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[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Proposed Rules]
[Pages 61021-61035]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24118]

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 81 and 82

[BIA-2014-0006; K00103 12/13 A3A10; 134D0102DR-DS5A300000-
DR.5A311.IA000113]
RIN 1076-AE93

Secretarial Election Procedures

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to amend its 
regulations governing Secretarial elections and procedures for tribal 
members to petition for Secretarial elections. This proposed rule 
reflects changes in the law and the requirement that regulations be 
written in plain language.

DATES: Comments must be received on or before December 17, 2014. See 
the SUPPLEMENTARY INFORMATION section of this document for dates of 
tribal consultations.

ADDRESSES: You may submit comments by any of the following methods:
    --Federal rulemaking portal: http://www.regulations.gov. The rule 
is listed under the agency name ``Bureau of Indian Affairs.'' The rule 
has been assigned Docket ID: BIA-2014-0006.
    --Email: laurel.ironcloud@bia.gov. Include ``Part 81'' in the 
subject line of the message.
    --Mail or hand-delivery: Chief, Division of Tribal Government 
Services, Office of Indian Services, Bureau of Indian Affairs, 
Department of the Interior, 1849 C Street NW., Mail Stop 4513-MIB, 
Washington, DC 20240.
    Comments on the Paperwork Reduction Act information collections 
contained in this rule are separate from comments on the substance of 
the rule. Submit comments on the information collection requirements in 
this rule to the Desk Officer for the Department of the Interior by 
email at OIRA_Submission@omb.eop.gov or by facsimile at (202) 395-5806. 
Please also send a copy of your comments to laurel.ironcloud@bia.gov.
    See the SUPPLEMENTARY INFORMATION section of this document for 
locations of tribal consultation sessions.

FOR FURTHER INFORMATION CONTACT: Laurel Iron Cloud, Chief, Division of 
Tribal Government Services, Central Office, Bureau of Indian Affairs at 
telephone (202) 513-7641. Individuals who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Monday through 
Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

I. Background

    The Bureau of Indian Affairs (BIA) is amending 25 CFR parts 81 
(Secretarial Elections) and 82 (Petitioning Procedures), combining them 
into one Code of Federal Regulations part at 25 CFR part 81. The 
Secretarial Elections regulations were originally adopted in 1964, and 
the Petitioning Procedures regulations were originally adopted in 1967. 
See 29 FR 14359 (October 17, 1964); 32 FR 11779 (August 16, 1967). The 
Department has not updated either of these regulations since 1981. See 
46 FR 1668 (January 7, 1981).
    A Secretarial election is a Federal election conducted by the 
Secretary of the Interior (Secretary) under a Federal statute or tribal 
governing document under 25 CFR part 81. See Cohen's Handbook of 
Federal Indian Law section 4.06[2][a]-[b], at 286-297 (Nell Jessup 
Newton ed., 2012). See also Cheyenne River Sioux Tribe v. Andrus, 566 
F. 2d 1085 (8th Cir. 1977), cert. denied, 439 U.S. 820 (1978). The 
proposed rule:
     Responds to the amendments made to section 16 of the 
Indian Reorganization Act (IRA) (June 18, 1934, 48 Stat. 984) (25 
U.S.C. 476), as amended, which established time frames within which the 
Secretary must call and conduct Secretarial elections and provided that 
all elections will be handled by mailout ballot unless polling places 
are expressly required by the amendment or adoption article of the 
tribe's governing document.
     Responds to the amendments made to Section 17 of the IRA 
by the Act of May 24, 1990 (104 Stat. 207) (25 U.S.C. 477) under which 
additional tribes may petition for charter of incorporation and removes 
the requirement of an election to ratify the approval of new charters 
issued after May 24, 1990, unless required by tribal law.
     Reflects the 1994 addition of two subsections to section 
16 of the IRA by Technical Corrections Act of 1994 (108 Stat. 707) (25 
U.S.C. 476(f) & (g)) that prohibit the government from making a 
regulation or administrative decision ``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.''
    When Congress enacted Oklahoma Indian Welfare Act (OIWA) in 1936, 
the language it used to guarantee the right of tribes to organize and 
adopt constitutions and bylaws was different from that used in the IRA. 
The OIWA language requires the Secretary to approve the constitution 
before it is submitted to the tribal membership for a vote to ratify 
it. These regulations reflect the difference in language between the 
IRA and the OIWA.
    The proposed rule includes language clarifying that a tribe 
reorganized under the IRA may amend its governing document to remove 
the requirement for Secretarial approval of future amendments. Once the 
requirement for Secretarial approval is removed through a Secretarial 
election, Secretarial approval of future amendments is not required.
    The proposed rule also clarifies that the Secretary will accept 
petitions for Secretarial elections only from federally recognized 
tribes included on the list of recognized tribes published by the 
Secretary pursuant to section 479a-1.

II. Comments From Tribal Representatives

    As discussed in section III of this document, we held several 
tribal consultation sessions on draft regulations addressing 
Secretarial elections and petitioning procedures. The following 
summarizes comments received during that consultation process.

Definitions

    Several tribes questioned the definition of ``Indian'' included in 
the consultation draft. Because the term is not used in the body of the 
regulation other than as defined in the IRA, we have deleted this 
definition. We have also clarified the definition of ``tribe'' as those 
federally recognized tribes included on the list of recognized tribes 
published by the Secretary pursuant to Section 479a-1.
    One tribe questioned the definition of ``member'' because the 
consultation draft included an additional provision stating that, in 
the absence of the tribe's written criteria for membership, a member is 
a person the tribal members recognize as belonging to that tribe. The 
tribe noted that there may not be

[[Page 61022]]

agreement among tribal members as to who belongs to the tribe. For this 
reason, we deleted that portion of the definition, so that a member is 
a person who is duly enrolled in the tribe.
    One tribe suggested adding a definition of ``notary.'' We were 
unable to locate a definition of this term in other regulations and 
determined that the term is self-evident. This tribe also asked if a 
tribe can enact an ordinance authorizing people to become notaries, 
rather than being confined to using State-authorized notaries. Tribes 
presumably have the inherent power to create notary regimes. If a tribe 
has established an adequate regulatory framework to ensure the 
integrity of their notary process, we would approve use of the tribe's 
notaries in lieu of other established notaries. If a tribe has a 
question about whether its notary process is adequately regulated, it 
should contact us.
    We received a few comments asking about the definition for 
``reorganized tribe'' in the consultation draft. Under the consultation 
draft, ``reorganized tribe'' would mean a tribe whose members have 
adopted a governing document under a Federal statute.
    Tribes also requested clarification of the definitions of 
``reservation'' and ``Rancheria.'' The proposed rule deletes the 
definition of ``Rancheria'' because it is not used in the body of the 
regulation. The proposed rule deletes the definition of ``reservation'' 
because its meaning is self-evident where used.
    Several tribes noted there is no definition for ``resident.'' We 
did not define this term because it is not used in the regulation. A 
tribe asked how tribal governing document's definitions of residency 
will affect who may vote in a Secretarial election. We have clarified 
at Sec.  81.8 of the proposed rule when tribal governing document 
qualifications (such as residency) for voting govern who may vote in a 
Secretarial election.

Tribal Choice To Require Secretarial Approval

    One tribe asked about the consequences to a tribe of removing the 
requirement for Secretarial approval of future amendments from its 
governing document. As explained by a Federal representative at the 
consultation, removing the requirement for Secretarial approval of 
future amendments means that Secretarial approval will no longer be 
required for additional amendments to the tribe's governing document.
    One tribe asked whether a tribe that has reorganized under the IRA 
and decides to remove the requirement for a Secretarial election must 
hold a Secretarial election to remove that requirement. The tribe must 
hold a Secretarial election to remove the requirement for a Secretarial 
election from its governing document if a tribal law or Federal statute 
requires such an election. Section 81.2(h) of the proposed rule 
addresses this issue.

Who May Vote in a Secretarial Election

    Several tribes asked questions regarding who may vote in a 
Secretarial election. For example, at least one tribe asked for 
language stating that the tribe's governing documents may establish 
eligibility for voting. Secretarial elections are Federal elections, 
and, as such, anyone who is 18 years of age or older and otherwise 
qualified is eligible to vote, even if the tribal governing document 
requires voters to be 21 to be eligible to vote in tribal elections. 
The 26th Amendment to the Federal constitution lowered the minimum 
voting age for Federal elections from 21 to 18. This provision is at 
Sec.  81.9 of the proposed rule.
    Another tribe asked under what circumstances only the class of 
citizens who voted on the original tribal charter or governing document 
may vote. If the tribe's governing documents do not establish 
qualifications for voting, then the only members who may vote are those 
who meet the same qualifications as those entitled to vote in the 
Secretarial Election that effected the tribe's reorganization.
    A few tribes noted that there are no provisions for voting by 
tribal members who are serving in the military, at college, or 
incarcerated. These individuals may be eligible to vote by mail or by 
absentee ballot if they otherwise meet the requirements of Sec.  81.9 
of the proposed rule.

Absentee Voting

    Several tribes asked about who may vote by absentee ballot. The 
proposed regulation provides that all Secretarial election voting is to 
be done by mail with use of a mailout ballot, except where the 
amendment or adoption articles of the tribe's governing document 
require in-person voting. (See Sec.  81.35 of the proposed rule.) If 
polling places are required, an absentee ballot may be requested.
    A tribe asked that the regulations specify that voters can request 
a new absentee ballot, if necessary. See Sec.  81.40 of the proposed 
rule.
    A tribe asked that the regulations specify whether voters receiving 
an absentee ballot may choose to vote in person. See Sec.  81.40 of 
proposed rule.
    A tribe asked if the envelope for absentee ballots will be pre-
addressed and have prepaid postage. The proposed regulations clarify 
that the envelope will be pre-addressed but will not have prepaid 
postage. See Sec.  81.23 of proposed rule.

Registered Voters and Registration to Vote

    Tribes asked for clarification on the ``registered voter'' 
definition and its difference from ``eligible voter.'' We simplified 
these definitions and explain the registered voters list further in 
Sec. Sec.  81.26 through 81.32 of the proposed rule. A tribe also asked 
about the definition of ``qualified voter'' in the consultation draft. 
We have deleted the definition of ``qualified voter'' because it was 
unnecessary.
    A few tribes asked whether the registration process is required and 
noted that it is a task for voters to register for Secretarial 
elections in addition to other elections. Section 81.29 describes why 
the Registered Voters List is necessary.
    A tribe asked what happens if the tribe does not have a 
registration process. The Secretarial Election Board is responsible for 
the registration process for Secretarial elections.

Request for Secretarial Election

    The consultation draft of the regulations stated that the tribe 
must provide an ``appropriate request'' to request a Secretarial 
election. A tribe requested clarification of that definition. The 
proposed regulation instead uses the term ``tribal request'' and 
clarifies what qualifies as such a request at Sec.  81.4.
    Tribes also questioned the procedures set out in the consultation 
draft, which included an initial request for election and then a final 
request for election, and the timing of those procedures. The proposed 
rule simplifies the process by requiring only one request for 
Secretarial election.

Ballots

    There were several questions on the different types of ballots. The 
consultation draft had mentioned spoiled, damaged, mutilated, valid and 
invalid ballots. We determined that the only necessary category is 
``spoiled'' ballots and describe the effect of a spoiled ballot in 
Sections 81.39 and 81.40. (See definition for ``spoiled'' ballot in 
Sec.  81.4.)

Timelines

    One tribe asked what a tribe's recourse is if BIA does not act 
within the 90-day deadline for calling and holding an election on a 
constitutional amendment. If BIA fails to act within

[[Page 61023]]

the 90-day deadline, the affected tribe may bring suit, after 
exhausting its administrative remedies, if any, to compel agency action 
under the Administrative Procedure Act.
    The consultation draft included a provision that stated that if BIA 
failed to act on an authorization to conduct an election within 90 
days, then the authorization is considered void. Several tribes 
commented that this expiration punishes the tribe for BIA's failure to 
act. Since the tribal representatives on the Secretarial Election Board 
charged with the responsibility for calling and holding the election 
outnumber the BIA representative, the expiration of the authorization 
was not intended to punish the tribe in any way but rather simply to 
ensure that the tribal request had not become stale. The legal 
authority to call and conduct a valid election does not disappear after 
90 days so we have deleted this provision.
    A tribe noted that the regulations do not hold the Secretarial 
Election Board accountable for holding the election within 90 days. The 
deadline for holding an election is established by statute; the 
proposed rule does not restate the deadline, but the Secretarial 
Election Board remains subject to it.
    Several tribes asked for clarification on the time frame in which 
results of an election may be challenged. Section 81.43 of the proposed 
rule clarifies that challenges must be received within three days 
(which are defined to be calendar days) after the Certificate of 
Results of Election is posted. If the third day falls on the weekend or 
a holiday, the challenge must be received by the close of business 
(COB) the next business day.
    One tribe suggested that three business days, rather than calendar 
days, be the time frame allotted for challenges. Another tribe stated 
that indicating business days in some provision but calendar days in 
others is inconsistent and may result in confusion. For this reason, 
the proposed rule counts all days as calendar days.
    Several tribes had questions about the consultation draft's 
timeframes with regard to the 90-day deadline for calling and holding 
an election for an amendment, and the 180-day deadline for calling and 
holding an election for a new proposed governing document, including an 
amendment to a governing document in the nature of an entire 
substitute, or revocation of a governing document. These timelines are 
statutorily established (25 U.S.C. 476(c)(1) and are reflected in the 
regulation. (See Sec.  81.19(a) of proposed rule.)

Secretarial Election Board

    Several tribes asked questions regarding the Secretarial Election 
Board. One tribe asked whether there are any restrictions on who may be 
appointed to the Secretarial Election Board. The only restriction is 
that those persons be members of the tribe with the exception of the 
Chairman of the Secretarial Election Board, who must be a BIA employee.
    Another asked who makes the determination as to who serves on the 
Secretarial Election Board. The Authorizing Official appoints a BIA 
employee as the chair of the Secretarial Election Board. The tribal 
governing body chooses at least two tribal members to serve on the 
Secretarial Election Board. If the tribe declines to appoint two tribal 
members then the Local BIA Official would make the appointments.
    A tribe asked for clarification on whether the chair is Federal or 
tribal official. The Authorizing Official will appoint a BIA employee 
to serve as the Federal chair of the Secretarial Election Board. (See 
Sec.  81.19(b) of proposed rule.) This tribe also asked whether there 
are limits to the appointment. Because the Secretarial Election Board 
is established for a single Secretarial election, it dissolves after it 
completes all the duties associated with that election. The tribe also 
asked for clarification on whether ``recognized governing body'' means 
the governor or the tribal council. ``Recognized governing body'' 
refers to the representative body that has legislative authority. 
Ordinarily, it would be neither the tribal governor, chief, nor chair; 
nor would it be the entire adult membership of the tribe.
    One tribe asked for clarification on the Secretarial Election 
Board's duties. Duties are clarified in Sec.  81.22 of the proposed 
rule.
    One tribe asked what the criteria are for the Board to deny an 
applicant status as a registered voter. The Board may deny an applicant 
registered voter status only if the applicant does not meet the 
requirements to cast a vote or if the registration form was not 
submitted before the deadline.

Privacy Concerns

    Several tribes expressed concern about the privacy of individuals 
whose names are listed on the registration list, because the 
registration list is posted. The proposed rule provides that the 
registration list contains only the individuals' names and voting 
districts, if applicable. We believe that this information is the 
minimum necessary to a meaningful opportunity to challenge the 
eligibility of a voter and therefore does not constitute an unwarranted 
intrusion into the individual's privacy.
    Several tribes asked what happens to election information after the 
election is closed and who has access to the information. Sections 
81.45(d) and 81.50(d) establish that BIA will forward certain documents 
to the tribe and retain a copy of records as required by the Federal 
Records Act. Those records may be subject to exemptions from the 
Freedom of Information Act for personal privacy and confidentiality. 
The records retained by the BIA will be available for inspection and 
copying in accordance with the Freedom of Information Act and the 
Privacy Act.
    Another tribe expressed concern about the Secretarial Election 
Board keeping registration packets confidential. The registration 
packets contain general election information that is sent to all tribal 
members 18 years of age or older at their last known address. These 
packets are not confidential. However, the returned registration forms 
contain personal information that is covered by the Privacy Act and may 
be subject to exemptions from the Freedom of Information Act for 
personal privacy and confidentiality.

Challenges

    Several tribes asked who may challenge the Registered Voters List. 
Under Sec.  81.32 of the proposed rule, any tribal member may challenge 
the inclusion or exclusion of a name from the Registered Voters List as 
long as he or she provides supporting documentation for the challenge.
    A tribe asked for clarification on the time period for challenges 
to the Registered Voters List. The Secretarial Election Board 
establishes the time period for challenges. (See Sec.  82.33 of 
proposed rule.)
    A tribe asked how much time the election board has to rule on a 
challenge. The proposed rule, at Sec.  81.33, clarifies that the 
Secretarial Election Board has three days after the challenge deadline 
to rule on the challenge.

Petitioning

    Several tribes questioned why petitions had to be signed by at 
least 60 percent of the tribe's eligible voters where the tribe is not 
reorganized (i.e., where the tribe is adopting a governing document 
under Federal statute for the first time). The 60 percent requirement 
was adopted in 1981. See 46 FR 1669 (January 7, 1981). We have re-
examined this requirement in light of the questions raised at 
consultation, and are

[[Page 61024]]

now proposing that petitions must be signed by at least 20 percent of 
the tribe's eligible voters where the tribe is not reorganized. The 
rationale for lowering the threshold to 20 percent is that a smaller 
percentage should be entitled to raise the question to a vote by 
petition than the percentage required to vote for an election to be 
valid. The IRA requires only 30 percent of eligible voters to vote for 
an election to be valid. See 25 U.S.C. 478a. We are specifically 
seeking comment on this proposed revision.
    Several tribes objected to posting the petition because 
individuals' addresses are included on the petition. Addresses are 
redacted before posting.
    Several tribes asked for additional information on what makes a 
petition valid and/or a checklist to ensure that petitions are 
complete. Sections 81.58 and 81.65 explain how the BIA reviews 
petitions.
    One tribe asked for confirmation that the Authorizing Official's 
determination as to the validity of the petition is final for the 
Department of the Interior. For the purposes of calling and conducting 
the Secretarial Election the regulations establish that this 
determination is final at Sec.  81.65.

Other Comments

    One tribe stated that 25 U.S.C. 476(h), which establishes that each 
tribe has inherent sovereign power to adopt governing documents under 
procedures other than those specified in the IRA, is not expressly 
addressed in the regulations. The regulations govern procedures for 
Secretarial elections; they do not diminish tribes' inherent sovereign 
power to adopt governing documents when Secretarial elections are not 
required.
    One tribe stated that applicability of the regulations needs to be 
clearer. We have attempted to clarify applicability at Sec.  81.2 of 
the proposed rule.
    One tribe asked for clarification on when technical assistance is 
available for the tribe and for petitioners. The proposed rule 
clarifies this availability in Sec.  81.6.
    Several tribes requested additional information on charters. We 
clarify the applicability of the regulations to charters in Sec.  81.2.
    One tribe asked whether Secretarial elections must follow tribal 
law. Secretarial Elections are governed by Federal law. The Secretary 
shall defer to specific variations noted in the adoption or amendment 
articles of a tribe's governing document that are not otherwise 
inconsistent with Federal law.
    A tribe expressed concern about how to prevent one individual from 
casting multiple votes. Similarly, a tribe asked whether votes hand-
delivered by one individual on behalf of several need to be 
scrutinized. The proposed regulation includes several safeguards to 
ensure that each individual receives only one ballot, and mailout or 
absentee ballots require the registered voter to sign a certification 
on the back of the return envelope.
    A tribe suggested the regulations include consequences for 
violating the ban on electioneering. Tribes may enact and enforce 
tribal law governing the orderly conduct of elections, which would 
apply to Secretarial elections to the extent they do not conflict with 
these regulations. Interference in a Secretarial election may be a 
violation of Federal civil rights and voting laws and punishable under 
Federal law, as well as tribal law.
    A tribe asked what happens if the Secretarial Election Board itself 
is involved in voter fraud. Anyone who commits fraud in connection with 
the conduct of a Secretarial election may be subject to prosecution 
under Federal law. If actual election fraud makes it impossible to 
determine the results of the election, the Secretary must disapprove 
the election results and call for a new election as soon as corrective 
action can be taken. Election fraud which does not change the ultimate 
results of an election does not require disapproval of the election 
results. For example, if 80 of 100 eligible voters cast votes in the 
affirmative and election fraud was shown with regard to 20 votes, the 
Secretary would not need to disapprove the election as those 20 votes 
would not change the ultimate results of the election.
    A tribe suggested that the regulations address assistance for 
illiterate voters. The proposed regulations describe the types of 
assistance available at Sec.  81.12; an illiterate voter may request 
reasonable accommodations, which may include having the interpreter 
read to the voter, audio aids, or some other accommodation.
    One tribe stated that it should be a requirement to hold education 
meetings with the public regarding each Secretarial election and the 
process. We have considered this comment but determined it is not 
appropriate to include an express requirement for educational meetings 
in the regulation because of the wide variety of governing documents 
and possible amendments that tribes may want to consider. We strongly 
encourage tribes, however, to conduct their own voter education 
programs.
    A few tribes asked that the proposed rule include a cross-reference 
to 25 CFR 1.2, which allows for waivers of requirements when in the 
best interest of the Indians. These regulations are intended to 
establish procedures in the conduct of Federal elections that by 
statute include specific deadlines. Therefore, the Secretary's 
authority to grant waivers would be limited. It is not anticipated that 
waivers would routinely be appropriate and the regulations themselves 
are being drafted so that they are effective in the vast majority of 
cases; thus, 25 CFR 1.2 is not cross-referenced.
    We received a number of suggestions for items to add to a handbook 
including: how to verify or authenticate signatures, what are 
acceptable forms of registration (email, mail, etc.), how the 
Secretarial Election Board handles hand-delivered ballots, a chart 
outlining the petitioning process and the Secretarial election process, 
template letters regarding the status of the request, checklists to 
help meet timeframes, and information on challenges to petition 
signatures based on an allegation of forgery. We will consider 
including these items following finalization of the regulations.

III. Consultations

A. Past Consultations
    Efforts to revise this regulation date back to 1992, when the first 
consultations were held. The Department most recently hosted a set of 
tribal consultation sessions in 2009 and 2010. These sessions were held 
on December 1, 2009, in Anchorage, Alaska; Brooks, California, on 
January 12, 2010; Minneapolis, Minnesota, on January 20, 2010; Oklahoma 
City, Oklahoma, on January 26, 2010; Pala, California, on February 2, 
2010; and Albuquerque, New Mexico, on February 4, 2010. The Department 
also accepted written comments to the regulations. The Department 
reviewed the comments and made significant changes to the draft in 
response to tribes' comments and suggestions. Publication of this 
proposed rule triggers an additional tribal consultation period where 
tribes may submit additional comments orally at tribal consultation 
sessions, or in writing.
B. Future Consultations
    We will hold consultations at the following locations on the dates 
and times specified:

[[Page 61025]]

----------------------------------------------------------------------------------------------------------------
               Date                   Time (all times local)           Location                  Venue
----------------------------------------------------------------------------------------------------------------
Sunday, October 26, 2014..........  1 p.m.-4 p.m..............  Atlanta, GA..........  National Congress of
                                                                                        American Indians (NCAI)
                                                                                        Annual Convention Hyatt
                                                                                        Regency Atlanta 265
                                                                                        Peachtree St NE Atlanta,
                                                                                        GA 30303.
Tuesday, November 18th, 2014......  8:30 a.m.-12 p.m..........  Oklahoma City, OK....  Embassy Suites Oklahoma
                                                                                        City Airport 1815 S.
                                                                                        Meridian Ave. Oklahoma
                                                                                        City, OK 73108.
----------------------------------------------------------------------------------------------------------------

    The Department will provide tribes with notice of any additional 
tribal consultation sessions.

IV. Procedural Matters

A. Regulatory Planning and Review (E.O. 12866)
    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant. E.O. 13563 reaffirms the principles 
of E.O. 12866 while calling for improvements in the nation's regulatory 
system to promote predictability, to reduce uncertainty, and to use the 
best, most innovative, and least burdensome tools for achieving 
regulatory ends. The E.O. directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. E.O. 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this rule in a manner 
consistent with these requirements. This rule is also part of the 
Department's commitment under the Executive Order to reduce the number 
and burden of regulations and provide greater notice and clarity to the 
public.
B. Regulatory Flexibility Act
    The Department certifies that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It does not change 
current funding requirements or regulate small entities.
C. Small Business Regulatory Enforcement Fairness Act
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. 
Secretarial elections are funded by the BIA. Nor will this rule have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of the U.S.-based enterprises 
to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
    Under the criteria in Executive Order 12630, this proposed rule 
does not affect individual property rights protected by the Fifth 
Amendment nor does it involves a compensable ``taking.'' A takings 
implication assessment is not required.
F. Federalism (E.O. 13132)
    Under the criteria in Executive Order 13132, this proposed rule has 
no substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This rule 
clarifies the procedures for conducting a Secretarial election, which 
is a Federal election, for federally recognized Indian tribes.
G. Civil Justice Reform (E.O. 12988)
    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this rule has been reviewed to eliminate 
errors and ambiguity and written to minimize litigation; and is written 
in clear language and contains clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have held several consultation sessions with 
representatives of federally recognized tribes throughout the 
development of this proposed rule. Details on these consultation 
sessions and the comments received are described above.
I. Paperwork Reduction Act
    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. In accordance 
with 44 U.S.C. 3507(d), BIA has submitted the information collection 
and recordkeeping requirements of this proposed rule to OMB for review 
and approval. The following describes the information collection 
requirements in each section of the proposed rule and any changes from 
the current rule.
    Title: Secretarial elections (25 CFR part 81)
    OMB Control Number: 1076-NEW
    Requested Expiration Date: Three years from the approval date.
    Summary: This information collection requires tribes that are 
requesting a Secretarial election to provide a formal request for 
election, including the language to be voted on and a certified list of 
tribal members who will be age 18 at the time of the Secretarial 
election and their current addresses or a certified Eligible Voters 
List with addresses. This list is necessary to ensure that all eligible 
voters receive notice of the Secretarial election and the opportunity 
to register and vote in the election. This information collection also 
requires that tribal members who petition for a

[[Page 61026]]

Secretarial election provide certain information in the petition, that 
tribal members who wish to vote in the election to register for the 
election, that registered voters submit a ballot to vote in the 
election, and that anyone wishing to challenge the results of an 
election provide substantiating evidence for the challenge.
    Frequency of Collection: On occasion.
    Description of Respondents: Indian tribes, Indian tribal members.
    Total Annual Responses: 252,041.
    Total Annual Burden Hours: 64,305 (1,280 hours for tribal 
submissions, 63,025 hours for member submissions).
    Total Annual Cost Burden: $110,880.
    The BIA invites comments on the information collection requirements 
of this proposed rule. You may submit comments to the Desk Officer for 
the Department of the Interior by email at OIRA_Submission@omb.eop.gov 
or by facsimile at (202) 395-5806. Please also send a copy of your 
comments to BIA at the location specified under the heading ADDRESSES.
    You can receive a copy of BIA's submission to OMB by contacting the 
person listed in the FOR FURTHER INFORMATION CONTACT section, or by 
requesting the information from the Indian Affairs Information 
Collection Clearance Officer, Office of Regulatory Affairs & 
Collaborative Action, 1849 C Street NW., MS-4141, Washington, DC 20240. 
You may also view the information collection request as submitted to 
OMB at www.reginfo.gov.
    Comments should address: (1) Whether the collection of information 
is necessary for the proper performance of the Program, including the 
practical utility of the information to the BIA; (2) the accuracy of 
the BIA's burden estimates; (3) ways to enhance the quality, utility, 
and clarity of the information collected; and (4) ways to minimize the 
burden of collection of information on the respondents, including the 
use of automated collection techniques or other forms of information 
technology.
J. National Environmental Policy Act
    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment.
K. Information Quality Act
    In developing this proposed rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).
L. Effects on the Energy Supply (E.O. 13211)
    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required.
M. Clarity of This Regulation
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you believe that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.
N. Public Availability of Comments
    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.
O. Drafting Information
    The primary authors of this document are De Springer, Former Acting 
Chief, Division of Tribal Government Services, Bureau of Indian 
Affairs; Karen Ketcher, Former Deputy Regional Director, Eastern 
Oklahoma Region, Bureau of Indian Affairs; Suzanne Chaney, Former 
Community Services Officer, Southern Plains Region, Bureau of Indian 
Affairs; Danelle Daugherty, Deputy Regional Director for Indian 
Services, Great Plains Region, Bureau of Indian Affairs; and Elizabeth 
Appel, Director, Office of Regulatory Affairs & Collaborative Action--
Indian Affairs, Department of the Interior.

List of Subjects in 25 CFR Parts 81 and 82

    Indians--tribal government.

    For the reasons given in the preamble, under the authority of 5 
U.S.C. 301 and 25 U.S.C. 2 and 9, the Department proposes to amend 
chapter I, title 25, as follows:

0
1. Revise part 81 to read as follows:

PART 81--SECRETARIAL ELECTION PROCEDURES

Subpart A--Purpose and Scope
Sec.
81.1 What is the purpose of this part?
81.2 When does this part apply?
81.3 Information collection.
Subpart B--Definitions
81.4 What terms do I need to know?
Subpart C--General Provisions
81.5 What should a tribe do when anticipating adopting or amending 
its governing document?
81.6 What technical assistance will the Bureau provide?
81.7 What happens if a governing Federal statute and this part 
disagree?
81.8 Will the Secretary give deference to the Tribe's interpretation 
of its own documents?
81.9 Who may cast a vote in a Secretarial Election?
81.10 May a tribe establish a voting age different from 18 years of 
age for Secretarial elections?
81.11 What type of electioneering is allowed before and during a 
Secretarial Election?
81.12 What types of voting assistance are provided for a Secretarial 
Election?
81.13 May Secretarial elections be scheduled at the same time as 
tribal elections?
81.14 How are conflicting proposals to amend a single document 
handled?
81.15 Who pays for holding the Secretarial Election?
81.16 May a tribe use its funds to pay non-Federal election 
officials?
81.17 Who can withdraw a request for a Secretarial Election?
Subpart D--The Secretarial Election Process Under the Indian 
Reorganization Act (IRA)
81.18 How is a Secretarial Election requested?
81.19 What does the Bureau do after receiving a request for a 
Secretarial Election?
81.20 What is the first thing that the Chair of the Election Board 
does?
81.21 Who conducts the Secretarial Election?

[[Page 61027]]

81.22 How is the Secretarial Election conducted?
81.23 What documents are included in the Secretarial Election Notice 
Packet?
81.24 What information must be included on the Secretarial Election 
notice?
81.25 Where will the Secretarial Election Notice be posted?
81.26 How does BIA use the information I provide on the registration 
form?
81.27 Do I have to re-register if I have already registered for a 
tribal or Secretarial Election?
81.28 How do I submit my registration form?
81.29 Why does the Secretarial Election Board compile a Registered 
Voters List?
81.30 What information is contained in the Registered Voters List?
81.31 Where is the Registered Voters List posted?
81.32 May the Registered Voters List be challenged?
81.33 How does the Secretarial Election Board respond to challenges?
81.34 How are the official ballots prepared?
81.35 When must the Secretarial Election Board send ballots to 
voters?
81.36 What will the mailout or absentee ballot packet include?
81.37 How do I cast my vote at a polling site?
81.38 When are ballots counted?
81.39 How does the Board determine whether the required percentage 
of registered voters have cast ballots?
81.40 What happens if a ballot is spoiled before it is cast?
81.41 Who certifies the results of the Election?
81.42 Where are the results of the Election posted?
81.43 How are the results of the Election challenged?
81.44 What documents are sent to the Authorizing Official?
81.45 When are the results of the Secretarial Election final?
Subpart E--The Secretarial Election Process Under the Oklahoma Indian 
Welfare Act (OIWA)
81.46 What should a tribe do to adopt or amend its governing 
document?
81.47 What technical assistance does the Bureau provide?
81.48 What does the Bureau do upon receiving the request for an 
Election?
81.49 How is the Secretarial Election conducted?
81.50 When are the results of the Election final?
Subpart F--Formulating Petitions To Request a Secretarial Election
81.51 What is the purpose of this subpart?
81.52 Who must follow these requirements?
81.53 How do tribal members circulate a petition to adopt or amend 
the tribe's governing document?
81.54 What technical assistance will the Bureau provide?
81.55 Who may initiate a petition?
81.56 Who may sign a petition?
81.57 Who is authorized to submit a petition to the Secretary?
81.58 How is the petition formatted and signed?
81.59 Do petitions have a minimum or maximum number of pages?
81.60 How do I find out how many signatures are needed for a 
petition to be valid?
81.61 How long do tribal members have to gather the signatures?
81.62 How does the spokesperson file a petition?
81.63 How does the Local Bureau Official process the petition?
81.64 How can signatures to the petition be challenged?
81.65 How is the petition validated?
81.66 May the same petition be used for more than one Secretarial 
Election?

    Authority: 25 U.S.C. 473a, 476, 477, as amended, and 503.

Subpart A--Purpose and Scope

Sec.  81.1   What is the purpose of this part?

    This part prescribes the Department's procedures for authorizing 
and conducting elections when Federal statute or the terms of a tribal 
governing document require the Secretary to conduct and approve an 
election to:
    (a) Adopt, amend, or revoke tribal governing documents; or
    (b) Adopt or amend charters.

Sec.  81.2   When does this part apply?

    This part applies only to federally recognized tribes, in the 
circumstances shown in the following table.

------------------------------------------------------------------------
  If a tribe wants to . . .                    And . . .
------------------------------------------------------------------------
(a) Adopt a new governing      The Federal statute requires an election
 document to reorganize under   before or after Secretarial approval.
 Federal statute.
(b) Adopt a new governing      The governing document requires approval
 document to reorganize         under the Secretary's general authority
 outside Federal statute.       to approve.
(c) Amend or revoke a          The Federal statute requires an election
 governing document adopted     and approval for amendment or
 under Federal statute.         revocation.
(d) Amend or revoke a          The governing document requires
 governing document adopted     Secretarial approval of an amendment or
 outside Federal statute.       revocation.
(e) Ratify a federal charter   The charter requires Secretarial approval
 of incorporation.              or is being ratified under the Oklahoma
                                Indian Welfare Act (OIWA).
(f) Amend a federal charter    (1) The charter was ratified before the
 of incorporation.              May 24, 1990, amendments to the Indian
                                Reorganization Act (IRA); or
                               (2) The charter was ratified after May
                                24, 1990, amendments to the Indian
                                Reorganization Act (IRA), and the
                                charter requires a Secretarial Election
                                to amend.
(g) Take other action........  A Federal statute or tribal law requires
                                a Secretarial Election in order to take
                                that action.
(h) Remove the requirement     A Federal statute or tribal law requires
 for a Secretarial approval     a Secretarial Election in order to take
 from a governing document.     that action.
------------------------------------------------------------------------

Sec.  81.3  Information collection.

    The information collection requirements contained in this part are 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3507(d), and has been assigned OMB 
control number 1076-XXX. This information is collected when, under 
Federal statute or the tribe's governing documents, the Secretarial 
Election is authorized to adopt, amend, or revoke governing documents; 
or adopt or amend charters. This information is required to obtain or 
retain benefits. A Federal agency may not collect or sponsor an 
information collection without a valid OMB control number.

Subpart B--Definitions

Sec.  81.4  What terms do I need to know?

    For purposes of this part:
    Absentee or Mailout ballot means a ballot the Secretarial Election 
Board provides to a registered voter to allow him or her to vote by 
mail.
    Amendment means any modification or change to one or more 
provisions of an existing governing document or charter.
    Applicable law means any treaty, statute, Executive Order, 
regulation, opinion of the Solicitor or final decision of the Interior 
Board of Indian Appeals or a Federal court, which is applicable to the 
tribe.

[[Page 61028]]

    Authorizing Official means the Bureau official with delegated 
Federal authority to authorize a Secretarial Election.
    Bureau means the Bureau of Indian Affairs, Department of the 
Interior.
    Cast means the action of a registered voter, when the ballot is 
received through the mail by the Secretarial Election Board, or placed 
in the ballot box at the polling site, when polling sites are required 
by the amendment or adoption articles of the tribe's governing 
document.
    Charter means a charter of incorporation issued under a Federal 
statute and ratified by the governing body in accordance with tribal 
law or, if adopted before May 24, 1990, by a majority vote in an 
election conducted by the Secretary.
    Day means a calendar day. A Secretarial Election may be held on a 
Saturday, Sunday or Federal holiday.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Affairs or his 
or her authorized representative.
    Electioneering means campaigning for or against the adoption, 
ratification, revocation or amendment of a proposed governing document 
or a charter.
    Eligible voter means a tribal member who will be 18 years of age or 
older on the date of the Secretarial Election.
    Eligible Voters List means a list of eligible voters, including 
their birthdates and their last known mailing addresses. The Eligible 
Voters List is compiled and certified by the tribe's governing body or 
the Bureau if the Bureau maintains the current membership roll for the 
tribe.
    Federal statute means the Indian Reorganization Act (IRA), 25 
U.S.C. 476, 477, as amended, the Oklahoma Indian Welfare Act (OIWA), 25 
U.S.C. 503, and any tribe-specific statute that requires a Secretarial 
Election for the adoption of a governing document.
    Governing document means any written document which prescribes the 
extent, limitations, and manner in which the tribe exercises its 
sovereign powers.
    Local Bureau office means the local administrative office of the 
Bureau.
    Local Bureau Official means the Superintendent, Field 
Representative, or other official having delegated Federal 
administrative responsibility under this part.
    Member means any person who meets the written criteria of and is 
duly enrolled with a tribe.
    Petition means the official document submitted by the petitioners 
to the Secretary to call a Secretarial Election for the purpose of 
adopting or ratifying a new governing document, amending the tribe's 
existing governing document, or revoking the tribe's existing governing 
document.
    Polling site ballot means the ballot the Secretarial Election Board 
provides to a registered voter, allowing him or her to vote when 
polling sites are required by the amendment and adoption article of the 
tribe's governing document.
    Recognized governing body means the tribe's governing body 
recognized by the Bureau for the purposes of government-to-government 
relations.
    Registered Voter means an eligible voter who has registered to vote 
in the Secretarial Election.
    Registered Voters List means the list of all Registered Voters. A 
redacted version showing only names, and where applicable voting 
districts, shall be used for posting purposes.
    Registration means the process by which an eligible voter is 
determined eligible to vote in the Secretarial Election.
    Revocation means that act whereby the registered voters of a tribe 
vote to revoke their current governing document.
    Secretarial Election means a Federal election conducted by the 
Secretary under a Federal statute or tribal governing document under 
this part.
    Secretarial Election Board means the body of officials appointed by 
the Bureau and the tribe to conduct the Secretarial Election.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Spoiled ballot means the ballot is mismarked, mutilated, rendered 
impossible to determine the voter's intent, or marked so as to violate 
the secrecy of the ballot.
    Spokesperson for the petitioners means a tribe's eligible voter who 
provides a document signed by tribal members that provides him or her 
authority to speak or submit a petition on their behalf.
    Tribal request means a request composed of all of the following:
    (1) A duly adopted tribal resolution, tribal ordinance, other 
appropriate tribal document requesting the Secretary to call a 
Secretarial Election, or, in the absence of an existing governing 
document or if authorized or required by the existing governing 
documents, a petition that has been verified by the Bureau as having 
the minimum required signatures of tribal members;
    (2) The exact document or amended language to be voted on; and
    (3) A list of all Tribal members who will be 18 years age or older 
within 120 days of the date of this request, submitted in an 
electronically sortable format with names, last known addresses, dates 
of birth, and voting district, if any.
    Tribe means any Indian or Alaska Native tribe, band, nation, 
pueblo, village or community that is listed in the Federal Register 
under 25 U.S.C. 479a-1(a), as recognized and receiving services from 
the Bureau of Indian Affairs.
    Voting district means a geographic area established to facilitate 
the voting process, if required, by the amendment and adoption articles 
of the tribe's governing document.

Subpart C--General Provisions

Sec.  81.5  What should a tribe do when anticipating adopting or 
amending its governing document?

    The tribe should submit the proposed document to the Local Bureau 
Official for review and comment. Bureau personnel may help the tribal 
government in drafting governing documents, bylaws, charters, 
amendments and revocations. They will also explain the Secretarial 
Election process.

Sec.  81.6  What technical assistance will the Bureau provide?

    (a) Upon completing the initial review of the proposed document or 
amendment, the Local Bureau Official will make a recommendation on the 
proposed document or amendment, prepare background information on the 
tribe, and submit to the Authorizing Official.
    (b) The Authorizing Official must do all of the following:
    (1) Review the proposed governing document or amendment and offer 
technical assistance and comments to the tribe.
    (2) Consult with the Office of the Solicitor to determine whether 
any of the provisions of the proposed governing document or amendment 
may be contrary to applicable law.
    (3) Notify the tribe in writing if a provision is or may be 
contrary to applicable law. This notification must:
    (i) Explain how the provision may be contrary to applicable law; 
and
    (ii) Be sent to the tribe promptly but in no case less than 30 days 
before calling the election.
    (c) Once the tribe has responded to the Bureau's technical 
assistance, comments and notice of any provision that may be contrary 
to applicable law, it may submit a tribal request for a Secretarial 
Election.

[[Page 61029]]

Sec.  81.7  What happens if a governing Federal statute and this part 
disagree?

    If a conflict appears to exist between this part and a specific 
requirement of the Federal statute, this part must be interpreted to 
conform to the statute.

Sec.  81.8  Will the Secretary give deference to the Tribe's 
interpretation of its own documents?

    The Secretary will give deference to the tribe's reasonable 
interpretation of the amendment and adoption articles of the tribe's 
governing documents. The Secretary retains authority, however, to 
interpret tribal law when necessary to carry out the government-to-
government relationship with the tribe or when a provision, result, or 
interpretation may be contrary to Federal law.

Sec.  81.9  Who may cast a vote in a Secretarial Election?

------------------------------------------------------------------------
                               Then the following individuals may cast a
        If the tribe:                            vote:
------------------------------------------------------------------------
(a) Is reorganizing under      Any member of the tribe who:
 Federal statute for the       (1) Will be 18 years of age or older on
 first time,                    the date of the Secretarial Election;
                                and
                               (2) Has duly registered, regardless of
                                residence or other qualifications
                                contained in the tribe's governing
                                documents or charter.
(b) Is already reorganized     Any member of the tribe who:
 under Federal statute,        (1) Will be 18 years of age or older on
                                the date of the Secretarial Election;
                                and
                               (2) Otherwise meets the qualifications
                                established by the tribe's governing
                                documents or charter or, if the tribe's
                                governing documents and charter do not
                                define the qualifications for voting in
                                a Secretarial Election, then meets the
                                same qualifications as those entitled to
                                vote in the Secretarial Election that
                                effected the tribe's reorganization; and
                               (3) Has duly registered.
(c) Is not organized under a   Any member of the tribe who:
 Federal statute but tribal    (1) Will be 18 years of age or older on
 law requires a Secretarial     the date of the Secretarial Election;
 Election.                      and
                               (2) Otherwise meets the qualifications,
                                if any, established by the tribe's
                                governing documents or charter or, if
                                the tribe's governing documents and
                                charter do not define the qualifications
                                for voting in a Secretarial Election;
                                and
                               (3) Has duly registered.
------------------------------------------------------------------------

Sec.  81.10  May a tribe establish a voting age different from 18 years 
of age for Secretarial elections?

    No. A Secretarial Election is a Federal election. According to the 
26th Amendment of the U.S. Constitution, adopted July 1, 1971, all 
individuals 18 years of age and older must be able to vote in Federal 
elections.

Sec.  81.11  What type of electioneering is allowed before and during 
Secretarial election?

    There shall be no electioneering within 50 feet of the entrance of 
a polling site.

Sec.  81.12  What types of voting assistance are provided for a 
Secretarial Election?

    If polling sites are required by the amendment or adoption article 
of the tribe's governing document, the Chair of the Secretarial 
Election Board will:
    (a) Appoint interpreters;
    (b) Ensure that audio or visual aids for the hearing or visually 
impaired are provided;
    (c) Ensure that reasonable accommodations are made for others with 
impairments that would impede their ability to vote; and
    (d) Allow the interpreter or Secretarial Election Board member to 
explain the election process and voting instructions. At the request of 
the voter, the interpreter or Board member may accompany the voter into 
the voting booth, but must not influence the voter in casting the 
ballot.

Sec.  81.13  May Secretarial elections be scheduled at the same time as 
tribal elections?

    The Secretarial Election Board will, generally, avoid scheduling 
Secretarial Elections at the same time as tribal elections to avoid 
confusion. If the Secretarial Election Board decides to schedule a 
Secretarial Election at the same time as a tribal election, the 
Secretarial Election Board must clearly inform eligible voters of any 
differences between the tribal election and the Secretarial Election 
and separate ballots must be used for each type of election.

Sec.  81.14  How are conflicting proposals to amend a single document 
handled?

    When conflicting proposals to amend a single provision of a tribal 
governing document or charter provision are submitted, the proposal 
first received by the Local Bureau Official, if properly submitted as a 
complete tribal request, must be voted on before any consideration is 
given other proposals. Other proposals must be considered in order of 
their receipt if they are resubmitted following final action on the 
first submission. This procedure applies regardless of whether the 
proposal is a new or revised tribal governing document.

Sec.  81.15  Who pays for holding the Secretarial Election?

    A Secretarial Election is a Federal election; therefore, Federal 
funding will be used to cover the cost. The Bureau will pay for the 
costs, unless the tribe has received funding through contracts or self-
governance compacts entered into under the Indian Self-Determination 
and Education Assistance Act, as amended, 25 U.S.C. 450f, et seq.

Sec.  81.16  May a tribe use its funds to pay non-Federal election 
officials?

    A tribal recognized governing body may use tribal funds to 
compensate non-Federal personnel to protect the tribe and respond to 
the needs of the tribal government in the conduct of the Secretarial 
Election.

Sec.  81.17  Who can withdraw a request for a Secretarial Election?

    The tribe or spokesperson for the petitioners may withdraw the 
request for Secretarial Election in the same manner in which the 
Secretarial Election was requested. However, the request for a 
Secretarial Election cannot be withdrawn after the established deadline 
for voter registration.

Subpart D--The Secretarial Election Process Under the Indian 
Reorganization Act (IRA)

Sec.  81.18  How is a Secretarial Election requested?

    A tribe may make a request to the Local Bureau Official for a 
Secretarial Election by submitting:
    (a) A tribal request from the recognized governing body, or
    (b) A petition from the spokesperson for the petitioners.

[[Page 61030]]

Sec.  81.19  What does the Bureau do after receiving a request for a 
Secretarial Election?

    (a) Upon receiving a request for a Secretarial election, the 
Authorizing Official will issue a memorandum to the Local Bureau 
official. The memorandum will do all of the following:
    (1) Direct the Local Bureau official to call and conduct a 
Secretarial Election by one of the following deadlines:
    (i) If the tribal request is to amend an existing governing 
document, within 90 days from the date of receipt of the request;
    (ii) If the tribal request is to adopt a new governing document 
(including an amendment to a governing document in the nature of an 
entire substitute) or to revoke an existing governing document, within 
180 days after receiving the request.
    (2) Include as an attachment the document or proposed language to 
be voted upon;
    (3) Include as an attachment the Certificate of Results of Election 
with instructions to return it after the Secretarial Election. The 
Certificate shall read as follows:

CERTIFICATE OF RESULTS OF ELECTION

Under a Secretarial Election authorized by (name and title of 
authorizing official) on (date), the attached [insert: Governing 
document and Bylaws, charter of incorporation, amendment or 
revocation] of the (official name of tribe) was submitted to the 
registered voters of the tribe and on (date) duly (insert: adopted, 
ratified, rejected or revoked) by a vote of (number) for and 
(number) against and (number) cast ballots found spoiled in an 
election in which at least 30 percent (or such ``percentages'' as 
may be required to amend according the governing document) of the 
(number) registered voters cast their ballot in accordance with 
(appropriate Federal statute).

Signed: ____--
(by the Chair of the Secretarial Election Board and Board Members)

Date: __--; and

    (4) Advise that no changes or modifications can be made to any 
attached document, without the Authorizing Official's prior approval.
    (b) The Local Bureau Official will appoint a Bureau employee to 
serve as the Chair of the Secretarial Election Board and notify the 
tribe of the need to appoint at least two tribal members to the 
Secretarial Election Board. If the tribe declines or fails for any 
reason to make this appointment within10 days after the notice letter 
is issued, the Chair of the Secretarial Election Board must appoint two 
representatives on the 11th day after the notice letter is issued.

Sec.  81.20  What is the first thing that the Chair of the Election 
Board does?

    Within 5 days after the Secretarial Election Board representatives 
are appointed, the Chair must hold the first meeting of the Secretarial 
Election Board to set the election date.

Sec.  81.21  Who conducts the Secretarial Election?

    The Secretarial Election Board conducts the Secretarial Election.

Sec.  81.22  How is the Secretarial election conducted?

    The Secretarial Election Board:
    (a) Uses the list provided in the tribal request to create an 
Eligible Voters List;
    (b) Assembles and mails the Secretarial Election Notice Packet at 
least 60 days before the date of the Secretarial Election to all 
persons on the Eligible Voters List;
    (c) Confirms that registration forms were received on or before the 
deadline date;
    (d) Retains the completed registration form as part of the record;
    (e) Develops the Registered Voters List for posting;
    (f) Notes on a copy of the Registered Voters List, by the 
individual's name, the date his or her ballot request was received, the 
date the ballot was mailed, and the date the ballot was returned; and
    (g) If polling sites are required by the amendment or adoption 
article of the tribe's governing document, notes on a copy of the 
Registered Voters List, by the individual's name, the date his or her 
absentee ballot request was received, the date the absentee ballot was 
mailed, and the date the absentee ballot was returned.

Sec.  81.23  What documents are included in the Secretarial Election 
Notice Packet?

    The Secretarial Election Notice Packet includes the following.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(a) Mailout Balloting........  (b) Polling Sites (if required by the
                                amendment or adoption articles of the
                                tribe's governing document).
(1) The Secretarial Election   (1) The Secretarial Election notice;
 notice;.
(2) A registration form with   (2) A registration form with instructions
 instructions for returning     for returning the completed form by
 the completed form by mail;.   mail;
(3) An addressed envelope      (3) An absentee ballot request form with
 with which to return the       instructions for returning the completed
 completed registration form;   form by mail;
 and.
(4) A copy of the proposed     (4) An addressed envelope with which to
 document..                     return the completed registration form
                                and absentee ballot request form; and
                               (5) A copy of the proposed document.
------------------------------------------------------------------------

Sec.  81.24  What information must be included on the Secretarial 
Election notice?

    The Secretarial Election notice must contain all of the following 
items.
    (a) The date of the Secretarial Election;
    (b) The date which registration forms must be received by the 
Secretarial Election Board;
    (c) A description of the purpose of the Secretarial Election;
    (d) A description of the statutory and tribal authority under which 
the Secretarial Election is held;
    (e) The deadline for filing challenges to the Registered Voters 
List;
    (f) The date a ballot request must be received by the Secretarial 
Election Board;
    (g) A statement as to whether the Secretarial Election is being 
held entirely by mailout ballot or with polling sites, in accordance 
with the tribe's governing document's amendment or adoption articles; 
and
    (h) The locations and hours of established polling sites, if any.

Sec.  81.25  Where will the Secretarial Election notice be posted?

    The Secretarial Election notice will be posted at the local Bureau 
office, if any, the tribal headquarters, and other public places 
determined by the Secretarial Election Board.

Sec.  81.26  How does BIA use the information I provide on the 
registration form?

    We use the information you provide on the registration form to 
determine whether you may be register for and vote in the Secretarial 
Election. The registration form must include the following statements:
    (a) Completing and returning this registration is necessary if you 
desire to vote in the forthcoming Secretarial Election;
    (b) This form, upon completion and return to the Secretarial 
Election Board,

[[Page 61031]]

will be the basis for determining whether your name will be placed upon 
the list of registered voters, and therefore may receive a ballot, and
    (c) Completion and return of this form is voluntary, but failure to 
do so will prevent you from participating in the Secretarial election.

Sec.  81.27  Do I have to re-register if I have already registered for 
a tribal or Secretarial Election?

    Yes. A Secretarial Election is a Federal election and you must 
register for each Secretarial Election.

Sec.  81.28  How do I submit my registration form?

    You must submit your registration form to the Secretarial Election 
Board by mail.

Sec.  81.29  Why does the Secretarial Election Board compile a 
Registered Voters List?

    The Registered Voters List is a list of eligible voters who have 
registered and are, therefore, entitled to vote in the Secretarial 
Election. We use this list, after all challenges have been resolved, to 
determine whether voter participation in the Secretarial Election 
satisfies the minimum requirements of the tribe's governing documents 
and Federal law.

Sec.  81.30  What information is contained in the Registered Voters 
List?

    The Registered Voters List must contain the names, in alphabetical 
order, of all registered voters and their voting districts, if voting 
districts are required by the tribe's governing document's amendment or 
adoption articles.

Sec.  81.31  Where is the Registered Voters List posted?

    A copy of the Registered Voters List, showing names only, must be 
posted at the local Bureau office, if any, the tribal headquarters, and 
other public places the Secretarial Election Board designates.

Sec.  81.32  May the Registered Voters List be challenged?

    (a) It is possible to challenge in writing the inclusion or 
exclusion or omission of a name on the Registered Voters List. The 
written challenge must be received by the Secretarial Election Board by 
the established deadline and include the following:
    (1) The individual whose name does or does not appear on the 
Registered Voters List;
    (2) The reason why the individual's name should or should not be 
included; and
    (3) Supporting documentation.
    (b) Failure to register on time is not a valid basis for an 
individual to challenge the omission of his/her name from the list.

Sec.  81.33  How does the Secretarial Election Board respond to 
challenges?

    All challenges must be resolved within three days of the challenge 
deadline established by the Secretarial Election Board and all 
determinations of the Secretarial Election Board are final for the 
purpose of determining who can vote in the Secretarial Election.
    (a) If the challenge was received after the deadline, the 
Secretarial Election Board must deny the challenge.
    (b) If the challenge was received on or before the deadline, the 
Secretarial Election Board will decide the challenge by reviewing the 
documentation submitted. Thereafter, the Secretarial Election Board 
will include the name of any individual whose name should appear or 
remove the name of any individual who should not appear on the 
Registered Voters List.

Sec.  81.34  How are the official ballots prepared?

    (a) The Secretarial Election Board must prepare the official ballot 
so that it is easy for the voters to indicate a choice between adopting 
or rejecting the proposed language. Separate ballots should be prepared 
for each proposed amendment or a single ballot for adoption of a 
proposed document (with a reference to the document provided in the 
Secretarial Election notice).
    (b) The following information must appear on the face of the 
mailout or absentee ballot:

OFFICIAL BALLOT
(Facsimile Signature)
CHAIR, SECRETARIAL ELECTION BOARD

    (c) When polling places are required by the tribe's governing 
document, the official ballot may be a paper ballot, voting machine 
ballot, or other type of ballot supporting the secret ballot process.

Sec.  81.35  When must the Secretarial Election Board send ballots to 
voters?

    (a) The Secretarial Election Board must send mailout or absentee 
ballots to registered voters:
    (1) When the list of Registered Voters is complete; or
    (2) Any time a request for an absentee ballot is received before 
Secretarial Election date if polling sites are required by the 
amendment or adoption articles of the tribe's governing document.
    (b) All mailout or absentee ballot transactions must be via U.S. 
Mail before the date of the Secretarial Election.

Sec.  81.36  What will the mailout or absentee ballot packet include?

    The mailout or absentee ballot packet contains:
    (a) A mailout or absentee ballot;
    (b) Instructions for voting by mailout or absentee ballot including 
the date the ballot must be received by the Secretarial Election Board;
    (c) An inner envelope with the words ``Mailout Ballot'' or 
``Absentee Ballot'' printed on the outside;
    (d) A copy of the proposed governing document or amendment, if the 
full text is not printed on the mailout ballot; and
    (e) A pre-addressed outer envelope with the following certification 
printed on the back:

I, (print name of voter), hereby certify I am a registered voter of 
the (name of Tribe); I will be 18 years of age or older on the day 
of the Secretarial Election; I am entitled to vote in the 
Secretarial Election to be held on (date of Secretarial Election). I 
further certify that I marked the enclosed mailout ballot in secret.

Signed: ____-- (voter's signature)

Sec.  81.37  How do I cast my vote at a polling site?

    If polling sites are required by the tribe's governing document's 
amendment or adoption articles, the Secretarial Election Board will 
establish procedures for how polling site ballots will be presented and 
collected, including, but not limited to, paper ballots, voting 
machines, or other methods supporting a secret ballot.

Sec.  81.38  When are ballots counted?

    The ballots will be counted under the supervision of the 
Secretarial Election Board, after the deadline established for 
receiving all ballots or closing of the polls, if polling sites are 
required by the tribe's governing document's amendment or adoption 
articles.

Sec.  81.39  How does the Board determine whether the required 
percentage of registered voters have cast ballots?

    The Secretarial Election Board must count the number of valid 
ballots and cast spoiled ballots to determine total voter 
participation. The Board must take the total voter participation and 
divide it by the total number of Registered Voters. This total is used 
to determine whether the percentage of Registered Voters who cast votes 
meets the requirements of the tribe's governing documents or Federal 
statute that requires at least 30 percent voter participation. For 
example:
    (a) If there were 200 registered voters of which 75 cast valid 
ballots and 5 cast spoiled ballots for a total of 80 cast ballots (75 + 
5 = 80). The percentage of

[[Page 61032]]

voter participation would be determined as follows:
    Total number of votes cast (80) divided by the total number 
registered voters (200) or 80 / 200 = 0.40 or 40 percent voter 
participation.
    (b) This example meets the Federal statutory requirement of at 
least 30 percent voter participation.

Sec.  81.40  What happens if a ballot is spoiled before it is cast?

    If a ballot is spoiled before it is cast, this section applies.
    (a) The registered voter may return the spoiled ballot to the 
Secretarial Election Board by mail or in person with a request for a 
new ballot before the election date. The new ballot will be promptly 
provided to the registered voter. The Secretarial Election Board must 
retain all ``spoiled uncast ballots'' for recordkeeping purposes.
    (b) If polling sites are required, the voter may return the spoiled 
ballot to the polling site worker and request a new ballot. Upon 
receiving the new ballot, the voter must then complete the voting 
process. The polling site worker will mark the spoiled ballot ``spoiled 
uncast'' and record that the ballot has been spoiled. The polling site 
worker must retain all ``spoiled uncast ballots'' for recordkeeping 
purposes.

Sec.  81.41  Who certifies the results of the Election?

    The Chair and all members of the Secretarial Election Board must be 
present during the counting of the ballots and must sign the 
Certificate of Results of Election.

Sec.  81.42  Where are the results of the Election posted?

    The Secretarial Election Board must post a copy of the Certificate 
of Results of Election at the local Bureau office, the tribal 
headquarters, and at other public places listed in the Election notice.

Sec.  81.43  How are the results of the Election challenged?

    Any person who submitted a voter registration form may challenge 
the results of the Secretarial Election. The written challenge, with 
substantiating evidence, must be received by the Chairman of the 
Secretarial Election Board within 3 days after the Certificate of 
Results of Election is posted. Challenges received after the deadline 
for filing challenges will not be considered. If the third day falls on 
a weekend or holiday, the challenge must be received by close of 
business on the next business day.

Sec.  81.44  What documents are sent to the Authorizing Official?

    The Chair of the Secretarial Election Board must transmit all 
documents pertaining to the Secretarial Election to the Authorizing 
Official, including:
    (a) The original text of the material voted on;
    (b) The Eligible Voters List;
    (c) The Registered Voters List;
    (d) The Secretarial Election Notice Packet;
    (e) Any challenges to the Secretarial Election results; and
    (f) The Certificate of Results of Election.

Sec.  81.45  When are the results of the Election final?

    The Authorizing Official will review election results and 
challenges, if any, as follows:
    (a) If a challenge is sustained and may have an impact on the 
outcome of the election, the Authorizing Official must authorize a 
recount or call for a new Secretarial Election. The Authorizing 
Official will take the appropriate steps necessary to provide for a 
recount or a new Secretarial Election. The results of the recount or 
new Secretarial Election will be final for the Department.
    (b) If all challenges are denied or dismissed, the Authorizing 
Official will review and make a decision based on the following:
    (1) The percentage of total votes cast was at least 30 percent, or 
other percentages required according to the tribe's governing 
document's amendment or adoption articles.
    (2) The voters rejected or accepted the proposed document or each 
proposed amendment; and
    (3) The proposed documents or amendments are not contrary to 
Federal law.
    (c) The Authorizing Official must notify, in writing, the 
recognized governing body of the tribe, and the Director of the Bureau, 
of the following:
    (1) The decisions on challenges;
    (2) The outcome of the voting;
    (3) Whether the proposed governing document, proposed amendment(s) 
or charter or charter amendments are approved or ratified, or if the 
proposed documents contain language that is contrary to Federal law 
and, therefore, disapproved; and
    (4) That the decision is final for the Department.
    (d) The Authorizing Official must:
    (1) Forward the original text of the document, Original Certificate 
of Approval or Disapproval, and the Certificate of Results of Election 
to the tribe and a copy of all documents to the Bureau Director; and
    (2) Retain, as required by the Records Disposition Schedule, a copy 
of all document(s) relevant to the Secretarial Election.
    (e) If the certified election results show that the tribal members 
ratified the documents, but the Authorizing Official does not approve 
or disapprove the governing document or amendment within 45 days of the 
Secretarial Election, the Secretary's approval of the documents must be 
considered as given.

Subpart E--The Secretarial Election Process Under the Oklahoma 
Indian Welfare Act (OIWA)

Sec.  81.46  What should a tribe do to adopt or amend its governing 
document ?

    If a tribe expects to adopt or amend its governing document, it 
should submit the proposed document to the Local Bureau Official for 
review and comment. The Bureau may help the tribal government in 
drafting governing documents, bylaws, charters, amendments and 
revocations. The Bureau will also explain the Secretarial Election 
process.

Sec.  81.47  What technical assistance does the Bureau provide?

    (a) Upon completing the initial review of the proposed document or 
amendment, the Local Bureau Official will make a recommendation on the 
proposed document or amendment, prepare background information on the 
tribe, and submit it to the Authorizing Official.
    (b) The Authorizing Official will:
    (1) Review the proposed governing document or amendment and offer 
technical assistance and comments to the tribe;
    (2) Consult with the Office of the Solicitor to determine if any of 
the provisions of the proposed governing document or amendment may be 
contrary to applicable law; and
    (3) If it appears that a provision is or may be contrary to 
applicable law, notify the tribe in writing how the provision may be 
contrary to applicable law.
    (c) The Authorizing Official must promptly notify the tribe under 
paragraph (b)(3) of this section at least 30 days before calling the 
election;
    (d) Once the tribe has responded to the Bureau's technical 
comments, and any notice of a provision that may be contrary to 
applicable law, the Authorizing Official may approve the proposed 
document. The tribe may then submit a request for a Secretarial 
Election. The Authorizing Official may not authorize a Secretarial 
Election on any proposed document that contains

[[Page 61033]]

provisions that may be contrary to applicable law.

Sec.  81.48  What does the Bureau do upon receiving the request for an 
Election?

    (a) The Authorizing Official will issue a memorandum to the Local 
Bureau Official:
    (1) Approving the proposed document or proposed amendments;
    (2) Authorizing the Local Bureau Official to call and conduct a 
Secretarial Election, within 90 days from the date of receiving the 
tribal request;
    (3) Attaching the document or proposed language to be voted upon;
    (4) Attaching the Certificate of Results of Election, with 
instructions to return it at the conclusion of the Secretarial 
Election. The Certificate shall read as follows:

CERTIFICATE OF RESULTS OF ELECTION

Under a Secretarial Election authorized by (name and title of 
authorizing official) on (date), the attached [insert: Governing 
document and Bylaws, charter of incorporation, amendment or 
revocation] of the (official name of tribe) was submitted to the 
registered voters of the tribe and on (date) duly (insert: adopted, 
ratified, rejected or revoked) by a vote of (number) for and 
(number) against and (number) cast ballots found spoiled in an 
election in which at least 30 percent (or such ``percentages'' as 
may be required to amend according the governing document) of the 
(number) registered voters cast their ballot in accordance with 
(appropriate Federal statute).

Signed: ____--
(by the Chair of the Secretarial Election Board and Board Members)

Date: __--.; and

    (5) Advising that no changes or modifications can be made to any of 
the attached documents, without prior approval from the Authorizing 
Official.
    (b) The Local Bureau Official will appoint the Chair of the 
Secretarial Election Board and notify the tribe of the need to appoint 
at least two tribal members to the Secretarial Election Board. If the 
tribe fails to make such appointment within 10 days after the notice 
letter is issued, the Chair of the Secretarial Election Board must 
appoint two representatives on the eleventh day after the notice letter 
is issued.

Sec.  81.49  How is the Secretarial Election conducted?

    After the Chair of the Election Board receives the authorization of 
the Election, the Chair of the Secretarial Election Board will conduct 
the election following the procedures set out in Sec. Sec.  81.19 
through Sec.  81.45.

Sec.  81.50  When are the results of the Election final?

    (a) If a challenge is sustained and has an effect on the outcome of 
the election, the Authorizing Official must authorize a recount or call 
for a new Secretarial Election. The Authorizing Official will take the 
appropriate steps necessary to provide for a recount or a new 
Secretarial Election. The results of the recount or new Secretarial 
Election will be final for the Department.
    (b) If the challenges are denied or dismissed, the Authorizing 
Official will review and determine whether:
    (1) The percentage of total votes cast was at least 30 percent, or 
such percentages as may be required according to the tribe's governing 
document's amendment or adoption articles; and
    (2) The voters ratified or rejected the proposed document, proposed 
amendment or revocation.
    (c) The Authorizing Official must notify, in writing, the 
recognized governing body of the tribe, and the Director of the Bureau, 
of the following:
    (1) The decisions on challenges;
    (2) The outcome of the voting;
    (3) That the proposed document, proposed amendments or revocation 
becomes effective as of the date of the Secretarial Election; and
    (4) That the decision is final for the Department.
    (d) The Authorizing Official must:
    (1) Forward the original text of the document, Original Certificate 
of Approval, and the Certificate of Results of Election to the tribe 
and a copy of all documents to the Director of the Bureau; and
    (2) Retain, as required by the Records Disposition Schedule, a copy 
of all document(s) relevant to the Secretarial Election.

Subpart F--Formulating Petitions To Request a Secretarial Election

Sec.  81.51  What is the purpose of this subpart?

    This subpart establishes requirements for formulating and 
submitting petitions to request the Secretary to call a Secretarial 
Election as required by the governing documents or charters of 
incorporation of tribes issued under the Indian Reorganization Act 
(IRA), 25 U.S.C. 476 and 477, as amended, and the Oklahoma Indian 
Welfare Act (OIWA), 25 U.S.C. 503. This Subpart may also be used by a 
federally recognized tribe that is adopting a governing document, under 
Federal statute, for the first time.

Sec.  81.52  Who must follow these requirements?

    Any tribe meeting the criteria in paragraphs (a) or (b) of this 
section must follow the requirements of this subpart.
    (a) A tribe whose governing document or charter of incorporation 
provides for petitioning the Secretary to call a Secretarial Election 
for any of the following purposes:
    (1) Amending or revoking the governing document;
    (2) Amending a charter of incorporation ratified under 25 U.S.C. 
477 of the IRA before May 24, 1990;
    (3) Amending or ratifying a charter of incorporation under 25 
U.S.C. 503 of the OIWA; or
    (4) Taking any other action authorized by the governing document or 
charter of incorporation.
    (b) A federally recognized tribe, without an existing governing 
document, adopting a governing document under Federal statute, for the 
first time.

Sec.  81.53  How do tribal members circulate a petition to adopt or 
amend the tribe's governing document?

    Tribal members wishing to circulate a petition to adopt or amend 
the tribe's governing document should submit the proposed document to 
the Local Bureau Official for review and comment. This may help the 
petitioners in drafting governing documents, bylaws, charters, 
amendments and revocations. The Bureau will also explain the 
Secretarial Election process.

Sec.  81.54  What technical assistance will the Bureau provide?

    (a) The Bureau will provide technical assistance for a petition 
only upon request of the spokesperson. Bureau personnel will provide a 
courtesy copy to the tribe's governing body of all correspondence 
regarding technical assistance to the petitioners. The spokesperson 
will be responsible for obtaining the approval of the tribal members it 
represents on changes to the content of the petition.
    (b) Upon completing the initial review of the proposed document or 
amendment, the Local Bureau Official will make a recommendation on the 
proposed document or amendment, prepare background information on the 
tribe, and submit his recommendation to the Authorizing Official.
    (c) The Authorizing Official will:
    (1) Review the proposed governing document or amendment and offer 
technical assistance and comments to the tribe;
    (2) Consult with the Office of the Solicitor to determine if any of 
the provisions of the proposed governing document or amendment may be 
contrary to applicable law; and
    (3) If it appears that a provision is or may be contrary to 
applicable law,

[[Page 61034]]

notify the tribe in writing how the provision may be contrary to 
applicable law.
    (d) The Authorizing Official must promptly notify the tribe under 
paragraph (b)(3) of this section at least 30 days before calling the 
election;
    (e) Once the petitioners have responded to the Bureau's technical 
assistance, comments and notice of any provision that may be contrary 
to applicable law, they may submit their petition requesting a 
Secretarial Election.

Sec.  81.55  Who may initiate a petition?

    A member of the tribe who is 18 years of age or older whose 
governing document or charter of incorporation permits tribal members 
to petition the Secretary to authorize a Secretarial Election.

Sec.  81.56  Who may sign a petition?

    A member of the tribe who is 18 years of age or older.

Sec.  81.57  Who is authorized to submit a petition to the Secretary?

    The petitioners must designate a spokesperson to submit the 
petition and act on their behalf for the petitioning process.

Sec.  81.58  How is the petition formatted and signed?

    (a) Each page of the petition must contain:
    (1) A summary of the purpose of the petition, or proposed document, 
or proposed amendment language;
    (2) Numbered lines for each individual to print their legal name, 
current mailing address, date, and signature, and;
    (3) The following declaration at the bottom of each page to confirm 
the collector was present when each signature was collected:

``I, (Collector's Printed Name), hereby declare that each individual 
whose name appears above signed and dated the petition. To the best 
of my knowledge, the individual signing the petition is a member of 
the tribe and is 18 years or older.
(Signature of Collector)
(Notary Certification)'',

    (b) Each individual must print their legal name, current mailing 
address, date, and sign on a numbered line.
    (c) Each collector must complete and sign the declaration on each 
page in front of a notary, who will sign and certify.

Sec.  81.59  Do petitions have a minimum or maximum number of pages?

    A petition can have as many pages as necessary to obtain the 
required signatures, however, each page must have the information shown 
in Sec.  81.58.

Sec.  81.60  How do I find out how many signatures are needed for a 
petition to be valid?

    (a) For a tribe whose governing document or charter of 
incorporation provides for petitioning the Secretary to call a 
Secretarial Election:
    (1) The spokesperson for the petitioners may ask the tribe or the 
Local Bureau Official how many signatures are required.
    (2) The Local Bureau Official will:
    (i) Contact the tribal governing body to obtain the current number 
of tribal members, 18 years of age or older, to determine the number of 
tribal members who must sign a petition as required by the tribe's 
governing document; and
    (ii) Notify the petitioners' spokesperson how many signatures are 
required and that the number is valid for 180 days from the date of 
this notification.
    (b) For a federally recognized tribe adopting a governing document 
under Federal statute for the first time, the petition must have 
signatures of 20 percent of the tribal members who are 18 years of age 
or older.

Sec.  81.61  How long do tribal members have to gather the signatures?

    Tribal members have one year from the date of the first signature 
to gather the required signatures.

Sec.  81.62  How does the spokesperson file a petition?

    The spokesperson must submit the original petition to the Local 
Bureau Official.

Sec.  81.63  How does the Local Bureau Official process the petition?

    (a) The Local Bureau Official must, on the date of receipt, date 
stamp the petition to record the Official Filing Date, and make three 
copies of the petition for use as follows:
    (1) Posting at the local Bureau office for 30 days from the 
Official Filing Date, including a statement of the proposal contained 
in the petition and instructions for filing a challenge;
    (2) Use in determining sufficiency of petition; and
    (3) For viewing at the Local Bureau Office by a member of the 
tribe, 18 years of age or older.
    (b) The Local Bureau Official must, within one week of the Official 
Filing Date:
    (1) Provide the spokesperson written acknowledgment of receiving 
the petition, which contains the Official Filing Date, the exact number 
of signatures submitted on the petition, and the statement ``The 
petitioners may not add or withdraw any signatures from the petition 
after the Official Filing Date''; and
    (2) Provide a copy of the written acknowledgment of receipt and 
petition to the recognized tribal governing body.
    (c) The Local Bureau Official must:
    (1) Consult with the Office of the Solicitor to determine if any of 
the provisions that are the subject of the petition are or may be 
contrary to applicable law; and
    (2) If it appears that a provision is or may be contrary to 
applicable law, notify the petitioner's spokesperson in writing how the 
provision may be contrary to applicable law.
    (d) The Local Bureau Official must promptly notify the petitioners 
of any problems identified under paragraph (c) of this section at least 
30 days before calling the election.

Sec.  81.64  How can signatures to the petition be challenged?

    Any member of the tribe, 18 years of age or older, may challenge in 
writing the signatures appearing on the petition. The challenge must be 
submitted to the Local Bureau Official, within 30 days of the Official 
Filing Date of the petition and must:
    (a) Identify the page and line on which a signature appears; and
    (b) Provide documentation supporting a challenge that at least one 
of the following is true:
    (1) A signature was forged;
    (2) An individual was ineligible to sign the petition;
    (3) A petition page is inconsistent or improperly formatted; or
    (4) A petition page contains an incomplete declaration statement.

Sec.  81.65  How is the petition validated?

    (a) The Local Bureau Official must:
    (1) Confirm the petition has the required number of signatures;
    (2) Indicate any signatures appearing more than once and include 
only one in the count;
    (3) Make recommendations regarding any challenge to the validity of 
signatures based upon the documentation provided by the challenger; and
    (4) Verify the petitioning procedures complied with this Subpart.
    (5) Transmit within 45 calendar days of the Official Filing Date 
the original petition, challenges, and recommendations to the 
Authorizing Official.
    (b) The Authorizing Official must within 60 calendar days of the 
Official Filing Date:
    (1) Determine whether the petition complies with the requirements 
of this Subpart;

[[Page 61035]]

    (2) Inform the spokesperson for the petitioners and the recognized 
tribal governing body, in writing, whether the petition is valid, the 
basis for that determination, and a statement that the decision of the 
Authorizing Official is final for the Department.
    (i) If the petition is determined valid for the purposes of calling 
a Secretarial election, the Authorizing Official will instruct the 
Local Bureau Official to call and conduct the Secretarial Election in 
accordance with Sec. Sec.  81.19 through 81.45.
    (ii) If the petition is determined invalid, the Authorizing 
Official will notify the spokesperson for the petitioners, with a 
courtesy copy to the tribe's governing body, that the petition was not 
valid and a Secretarial Election will not be called.

Sec.  81.66  May the same petition be used for more than one 
Secretarial Election?

    No. A petition may not be used for more than one Secretarial 
Election. Each request for a Secretarial Election requires a new 
petition.

PART 82--[REMOVED AND RESERVED]

0
2. Remove and reserve part 82.

    Dated: October 3, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-24118 Filed 10-8-14; 8:45 am]
BILLING CODE 4310-4J-P
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