                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

                                             )
CHARLES K. HUDSON,                           )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )       Civil Action No. 15-cv-1988 (TSC)
                                             )
RYAN ZINKE, et al.,                          )
                                             )
              Defendants.                    )
                                             )

                                     MEMORANDUM OPINION

       Plaintiff Charles Hudson, an enrolled member of the Three Affiliated Tribes of Fort

Berthold Reservation in North Dakota (“Three Affiliated Tribes” or “Tribe”), brings this

Administrative Procedure Act (“APA”) suit against the entities responsible for conducting

Secretarial elections for the Tribe: the Department of the Interior (“DOI”), Secretary Ryan Zinke,

and Acting Assistant Secretary Michael Black (collectively “the Department”). Hudson

challenges the Department’s approval of a July 30, 2013 Secretarial election (the “2013

Election”), which amended the Three Affiliated Tribes’ Constitution (the “Tribal Constitution”).

He claims that because an insufficient number of voters participated, the election lacked the

requisite 30% quorum under the Tribal Constitution and the Indian Reorganization Act, 25

U.S.C. § 5123. He also claims that the Department sent misleading voting information to tribal

members, which discouraged off-reservation voting.

       Both Hudson and the Department have moved for summary judgment pursuant to Federal

Rule of Civil Procedure 56. (ECF Nos. 35 and 37.) Having reviewed the parties’ filings and the

record, and for reasons set forth below, the court will GRANT Hudson’s motion for summary

judgment and DENY Defendants’ motion for summary judgment.
                                       I.      BACKGROUND

   A. Indian Reorganization Act

       Hudson’s claims are governed by the statutory and regulatory framework of the Indian

Reorganization Act of 1934 (“IRA”), 25 U.S.C. § 5123. The Act encourages self-government by

providing a mechanism for tribes to adopt constitutions, which must be ratified by a majority

vote of the tribe’s adult members at a special election before going into effect. 25 U.S.C. §

5123(a)(1). The Act, and its accompanying regulations, also set out the procedures for a tribe to

amend its constitution through Secretarial elections. These elections are “federal—not tribal,”

Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999), so a tribe must ask the Secretary of

the Interior to call and conduct them. 25 U.S.C. § 5123(c). Once the Secretary receives a

qualifying request for a Secretarial election to ratify proposed constitutional amendments, the

Secretary must call and hold an election within 90 days. 25 U.S.C. § 5123(c)(1)(B).

       For an amendment to be ratified, the IRA requires both a majority vote in favor and a

quorum of voters participating in the election. 25 U.S.C. § 5127. The quorum requirement

provides that “the total vote cast shall not be less than 30 per centum of those entitled to vote.”

25 U.S.C. § 5127 (emphasis added). The 1964 regulations defined a tribe member “entitled to

vote” as “any adult member regardless of residence.” 29 Fed. Reg. 14,359, 14,360 (Oct. 17,

1964). In 1967, the Department amended the regulation to provide for registration, and re-

defined “entitled to vote” as “only voters who are duly registered.” 32 Fed. Reg. 11,777, 11,778

(Aug. 16, 1967) (codified at 25 C.F.R. § 52.6(c)). In 1981, the Department again amended its

regulations, to reiterate the definition of “entitled” in a new section called “registration,” which

provided that “[o]nly registered voters will be entitled to vote, and all determinations of the




                                                      2
sufficiency of the number of ballots cast will be based upon the number of registered voters.” 46

Fed. Reg. 1,672 (Jan. 7, 19781), codified at 25 C.F.R. § 52.11. 1

       Election results are not finalized until they are approved by the Secretary, 25 U.S.C.

§ 5123(d), and certified by the tribe’s Election Board, 25 CFR § 81.41 (2015). Any qualified

voter can contest election results within three days of the results of the election by submitting

“the grounds for the challenge, together with substantiating evidence.” 25 C.F.R. § 81.22

(1985). The Secretary has 45 days to resolve election contests, conduct an independent review

and approve or disapprove the election, but the scope of review is limited to ensuring the

amendments comply with applicable federal law. See 25 U.S.C. § 5123(d).

    B. Three Affiliated Tribes’ Constitution and Amendments

       In 1870, the federal government established the Fort Berthold Indian Reservation in the

Missouri River basin for the region’s “Three Affiliated Tribes”: the Mandan, Hidatsa, and

Arikara Nations. After voting for recognition under the IRA, on May 15, 1936, the Tribes

adopted their Constitution “by a vote of 366 for, 220 against . . . [i]n an election in which over 30

percent of those entitled to vote cast their ballots, in accordance with section 16 of the [IRA].”

(ECF No. 43 (Administrative Record (“A.R.”)) at 91.) Because over 30 percent of the adult

membership voted, and a majority of those voting approved, the Tribal Constitution was ratified

pursuant to the IRA. (Id.) On June 29, 1936, the Secretary of the Interior approved the Tribal

Constitution under Section 16 of the IRA. (Id.) Like the IRA, the Tribal Constitution requires

both a majority and a quorum for a Secretarial election to amend the Constitution. Tribal




1
 The part 52 regulations were subsequently redesignated as 25 C.F.R. Part 81. Redesignation
Table for Chapter I Title 25—Indians, 47 Fed. Reg. 13,327 (Mar. 30, 1982). Since the 2013
Election, the Department has amended the regulations at issue; however, the 1981 regulations
were operative during the election in this case. (ECF No. 38 (“Def. Br.”) at n.4–5.)
                                                     3
Constitution, art. X. The Tribal Constitution’s quorum requirement requires that: “at least thirty

(30) percent of those entitled to vote shall vote in such election . . . .” Id. (emphasis added).

       The Three Affiliated Tribes held two Secretarial elections to amend its Constitution

before the 1967 regulations implementing the registration requirement. On July 20, 1955, a

majority voted in favor of an amendment; but the amendment failed because it lacked the

necessary 30% quorum. (A.R. at 107.) The election results report, signed by the Chairman and

Secretary of the Tribal Business Council and by the Bureau of Indian Affairs (“BIA”) Agency

Superintendent, stated “that 281 votes does not constitute 30% of those entitled to cast their

ballots in accordance with Section 16 of the [IRA].” (Id.) A year later, the Tribe held a

Secretarial election to amend the Constitution to permit absentee voting in Secretarial elections.

(Id. at 105–06.) This amendment was proposed because of concerns that prohibiting absentee

voting made it difficult to reach the required 30 percent quorum in Secretarial elections. (Id.)

The record does not contain documentation of the outcome of that Secretarial election or whether

it met the quorum requirement, but the Constitution reflects that an amendment passed in 1956.

(See Tribal Constitution, art. IV, § 2(a) (“This section amended by Amendment No. 1, effective

October 16, 1956 . . .”); see also A.R. at 82.)

       Since the BIA implemented the registration requirement, the Department has conducted

and approved six more Secretarial elections before the one challenged here:

           •   In a 1974 election, 426 tribe members cast their ballots, out of 1,131 registered
               and 2,719 voters who were 18 years old. (A.R. at 375.) The Election Board’s
               certification paperwork states that “over 38 percent of the eligible voters”
               participated, and the Department approved the result, noting that three people
               contested the election but did not state the reason. (Id. at 374–75.)

           •   In a 1975 election, the Election Board certification reflects that approximately 700
               tribe members voted on two amendments, out of “1,641 members entitled to vote
               . . . in accordance with Section 16 of the [IRA].” (Id. at 364–67.) Neither the
               record nor the parties suggest the result was contested. (Id.)

                                                      4
           •   In a 1985 election approving an amendment, the Election Board certified that 408
               voters out of 1,109 “entitled to vote cast their ballots in accordance with Section
               16 of the [IRA].” (Id. at 354.) The Department approved the election results.
               (Id. at 352.) There is no indication that the results were challenged. (Id. at 352–
               354.)

           •   In a 1986 election, the Election Board certified that approximately 730 voters of
               1,331 tribe members “entitled to vote . . . in accordance with Section 16 of the
               [IRA]” participated in the Secretarial election regarding several amendments. (Id.
               at 336, 340, 343, 347, 348, 350.) Again, the record does not indicate that anyone
               protested the election.

           •   In 2008, the Tribe held a Secretarial election on two amendments involving Tribal
               enrollment criteria in which approximately 960 out of 1,565 registered voters cast
               ballots. (Id. at 329.) The Election Board certified the results, stating the election
               satisfied the quorum results: “at least 30 percent of the 1565 members entitled to
               vote[] cast their Ballot in accordance with 25 CFR 81.” (Id. at 330.) The
               Department’s approval reiterated that the election satisfied the 30% quorum
               requirement “described in 25 CFR, Part 81.” (Id. at 329.) The Department
               further determined that nine letters were submitted to challenge the election’s
               result, but “none . . . had merit.” (Id. at 327.) The basis for the challenges were
               not included in the record. (See id.) But after the election the Tribal Council held
               a referendum vote to reconsider the amendment “[d]ue to the low number of tribal
               members voting on the amendment.” (Id. at 319–20.) The Tribal Business
               Council then asked the Secretary to hold another Secretarial election on the same
               issue to “ensure that the will of the eligible voters of the Tribes is pursued on an
               issue of such importance . . . .” (Id.)

           •   The second election was held in 2010 and the Election Board certified that the
               election satisfied the regulatory quorum requirement, stating that approximately
               1,100 voters cast their ballot in “an election in which at least 30 percent of the
               2,583 registered voters[] cast their ballot in accordance with 25 CFR 81.” (Id. at
               322–323.) The Department then approved the election, finding that it satisfied the
               quorum requirement in the IRA. (Id. at 317.) There is no evidence in the record
               that the election result was contested. (Id. at 316–386.)

       While the Election Board certified and the Secretary approved each of these elections,

they were all conducted under either the IRA or the 25 C.F.R. § 81 regulations. (Id. at 322–23,

330, 336, 340, 343, 347, 348, 350, 354, 364–67, 375.) There was no indication of any

certification or approval under the Tribal Constitution itself. (See id.)




                                                      5
   C. 2013 Secretarial Election

       On April 16, 2013, the Secretary authorized a Secretarial election, held on July 30, 2013.

(Id. at 311.) The election proposed two amendments to the Tribal Constitution and bylaws: one

to change the composition of the Tribal Business Council, (Id. at 132), and one to change the

rules governing vacancies and removal from the Council, (Id. at 134–5).

       The election packet sent by the Department for the 2013 Election stated the following

regarding absentee voting: “A registered voter may vote by absentee ballot if they are unable to

vote at the polling place because of temporary absence from the reservation, illness, or physical

disability.” (Id. at 137.) The election packet did not list living off the reservation as a valid

reason for voting absentee. (Id.) Living off the reservation was, however, listed as a valid

reason to vote absentee on the Absentee Ballot Request Form. (Id. at 139.)

       At the time of the 2013 Election, 9,270 members of the Tribe were over age 18 (ECF No.

32 (“Am. Compl.”) ¶ 30), and only 1,249 members were registered voters. (A.R. at 145.)

Approximately 510 people voted, meeting the 30% registered-voter quorum (Id. at 145–46), but

failing the voting-age quorum by nearly 25%, (Am. Compl. ¶ 34). Once again, the Tribal

Business Council passed a resolution criticizing the election’s low turnout: “The Tribal Business

Council finds this to be a disproportionate number of the eligible voters of the Three Affiliated

Tribes to adequately and fairly indicate the wishes of the enrolled membership.” (ECF 1-4

(“2013 Resolution”) at 1). The 2013 Resolution, which had the effect of formally requesting that

the BIA decertify the 2013 election, was ultimately rejected by BIA Regional Director Weldon

Loudermilk, who proceeded to formally approve the proposed Amendments and append them to

the Tribal Constitution. (A.R. at 164–66.)




                                                      6
   D. Procedural History

       On August 5, 2013, Hudson filed a challenge to the 2013 Election results with Secretarial

Election Board Chairman Timothy LaPointe. (Id. at 142). Loudermilk rejected the challenge as

untimely and lacking substantiating evidence (id. at 160–61), and Hudson timely appealed to the

Interior Board of Indian Appeals (“IBIA”). Hudson v. Great Plains Regional Director, Bureau

of Indian Affairs, 61 IBIA 253 (Sept. 15, 2015). The IBIA rejected the challenge and affirmed

the Election on the ground that the challenge was “legally unsound” and lacked substantiating

evidence. (A.R. at 2–3.)

       On November 12, 2015, Hudson brought this suit challenging the IBIA’s denial of his

appeal of the decision to approve the 2013 Election. Hudson claims that approval was improper

because: 1) an insufficient number of voters participated, so the election lacked the necessary

30% quorum under the IRA and the Tribal Constitution; and 2) the election packet contained

incomplete information about absentee voting which discouraged members living off-reservation

from voting. (Am. Compl. ¶ 1.)

       The Department moved for voluntary remand on June 24, 2016, on the ground that it had

identified “substantial and legitimate concerns” about the quorum calculation. The court granted

the motion over Hudson’s objection. (ECF No. 28 (“Dec. 2016 Order”).) On February 24, 2017,

the Department entered their notice of decision on remand. (ECF No. 30-1 (“Remand

Decision”).) The BIA addressed two questions on remand: 1) whether federal law requires 30%

of all voting age members of the Three Affiliated Tribes as a quorum, as opposed to those

registered to vote; and 2) whether the Tribe’s Constitution provides a different standard for

calculating a quorum. (Remand Decision at 1, 3.) On the first question, the BIA concluded that

the 2013 Election was governed by 25 C.F.R. § 81, which requires only the participation of 30%



                                                    7
of registered voters. (Remand Decision at 1–3.) On the second question, the BIA found “no

substantiating evidence” to show that the Tribal Constitution’s quorum requirement in Article X

had a different meaning from the regulation’s. (Remand Decision at 3–4.) Accordingly, the BIA

affirmed the decision to approve the 2013 Secretarial election. (Remand Decision at 1.) Hudson

again moved for summary judgment and the Defendants cross-moved.

                                    II.     LEGAL STANDARD

       On a motion for summary judgment in a suit seeking APA review, the court must set

aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2). The court’s review is “highly deferential” and begins

with a presumption that the agency’s actions are valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d

275, 283 (D.C. Cir. 1981). The court is “not empowered to substitute its judgment for that of the

agency,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), but instead

must consider only “whether the agency acted within the scope of its legal authority, whether the

agency has explained its decision, whether the facts on which the agency purports to have relied

have some basis in the record, and whether the agency considered the relevant factors.”

Fulbright v. McHugh, 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund for Animals v. Babbitt,

903 F. Supp. 96, 105 (D.D.C. 1995)).

       An agency ruling that is contrary to law must be set aside. A court may invalidate an

agency adjudication or rulemaking if it is “inconsistent with the statutory mandate or . . .

frustrate[s] the policy that Congress sought to implement.” Illinois Commerce Comm’n v. ICC,

749 F.2d 875, 880 (D.C. Cir. 1984) (quoting Fed. Elec. Comm’n v. Democratic Senatorial

Comm’n, 454 U.S. 27, 39 (1981)). When an agency violates its regulations, it acts contrary to

law. Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1010–11 (D.C. Cir.



                                                     8
2014). The plaintiff bears the burden of establishing the invalidity of the agency’s action. Id.

                                         III.    ANALYSIS

       This case presents the court with some of the most fundamental aspects of our nation’s

democratic theory—those of “sovereignty and self-determination.” Ransom v. Babbitt, 69 F.

Supp. 2d 141, 154 (D.D.C. 1999). Courts must closely guard these values in the context of the

United States’ interactions with tribal governments. The fact that tribal self-government is at the

pleasure of Congress, which has broad authority to regulate tribal affairs, is nonetheless informed

by the “important backdrop” of “deeply engrained” ideas of tribal sovereignty “against which

vague or ambiguous federal enactments must always be measured.” White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 142–43 (1980) (internal citation omitted). The Indian

Reorganization Act, the statutory authority under which Defendants regulate Secretarial

elections, was enacted to “establish machinery whereby Indian tribes would be able to assume a

greater degree of self-government, both politically and economically.” Morton v. Mancari, 417

U.S. 535, 542 (1974). It is against this backdrop that this court considers Hudson’s claims

against the Department.

   A. As-Applied Challenge under the Tribal Constitution’s Quorum Requirement

       The Department concluded that the 2013 Election satisfied the Tribal Constitution’s

“entitled” voter quorum requirement based on its finding that 30% of “registered” voters

participated. (Remand Decision at 1.) It contends that the Tribal Constitution’s quorum

requirement in Article X concurs with the regulatory requirement which calculates the quorum

based on “registered” voters. (Id.; see also Def. Br. at 19–22.) Hudson argues that calculating

the necessary quorum based on “registered” voters conflicts with the meaning of “entitled” in

Article X, and therefore the 2013 Secretarial election failed to satisfy the quorum requirement



                                                     9
and is invalid. (ECF No. 35-1 (“Pl. Br.”) at 25–33.) The court is hesitant to interpret another

sovereign’s constitution, especially on an issue of first impression. Cf. Ransom, 69 F. Supp. 2d

at 150 (“[C]ourts take care not to intervene into internal tribal affairs.”). But as the court cannot

certify this question to a tribal court, as it otherwise may to a state supreme court, it is obligated

to undertake the task.

       The parties agree that under 25 C.F.R. § 81.2(b) the Tribal Constitution’s procedures

trump contrary BIA regulations. (Remand Decision at 3; Pl. Br. at 27.) The parties also agree

that before 1967, “entitled to vote” meant the adult members of the Tribe, without any

registration requirement. (Def. Br. at 20; Pl. Reply at 11) Despite their agreement on the

original meaning, Defendants contend that, since ratification of the Tribal Constitution, the

meaning of “entitled to vote” has changed, consistent with federal regulations, to mean that only

those who have registered to vote are entitled to vote. (Remand Decision at 3–4.) The Remand

Decision found that the constitutional provision was aligned with the regulatory definition

because: 1) Article X’s “entitled to vote” language changed meaning when the analogous

regulation did so, and 2) the Tribe “acquiesced” to the regulatory meaning. (Id.) The court finds

these arguments unavailing, unsupported by the record, and counter to the purpose of the Tribe’s

Constitution.

           1. Regulation’s Effect on the Constitution

       In its initial decision, the IBIA found that Hudson had not provided sufficient evidence or

legal argument to support his contention that the Tribal Constitution had a “different legal

meaning of the term ‘entitled to vote’ than that established by Federal regulation.” (A.R. at 9.)

The IBIA, however, did not analyze the constitutional language. Therefore, the court granted

Defendants’ motion for remand in part so that the IBIA could do so. (Dec. 2016 Order at 9



                                                      10
(noting “[t]he BIA has at least more business than the district court interpreting the Tribal

Constitution”).) But once again, the BIA has failed to do. While the Remand Decision promised

a “review of the language of the Tribal Constitution,” (Remand Decision at 3) it included no

analysis of the Tribal Constitution itself. Instead, it focused on the meaning of the analogous

regulations. (Id.)

       Essentially, the Remand Decision found that Article X’s “entitled to vote” meant one

thing (any adult member) when the Tribal Constitution was enacted in 1936, but it “evolved” and

meant something else (members registered to vote) when the BIA promulgated regulations in

1967. (Remand Decision at 2–3.) While the Department appears to have backed away from this

untenable argument in its briefing, (Def. Br. at 19–20), it was a basis of the underlying Remand

Decision. (See Remand Decision at 3.) The BIA emphasized that there is “no substantiating

evidence requiring us to find that the term “entitled to vote” in Article X (a term undefined in the

Constitution) is a static term, with its application frozen in time based upon 1936 practices” and

therefore the changed regulatory definition should also change the Tribal Constitution’s

definition of the same language. (Remand Decision at 3.) The Remand Decision further found it

“notabl[e]” that “the Tribe has never sought Amendment of its Constitution to remove the

registration requirement.” (Id.)

       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. Nor does it provide even a common-sense explanation as to

why that might be true. 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. Moreover, the BIA’s finding that



                                                     11
Article X was never amended to “remove the registration requirement” (Id. at 3) gets the

amendment process backward: a federal regulation cannot amend a tribal constitution.

       To accept the Remand Decision’s proposition that the federal government’s regulatory

change amended the Tribe’s Constitution would upend the self-rule principles at the heart of the

Tribe’s Constitution and the IRA. Cf. Harjo v. Kleppe, 420 F. Supp. 1110, 1146 (D.D.C. 1976),

aff’d sub nom., Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) (addressing a challenge to the

federal government’s recognition of governmental entities within the Creek Nation) (“[C]onsent

for fundamental political decisions may only be obtained from the ultimate source of legislative

authority, the people themselves.”). Therefore, the court rejects Defendants’ contention that the

regulatory definition of one sovereign changes the meaning of a separate sovereign’s governing

document.

            2. Tribal “Acquiescence”

       The Department also contends that the Tribe “acquiesced” to the BIA’s regulatory

definition of “entitled” to vote by holding, certifying, and failing to protest elections under which

the “registered” voter quorum requirement was implemented. (Remand Decision at 3–4.) BIA

determined that because the Tribe’s Election Board certified seven elections “based upon the

federal standard of 30% of registered voters” the Tribe has interpreted its constitutional quorum

requirement to require registration. (Remand Decision at 4; Def. Br. at 21–22.) On this basis,

the BIA claims that it is deferring to the Tribe’s interpretation of its Constitution when the BIA

uses the “registered” voter definition for “entitled to vote.” (Remand Decision at 4; Def. Br. at

21–22.) 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




                                                     12
“registration” definition in some elections fails to overcome the conflict with the agreed-upon

meaning of the Tribe’s Constitution.

       When reviewing the factual basis for an agency’s determination, the court is “not

empowered to substitute its judgment for that of the agency,” Citizens to Pres. Overton Park,

Inc., 401 U.S. at 416, but instead must consider “whether the facts on which the agency purports

to have relied have some basis in the record . . . .” Fulbright, 67 F. Supp. 3d at 89 (quoting Fund

for Animals, 903 F. Supp. at 105). Even applying this deferential standard, the court cannot find

any basis in the record for the Department’s conclusion that it must defer to the Tribe’s

authoritative interpretation of Article X.

       The Department found that “the Tribe’s consistent acceptance of the federal regulations’

definition of ‘entitled to vote’ since 1967 is clear evidence that the Tribe interprets its law as

consistent with the federal definition.” (Remand Decision at 4.) While the Department is correct

that the Tribe has certified election results based on a quorum of registered voters, the Tribe

never referenced the constitutional provision in its certification; the quorum provision referenced

was always the IRA or the regulation. (A.R. at 322–23, 330, 336, 340, 343, 347, 348, 350, 354,

364–67, 375.) In addition, there is a history of members of the Tribe protesting the results,

although the record is not consistently clear regarding when elections were contested or on what

grounds, as the record usually reflects only that a protest was made, or at best, includes the

Department’s brief response dismissing the complaint. (Id. at 329, 374.) Therefore, the record

does not show that the Tribe’s certifications represent their clear interpretation of Article X to

include a registration requirement.

       In addition, the record indicates the Tribe’s concern with low turnout in Secretarial

elections, which on at least one occasion resulted in a second election on the same issue. In



                                                      13
2008, the Tribe held a Secretarial election on two amendments regarding enrollment criteria in

the Tribe. (A.R. at 329.) While the approval papers state that the election satisfied the

regulatory 30% quorum requirement (Id.), the Tribal Council called for a referendum election on

the amendment “[d]ue to the low number of tribal members voting on the amendment” in the

Secretarial election, (Id. at 319). After the referendum, the Tribe requested another Secretarial

election on the same issue to “ensure that the will of the eligible voters of the Tribes is pursued

on an issue of such importance . . .” (Id.) Although that election was held and certified that the

quorum was met based on registered voters, (Id. at 317), the Decision ignored this evidence of

the Tribe’s concerns with low turnout in Secretarial elections.

       Most significantly, the Tribal Business Council, through its 2013 Resolution, asked the

BIA “to decertify the July 30, 2013 Election Results due to a disproportionate number of

eighteen years and older enrolled members of the Three Affiliated Tribes participating . . . .”

(2013 Resolution at 1.) The Resolution may or may not have requested decertification for the

same reason as Hudson argues, but the Tribe clearly signaled its unease with low turnout based

on the total number of tribal members, not the number of registered members. The Department

rejected the Tribe’s request to decertify the results because the Secretarial election at issue

“affected the representation power and authority of then-members of the Council.” (Remand

Decision at n.2.) Therefore, the Decision found that the views were not “dispositive” on the

Tribe’s interpretation of the quorum requirement. (Id.) It also noted that the Council did not

“provide any definitive documentation of the Tribe’s interpretation of the Constitutional

provisions at issue.” (Id.)

       The Department improperly discounted the Tribe’s views. And while the court agrees

that the views of those with a vested interest in the outcome might not be entitled to great



                                                     14
deference, those views should not be discarded entirely when the Council previously expressed

concern with low voter turnout for a vote on amending the Constitution. The Tribe’s concerns,

articulated in 2010 and in requesting decertification in 2013, are consistent with the purpose of

the quorum requirement and IRA to ensure tribal members are “fully and fairly involve[d] . . . in

the proceedings leading to constitutional reform.” California Valley Miwok Tribe v. United

States, 515 F.3d 1262, 1268 (D.C. Cir. 2008) (quoting Morris v. Watt, 640 F.2d 404, 414 (D.C.

Cir. 1981)).

       The court finds that the Tribe’s stance on Article X appears to either be in favor of

Hudson’s reading or ambiguous, but either way far from an authoritative statement deserving of

deference. The court would welcome an authoritative tribal interpretation of Article X in the

interest of avoiding “disruption . . . of tribal sovereignty and self-determination,” Ransom, 69 F.

Supp. 2d at 151, but the Tribe has not provided one. Therefore, the court finds that the BIA’s

conclusion that the Tribe has provided an interpretation deserving of deference and has

“acquiesced” to the registration requirement to be unsupported by the record.

       Accordingly, the court finds that the agency’s decision that Article X’s meaning has

“evolved over time” is unsupported by the record. Article X’s quorum provision has been

unchanged since its enactment and continues to require a 30% quorum of entitled voters—i.e.,

adult members of the tribe. Because the regulation requires a quorum of only registered voters, it

contradicts the Tribe’s constitutional provision and therefore the Tribal Constitution’s quorum

requirement applies. See 25 C.F.R. § 81.2(b). The court further finds that Defendants’

certification of the 2013 Election based on a quorum of registered voters is contrary to law and a

violation of the APA. See Nat’l Envtl. Dev. Ass’n’s Clean Air Project, 752 F.3d at 1010–11

(holding that agency action violated the APA by being contrary to law because it was “plainly



                                                    15
contrary to the agency’s own . . . rules”). Therefore, Defendants’ approval of the 2013 Election

must be vacated.

   B. Other Challenges

       Having determined that Article X of the Tribal Constitution conflicts with the BIA’s

regulations, the court need not address whether Defendants’ regulations in 25 C.F.R. § 81 are a

reasonable interpretation of the IRA. The court declines to reach Hudson’s facial challenge to

the regulations in 25 C.F.R. § 81 or the question of whether the allegedly misleading ballot

materials are also a basis for invalidating the election.

                                        IV.     CONCLUSION

       For the stated reasons, this court will GRANT Hudson’s motion for summary judgment

and DENY Defendants’ motion for summary judgment. A corresponding Order will issue

separately.


Date: April 10, 2020


                                               Tanya S. Chutkan
                                               TANYA S. CHUTKAN
                                               United States District Judge




                                                      16
