Mandan, Hidatsa and Arikara Nation member Charles K. Hudson sued the DOI and department officials in 2015, saying the DOI shouldn't have approved the 2013 election because the number of members that voted didn't meet the required quorum of 30 percent of voting-age members under the tribe's constitution and the Indian Reorganization Act.
While the DOI claimed the constitution's definition of a quorum had changed along with the department's regulations and that the tribe had "acquiesced" to those regulations by certifying previous elections, U.S. District Judge Tanya S. Chutkan said in her opinion Friday that the DOI's rationale was "unavailing, unsupported by the record, and counter to the purpose of the tribe's constitution."
The DOI's Bureau of Indian Affairs amended its regulations for tribal elections in 1967 to require a quorum of registered voters rather than a quorum of all tribal members of voting age, but "the BIA does not cite any authority for the proposition that its changing interpretation of its governing statute or regulations necessarily affects the meaning of a separate sovereign's identical constitutional language," the judge said.
"Nor does [the agency] provide even a common-sense explanation as to why that might be true," Judge Chutkan added. "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 tribe's constitution, it also amends the tribe's constitution."
And the tribe's participation in seven earlier elections under the revised regulations didn't mean it had "acquiesced" to the BIA's definitions, as the tribe didn't provide any "authoritative statement" on that point that the agency could rely on, according to the opinion.
Hudson told Law360 on Tuesday that he brought his suit after frustrating experiences with the BIA and the DOI's Interior Board of Indian Appeals, saying he faced a "bewildering array of seemingly indifferent bureaucrats and processes, none of whom really seemed willing to take on these questions head-on, nor really respect the concerns of a simple tribal voter in a profoundly important tribal election."
Hudson, who lives in Portland, Oregon, and works for tribal governments there, said he'd received support in his suit, particularly through social media, from the 70 percent or so of tribal members that live away from the tribe's North Dakota reservation, as well as from members living on the reservation.
He said he was "agnostic" on the two proposed constitutional amendments considered in the 2013 election, which would have enlarged the tribal council from seven to 13 members and altered the process to remove elected officials, focusing instead on the "paramount question" of whether the BIA's certification of the election "squared with the intent of our constitution."
In his complaint, Hudson challenged the DOI's approval of the July 2013 secretarial election based on the quorum issue as well as his claims that the DOI discouraged off-reservation members from voting by sending out misleading information.
Judge Chutkan didn't rule on the latter claim after deciding to vacate the DOI's decision to approve the election for applying the wrong standard for establishing a quorum.
Under the Indian Reorganization Act, 30 percent of "those entitled to vote" must do so for a constitutional amendment to be made, the judge said. In the years following the IRA's 1934 enactment, all members of voting age were considered "entitled to vote," but the BIA's 1967 regulation change redefined that term to mean registered voters, according to the opinion.
The number of registered voters for the 2013 election of the MHA Nation, also known as the Three Affiliated Tribes, was 1,249, while there were 9,270 members who were over 18 and therefore eligible to vote at the time. A little over 500 members voted — satisfying the BIA's definition of a quorum by surpassing 30 percent of registered voters, but falling far short of the quorum of all eligible voters that Hudson said still applied under the terms of the tribe's constitution.
The tribe passed a resolution in 2013 asking the BIA to decertify the election, but the agency rejected that bid. Hudson then filed his own challenge, leading to an appeal to the BIA, which also affirmed the election.
Following Hudson's November 2015 complaint, the BIA asked to be allowed to reconsider its ruling on remand, but in February 2017 again gave approval to the decision to approve the 2013 election.
Judge Chutkan said in her opinion Friday that the case "presents the court with some of the most fundamental aspects of our nation's democratic theory — those of 'sovereignty and self-determination,'" adding that "courts must closely guard these values in the context of the United States' interactions with tribal governments."
The judge said that while the BIA changed its definition of who was entitled to vote in tribal elections, "the court rejects defendants' contention that the regulatory definition of one sovereign changes the meaning of a separate sovereign's governing document."
The judge also shot down the BIA's contention that it was actually deferring to the tribe because the tribe had "acquiesced" to earlier elections using the registered-voter quorum.
"While this argument is stronger than the last, the court finds that the BIA disregarded the tribe's limited statements about voter turnout, and the evidence that the tribe used the 'registration' definition in some elections fails to overcome the conflict with the agreed-upon meaning of the tribe's constitution," according to the opinion.
Hudson said Tuesday that the tribe's constitution "exists not to benefit the BIA or the tribal council, it's there to benefit and protect the tribal people."
"My desire and goal is to keep that protection front and center," Hudson said. "It's the tribal people's document, and to devalue it or diminish it through federal regulation or lack of attention from tribal councils is simply improper."
While his claims regarding misleading information for absentee voters weren't tackled by the judge, Hudson said he hopes the tribe changes its policy of requiring members to physically return to the Fort Berthold Reservation to vote, calling it an "arbitrary but profound barrier" to voter participation.
Representatives for the MHA Nation and the DOI were not immediately available to comment Tuesday.
Hudson is represented by Patrick M. Sullivan of Dickinson Wright PLLC.
The DOI is represented by Jean E. Williams and Barbara M.R. Marvin of the U.S. Department of Justice's Environment and Natural Resources Division and Courtney Allensworth Esposito of the DOI's Office of the Field Solicitor.
The case is Charles K. Hudson v. Zinke et al., case number 1:15-cv-01988, in the U.S. District Court for the District of Columbia.
--Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
