UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) CH AR LES K. HUDSON , ) ) Plaintiff, ) ) v. ) ) Civil Action No. 1 5

- cv - 1988 (TSC)
RYAN ZINKE, et al. , ) ) Defendant s
. ) ) MEMORANDUM OPINION Plaintiff Charles Hudson , an enrolled member of the Three Affiliated Tribes of Fort Berthold Reservation in North Dakota (“ Three Affiliated Tribe s ” or “Tribe” ), brings this Administrative Procedure Act (“APA”) suit against the entities responsible for conducting
S ecretarial elections for the Tribe: the Department of the Interior (“DOI”) , Secretary Ryan Zinke, and Acting Assistant Secretary Michael Bl ack ( collectively “the Department ”) . Hudson challenges the Department’s approval of a July 30, 2013 S ecretarial election (the “2013 Election”) , which amended the Three Affiliated Tribes’ Constitution (the “Tribal Constitution”)

. He claims that because an insufficient number of voters participated, the election lacked the requisite 30% quorum under the Tribal Constitution and the Indian Reorganization Act , 25 U.S.C. § 5123

. He also claims that the Department sent misleading voting i nformation to tribal members , which discouraged off

- reservation voting

. Both Hudson and the Department have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56

. (ECF No s . 35 and 3 7

. ) Having reviewed the parties’ filings and the

re cord, and for reasons set forth below, the court will GRANT Hudson’s motion for summary judgment and DENY Defendants’ motion for summary judgment.2 I. BACKGROUND
A. Indian Reorganization Act Hudson’s claims are governed by the statutory and regulatory framework of the Indian Reorganization Act of 1934 (“IRA”) , 25 U.S.C. § 5123

. The Act encourages self

- government by providing a mechanism for tribes to adopt constitutions , which must be ratified by a majority vote of the tribe’s adult members at a special election before going into effect

. 25 U.S.C. § 5123(a)(1). The Act, and its accompanying regulations, also set out the procedures for a tribe to amend its constitution through S ecretarial elections. These elections are “federal

— not tribal,” Thomas v. United States , 189 F.3d 662, 667 (7th Cir. 1999), so a tribe must ask the Secretary of the Interior to call and conduct them

. 25 U.S.C. § 5123(c). Once the Secretary receives a qualifying request for a Secret arial election to ratify proposed constitutional amendments, the Secretary must call and hold an election within 90 days. 25 U.S.C. § 5123(c)(1)(B)

. For an amendment to be ratified, the IRA requires both a majority vote in favor and a
quorum of voters participat ing in the election . 25 U.S.C. § 5127. The quorum requirement provides that “ the total vote cast shall not be less than 30 per centum of those entitled to vote. ” 25 U.S.C. § 5127 (emphasis added)

. T he 1964 regulations defined a tribe me mber “entitled to vote” as “any adult member regardless of residence.” 29 Fed. Reg. 14,359 , 14,360 (Oct. 17, 1964). In 1967 , the Department amended the regulation to provide for registration , and re defined “entitled to vote” as “only voters who are duly registered.” 32 Fed. Reg. 11,77 7, 11,778 (Aug. 16, 1967) ( codified at 25 C.F.R. § 52.6(c) )

. In 1981, the Department again amended its regulation s , to reiterate the definition of “entitled” in a new section called “registration,” which provide d that “[o] nly registered voters will be entitled to vote, and all determinations of the3 sufficiency of the number of ballots cast will be based upon the number of registered voters.” 46 Fed. Reg. 1 , 672 (Jan. 7, 19781) , codified at 25 C.F.R. § 52.11. 1 Election results are not finalized until they are approved by the Secretary, 25 U.S.C. § 5123(d), and certified by the tribe’s Election Board, 25 CFR § 81.41 ( 2015)

. A ny qualified
voter can contest election results within three days of the results of the election by submitting “the grounds for the challenge , together with substantiating evidence .” 25 C.F.R. § 81.22 (1985)

. T he Secretary has 45 days to resolve election contests, conduct an independent review and approve or disapprove the election , but the scope of review is limited to ensuring the amendments comply with applicable federal law

. See 25 U.S.C. § 5123(d)

. B. Three Affiliated Tribes’ Constitution and Amendments In 1870, the federal government established t he Fort Berthold Indian Reservation in the Missouri River basin for the region’s “Three Affiliated Tribes” : the Mandan , Hidatsa , and Arikara N ations. A fter voting for recognition under the IRA, on May 15, 1936, the Tribe s adopted their Constitution “by a vote of 366 for, 220 aga inst . . . [i] n an election in which over 30 percent of those entitled to vote cast their ballots , in accordance with section 16 of the [IRA].” ( ECF No. 43 (Administrative Record (“A.R.”) ) at 91. ) Because over 30 percent of the adult membership voted, an d a majority of those voting approved , the Tribal Constitution was ratified pursuant to the IRA. ( Id. ) On June 29, 1936, the Secretary of the Interior approve d the Tribal Constitution under Section 16 of the IRA. ( Id. ) Like the IRA, the Tribal Constitu tion requires both a majority and a quorum for a Secretarial election to amend the Constitution . Tribal

1 The part 52 regulations were subsequently re designated as 25 C.F.R. Part 81. Re designation Table for Chapter I Title 25

— Indians, 47 Fed. Reg. 13,327 (Mar. 30, 1982). Since the 2013 Election, the Department has amended the regulations at issue; however, the 1981 regulations were operative during the election in this case . ( ECF No. 38 (“ Def. Br. ”) at n. 4

– 5 .)4 Constitution , art. X. The Tribal Constitution’s quorum requirement requires that: “at least thirty (30) percent of those entitled to vote shall vote i n such election . . . .” Id. (emphasis added)

. T he Three Affiliated Tribes held two Secretarial elections to amend its Constitution before the 1967 regulations implementing the registration requirement

. O n July 20, 1955, a majority voted in favor of an amendment ; but the amendment failed because it lack ed the necessary 30% quorum. ( A.R. at 107. ) The election results report , signed by the Chairman and Secretary of the Tribal Business Council and by the Bureau of Indian Affairs (“ BIA ”) Agency Superintendent, stated “that 281 votes does not constitute 30% of those entitled to cast their ballots in accordance with Section 16 of the [IRA ].” ( Id. ) A year later, the Tribe held a Secretarial election to amend the Constitution to permit absentee voting in Secretarial elections

. ( Id. at 10 5

– 0 6 .) This amendment was proposed because of concerns that prohibiting absentee voting made it difficult to reach the required 30 percent quorum in Secretarial elections

. ( Id. ) The record does not contain documentation of the outcome of th at Secretarial election or whether it met the quorum requirement , but the Constitution reflects that an amend ment passed in 1956

. ( See Tribal Constitution, art. IV, § 2(a) (“This section amended by Amendment No. 1, effective October 16, 1956

. . . ” ) ; see also A.R. at 82

. ) Since the BIA implemented the registration requirement, the Department has conducted and approved six more Secretarial e lections before the one challenged here :

• In a 1974 election , 426 tribe members cast their ballots , out of 1,131 registered and 2,719 voters who were 18 years old

. ( A.R. at 375.) The Election Board’s certification paperwork states that “over 38 percent of the eligible voters” participated , and the Department approved the result , noting that three people contested the election but did not state the reason. ( Id. at 374

– 75

. )

• In a 1975 election , the Election Board certificat ion reflects that approximately 700 trib e members voted on two amendment s , out of “ 1,641 members entitled to vote

. . . in accordance with Section 16 of the [IRA].” ( Id. at 36 4

– 6 7.) Neither the record nor the parties suggest the result was contested

. ( Id. )5 • In a 1985 election approving an amendment , the Election Board certified that 408 v oters out of 1,109 “entitled to vote cast their ballots in accordance with Section 16 of the [IRA].” ( Id. at 354.) The Department approved the election results

. ( Id. at 352.) There is no indication that the results were challenged. ( Id. at 352

– 354

. )

• In a 1 986 election , the Election Board certified that approximately 730 voters of 1 , 331 tribe members “entitled to vote

. . . in accordance with Section 16 of the [IRA] ” participated in the Secretarial election regarding several amendments . ( Id. at 336 , 340, 343, 347, 348, 350 .) Again, the record does not indicate that anyone protested the election

.

• I n 2008, the Tribe held a Secretarial election on two amendments involving Tribal enrollment criteria in which approximately 960 out of 1,565 registered vot ers cast ballots

. ( Id. at 329.) The Election Board certified the results, stating the election satisfied the quorum results : “at least 30 percent of the 1565 members entitled to vote[] cast their Ballot in accordance with 25 CFR 81.” ( Id. at 330

. ) The Department’s approval reiterate d that the election satisfied the 30% quorum requirement “described in 25 CFR, Part 81.” ( Id. at 329.) The Department further determined that nine letters were submitted to challenge the election’s result, but “none . . . had merit.” ( Id. at 32 7 .) The basis for the challenges were not included in the reco rd. ( See id. ) But a fter the election the Tribal Council held a referendum vote to r econsider the amendment “ [d]ue to the low number of tribal members voting on the amendment

. ” ( Id. at 319

– 20 .) T he Trib al Business Council then asked the Secretary to hold another Secretarial election on the same issue to “ ensure that the will of the eli gible voters of the Tribes is pursued on an issue of such importance . . . .” ( Id. )

• The second election was held in 2010 and the Election Board certified that the election satisfied the regulatory quorum requirement, stating that approximately 1,100 voters cast their ballot in “an election in which at least 30 percent of the 2,583 registered voters[] cast their ballot in accordance with 25 CFR 81. ” ( Id. at 322

– 323.) The Department then approved the election, finding that it satis fied the quorum requirement in the IRA. ( Id. at 3 17. ) There is no evidence in the record that the election result was contested

. ( Id. at 316

– 386.) While the Election Board certified and the Secretary approved each of these elections, they were all cond ucted under either the IRA or the 25 C.F.R. § 8 1 regulations. ( Id. at 322

– 23, 330, 336, 340, 343, 347, 348, 350, 354, 364

– 67, 375.) There was no indication of any certification or approval under the Tribal Constitution itself. ( See id. )6 C. 2013 Secretarial Election On April 16, 2013, t he Secretary authorized a S ecretarial election, held on July 30, 2013

. ( Id. at 311

. ) The election proposed two amendments to the Tribal Constitution and bylaw s: one to change the composition of the Tribal Business Council , ( Id. at 132) , and one to change the rules governing vacancies and removal from the Council , ( Id. at 134

– 5). The election packet sent by the Department for the 2013 Election stated the follo wing regarding absentee voting: “ A registered voter may vote by absentee ballot if they are unable to vote at the polling place because of temporary absence from the reservation, illness, or physical disability

. ” ( Id. at 137

. ) The election packet did not list living off the reservation as a valid reason for voting absentee

. ( Id. ) L iving off the reservation was , however, listed as a valid reason to vote absentee on the Absentee Ballot Request Form. ( Id. at 139. ) At the time of the 2013 Election, 9,270 members of the Tribe were over age 18 ( ECF No. 32 (“Am. Compl. ”) ¶ 30 ) , and o nly 1,249 members were registered voters. ( A.R. at 145.) Approximately 510 people voted , meeting the 30% registered

- voter quorum ( Id. at 145

– 46), but fa iling the voting

- age quorum by nearly 25% , (Am. Compl. ¶ 34). Once again, the Tribal Business Council passed a resolution criticizing the election’s low turnout : “ The Tribal Business Council finds this to be a disproportionate number of the eligible voters of the Three Affiliated Tribes to adequately and fairly indicate the wishes of the enrolled membership.” (ECF 1

- 4 ( “2013 Resolution” ) at 1)

. The 2013 Resolution, which had the effect of formall y requesting that the BIA decertify the 2013 election, was ultimately rejected by BIA Regional Director Weldon Loudermilk , who proceeded to formally approve the proposed Amendments and append them to the Tribal Constitution

. ( A.R. a t 164

– 66

. )7 D. Procedural History On August 5, 2013, Hudson filed a challenge to the 2013 E lection results with Secretarial Election Board Chairman Timothy LaPointe

. ( Id. at 142)

. Loudermilk rejected the challenge as untimely and lacking substantiating evidence ( i d. at 160

– 61 ) , a nd Hudson timely appealed to the Interior Board of Indian Appeals (“IBIA”). Hudson v. Great Plains Regional Director, Bureau of Indian Affairs , 61 IBIA 253 (Sept. 15, 2015). The IBIA rejected the challenge and affirmed the Election on the ground that the challenge was “legally unsound” and lacked substantiating evidence. (A.R. at 2

– 3 .) On November 12, 2015 , Hudson brought this suit challenging the IBIA’s denial of his appeal of the decision to approve the 2013 Election

. Hudson cla ims that approval was improper because : 1) an insufficient number of voters participated, so the election lacked the necessary 30% quorum under the IRA and the Tribal Constitution ; and 2) the election packet contained incomplete information about absentee voting which discouraged members living off

- reservation from voting . ( Am. Compl. ¶ 1

. ) The Department moved for voluntary remand on June 24, 2016, on the ground that it had identified “substantial and legitimate concerns” about the quorum calculation. The court granted the motion over Hudson ’s objection. (ECF No. 28 (“ Dec. 2016 Order”)

. ) On February 24, 2017, the Department entered their notice of decision on remand. (ECF No. 30

- 1 ( “ Remand Decision ” ). ) The BIA addressed two questions on remand : 1) whether federal law requires 30% of all voting age members of the Three Affiliated Tribes as a quorum , as opposed to those registered to vote ; and 2) whether the Tribe’s Constitution provides a different standard for calculating a quorum

. ( Remand Decision at 1, 3 .) On the first question, the BIA concluded that the 2013 Election was governed by 25 C.F.R. § 81, which requires only the participation of 30%8 of registered voters

. ( Remand Decision at 1

– 3 .) On the second question, the BIA found “no substantiating evidence” to show that the Tribal Constitution’s quorum requirement in Article X had a different meaning from the regulation ’s

. ( Remand Decision at 3

– 4.) Accordingly, the BIA affirmed the decision to approve the 2013 Secretarial e lection

. ( Remand Decision at 1.) Hudson again moved for summary judgment and the De fendants cross - moved

. II. LEGAL STAND AR D On a motion for summary judgment in a suit seeking APA review, the court must set aside an y agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The court ’ s review is “highly deferential” and begins with a presumption that the agency ’ s actions are valid. Envtl. Def . Fund, Inc. v. Costle , 657 F.2d 275, 283 (D.C. Cir. 1981). The court is “not empowered to substitute its judgment for that of the agency,” Citizens to Pres

. Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971), but instead must consider only “ whether th e agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors .”
Fu lbright v. McHugh , 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund for Animals v. Babbitt , 903 F. Supp. 96, 105 (D.D.C. 1995)). An agency ruling that is contrary to law must be set aside. A court may invalidate an agency adjudication or rulemaking if it is “ inconsistent with the statutory mandate or

. . . frus trate[s] the policy that Congress sought to implement.” Illinois Commerce Com m ’n v. ICC , 749 F.2d 875, 880 (D.C. Cir. 1984) (quoting F ed. Elec. Comm’n v. Democratic Senatorial
Co m m’n , 454 U.S. 27, 39 (1981)). When an agency violates its regulations , it acts contrary to law. Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA , 752 F.3d 999, 1010

– 11 (D.C. Cir.9 2014). The plaintiff bears the burden of es tablishing the invalidity of the agency’s action. Id.
III. ANALYSIS This case presents the court with some of the most fundamental aspects of our nation’s democratic theory

— those of “sovereignty and self

- determination.” Ransom v. Babbitt , 69 F. Supp. 2d 141, 1 54 (D.D.C. 1999). C ourts must closely guard these values in the context of the United States’ interactions with tribal governments

. The fact that tribal self

- government is at the pleasure of Congress, which has broad authority to regulate tribal af fairs, is nonetheless informed by the “important backdrop” of “deeply engrained” ideas of tribal sovereignty “against which vague or ambiguous federal enactments must always be measured.” White Mountain Apache Tribe v. Bracker , 448 U.S. 136, 142

– 43 (1980) (internal citation omitted)

. The Indian Reorganization Act, the statutory authority under which Defendants regulate Secretarial elections , was enacted to “establish machinery whereby Indian tribes would be able to assume a greater degree of self

- governme nt, both politically and economically.” Morton v. Mancari , 417 U.S. 535, 542 (1974). It is against this backdrop that this court considers Hudson’s claim s against the Department

. A. As
- Applied Challenge under the Tribal Constitution ’s Quorum Requirement
T he Department concluded that the 2013 Election satisfied the Tribal Constitution’s “entitled ” voter quorum requirement based on its finding that 30% of “ registered ” voters participated

. ( Remand Decision at 1.) It contends that the Tribal Con stitution ’s quorum requirement in Article X concurs with the regulatory requirement which calculates the quorum based on “registered” voters . ( Id. ; see also Def. Br. at 19

– 22 .) Hudson argues that calculating the necessary quorum based on “registered” vot ers conflicts with the meaning of “entitled” in Article X , and therefore the 2013 Secretarial election failed to satisfy the quorum requirement10 and is invalid

. ( ECF No. 35

- 1 (“Pl. Br.”) at 25

– 33.) T he court is hesitant to interpret another sovereign’s constitution, especially on an issue of first impression

. Cf. Ransom , 69 F. Supp. 2d
at 150 (“[C]ourts take care not to intervene into internal tribal affairs.”). But as the court cannot certify this question to a tribal court, as it otherwis e may to a state supreme court, it is obligated
to undertake the task

. The parties agree that u nder 25 C.F.R. § 81.2(b) the Tribal Constitution’s procedures trump contrary BIA regulation s. ( Remand Decision at 3 ; Pl. Br . at 27

. ) The parties also agree
t hat before 1967 , “entitled to vote” meant the adult members of the Tribe, without any registration requirement. (Def. Br. at 20; Pl. Reply at 11 ) Despite their agreement on the original meaning, Defendants contend that , since ratification of the Tribal Constitution , the meaning of “entitled to vote” has changed , consistent with federal regulations, to mean that only those who have registered to vote are entitled to vote. (Remand Decision at 3

– 4 .) The Remand Decision found that the constitutiona l provision was aligned with the regulatory definition because: 1 ) Article X ’s “entitled to vote” language changed meaning when the analogous regulation did so , and 2 ) the Tribe “acquiesced” to the regulatory meaning. ( Id. ) The court finds these arguments unavailing , unsupported by the record, and counter to the purpose of the Tribe’s Constitution.
1. Regulat ion’s Effect on the Constitution In its initial decision, the IB IA found that Hudson had not provide d sufficient evidence or legal argument to support his contention that the Tribal Constitution had a “different legal meaning of the term ‘entitled to vote’ than that established by Federal regulation. ” (A.R. at 9.)
T he IBIA, however, did not analyze the constitutional language. Therefore, the court granted Defendants’ motion for remand in part so that the IBIA could do so

. ( Dec. 2016 Order at 911 (noting “ [t] he BIA has at least more business than the district court interpreting the Tribal Constitution” ) .) But once again, the BIA has failed to do

. While t he Remand Decision promise d a “review of the language of the Tribal Constitution,” (Remand Decision at 3) it included no analysis of the Tribal Constitution i tself. Instead, it focused on the meaning of the analogous regulations . ( Id. ) Essentially, the Remand Decision f ound that Article X’s “entitled to vote” meant one thing (any adult member) when the Tribal Constitution was enacted in 1936, but it “evolved” and meant something else (members registered to vote) when the BIA promulgated regulations in
196 7 . (Remand Decision at 2

– 3.) While the Department appears to have backed away from this

un tenable argument in its briefing, (Def. Br. at 19

– 20), it was a basis of the underlying Remand
D ecision . ( See Remand Decision at 3.) The BIA emphasize d that there is “ no substantiating evidence requiring us to find that the term “entitled to vote” in Art icle X (a term undefined in the Constitution) is a static term, with its application frozen in time based upon 1936 practices ” and therefore the changed regulatory definition should also change the Tribal Constitution’s definition of the same language. (R emand Decision at 3.) The Remand Decision further found it “notabl[e]” that “ the Tribe has never sought Amendment of its Constitution to remove the registration requirement .” ( Id. ) But the BIA does not cite any authority for the proposition that its ch anging interpretation of its governing statute or regulations necessarily affects the meaning of a separate sovereign’s identical constitutional language. Nor does it provide even a common

- sense explanation as to why that might be true. Indeed, the reach of this argument is staggering ; under the agency’s reasoning, whenever the federal government amends regulations that address the same concerns

as a t ribe’s c onstitution , it also amends the t ribe’s c onstitution. Moreover, the BIA ’s finding that12 Article X was never amended to “remove the registration requirement ” ( Id. at 3 ) gets the amendment process backward: a federal regulation cannot amend a tribal constitution. To accept the Remand Decision’s proposition that the federal government’s regula t ory change amended the Tribe’s Constitution would upend the self

- rule principles at the heart of the Tribe’s Constitution and the IRA. Cf. Harjo v. Kleppe , 420 F. Supp. 1110, 11 4 6 (D.D.C. 1976), aff’d sub nom. , Harjo v. Andrus , 581 F.2d 949 (D.C. Cir. 19 78) (addressing a challenge to the federal government’s recognition of governmental entities within the Creek Nation) (“[C ] onsent for fundamental political decisions may only be obtained from the ultimate source of legislative authority, the people themsel ves
. ” ). The refore, the court rejects Defendants’ contention that the regulatory definition of one sovereign changes the meaning of a separate sovereign’s governing document.
2. Tribal “Acquiescence” The Department also contends that the Tribe “acquiesced” to the BIA’s regulatory definition of “entitled” to vote by h olding, certifying, and failing to protest elections under which the “registered” voter quorum requirement was implemented

. (Remand Decision at 3

– 4 .) BIA determined that because the Tribe’s Election Board certified seven elections “based upon the federal standard of 30% of registered voters” the Tribe has interpreted its constitutional quorum requirement to require registration. ( Remand Decision at 4; Def. Br. at 21

– 22.) On this basis, the BIA claims that it is deferring to the Tribe’s interpretation of its Constitution when the BIA uses the “registered” voter definition for “entitled to vote.” (Remand Decision at 4; Def. Br. at
21

– 22.) While this argument is stronger than the last, the court finds that the BIA disregarded the Tribe’s limited statement s about voter turnout , and the evidence that the Tribe used the13 “registration” definition in some elections fails to overcome the conflict with the agreed

- upon meaning of the Tribe’s Constitution. When reviewing the factual basis for an agency’s determin ation, the court is “not empowered to substitute its judgment for that of the agency,” Citizens to Pres

. Overton Park,
Inc. , 401 U.S. at 416, but instead must consider “whether the facts on which the agency purports to have relied have some basis in the record

. . . .” Fulbright , 67 F. Supp. 3d at 89 (quoting Fund for Animals , 903 F. Supp. at 105). Even applying this deferential standard , t he court cannot find any basis in the record for the Department’s conclusion that it must defer to the Tribe ’s authoritative interpretation of Article X. The Department found that “the Tribe’s consistent acceptance of the federal regulations’ definition of ‘entitled to vote’ since 1967 is clear evidence that the Tribe interprets its law as consistent with the federal definition.” (Remand Decision at 4.) Whi le the Department is correct that the Tribe has certified election results based on a quorum of r egistered voters, the Tribe

never referenced the constitutional provision in its certification; the quorum provision referenced was always the IRA or the regulation. ( A.R. at 322

– 23, 330, 336, 340, 343, 347, 348, 350, 354,
364

– 67, 375. ) In addition, ther e is a history of members of the Tribe protesting the results , although t he record is not consistently clear regarding when elections were contested or on what grounds, as the record usually reflects only that a protest was made, or at best, includes the
D epartment’s brief response dismissing the complaint

. ( Id. at 329, 374.) Therefore, the record does not show that the Tribe’s certifications represent the ir clear interpretation of Article X to include a registration requirement. In addition , the record indicates the Tribe’s concern with low turnout in Secretarial elections, which on at least one o ccasion resulted in a second election on the same issue. In14 2008, the Tribe held a Secretarial election on two amendments regarding enrollment criteria in the Tribe. (A.R. at 329.) While the approval papers state that the election satisfied the regulatory 30% quorum requirement ( Id. ) , the Tribal Council called f or a referendum election on the amendment “[d]ue to the low number of tribal members voting on the amendment” in the Secretarial election , ( Id. at 31 9 ) . After the referendum, t he Tribe requested another Secretarial election on the same issue to “ensure th at the will of the eligible voters of the Tribes is pursued on an issue of such importance . . .” ( Id. ) Although that election was held and certified that the quorum was met based on registered voters , ( Id. at 317) , the Decision ignored this evidence of the Tribe’s concerns with low turnout in S ecretarial elections.
M ost significantly, the Tribal Business Council, through its 2013 Resolution, asked the
BIA “ to decertify the July 30, 2013 Election Results due to a disproportionate number of eighteen years and older enrolled members of the Three Affiliated Tribes participating . . . .” (2013 Resolution at 1.) The Resolution may or may not have requested decer tification for the

same reason as Hudson argues, but the Tribe clearly signaled its unease with low turnout based on the total number of tribal members, not the number of registered members. The Department rejected the Tribe’s request to decertify the res ults because the Secretarial election at issue “affected the representation power and authority of then

- members of the Council.” ( Remand Decision at n.2 .) Therefore, the Decision found that the views were not “dispositive” on the Tribe’s interpretation o f the quorum requirement. ( Id. ) It also noted that the Council did not “provide any definitive documentation of the Tribe’s interpretation of the Constitutional provisions at issue.” ( Id. ) The Department improperly discounted the Tribe’s views. And w hile the court agrees that the views of those with a vested interest in the outcome might not be entitled to great15 deference, those views should not be discarded entirely when the Council previously expressed concern with low voter turnout for a vote on am ending the Constitution. The Tribe’s concerns , articulated in 2010 and in requesting decertification in 2013, are consistent with the purpose of the quorum requirement and IRA to ensure tribal members are “fully and fairly involve [ d ] . . . in the proceedings leading to constitutional reform.” California Valley Miwok Tribe v. United
States , 515 F.3d 1262, 1268 (D.C. Cir. 2008) (quoting Morris v. Watt , 640 F.2d 404, 414 (D.C. Cir. 1981)).
T he court finds that the Tribe’s stance on Arti cle X appears to either be in favor of Hudson’s reading or ambiguous, but either way far from an authoritative statement deserving of deference

. Th e court would welcome an authoritative tribal interpretation of Article X in the interest of avoiding “disru ption

. . . of tribal sovereignty and self

- determination,” Ransom , 69 F. Supp. 2d at 151, but the Tribe has not provided one. Therefore , the court finds that the BIA’s conclusion that the Tribe has provided an interpretation deserving of deference and has “acquiesced” to the registration requirement to be un supported by the record. Accordingly, the court finds that the agency’s decision that Article X’s meaning has “evolved over time” is unsupported by the record. Article X’s quorum provision has been

un changed since its enactment and continues to require a 30% quorum of entitled voters

— i.e., adult members of the tribe. Because the regulation requires a quorum of only registered voters, it contradicts the Tribe’s constitutional provision and therefore the Tribal Constitution’s quorum requirement applies. See 25 C.F.R. § 81.2(b ) . The court further finds that Defendants’ certification of the 2013 Election based on a quorum of registered vot ers is contrary to law and a violation of the APA. See Nat’l Envtl. Dev. Ass’n’s Clean Air Project , 752 F.3d at 1010

– 11 (holding that agency action violated the APA by being contrary to law because it was “plainly16 contrary to the agency’s own . . . rules” ). Therefore, Defendants’ approval of the 2013 Election must be vacated.
B. Other Challenge s Having determined that Article X of the Tribal Constitution conflicts with the BIA’s regulations, the court need not address whether Defendants’ regulations in 25 C.F.R. § 81 are a reasonable interpretation of the IRA. T he court declines to reach Hudson’s facial challenge to the regulations in 25 C.F.R. § 81 or the question of whether the allegedly misleading ballot materials are also a basis for invalidating the election.
IV. CONCLUSION For the stated reasons, this court w ill GRANT Hudson’s motion for summary judgment and DENY Defendants’ motion for summary judgment. A corresponding Order will issue separately.

Date: April 10, 2020 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge