BIA encourages tribes to assert more control over internal affairs

Monday, October 19, 2015  

The Obama administration is encouraging tribes to take more control of their internal affairs by eliminating the role of the Bureau of Indian Affairs in overseeing certain elections.

Some tribal constitutions require the BIA to handle all aspects of a Secretarial election, from determining who can vote to printing up ballots to tallying the results. The practice dates to the Indian Reorganization Act of 1934 and the agency says it's time for change.

"For many tribes, the requirement for Secretarial elections or Secretarial approval is anachronistic and inconsistent with modern policies favoring tribal self-governance," a notice published in today's issue of the Federal Register states.

To get away from this "paternalistic approach," the BIA wants tribes to remove provisions in their constitutions that require federal oversight of Secretarial elections. Tribes would no longer have to wait on the agency to review and conduct those types of elections, a process that can delay governance reforms.

Some tribes have already taken that step. In May, the Oneida Nation of Wisconsin held a Secretarial election in which voters removed the BIA from the process, marking the first time since 1969 that the tribe changed its constitution.

Tribal leaders worked on the issue for more than a decade and called the reforms a step toward more self-governance. Among other provisions considered to be outdated and unnecessary, the original constitution called on the BIA to review contracts that the tribe signed with law firms.

"If we vote to take it out, does that mean they don’t oversee us anymore?" Secretary Lisa Summers said in Kalihwisaks, the tribe's newspaper, before the May 2 election. "Well, they haven’t overseen us for a very, very long time, decades."

Eliminating the BIA's oversight role hasn't come without controversy, though. According to an August 21 update from Summers, a tribal member is challenging the results of the Secretarial election before the Interior Board of Indian Appeals so the constitutional reforms are on hold.

For critics on the reservation, the appeal highlights one of the reasons why the tribe shouldn't remove the BIA from the process. The Oneida Eye, an independent site run by Leah Sue Dodge, has questioned the validity of the Secretarial election and other actions of the tribal leadership.

But if the constitutional reforms are finalized, Oneida citizens will no longer be able to ask the BIA to intervene if they feel their concerns aren't being addressed on the reservation level, thus eliminating a key check on their government.

The BIA itself has been trying to reform the Secretarial election process since the Clinton administration, an indication of the sensitive nature of the issue. The last time the regulations were updated was during the Reagan administration.

The Obama administration took a big step forward by holding tribal consultations and listening sessions in 2009 and 2010 before proposing a new rule in October 2014. Most of the response from Indian Country has been positive.

"It is the policy of the federal government to support tribal self-governance as a substitute for federal governance to the maximum extent permitted under federal law," Assistant Secretary Kevin Washburn said in the notice that was published today.

For those tribes that wish to retain BIA oversight of Secretarial elections, the final rule outlines numerous changes to the process. It also contains special provisions that apply to Oklahoma tribes under the Oklahoma Indian Welfare Act of 1936.

According to the notice, the final rule becomes effective November 18.

Federal Register Notice:
Secretarial Election Procedures (October 19, 2015)
Secretarial Election Procedures (December 17, 2014)
Secretarial Election Procedures (October 20, 2014)
Secretarial Election Procedures (October 9, 2014)

BIA announces consultations for secretarial election regulation (10/21)