25 U.S.C. § 5123 — Organization of Indian tribes; constitu-

Page 699 TITLE 25—INDIANS § 5123 relief from distress caused by unemployment and conditions resulting therefrom, the prosecu- tion of public works and public projects for the relief of unemployment or to increase employ- ment, and for work relief (including the civil- works program) shall be considered in connec- tion with the operation of this section. (Aug. 12, 1935, ch. 508, § 2, 49 Stat. 596; Pub. L. 97–164, title I, § 160(a)(8), Apr. 2, 1982, 96 Stat. 48; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.) Editorial Notes REFERENCES IN TEXT Act of June 18, 1934, referred to in text, is act June 18, 1934, ch. 576, 48 Stat. 984, popularly known as the In- dian Reorganization Act, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5101 of this title and Tables. CODIFICATION Section was formerly classified to section 475a of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 1992—Pub. L. 102–572 substituted ‘‘United States Court of Federal Claims’’ for ‘‘United States Claims Court’’ wherever appearing. 1982—Pub. L. 97–164 substituted ‘‘United States Claims Court’’ for ‘‘Court of Claims’’ wherever appear- ing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of Title 28, Judiciary and Judicial Proce- dure. § 5123. Organization of Indian tribes; constitu- tion and bylaws and amendment thereof; special election (a) Adoption; effective date Any Indian tribe shall have the right to orga- nize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effec- tive 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 Sec- retary 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 ap- proved 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; re- view of proposals; notification of contrary-to- applicable law findings (1) The Secretary shall call and hold an elec- tion as required by subsection (a) of this sec- tion— (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 trib- al 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 assist- ance 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 deter- mine 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 constitu- tion and bylaws or amendments thereto to be contrary to applicable laws. (d) Approval or disapproval by Secretary; en- forcement (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 ap- prove the constitution and bylaws or amend- ments thereto within forty-five days after the election unless the Secretary finds that the pro- posed constitution and bylaws or any amend- ments are contrary to applicable laws. (2) If the Secretary does not approve or dis- approve the constitution and bylaws or amend- ments within the forty-five days, the Sec- retary’s approval shall be considered as given. Actions to enforce the provisions of this section may be brought in the appropriate Federal dis- trict 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 con- stitution 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 encum- brance 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 ad- vise such tribe or its tribal council of all appro- priation 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 Page 700 TITLE 25—INDIANS § 5124 1 See References in Text note below. any decision or determination pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) 1 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 In- dian 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 di- minishes the privileges and immunities avail- able to a federally recognized Indian tribe rel- ative 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 con- stitution or other governing document adopt- ed by an Indian tribe after June 18, 1934, in ac- cordance with the authority described in para- graph (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.) Editorial Notes REFERENCES IN TEXT Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) and this Act, referred to in subsecs. (f) and (h), is act June 18, 1934, ch. 576, 48 Stat. 984, popularly known as the Indian Reorganization Act, which was classified generally to subchapter V (§ 461 et seq.) of chapter 14 of this title prior to editorial reclassification as this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5101 of this title and Tables. CODIFICATION May 31, 1994, referred to in subsec. (g), was in the original ‘‘the date of enactment of this Act’’, which was translated as meaning the date of enactment of Pub. L. 103–263, which enacted subsec. (g) of this section, to re- flect the probable intent of Congress. Section was formerly classified to section 476 of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 2004—Subsec. (h). Pub. L. 108–204 added subsec. (h). 2000—Subsec. (e). Pub. L. 106–179 struck out ‘‘, the choice of counsel and fixing of fees to be subject to the approval of the Secretary’’ after ‘‘To employ legal counsel’’. 1994—Subsecs. (f), (g). Pub. L. 103–263 added subsecs. (f) and (g). 1988—Pub. L. 100–581 amended section generally, sub- stituting subsecs. (a) to (e) for two former undesignated pars. Statutory Notes and Related Subsidiaries DEFINITIONS APPLICABLE Pub. L. 100–581, title I, § 102, Nov. 1, 1988, 102 Stat. 2939, provided that: ‘‘For the purpose of this Act [prob- ably means title I of Pub. L. 100–581 which amended this section and enacted provisions set out below], the term— ‘‘(1) ‘applicable laws’ means any treaty, Executive order or Act of Congress or any final decision of the Federal courts which are applicable to the tribe, and any other laws which are applicable to the tribe pur- suant to an Act of Congress or by any final decision of the Federal courts; ‘‘(2) ‘appropriate tribal request’ means receipt in the Area Office of the Bureau of Indian Affairs having administrative jurisdiction over the requesting tribe, of a duly enacted tribal resolution requesting a Sec- retarial election as well as a copy of the proposed tribal constitution and bylaws, amendment, or rev- ocation action; ‘‘(3) ‘Secretary’ means the Secretary of the Inte- rior.’’ AMENDMENT OF TRIBAL CONSTITUTION AND BYLAWS Pub. L. 100–581, title I, § 103, Nov. 1, 1988, 102 Stat. 2939, provided that: ‘‘Nothing in this Act [probably means title I of Pub. L. 100–581 which amended this sec- tion and enacted provisions set out above] is intended to amend, revoke, or affect any tribal constitution, bylaw, or amendment ratified and approved prior to this Act.’’ § 5124. Incorporation of Indian tribes; charter; ratification by election The Secretary of the Interior may, upon peti- tion by any tribe, issue a charter of incorpora- tion to such tribe: Provided, That such charter shall not become operative until ratified by the governing body of such tribe. Such charter may convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of prop- erty of every description, real and personal, in- cluding the power to purchase restricted Indian lands and to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law; but no au- thority shall be granted to sell, mortgage, or lease for a period exceeding twenty-five years any trust or restricted lands included in the lim- its of the reservation. Any charter so issued shall not be revoked or surrendered except by Act of Congress. (June 18, 1934, ch. 576, § 17, 48 Stat. 988; Pub. L. 101–301, § 3(c), May 24, 1990, 104 Stat. 207.) Editorial Notes CODIFICATION Section was formerly classified to section 477 of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 1990—Pub. L. 101–301 substituted ‘‘by any tribe’’ for ‘‘by at least one-third of the adult Indians’’, ‘‘by the governing body of such tribe’’ for ‘‘at a special election by a majority vote of the adult Indians living on the