Frazier, Mildred v. Acting Portland Area Director, 21 IBIA 11 (1991)

• Court: Interior Board of Indian Appeals

Appeal from dismissal of a challenge to a Secretarial election for the Puyallup Tribe.

Affirmed.

1. Indians: Tribal Government: Constitutions, Bylaws, and

   Ordinances--Indians: Tribal Government: Elections

   A challenge to an election conducted under 25 CFR Part 81 must be filed within 3 days following posting of the election results. 25 CFR 81.22.

2. Indians: Tribal Government: Constitutions, Bylaws, and

   Ordinances--Indians: Tribal Government: Elections

   25 CFR 81.23(a) provides for posting of election results in the local Bureau of Indian Affairs office.

3. Board of Indian Appeals: Jurisdiction--Regulations: Generally

   The Board of Indian Appeals does not have authority to declare a duly promulgated Departmental regulation invalid.

   Appellant Mildred Frazier seeks review of a June 4, 1991, decision of the Acting Portland Area Director, Bureau of Indian Affairs (Area Director; BIA), dismissing appellant's challenge to an April 27, 1991, Secretarial

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   election for the Puyallup Tribe. 1/ For the reasons discussed below, the Board affirms the Area Director's decision.

   Background

   On April 27, 1991, pursuant to 25 CFR Part 81, BIA conducted a Secretarial election at which members of the Puyallup Tribe voted on six proposed amendments to the Puyallup Constitution. The election took place at the tribal community hall in Tacoma, Washington, on the Puyallup Reservation. All six amendments were adopted.

   On May 1, 1991, appellant mailed an election challenge to the Puget Sound Agency, BIA, at Everett, Washington. The challenge was received at the agency on May 2, 1991, and forwarded on the same day to the Area Director, who, on June 4, 1991, dismissed it as untimely. The Area Director's decision also discussed the merits of appellant's challenge and rejected it on the merits as well.

   Appellant's notice of appeal from this decision was received by the Board on July 5, 1991. 2/ Upon review of the notice of appeal and the Area Director's decision, the Board concluded that the timeliness issue, if decided correctly by the Area Director, would be dispositive of this appeal. The Board therefore ordered expedited briefing on that issue. Briefs were filed by appellant and the Area Director.

   Discussion and Conclusions

   [1] The Area Director dismissed appellant's challenge as untimely under 25 CFR 81.22, which provides:

   Any qualified voter, within three days following the posting of the results of an election, may challenge the election results by filing with the Secretary through the officer in charge the grounds for the challenge, together with substantiating evidence. If in the opinion of the Secretary, the objections are valid and _______________________ 1/ "Secretarial election" is defined at 25 CFR 81.1(s) as "an election held within a tribe pursuant to regulations prescribed by the Secretary [of the Interior] as authorized by Federal Statute (as distinguished from tribal elections which are conducted under tribal authority. * * *)." (Emphasis in original.)

   2/ By order of July 12, 1991, pursuant to its authority under 43 CFR 4.21(a) and 4.314(a), the Board placed the Area Director's decision into immediate effect with respect to two of the constitutional amendments. These were Amendment C to Article III, enlarging the tribal council from five to seven members, and Amendment F to Article VII, reducing the tribal voting age from 21 to 18. These two amendments were to be implemented in a tribal election scheduled for July 13, 1991. The Board found that, under the circumstances, the public interest required that the tribal election be allowed to proceed.

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   warrant a recount or new election, the Secretary shall order a recount or new election. [Emphasis in original.]

   An affidavit from Donna M. Green, Tribal Operations Officer for the Puget Sound Agency, was included with the Area Director's brief in this appeal. Ms. Green served as Election Board Chairman for the April 27 election. Her affidavit states at paragraph 4:

   25 CFR § 81.23 (a) provides that the election results shall be posted at the local BIA office, the tribal headquarters and other appropriate places. [3/] It is routine practice for the BIA to tally the votes and post the results on the reservation as soon as possible after the close of an election. Therefore, on the evening of April 27, 1991, at my direction, copies of the Certificates of Results of Election for all six amendments were posted at the three reservation locations specified in the voter's pamphlet [4/] for posting of the voter's list and at other customary places on the reservation where tribal members traditionally view all tribal election results. The results were affixed to the outside of buildings at the various locations in a manner customary for Puyallup elections. There is no local BIA office on the Puyallup Reservation. Election results were not formally "posted" at the Puget Sound Agency at Everett. This is consistent with Bureau practice for all Secretarial elections conducted by the Agency.

   Appellant does not dispute that her challenge was postmarked May 1, 1991, and received at the agency on May 2, 1991. Nor does she dispute Ms. Green's statement that the election results were posted on the reservation on April 27. It is undisputed, therefore, that appellant's challenge was filed more than 3 days after the election results were posted on the reservation. 5/...