                     United States Court of Appeals

                         FOR THE EIGHTH CIRCUIT



                                No. 95-3736


Shakopee Mdewakanton Sioux             *
(Dakota) Community, a Federally        *
Recognized Indian Tribe,               *
                                       *
      Appellant,                       *
                                       *   Appeal from the United States
        v.                             *   District Court for the
                                       *   District of Minnesota.
Bruce Babbitt, as Secretary of         *
the Interior, and Ada E. Deer,         *
as Assistant Secretary for             *
Indian Affairs, United States          *
Department of the Interior,            *
                                       *
      Appellees.                       *

-------------------------

Louise B. Smith; Winifred S.           *
Feezor; Cecilia M. Stout;              *
Todd D. Brooks; Mary Jo                *
Gustafson; Tina A. Hove;               *
Alan M. Prescott; Cynthia L.           *
Prescott; Denise Prescott;             *
Leonard Prescott; Robert               *
Prescott, Jr.; Tanya Prescott;         *
Kimberly Amundsen; John                *
Bluestone; Brian Hester;               *
David Hester; Kaye Hester;             *
Teresa Johnson; Beverly Kosin;         *
Forest Leith; Kirk Leith;              *
Shahn Leith; Gary Prescott;            *
Jacqueline Prescott; Jerome            *
Prescott; Stacy Prescott;              *
Kathleen Rykus; Teri Schmitt;          *
Richard Scott; Robert Scott;           *
Karen Swann; and Dorothy Whipple,      *

      Amici Curiae.



                   Submitted:    October 24, 1996

                       Filed:    February 27, 1997
Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

       The   Shakopee       Mdewakanton        Sioux      (Dakota)        Community
("Community") appeals the district court's1 refusal to declare
effective    certain      proposed        amendments     to    the    Community's
constitution.     We affirm.


                                          I.
      To amend its constitution, an Indian tribe must follow the
procedures set out in the Indian Reorganization Act, 25 U.S.C.
§§    461-479a-1 ("IRA"), and its associated regulations, 25 C.F.R.
§§ 81.1-81.24.          The tribal government must first request the
Secretary    of   the    Interior    to    call   and    conduct     an   election.
25 U.S.C. § 476(c)(1).       At least twenty days before the election,
an election board consisting of one Bureau of Indian Affairs
officer and two members of the tribal government is required to
post a list of registered voters, and the election board must
resolve any challenges to the list's composition at least ten days
before the election.       25 C.F.R. §§ 81.12, 81.13.


      Although the regulations state that the election board's
eligibility determinations "shall be final," 25 C.F.R. § 81.13,
they also provide that "[a]ny qualified voter ... may challenge the
election results by filing with the Secretary ... the grounds for
the challenge," along with substantiating evidence, within three
days of the posting of the election results.                  25 C.F.R. § 81.22.
The    regulation   does     not    enumerate      permissible       grounds   for
challenges, and the Secretary may order a new election if he or she
decides that the objections are valid.             Id.    The regulations


     The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.


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                                       2
contain   no    provisions        for   challenging     the     election    board's
resolution of eligibility disputes before the election.


     The amendments voted upon will become effective only if two
events occur:       they must be "ratified by a majority vote of the
adult members of the tribe," 25 U.S.C. § 476(a)(1), and the
Secretary must approve them, 25 U.S.C. § 476(a)(2).                 The Secretary
may review amendments that have been ratified by a majority vote
only to ensure that they comply with applicable federal law.                      25
U.S.C. § 476(d)(1).         If they do not, the Secretary may disapprove
them within forty-five days of the election.             Id.     If the Secretary
neither   disapproves       nor    approves     them   within    that    time,    the
amendments are deemed approved and become effective.                    25 U.S.C.
§ 476(d)(2).


     On April 19, 1995, the Secretary conducted an election so that
the Community could vote on amendments to that portion of its
constitution that sets out the qualifications for membership in the
tribe.    Twenty-one days before the election, the election board
posted a registered voter list containing one hundred eleven names.
In response to objections, the board determined that forty-four
people were not eligible to vote, removed them from the list, and
posted a revised list twelve days before the election.                           The
amendments passed by a vote of thirty-five to twenty-seven, and the
election board certified the results the same day as the election.
Pursuant to 25 C.F.R. § 81.22, several Community members filed
challenges     to   forty   eligibility        determinations,     alleging      that
eighteen qualified members were prevented from voting and that
twenty-two unqualified individuals were allowed to vote.


     Forty-three days after the election, the Secretary issued a
decision letter in response to these challenges, stating that he
could not approve the election's results because the possible
errors in the voter-eligibility determinations raised substantial
doubt regarding the election's fundamental integrity and fairness.


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                                          3
The Secretary deferred to the election board's decision with
respect     to    seventeen         of    the        challenges,        but    ordered     an
administrative law judge to resolve those that remained.                              These
challenges concerned complicated blood quantum determinations, and
the Secretary had in his possession documents with conflicting
information that were not reviewed by the election board.                                 The
Secretary stated that there would be a new election after the
administrative law judge's resolution of those challenges.


       The Community sued the Secretary for alleged violations of
both    the      IRA          and     the       Administrative           Procedure        Act,
5 U.S.C. §§ 551-559, seeking an order declaring the Secretary's
actions unlawful, declaring the amendments effective, enjoining the
administrative         law   judge's      resolution       of    the     challenges,      and
enjoining the second election.                 The district court granted summary
judgment to the defendants.


                                              II.
          On appeal, the Community contends that the district court
erred in not declaring the amended constitution approved as a
matter of law under 25 U.S.C. § 476(d)(2) because the Secretary
neither approved it nor disapproved it within forty-five days.                             The
Community also contends that the district court erred in holding
that the Secretary had discretion to review eligibility disputes.


                                               A.
       Although    the       IRA    states      with    clarity    when       and   why   the
Secretary may reject election results that have been adopted by the
tribe (that is, ratified by a majority of the tribe's adult members
who voted), it is silent about what the Secretary can do when it is
unclear whether the results have, in fact, been ratified by a
majority of the voting members.                      We must therefore defer to a
reasonable       interpretation          of    the     statute     by    the    Secretary.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843-44 (1984).


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                                                4
     The Secretary interprets the statute to allow the rejection of
election    results      when,    as     here,      the    Secretary       is   unable   to
determine whether an election has resulted in ratification by a
majority of the voting members of the tribe as required by 25
U.S.C. §     476(a)(1).          We    believe      that    this    interpretation       is
reasonable.           Applying    the     statute's        strict    substantive         and
procedural      limitations       on    the    Secretary's         ability      to   reject
election results for which majority support exists to circumstances
in which that support is in doubt might well force the Secretary to
declare amendments effective for which majority support does not
exist.     Such a result would be inconsistent with the IRA's broad
purpose,    which      charges    the     Secretary        with     supervising      these
elections       and    ensuring        their       fundamental      integrity.           The
Secretary's interpretation of the limitations contained in 25
U.S.C. § 476 does not give him or her carte blanche to interfere
with tribal elections; the Secretary may still disapprove elections
for substantive reasons only if the proposals are contrary to
federal law.


     The Community's suggestion that we should be guided by that
canon of statutory construction that resolves statutory ambiguities
in the Indians' favor, see Bryan v. Itasca County, 426 U.S. 373,
392 (1976), does not help their case.                           The Community neither
explains how the canon applies when Indians are on all sides of an
issue, as here, nor demonstrates how ensuring that tribal election
results accurately reflect the eligible voters' will is not in the
Indians' favor.


     The Secretary's decision letter notified the Community that
substantial doubt existed regarding the election's fundamental
integrity    and      fairness,       thus     making      it    unclear    whether      the
amendments had, in fact, been ratified by a majority of the voting
members    of    the     tribe.         Because      the    Secretary's         reasonable
interpretation of the statute renders its strict limitations on



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                                              5
when and why the Secretary may reject election results inapplicable
in that circumstance, the district court did not err in refusing to
declare the amendments approved as a matter of law.


                                         B.
       The Community interprets the word "final" in 25 C.F.R. § 81.13
to mean "final for the Department," thus precluding any Secretarial
review of the election board's eligibility determinations, and the
Community contends that we must reject any other interpretation as
plainly erroneous.       The Community argues alternatively that any
ambiguities in the regulation must be resolved in its favor.



       We note at the outset that elsewhere in the same regulations,
when   the   Secretary   intends     a    decision      to    be       final    for    the
Department of the Interior, the phrase "final for the Department"
often appears.        See, e.g., 25 C.F.R. § 83.11(a)(2).                       Whether
"final" also means "final for the Department" or simply "final" for
purposes of conducting an election is ambiguous.                       Because either
interpretation will therefore not contradict the regulations' plain
language, we must give the Secretary's interpretation of the
Department's    own    regulations       controlling         weight      unless       that
interpretation is plainly erroneous.                 Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 114 S.Ct. 2381, 2386 (1994); Shalala v. St.
Paul-Ramsey Medical Center, 50 F.3d 522, 528 (8th Cir. 1995).


       The Secretary interprets 25 C.F.R. § 81.13 to mean that the
election board's decision is final as to who casts a ballot but not
as to whether the balloting amounts to a valid election by the
Community's    qualified   voters,       thus   allowing       the      Secretary      to
invalidate    election   results     under      25    C.F.R.       §    81.22    due   to
irregularities in voter-eligibility determinations.                     The Secretary
offers three rationales in support of this interpretation.




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                                      6
     First, the Secretary argues that since Secretarial elections
are federal elections implicating federal rights, see Cheyenne
River Sioux Tribe v. Andrus, 566 F.2d 1085, 1088-89 (8th Cir.
1977), cert. denied, 439 U.S. 820 (1978), federal protection of
those rights is appropriate.        The regulations allow the election
board to deny eligibility to a prospective voter even when that
individual has had no notice of, and opportunity to respond to, the
objection to his or her eligibility.              Because the regulations
contain   no   provisions    for    challenging      the   election   board's
resolution of eligibility disputes before the election, precluding
the Secretary from ever reviewing eligibility determinations, the
argument runs, would raise serious due process concerns.


     The Secretary also maintains that allowing him to review
eligibility determinations after the election helps ensure that
governing documents accurately reflect the Community's will, in
accordance with the IRA's purpose.           Lastly, the Secretary notes
that 25 C.F.R. § 81.22 does not limit the grounds on which he can
conclude that a new election is necessary; it states that elections
can be challenged on any ground for which substantiating evidence
exists.   The Secretary thus argues that interpreting § 81.22 to
allow challenges to all procedural irregularities except voter
eligibility would undermine the IRA's purpose.


     We hold that the Secretary's interpretation of the interaction
between § 81.13 and § 81.22 is not plainly erroneous.             Although we
believe that the election board's composition was a carefully
constructed regulatory compromise between federal authority and
tribal    sovereignty,      and    that    perhaps    a    more   reasonable
interpretation of § 81.13 would be that it precludes Secretarial
review of the board's eligibility determinations, we may not
substitute our interpretation for that of the Secretary.                  See
Miller v. United States, 65 F.3d 687, 689 (8th Cir. 1995).               The
district court therefore did not err in holding that the Secretary
had discretion to review eligibility disputes.


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                                      7
                                          III.
       Because the Secretary's interpretation of the IRA and its
implementing regulations is reasonable, we affirm the district
court's grant of summary judgment to the defendants.



HEANEY, Circuit Judge, dissenting.


       Without       doubt,    the     election   process         that    the     Shakopee
Mdewakanton Sioux Community must follow to amend its constitution
is a federal proceeding governed by federal statute and regulations
and    within    the    oversight       authority    of     the    Secretary          of   the
Interior.        Nonetheless, the Secretary is bound to follow the
regulations he promulgated, and the plain language of section 81.13
provides      that     the    election     board's    determinations             of    voter
eligibility "shall be final."              This finality rule recognizes that
determining tribal membership is the very essence of sovereignty
and such decisions should be made according to tribal law by a body
with    at    least     a     majority     Indian     vote.         The       Secretary's
interpretation of the rule--that the Department's duty to resolve
challenges to election results includes revisiting questions of
voter eligibility previously decided by the election board--is
plainly      erroneous       and   inconsistent      with    the    language          of   the
regulations.         See Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d
522, 529      (8th     Cir.    1995)    (declining    to    defer        to   Secretary's
interpretation         that    read    additional     unwritten          terms    into     an
otherwise unambiguous rule).             Moreover, the agency's interpretation
has the effect of indefinitely postponing the election to amend the
Community's constitution which contravenes Congress' expressed
intent that Secretarial elections proceed within the strict time
lines set forth in 25 U.S.C. § 476.               Therefore, I dissent from the
majority view that the agency interpretation of its regulations is
reasonable.




                                           -8-
                                            8
                                      I.


     In the Indian Reorganization Act of 1934 (IRA), Congress
explicitly acknowledged Indian tribes' right to organize and to
adopt or amend their own constitutions,              25 U.S.C. § 476(a), and
instructed the Secretary of the Interior to call and conduct
federal elections for this purpose, 25 U.S.C. § 476(c).                 Congress
amended the IRA in 1988 adopting strict time lines to ensure that
such elections proceed without undue delay:               The Secretary must
hold an election to ratify an amendment to a tribe's constitution
and bylaws within ninety days after receipt of a tribal request for
an election.    25 U.S.C. § 476(c)(1)(B).          Moreover, if a Secretarial
election results in the adoption of a constitutional amendment, the
Secretary must act within forty-five days of the election to either
approve the amendment or make a finding that the amendment is
contrary to applicable laws.             25 U.S.C. § 476(d)(1).          If the
Secretary fails to act on a proposed amendment within the forty-
five-day   period,     the    statutory    scheme    deems   the   Secretary's
approval as given.           25 U.S.C. § 476(d)(2).          As the Assistant
Secretary acknowledges in this case, "the need to get the issue
before the voters in a timely manner has become a congressional
mandate." (Appellee's Supp. App. at 35 (Letter from Ada Deer,
Assistant Secretary-Indian Affairs, to Denise Homer, Director of
the Minneapolis Area Office of the Bureau of Indian Affairs of
6/2/95 at 2).)


     Congress delegated to the Secretary authority to prescribe
rules and regulations to govern tribal-reorganization elections
under   the    IRA.    Pursuant     to    that   authority,     the   Secretary
promulgated    the    regulations    at    issue    in   this   case.        The
regulations establish an election board--consisting of one BIA
representative (acting as chair) and two tribal representatives--
which is charged with ensuring that an election is conducted in
compliance with the procedures set forth in the regulations.                 25
C.F.R. § 81.8(a).      The election board must oversee voter


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                                      9
registration, including notifying eligible voters of the need to
register, 25 C.F.R. § 81.11(a), and posting an official list of
registered voters at least twenty days prior to the election, 25
C.F.R. § 81.12.   In addition, the regulations charge the election
board with resolving eligibility disputes in the following manner:


     The election board shall determine the eligibility of any
     written claim to vote presented to it by one whose name
     does not appear on the official list of registered voters
     as well as any written complaint of the right to vote of
     anyone whose name is on the list. Its decision shall be
     final. It shall rule on all claims no later than ten
     days before the election. Any claim not presented at
     least ten days before the election shall be disallowed.


25 C.F.R. § 81.13 (emphasis added).       The regulations further
provide that after the election, qualified voters2 can contest
election results with the Secretary:


     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 . . . the
     grounds for the challenge, together with substantiating
     evidence.    If in the opinion of the Secretary, the
     objections are valid and warrant a recount or new
     election, the Secretary shall order a recount or new
     election. The results of the recount or new election
     shall be final.


25 C.F.R. § 81.22 (emphasis original).




     It appears that a qualified voter is any person who had been
registered to vote in the election. Although the regulations do
not explicitly define the term, they define "registration" as "the
act whereby persons, who are eligible to vote, become entitled or
qualified to cast ballots by having their names placed on the list
of persons who will be permitted to vote." 25 C.F.R. § 81.1(o)
(emphasis added). Thus, although this regulation does not permit
the Secretary to hear a challenge brought by a person who was not
registered to vote, nothing in the language explicitly prevents a
registered voter from bringing a challenge to the overall
composition of the voter registration list.


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                                10
                                 II.


     In this case, the Community leadership initiated the process
to amend the Community's constitutional membership requirements in
1994.   The Constitutional Amendment Committee of the General
Council drafted proposed amendments and, on June 10, 1994, the
General Council submitted a formal request for a secretarial
election pursuant to section 476.       Due to concerns over the
proposed amendments, the Secretary did not call for or hold an
election within the ninety days mandated by the IRA.            After
negotiating with the Secretary, however, the Community modified its
proposed amendments and, on February 17, 1995, the Secretary
authorized the Minneapolis Area Director of the BIA to conduct the
election.


     In accordance with the regulations, the BIA and the Community
established an election board consisting of a BIA representative
acting as chair and two tribal representatives.    On March 8, 1995,
the Community provided the BIA with a list of 116 persons it
recognized as enrolled members of the Community.   From that, a list
of registered voters containing 111 names (minors and non-residents
from the previous list were excluded) was posted on March 29, 1995.
The regulatory deadline for filing challenges to the registered
voter list with the election board was noon on April 6, 1995, by
which time challenges had been filed to more than 50% of the names
on the registered voter list.    The election board met on April 6
and 7, 1995 and ruled on the challenges to voter eligibility.    With
one exception, the election board resolved every challenge by
unanimous decision.   The board posted a revised list containing the
names of sixty-seven eligible voters on April 7, 1995.3


      The initial list of enrolled members contained the names of
all persons enrolled in the Community whose membership is
recognized by the tribal leadership regardless of his or her
technical eligibility under the 1969 constitution. In contrast,
the revised list of eligible voters included only those persons who


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                                 11
        An election was held on April 19, 1995 in which those persons
on the voter registration list of April 7, 1995 were permitted to
vote.     The proposed constitutional amendment passed by a vote of
thirty-five to twenty-seven.       The election results were certified
by the election board on the day of the election.              Shortly after
the certification of the election results, two groups of Community
members filed challenges with the Secretary concerning the election
board's voter-eligibility determinations.             Taken together, the
challenges alleged that twenty-two persons voted who should not
have been allowed to vote and that eighteen persons who were found
ineligible should have been permitted to vote.


     Forty-three days after certification (and two days before the
constitutional      amendment   would   have   been   deemed   effective   by
operation of law) the Secretary announced that he could not approve
the election results due to irregularities in the determination of
voter eligibility.       The Department's procedure to redetermine voter
eligibility is set out in a letter by the Assistant Secretary in
which she calls for the appointment of an ALJ to determine the
blood     quantum   of   twenty-three   challenged     individuals.        The
Assistant Secretary will review the ALJ's determinations and render
a final decision for the Department.           According to the Assistant
Secretary's letter, the date of a new election to amend the
Community's Constitution will be not less than thirty nor more than
sixty days after she approves the administrative determinations.
In other words, the secretarial election has been indefinitely
suspended by the Department.


were constitutionally eligible to vote, as dictated by federal law.
Although the Community's position was that all persons recognized
by the General Council as members should be eligible to vote in the
secretarial election, the Community representatives on the election
board deferred to the BIA position that eligibility determinations
had to be made in accordance with the membership requirements as
they were set out in Article 2 of the Shakopee Mdewakanton
Constitution. (See Appellant's App. at 129 (transcript of election
board proceedings at 36:9-18).)


                                    -12-
                                     12
                                         III.


     The plain language of the regulations unambiguously gives the
election board the authority to resolve voter eligibility disputes
and makes its determinations final.                The Secretary, therefore, is
bound to recognize the election board's determinations as final,
particularly absent some claim that the board acted outside its
authority.    As written, the regulations give deference to what is
an already watered-down notion of Indian sovereignty in that it
gives    tribal   members       a     majority    voice         in     the    all-important
membership     determinations.                Moreover,          it      recognizes         the
congressional mandate to move the election process forward without
unnecessary delay.


     Although      the   Department       asks       us    to    find        ambiguity,     the
regulations       clearly       set     out      that      the         election       board's
determinations of voter eligibility are final.                           It is therefore
apparent   that    the    Secretary's         duty    to    resolve          challenges     by
qualified voters does not carry with it the authority to revisit
the election board's final determinations of voter eligibility.
The Secretary interprets the word final in section 81.13 to mean
final for the election board so that an election can proceed, but
not final for the Department.            This reading is nonsensical and runs
counter to the balance carefully struck by Congress.                          The Secretary
simply does not get two bites of the apple.                          He cannot delegate a
specific responsibility to the election board, make the board's
decision final, and then revisit the issue due to dissatisfaction
in the outcome.


     Perhaps      the    most   troubling        aspect         of    this     case    is   the
practical result of the Secretary's decision.                        The election process
initiated by the Community in 1994 is no closer today than when it
began.   The Community faces a most unfortunate Catch-22:                             The only
process by which it can modify its membership requirements to the
satisfaction of the United States is a secretarial election which



                                         -13-
                                          13
is now indefinitely postponed until the Secretary determines the
Community's membership to his satisfaction.   I cannot join in the
majority's conclusion that such a result is reasonable.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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