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 State s 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, 1997The Honorable Richard H. Kyle, United States District Judg e

for the District of Minnesota.

-2- Before BOWMAN, HEANEY, and MOR RIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

The Shakopee Mdewakanton Sioux (Dakota) Communit y ("Co mmunity") appeals the district court's refusal to declar e 1 effective certain proposed amendments to the Community' s constitution. We affirm.

I. To ame nd its constitution, an Indian tribe must follow th e 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 th e Sec retaryof the Interior to call and conduct an election

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

an ele ction board consisting of one Bureau of Indian Affair s officer and two members of the tribal government is required t o post a list of registered voters, and the election board mus t 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 elig ibilitydeterminations "shall be final," 25 C.F.R. § 81.13 , they also provide that "[a]ny qualified voter ... may challe nge the election results by filing with the Secretary ... the grounds for th e challenge," along with substantiating evidence, within thre e days o f the posting of the election results. 25 C.F.R. § 81.22

. Th e regulation does not enumerate permissible grounds fo r challenges, and the Secretary may order a new election if he or she decides that the objections are valid. Id. The regulations-3-

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 tw o events occur: they must be "ratified by a majority vote of th e adult members of the tribe," 25 U.S.C. § 476(a)(1), and th e Secretary must approve them, 2 5 U.S.C. § 476(a)(2). The Secretary mayreview amendments that have been ratified by a majority vot e only to ensure that they comply with applicable federal law. 2 5 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 Se cretary neit her disapproves nor approves them within that time, th e amendments are deemed approved and become effective. 25 U.S.C. § 476(d)(2).
On April 19, 1995, the Secretary conducted an election so th at the Community could vote on amendments to that portion of it s constitution that sets out the qualifications for membership in the tribe. Twenty-one days before the election, the election boar d posted a registered voter list containing one hundred elevennames. In r esponse to objections, the board determined that forty-fou r people were not eligible to vote, removed them from the list, and posted a revised list twelve days before the election. Th e amendments passed by a vote of thirty-five to twenty-seven, and the election board certified the r esults the same day as the election. Pursuant to 25 C.F.R. § 81.22, several Community members file d challenges to forty eligibility determinations, alleging tha t ei ghteenqualified members were prevented from voting and tha t twenty-two unqualified individuals were allowed to vote.

Forty- three days after the election, the Secretary issued a dec ision letter in response to these challenges, stating that h e could not approve the election's results because the possibl e errors in the voter-eligibility determinations raised substantial doubt regarding the election's fundamental integrity and fairness.-4-

The Se cretary deferred to the election board's decision wit h
re spect to seventeen of the challenges, but ordered a n admini strative law judge to resolve those that remained. Thes e challenges concerned complicat ed blood quantum determinations, and th e Secretary had in his possession documents with conflictin g informationthat were not reviewed by the election board. Th e Secretarystated that there would be a new election after th e administrative law judge's resolution of those challenges.

The Community sued the Secretary for alleged violations o f 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, enjoin ing the adm inistrative law judge's resolution of the challenges, an d enjoining the second election. The district court granted summary judgment to the defendants.

II. On appeal, the Community contends that the district cour t
err ed in not declaring the amended constitution approved as a matter of law under 25 U.S.C. § 476(d)(2) because the Secretar y neither approved it nor disapproved it within forty-five day s. The Communityalso contends that the district court erred in holdin g that the Secretary had discretion to review eligibility disputes.

A. Alt houghthe IRA states with clarity when and why th e Secretary may reject election results that have been adoptedby 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 whe n it is unclear whether the results have, in fact, been ratified by a majority o f 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).-5-

The Secretary interprets the statute to allow the rejection of ele ction results when, as here, the Secretary is unable t o determ ine whether an election has resulted in ratification by a majority o f the voting members of the tribe as required by 2 5 U.S.C. § 476(a)(1). We believe that this interpretation i s reasonable. Applying the statute's strict substantive an d proce dural limitations on the Secretary's ability to rejec t election results for which majority support exists to circum stances in which that support is in doubt might well force the Secre tary to declar e amendments effective for which majority support does no t exist. Such a result would be inconsistent with the IRA's broa d purpo se, which charges the Secretary with supervising thes e elec tions and ensuring their fundamental integrity. Th e Secretary's interpretation of the limitations contained in 2 5 U.S.C. § 476 does not give him or her carte blanche to interfer e with tribal elections; the Secretary may still disapprove el ections for substantive reasons only if the proposals are contrary t o federal law.

The Community's suggestion that we should be guided by tha t canon of statutory construction that resolves statutory ambi guities in the I ndians' favor, see Bryan v. Itasca County , 426 U.S. 373 , 392 (1976), does not help their case. The Community neithe r explains how the canon applies when Indians are on all sides of an issue, as here, nor demonstrat es how ensuring that tribal election results accurately reflect the eligible voters' will is not in the Indians' favor.

Th e Secretary's decision letter notified the Community tha t substantial doubt existed regarding the election's fundamenta l in tegrityand fairness, thus making it unclear whether th e amendments had, in fact, been ratified by a majority of the voting members of the tribe. Because the Secretary's reasonabl e interpretation of the statute renders its strict limitations on-6-

when and why the Secretary may reject election results inapp licable in that circumstance, the district court did not err in refu sing 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 Secr etarial review of the election board's eligibility determinations, and the Community contends that we mus t reject any other interpretation as plai nlyerroneous. The Community argues alternatively that an y ambiguities in the regulation must be resolved in its favor.

We note at the outset that els ewhere in the same regulations, when the Secretary intends a decision to be final for th e Department of the Interior, the phrase "final for the Department" oftenappears. See , e.g. , 25 C.F.R. § 83.11(a)(2). Whethe r "final" also means "final for the Department" or simply "fin al" for pur poses of conducting an election is ambiguous. Because eithe r interpretation will therefore not contradict the regulations ' plain langua ge, we must give the Secretary's interpretation of th e Department's own regulations controlling weight unless tha t inte rpretation is plainly erroneous. Thomas Jefferson Univ. v

. Shalala , 512 U.S. 504, 114 S.C t. 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 th e 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 th e Community's qualified voters, thus allowing the Secretary t o inv alidate election results under 25 C.F.R. § 81.22 due t o irregularities in voter-eligib ility determinations. The Secretary offers three rationales in support of this interpretation.-7-

First, the Secretary argues that since Secretarial elections

are fe deral elections implicating federal rights, see Cheyenn e River Sioux Tribe v. Andrus , 566 F.2d 1085, 1088-89 (8th Cir

. 1977), cert. denied , 439 U.S. 820 (1978), federal protection o f tho se rights is appropriate. The regulations allow the electio n board to deny eligibility to a prospective voter even when tha t individual has had no notice of, and opportunity to respond to, the obj ectionto his or her eligibility. Because the regulation s contain no provisions for challenging the election board' s resolution of eligibility disp utes 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 revie w elig ibilitydeterminations after the election helps ensure tha t gove rning documents accurately reflect the Community's will, i n accord ance with the IRA's purpose. Lastly, the Secretary note s 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 el ections can be challenged on any ground for which substantiating evidence exists. The Secretary thus argues that interpreting § 81.22 t o allow challenges to all procedural irregularities except vote r eligibility would undermine the IRA's purpose.
We hold that the Secretary's interpretation of the interacti on between § 81.13 and § 81.22 is not plainly erroneous. Although we believe that the election board's composition was a carefull y constructed regulatory compromise between federal authority an d tribal sovereignty, and that perhaps a more reasonabl e int erpretationof § 81.13 would be that it precludes Secretaria l review of the board's eligibility determinations, we may no t sub stitute our interpretation for that of the Secretary. Se e Miller v. United States , 65 F.3d 687, 689 (8th Cir. 1995). Th e district court therefore did n ot err in holding that the Secretary had discretion to review eligibility disputes.-8- III. Be cause the Secretary's interpretation of the IRA and it s implem enting regulations is reasonable, we affirm the distric t court's grant of summary judgment to the defendants.

HEANEY, Circuit Judge, dissenting.

Without doubt, the election process that the Shakope e Mdewakanton Sioux Community must follow to amend its constitution is a federal proceeding governed by federal statute and regu lations and within the oversight authority of the Secretary of th e Interi or. Nonetheless, the Secretary is bound to follow th e regulations he promulgated, and the plain language of sectio n 81.13 provides that the election board's determinations of vote r eligibility "shall be final." This finality rule recognizes that determ ining tribal membership is the very essence of sovereignt y and such decisions should be made according to tribal law by a body with a t least a majority Indian vote. The Secretary' s interpretation of the rule--that the Department's duty to resolve chal lenges to election results includes revisiting questions o f voter eligibility previously decided by the election board--i s plai nlyerroneous and inconsistent with the language of th e regulations. See Shalala v. St. Paul-Ramsey Med. Ctr. , 50 F.3 d 522, 529 (8th Cir. 1995) (declining to defer to Secretary' s inter pretation that read additional unwritten terms into a n otherwise unambiguous rule). Moreover, the agency's interpr etation has the effect of indefinitely postponing the election to am end the Community's constitution which contravenes Congress' expresse d intent that Secretarial elections proceed within the strict tim e 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.-9- I.

In the Indian Reorganization Act of 1934 (IRA), Congres s expl icitlyacknowledged Indian tribes' right to organize and t o adopt or amend their own constitutions, 25 U.S.C. § 476(a), an d instru cted the Secretary of the Interior to call and conduc t 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 e lections proceed without undue delay: The Secretary mus t hold an election to ratify an amendment to a tribe's constitution and bylaws within ninety days after receipt of a tribal requ est for an election. 25 U.S.C. § 476(c)(1)(B). Moreover, if a Secr etarial election results in the adoption of a constitutional amendme nt, the Secretary must act within forty-five days of the election to either approve the amendment or make a finding that the amendment i s contrar yto applicable laws. 25 U.S.C. § 476(d)(1). If th e Secretaryfails to act on a proposed amendment within the forty

five- dayperiod, the statutory scheme deems the Secretary' s approva l as given. 25 U.S.C. § 476(d)(2). As the Assistan t Secretaryacknowledges in this case, "the need to get the issu e before the voters in a timely manner has become a congressiona l

man date." (Appellee's Supp. App. at 35 (Letter from Ada Deer , As sistant Secretary-Indian Affairs, to Denise Homer, Director o f the Minneapolis Area Office of the Bureau of Indian Affairs o f 6/2/95 at 2).)

Cong ress delegated to the Secretary authority to prescrib e rules and regulations to govern tribal-reorganization election s under the IRA. Pursuant to that authority, the Secretar y promulgated the regulations at issue in this case. Th e regula tions establish an election board--consisting of one BI A representative (acting as chair) and two tribal representatives-- whichis charged with ensuring that an election is conducted i n compliance with the procedures set forth in the regulations. 2 5 C.F.R. § 81.8(a). The election board must oversee voterIt appears that a qualified voter is any person who had been

registered to vote in the election. Although the regulations d o not explicitly define the term , they define "registration" as "the act whereby persons, who are eligible to vote, become entitled or qualifiedto cast ballots by h aving 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 overal l composition of the voter registration list.

-10- regist ration, including notifying eligible voters of the need t o register, 25 C.F.R. § 81.11(a), and posting an official list o f registered voters at least twenty days prior to the election, 2 5 C.F.R. § 81.12. In addition, the regulations charge the election board with resolving eligibili ty 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 voter s as well as any written complai nt of the right to vote of anyone whose name is on the li st. Its decision shall be final

. It shall rule on all claims no later than te n days b efore the election. Any claim not presented a t least ten days before the election shall be disallowed.

25 C.F .R. § 81.13 (emphasis added). The regulations furthe r provid e that after the election, qualified voters can contes t 2 election results with the Secretary:

Any qu alified voter, within three days following th e posting of the results of an e lection, may challenge the election results by filing with the Secretary . . . the grounds for the challenge, together with substantiating eviden ce . If in the opinion of the Secretary, th e obje ctions are valid and warrant a recount or ne w el ection, the Secretary shall order a recount or ne w electi on. The results of the recount or new electio n shall be final.
25 C.F.R. § 81.22 (emphasis original).The initial list of enrolled members contained the names o f

all persons enrolled in the Community whose membership i s recogn ized by the tribal leadership regardless of his or he r techni cal eligibility under the 1969 constitution. In contrast , the revised list of eligible voters included only those pers ons who

-11- II.
In this case, the Community leadership initiated the process to amend the Community's const itutional membership requirements in 1994. The Constitutional Amendment Committee of the Genera l Council drafted proposed amendments and, on June 10, 1994, th e Genera l Council submitted a formal request for a secretaria l election pursuant to section 476. Due to concerns over th e proposed amendments, the Secretary did not call for or hold a n election within the ninety days mandated by the IRA. Afte r negotiating with the Secretary, however, the Community modif ied its propos ed amendments and, on February 17, 1995, the Secretar y authorized the Minneapolis Are a Director of the BIA to conduct the election.
In accordance with the regulat ions, the BIA and the Community establ ished an election board consisting of a BIA representativ e acting as chair and two tribal representatives. On March 8, 1995, the Community provided the BIA with a list of 116 persons i t recognized as enrolled members of the Community. From that, a list of registered voters containing 111 names (minors and non-re sidents from the previous list were excluded) was posted on March 29 , 1995. The regulatory deadline for filing challenges to the registere d voter list with the election board was noon on April 6, 1995, b y which time challenges had beenfiled 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 b y unanimous decision. The board posted a revised list contain ing the names of sixty-seven eligible voters on April 7, 1995. 3were constitutionally eligible to vote, as dictated by feder al 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 e lection board deferred to the BIA posi tion that eligibility determinations had to be made in accordance with the membership requirements a s theywere set out in Article 2 of the Shakopee Mdewakanto n Constitution. ( See Appellant's App. at 129 (transcript of e lection board proceedings at 36:9-18).)

-12- 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 o f thirty-five to twenty-seven. The election results were certified by the election board on the day of the election. Shortly afte r the certification of the elect ion results, two groups of Community members filed challenges with the Secretary concerning the e lection board's voter-eligibility determinations. Taken together, th e chal lenges alleged that twenty-two persons voted who should no t have been allowed to vote and that eighteen persons who were found ineligible should have been permitted to vote.
Forty-three days after certifi cation (and two days before the
con stitutional amendment would have been deemed effective b y operation of law) the Secretary announced that he could not approve the election results due to ir regularities in the determination of voter eligibility. The Department's procedure to redetermin e voter eligibil ityis set out in a letter by the Assistant Secretary i n wh ichshe calls for the appointment of an ALJ to determine th e blood quantum of twenty-three challenged individuals. Th e Assistant Secretary will review the ALJ's determinations andrender
a final decision for the Department. According to the Assistan t Secretary's letter, the date of a new election to amend th e Community's Constitution will be not less than thirty nor mo re than si xtydays after she approves the administrative determinations

. In other words, the secretarial election has been indefinitel y suspended by the Department.-13- III.
The plain language of the regu lations unambiguously gives the election board the authority t o resolve voter eligibility disputes and makes its determinations final. The Secretary, therefore, is bound to recognize the election board's determinations as final , partic ularlyabsent some claim that the board acted outside it s authority. As written, the regulations give deference to what is

an alr eady watered-down notion of Indian sovereignty in that i t gi ves tribal members a majority voice in the all-importan t membership determinations. Moreover, it recognizes th e congressional mandate to move the election process forward without unnecessary delay.

Alth oughthe Department asks us to find ambiguity, th e reg ulations clearly set out that the election board' s determ inations of voter eligibility are final. It is therefor e appa rent that the Secretary's duty to resolve challenges b y qualified voters does not carry with it the authority to revisi t the election board's final determinations of voter eligibility

. The Secretary interprets the word final in section 81.13 to mea n final for the election board so that an election can proceed, but not final for the Department. This reading is nonsensical a nd runs counter to the balance carefully struck by Congress. The Se cretary simply does not get two bites of the apple. He cannot delegate a spec ific responsibility to the election board, make the board' s decision final, and then revisit the issue due to dissatisfaction in the outcome.

Per haps the most troubling aspect of this case is th e 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-14-

is now indefinitely postponed until the Secretary determines th e 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