United States Code

USC most recently checked for updates: Nov 15, 2019

§ 5123.
Organization of Indian tribes; constitution and bylaws and amendment thereof; special election
(a)
Adoption; effective date
Any Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when—
(1)
ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe; and
(2)
approved by the Secretary pursuant to subsection (d) of this section.
(b)
Revocation

Any constitution or bylaws ratified and approved by the Secretary shall be revocable by an election open to the same voters and conducted in the same manner as provided in subsection (a) of this section for the adoption of a constitution or bylaws.

(c)
Election procedure; technical assistance; review of proposals; notification of contrary-to-applicable law findings
(1)
The Secretary shall call and hold an election as required by subsection (a) of this section—
(A)
within one hundred and eighty days after the receipt of a tribal request for an election to ratify a proposed constitution and bylaws, or to revoke such constitution and bylaws; or
(B)
within ninety days after receipt of a tribal request for election to ratify an amendment to the constitution and bylaws.
(2)
During the time periods established by paragraph (1), the Secretary shall—
(A)
provide such technical advice and assistance as may be requested by the tribe or as the Secretary determines may be needed; and
(B)
review the final draft of the constitution and bylaws, or amendments thereto to determine if any provision therein is contrary to applicable laws.
(3)
After the review provided in paragraph (2) and at least thirty days prior to the calling of the election, the Secretary shall notify the tribe, in writing, whether and in what manner the Secretary has found the proposed constitution and bylaws or amendments thereto to be contrary to applicable laws.
(d)
Approval or disapproval by Secretary; enforcement
(1)
If an election called under subsection (a) of this section results in the adoption by the tribe of the proposed constitution and bylaws or amendments thereto, the Secretary shall approve the constitution and bylaws or amendments thereto within forty-five days after the election unless the Secretary finds that the proposed constitution and bylaws or any amendments are contrary to applicable laws.
(2)
If the Secretary does not approve or disapprove the constitution and bylaws or amendments within the forty-five days, the Secretary’s approval shall be considered as given. Actions to enforce the provisions of this section may be brought in the appropriate Federal district court.
(e)
Vested rights and powers; advisement of presubmitted budget estimates

In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments. The Secretary shall advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Office of Management and Budget and the Congress.

(f)
Privileges and immunities of Indian tribes; prohibition on new regulations

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) 1

1
 See References in Text note below.
as amended, or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.

(g)
Privileges and immunities of Indian tribes; existing regulations

Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and 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 shall have no force or effect.

(h)
Tribal sovereignty
Notwithstanding any other provision of this Act—
(1)
each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section; and
(2)
nothing in this Act invalidates any constitution or other governing document adopted by an Indian tribe after June 18, 1934, in accordance with the authority described in paragraph (1).
(June 18, 1934, ch. 576, § 16, 48 Stat. 987; Pub. L. 100–581, title I, § 101, Nov. 1, 1988, 102 Stat. 2938; Pub. L. 103–263, § 5(b), May 31, 1994, 108 Stat. 709; Pub. L. 106–179, § 3, Mar. 14, 2000, 114 Stat. 47; Pub. L. 108–204, title I, § 103, Mar. 2, 2004, 118 Stat. 543.)
cite as: 25 USC 5123