On August 9, 2014, the Bureau of Indian Affairs (BIA) conducted a community meeting to answer questions about the election process to amend the Isleta Tribal Constitution. At the meeting, Tim Salvador, a former Council member asked: why are 18 year olds allowed to vote?
Raymond Fry, the designated chairperson of the BIA’s election board, responded that federal law allows them to vote. But, there was no detailed explanation.
Article XIII of the Isleta Tribal Constitution states:
“This constitution may be amended by a majority vote of the members of the pueblo twenty-one (21) years of age or over, voting for that purpose in an election authorized by the Secretary of the Interior or his authorized representative. . . .”
As you can see, the Isleta Tribal Constitution is clear. So, the question that Mr. Salvador asked was a very serious and legitimate question. And, I wanted to understand how and why the federal law worked to nullify the language of our Constitution.
I reviewed the Code Federal Regulations (CFR) to understand what the BIA is obligated to do in conducting our upcoming election. Under 25 CFR §81.1(s), I found the following definition:
“Secretarial election means an election held within a tribe pursuant to regulations prescribed by the Secretary as authorized by Federal Statute (as distinguished from tribal elections which are conducted under tribal authority. (See Cheyenne River Sioux Tribe v. Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820 (1978)).”
As you can see, the regulations cite a specific case that was decided in 1977. In that case, the Court explained, that the US Congress enacted a law called the Indian Reorganization Act, which is a federal law. This law allowed Indian tribes to adopt tribal constitutions.
If a tribe chose to adopt a constitution, then that tribe became obligated to govern itself in accordance with that constitution. Further, the tribe becomes obligated to comply with specific federal laws, if the tribe wants to amend their constitution.
So, in the eyes of the court, an election to amend a tribal constitution is a federal election. It is not a tribal election even though the members of a tribe are voting to amend their own constitution.
The court explained that federal elections must comply with federal laws. And, the 26th amendment to the US Constitution gives persons that are 18 years of age or older the right to vote in federal and state elections. The 26th Amendment states:
“The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.”
So, this is why and how federal law overrides the language of Article XIII of the Isleta Tribal Constitution.
By Christopher Abeita