to amend the

Community's Constitution will be not less than thirty nor more than

sixty days after she approves the administrative determinations.

In other words, the secretarial election has been indefinitely

suspended by the Department.
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III.

The plain language of the regulations unambiguously gives the

election board the authority to resolve voter eligibility disputes

and makes its determinations final. The Secretary, therefore, is

bound to recognize the election board's determinations as final,

particularly absent some claim that the board acted outside its

authority. As written, the regulations give deference to what is

an already watered-down notion of Indian sovereignty in that it

gives tribal members a majority voice in the all-important

membership determinations. Moreover, it recognizes the

congressional mandate to move the election process forward without

unnecessary delay. 

Although the Department asks us to find ambiguity, the

regulations clearly set out that the election board's

determinations of voter eligibility are final. It is therefore

apparent that the Secretary's duty to resolve challenges by

qualified voters does not carry with it the authority to revisit

the election board's final determinations of voter eligibility.

The Secretary interprets the word final in section 81.13 to mean

final for the election board so that an election can proceed, but

not final for the Department. This reading is nonsensical and runs

counter to the balance carefully struck by Congress. The Secretary

simply does not get two bites of the apple. He cannot delegate a

specific responsibility to the election board, make the board's

decision final, and then revisit the issue due to dissatisfaction

in the outcome.

Perhaps the most troubling aspect of this case is the

practical result of the Secretary's decision. The election process

initiated by the Community in 1994 is no closer today than when it

began. The Community faces a most unfortunate Catch-22: The only

process by which it can modify its membership requirements to the

satisfaction of the United States is a secretarial election which
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is now indefinitely postponed until the Secretary determines the

Community's membership to his satisfaction. I cannot join in the

majority's conclusion that such a result is reasonable.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT