Constitution of the Mescalero Apache Tribe

by Mescalero Apache Tribe | June 29, 2015 2:19 pm

REVISED CONSTITUTION
MESCALERO APACHE TRIBE
MESCALERO RESERVATION
NEW MEXICO

APPROVED MARCH 25, 1936
REVISED JANUARY 12, 1965


As Amended
Through October-18, 1988


UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS

REVISED
CONSTITUTION OF THE APACHE TRIBE
of the
MESCALERO INDIAN RESERVATION
NEW MEXICO

APPROVED MARCH 25, 1936
REVISED JANUARY 12, 1965


REVISED
CONSTITUTION OF THE APACHE TRIBE
of the
MESCALERO RESERVATION

PREAMBLE

We, the members of the Apache Tribe of the Mescalero
Reservation, in order to promote justice, insure tranquility, encourage
the general welfare, foster the social and economic advancement
of our people, safeguard our interests, bring our representative
tribal government into closer alignment with State and National
governments, and secure for ourselves and for our posterity the
blessings of freedom and liberty, do hereby establish this revised
constitution as the foundation upon which our tribal government
shall rest.

ARTICLE I – THE MESCALERO APACHE TRIBE

SECTION 1. The Apache Tribe of the Mescalero Reservation,
hereinafter referred to as the Mescalero Apache Tribe, shall
include all persons recognized as members thereof, or upon whom
membership may be conferred, pursuant to the provisions and
restrictions imposed by Article IV of this constitution, irrespective
of the Apache Band with which they may be identified.

ARTICLE II – TERRITORY

SECTION 1. The jurisdiction of the Mescalero Apache Tribe,
its tribal council and courts shall extend to all the territory within the
exterior boundaries of the reservation, and to such other lands as may
be added thereto by purchase, gift, Act of Congress, or otherwise.

ARTICLE III – RESERVATION

SECTION 1. Title to reservation lands shall remain tribal
property and shall not, in whole or in part, be granted by allotment
or otherwise to tribal members or groups of members as private
property. The control of reservation lands, and of assignments or
leases thereof, and of other tribal property, shall be in the tribal
council, subject to applicable Federal authority, and regulated by
ordinances not inconsistent with or contrary to this constitution.

SECTION 2. The tribal council shall have power to assign
unused tribal lands, or to reassign any unused assignments, or
portions thereof, which have been idle for two (2) or more years. No
reassignment of a homestead may be made so long as the original
assignee shall reside on the homesite, unless he shall voluntarily
release the homesite to the tribe. A member may transfer his
homesite to one of his children. The tribal council shall decide by
ordinance what shall constitute a unit for purposes of assignment of
land for private use, and shall determine the rules governing the use
and transfer of such assignments.

SECTION 3. A non-member who is the surviving spouse of
a member of the tribe shall have the privilege to use an assignment
for the benefit of enrolled minor children, but a non-member shall
not acquire any vested interest or rights in any tribal property, except
as otherwise provided by ordinance of the tribal council, or by
applicable Federal law.

ARTICLE IV – MEMBERSHIP

SECTION 1. The membership of the Mescalero Apache Tribe
shall consist of the following persons:
(a) Any person whose name appeared on the Census Roll
of the Mescalero Apache Agency of January 1, 1936.
(b) All persons born to resident members after the census
of January 1, 1936, and prior to the effective date of
this constitution.
(c) Any child born to a non-resident member, prior to the
effective date of this constitution, provided that such
child shall have resided on the Mescalero Reservation
for not less than one (1) year immediately preceding
the date of enrollment.
(d) Any person of one-fourth degree or more Mescalero
Apache blood, born after the effective date of this
constitution, either one or both of whose parents is
(are) enrolled in the membership of the Mescalero
Apache Tribe. [Section 1 as amended February 3,
1981]*

*An attempt was made to amend this Section in 1980. The total vote on the issue was
inadequate to validate the decision of the majority of the voters voting at the time.
Therefore, the Amendment was not adopted.

SECTION 2. No person, being enrolled or recognized as a member of another tribe, shall be eligible for enrollment in the Mescalero Apache Tribe .

SECTION 3. The tribal council shall have the power to
adopt ordinances, consistent with this constitution, governing future
membership, loss of membership, and the adoption of members into
the Mescalero Apache Tribe, which ordinances shall be subject to
review by the Secretary of Interior.

SECTION 4. The tribal council shall have the power to
prescribe rules to govern the compilation and maintenance of a
membership roll, and to make corrections in the basic roll, subject
to the approval of the Secretary of the Interior.

SECTION 5. The constitution of the Mescalero Apache
Tribe, and ordinances enacted pursuant thereto, shall govern tribal
membership and enrollment. No decree of any non-tribal court
purporting to determine membership in the tribe, determine paternity,
or determine the degree of Indian blood, shall be recognized for
membership purposes. The tribal council shall have sole authority
and original jurisdiction to determine eligibility for enrollment,
except where the membership of an individual is dependent upon an
issue of paternity, in which case the trial court, or the tribal council
sitting as an appellate court, shall have authority and exclusive
jurisdiction.

ARTICLE V – BILL OF RIGHTS

SECTION 1. Subject to the limitations prescribed by this
constitution, all members of the Mescalero Apache Tribe shall have
equal political rights and equal opportunities to participate in the
economic resources and tribal assets, and no member shall be denied
freedom of conscience, speech, religion, association or assembly,
nor shall he be denied the right to petition the tribal council for the
redress of grievances against the tribe.

ARTICLE VI – DISQUALIFICATION OF TRIBAL
MEMBERS FOR ELECTIVE OFFICE

SECTION 1. No person who has been convicted of any felony
or other serious offense, including adultery, bribery, embezzlement,
extortion, fraud, forgery, misbranding, perjury, theft, habitual
drunkenness, or felonious assault or felonious battery, shall be
eligible for candidacy to any elective office of the Mescalero Apache
Tribe unless he shall have been pardoned by the President of the
Mescalero Apache Tribe in conformity with applicable ordinances
and procedures prescribed by the tribal council.

ARTICLE VII – ORGANIZATION OF THE GOVERNMENT
OF THE MESCALERO APACHE TRIBE

SECTION 1. The powers of the government of the Mescalero
Apache Tribe are divided into three distinct departments, the
Legislative, the Executive and the Judicial, and no person or group
of persons charged with the exercise of powers properly belonging
to one of these departments, shall exercise any powers properly
belonging to either of the others, except as this constitution may
otherwise expressly direct or permit.

ARTICLE VIII – PART I – THE LEGISLATIVE DEPARTMENT:
COMPOSITION AND QUALIFICATIONS

SECTION 1. The legislative powers of the Mescalero Apache
Tribe shall rest in the Mescalero Apache Tribal Council, hereinafter
referred to as the tribal council, which shall hold its sessions at the
seat of the tribal government.

SECTION 2. The tribal council shall consist of eight (8)
members, elected at large from the membership of the Mescalero
Apache Tribe.

SECTION 3. The members of the tribal council shall be at least
twenty-five (25) years of age at the time of election or appointment
(Article X, Section 4); shall have one-quarter or more Mescalero
Apache Indian blood; shall have resided on the Mescalero Apache
Reservation for a period of at least six (6) months immediately prior
to the election, and shall be subject to the restrictions set out in
Article VI.

SECTION 4. No person shall serve as a member of the
Mescalero Apache Tribal Council while holding any other elective
office, or policy making position with the tribe or with any
organization doing business on the Mescalero Reservation.

ARTICLE IX – NOMINATIONS AND ELECTIONS

SECTION 1. An election board, appointed by the president
of the Mescalero Apache Tribe, shall supervise and administer all
elections in accordance with established tribal ordinances, and in
conformity with this constitution; provided that no member of the
election board shall be at the same time a member of the tribal council
or a candidate for tribal office, and provided further that persons so
appointed by the president shall be confirmed by the tribal council.

SECTION 2. Any member of the Mescalero Apache Tribe
shall have the right to vote in any tribal election provided such
member:
(a) Is at least eighteen (18) years of age at the time of such
election. [As amended December 16, 1977]
(b) Has resided within a fifty (50) mile radius of the Tribal
Administration Office, which office is located on the
reservation for a period of at least six (6) months
immediately prior to the day of election. [Deleted
December 16, 1977; added as amendment December
17,1982]

SECTION 3, Members of the tribal council, and all other
elective officials of the Mescalero Apache Tribe, shall be chosen by
secret ballot, the form of which shall be established by ordinance
enacted by the tribal council.

SECTION 4. The tribal council, by ordinance, shall make
provision for absentee voting, including the use of a secret ballot for
this purpose.

SECTION 5. No member of the Mescalero Apache Tribe shall
be deprived of his right to vote, if otherwise qualified, because of
temporary absence from the reservation, Temporary absence shall
be defined, for purposes of this section, as follows:
(a) Absence for the purpose of attending an educational
institution for purposes of obtaining formal training, or
(b) Absence for purposes of receiving treatment at a
regular hospital, clinic or sanitarium, or
(c) Absence for purposes of service in the Armed Forces
of the United States, or
(d) Absence for purposes of obtaining additional
educational training in regularly held training sessions,
or
(e) Absence for any other reason which does not exceed
six (6) months’ duration, immediately preceding a
tribal election, without return to the physical limits of
the reservation.

SECTION 6. Any qualified member of the Mescalero Apache
Tribe who desires that his (her) name be placed on the ballot as
a candidate for the office of president, vice-president or council
member in the primary election shall file with the tribal secretary
a statement of intention showing his (her) name and the office for
which he (she) desires to become a candidate. Such statement
shall be filed not less than fifteen (15) days preceding the primary
election.

SECTION 7. (a) A primary election to select candidates for the office
of the president, vice-president and council members
shall be held at least thirty (30) days before the general
election of the Tribe. The two nominees receiving
the highest number of votes for president shall be the
only candidates for the office of president at the next
general election. The two nominees receiving the
highest number of votes for vice-president shall be the
only candidates for vice-president in the next general
election. The eight nominees receiving the highest
number of votes, for council member shall be the only
candidates for council members in the next general election.
(b) If the number of candidates filing for president, vice-president
or a position on the council is such that a
primary election would not serve to eliminate any
candidates for a given position then such candidates
shall be the candidates in the general election.
(c) A Primary election shall be held for an office or
position only when there are more candidates than are
allowed in the general election, and the ballots shall be
limited to the offices or positions where an elimination
of candidates must take place. [Section 7 as amended
December 17, 1982]

SECTION 8. General Elections to vote for Tribal Council
Members and all elected officers of the Mescalero Apache Tribe
shall be held annually on the first Tuesday after the first Monday in
November. Notice of both the primary and general elections shall
be posted at least thirty (30) days before each such election at the
voting place and in three (3) or more additional public places. Such
notice shall be posted by the Secretary of the Tribal Council. [As
amended October 18, 1988]

SECTION 9. No candidate shall be permitted to withdraw
except by filing a written notice thereof with the tribal secretary at
least twelve (12) days before the primary and the general election.
The tribal secretary shall post the names of all candidates at the
voting place, and at three or more additional public places at least
ten (10) days before the primary and general election.

SECTION 10. The first election of tribal council members
and officers under this constitution shall be held on the first general
election date following its adoption and ratification. The candidate
with the highest number of votes for the office of president shall hold
the office for two (2) years. The candidate with the highest number
of votes for the office of vice-president shall hold that office for
two (2) years. The four candidates receiving the highest number of
votes for council member-at-large shall hold office for two (2) years.
The four candidates receiving the next highest number of votes for
council member-at-large shall hold office for one (1) year. Tie votes
shall be decided by lot. The term of office for these newly elected
council members shall start on the second Friday of the month of
January following the election, at which time the incumbent business
committee will be dissolved.

SECTION 11. Succeeding members of the Mescalero Apache
Tribal Council shall be elected to serve for a term of two (2) years,
with one-half of the members-at-large thereof elected each year. The
term of office of newly elected members shall start on the second
Friday of the month of January following the election.

SECTION 12. The candidate receiving the highest number of
votes at the general election for the office of president shall become
the president. The candidate receiving the highest number of votes
at the general election for the office of vice-president shall become
the vice-president.

SECTION 13. The four candidates for the office of councilman at-
large receiving the highest number of votes cast in each general
election, and the winning candidates for the office of president and
vice-president, shall be certified to the tribal council by the election
board as the duly elected councilmen and officers of the tribe.

SECTION 14. No person shall be a candidate for more than
one office in any primary election.

SECTION 15. Any tie vote shall be decided by lot before the tribal council.

ARTICLE X – VACANCIES AND REMOVAL FROM OFFICE

SECTION 1. Any member of the tribal council or elected
officer of the Mescalero Apache Tribe who, during the term for
which he is elected, is convicted of any felony, shall automatically
forfeit his office. Any member of the tribal council or elected officer
found guilty of a misdemeanor involving moral turpitude, gross
neglect of duty, malfeasance in office or misconduct reflecting on
the dignity and integrity of the tribal government, may be removed
from office by majority vote of the tribal council. Before any vote
for removal from office is taken, such member or officer shall be
given a written statement of the charges against him at least five (5)
days before the meeting of the tribal council before which he is to
appear, and he shall be given an opportunity to answer any and all
charges at the designated council meeting. The decision of the tribal
council shall be final.

SECTION 2. Upon receipt of a petition signed by at least
twenty-five percent (25%) of the eligible voters demanding recall
of any member of the tribal council, or elected officer, filed with
the secretary of the tribal council at least four (4) months before the
expiration of such council member’s, or official’s, term of office,
it shall be the duty of the tribal council to call a special election
upon the question of recall. Such election shall be held not less than
twenty-five (25) nor more than forty (40) days from the filing of
the petition. No council member or elected officer may be recalled
unless a majority of the members voting vote in favor of the recall,
and unless at least thirty percent (30%) of the eligible voters vote in
the election.

SECTION 3. If a member of the tribal council fails to attend
two (2) successive meetings of the tribal councilor a committee
thereof, of which he is a member, or any combination of tribal
council or such committee meetings, he shall automatically cease to
be a member of the tribal council. In such event, the tribal council
shall declare the position vacant and the president shall, subject to
confirmation by the tribal council, appoint a successor to serve the
unexpired term, unless such member
(a) Is excused by the tribal council, or
(b) Is absent by reason of illness, or due to reasons beyond his control, which are satisfactory to the tribal council.

SECTION 4. In the event of a vacancy, for any cause, in the
membership of the tribal council, the unexpired term corresponding
to the vacancy shall be filled by a qualified person, appointed by the
president and confirmed by the tribal council.

ARTICLE XI – POWERS OF THE TRIBAL COUNCIL

SECTION 1. The Mescalero Apache Tribal Council. shall
have the following duties and powers subject to all applicable laws
of the United States, this constitution, and the regulations of the
Secretary of the Interior.
(a) To veto the sale, disposition, lease, or encumbrance
of tribal lands, interest in lands, or other tribal assets,
that may be authorized by any agency of government
without the consent of the tribe; and any encumbrance
sale, grant, or lease of any portion of the reservation,
or the grant of any rights to use of lands or other assets,
or the grant of relinquishment of any water or mineral
rights or other natural or fiscal assets of the Mescalero
Reservation, are hereby reserved to the sanction of the
tribal council.
(b) To encumber, lease, permit, sell, assign, manage or
provide for the management of tribal lands, interests
in such lands or other tribal assets; to purchase or
otherwise acquire lands or interests in lands within or
without the reservation; and to regulate the use and
disposition of tribal property of all kinds.
(c) To protect and preserve the property, wildlife and·
natural resources of the tribe, and to regulate the
conduct of trade and the use and disposition of tribal
property upon the reservation, provided that any
ordinance directly affecting non-members of the tribe
shall be subject to review by the Secretary of Interior.
(d) To adopt and approve plans of operation to govern the
conduct of any business or industry that will further the
economic well-being of the members of the tribe, and
to undertake any activity of any nature whatsoever, not
inconsistent with Federal law or with this constitution,
designed for the social or economic improvement of
the Mescalero Apache people, such plans of operation
and activities to be subject to review by the Secretary
of the Interior.
(e) To use tribal funds as loans or grants, and to transfer
tribal property and other assets, to tribal corporations,
associations, commissions or boards for such use as
the tribal council may determine in conformity with
this constitution and consistent with applicable Federal
laws and regulations.
(f) To authorize the president to negotiate contracts, leases
and agreements of every description not inconsistent
with Federal law or with this constitution, subject to
review or approval by the Secretary of the Interior
where such review or approval is required by statute
or regulations; Provided, that all contracts, leases and
agreements so negotiated shall be subject to approval
by the tribal council.
(g) To acquire, by condemnation, lands of tribal members
on the reservation, for public purposes, provided that
such members shall be reimbursed the full value of
improvements they have placed on such lands as
determined by appraisal. The manner of appraisal
and the procedures governing condemnation shall be
established by ordinance of the tribal council, subject
to review by the Secretary of the Interior.
(h) To regulate its own procedures, including the adoption
and amendment of bylaws; to appoint subordinate
boards, commissions, committees, tribal officials
and employees not otherwise provided for in this
constitution and to prescribe their salaries, tenure and
duties; to charter tribal corporations, and to charter
and regulate other subordinate organizations for
economic and other purposes, subject to review by the
Secretary of the Interior when required by Federal law
or regulation.
(i) To represent the tribe and act in all matters that
concern the welfare of the tribe and to make decisions
not inconsistent with, or contrary to, this constitution.
(j) To negotiate with the Federal, State, or local
Governments, and to advise and consult with
representatives of the Interior Department on all
activities that may affect the reservation, and in regard
to all appropriation estimates and Federal projects
for the benefit of the tribe before such estimates or
projects are submitted to the Bureau of the Budget and
to Congress.
(k) To borrow money from the Federal Government or
other lenders for tribal use.
(l) To administer any funds or property within the
exclusive control of the tribe, and to make expenditures
from available funds for public purposes of the tribe,
including salaries and remuneration of elective
officials, officers and tribal employees. With the
approval of the Secretary of the Interior, tribal funds
from any source may be authorized for dividend or per
capita payments to the members of the tribe.
(m) To administer charity.
(n) To make loans to tribal members in accordance
with regulations of the Secretary of the Interior, this
constitution and other applicable laws.
(0) To employ legal counsel for the protection and
advancement of the rights of the tribe and its members,
the choice of counsel and fixing of fees to be subject to
the approval of the Secretary of the Interior, so long as
such approval is required by Federal law.
(p) To enact ordinances, subject to review by the Secretary
of the Interior, establishing and governing tribal courts
and tribal law enforcement agencies on the reservation;
regulating social and domestic relations of members
of the tribe; including provision for the issuance of
decrees of divorce, provided that all marriages between
tribal members shall be in conformity with applicable
laws of the State; providing for the appointment
of guardians for minors and mental incompetents;
regulating the inheritance of personal property of
tribal members; and providing for the removal or
exclusion from the reservation of any non-members
of the Mescalero Apache Tribe whose presence may
be injurious to tribal members or to the interests of the
tribe, as determined by the tribal council.
(q) To issue to each of its members a non-transferable
certificate of membership, evidencing the equal share
of each member in the assets of the tribe, said tribe
being in the nature of a non-profit corporation, and to
use any net income return to the tribe from corporate
enterprises for public and social purposes of the tribe.
(r) To administer oaths; to require, upon proper notice
being given stating time and place of hearing and
the general nature of the subject to be discussed, any
member of the tribe to appear and give testimony
before the tribal council; and to provide by ordinance,
subject to review by the Secretary of Interior, for
punishment of such members upon failure to comply
with such requirements, or for giving false testimony.
(s) To enact and provide for the enforcement of ordinances,
subject to review by the Secretary of the Interior,
for the assessment of taxes, licensing and other fees
on persons or organizations doing business on the
reservation.
(t) No authority or power contained in this constitution
may be delegated by the Mescalero Apache Tribal
Council to tribal officials, committees, or associations
to carry out any functions or do any thing for which
primary responsibility is vested in the tribal council,
except by ordinance or resolution duly enacted by the
tribal council.
(u) To deposit, to the credit of the Mescalero Apache
Tribe, tribal funds, without limitation on the amount
in any account, in any National or State bank whose
deposits are insured by any agency of the Federal
Government; Provided, that advances to the tribe from
funds held in trust in the United States Treasury shall
be deposited with a bonded disbursing officer of the
United States whenever the conditions prescribed by
the Secretary of the Interior in connection with such
advance, require that the advance be so deposited.
(v) To exercise tribal powers independently, under this
constitution, whenever limitations on such free
exercise of tribal powers, imposed by regulations of
the Secretary of the Interior, are removed; to exercise
other inherent powers not heretofore exercised or
included in this constitution; and to exercise powers
which have been excluded from tribal authority by
applicable statutes of Congress, in the event ,such
statutes are amended or rescinded; provided, that
except for waiver of Secretarial review or approval
authority, the exercise of additional tribal powers,
by the tribal council, shall be in conformity with
appropriate amendments to this constitution, pursuant
to the provisions of Article XV and Article XXVII
hereof.

ARTICLE XII – REVIEW AND APPROVAL OF ENACTMENTS

SECTION 1. Every resolution or ordinance passed by the
tribal council shall, before it becomes effective, be presented to the
president for approval within five (5) days following the date of its
passage. If he approves he shall sign it within ten (10) days following
its receipt and deposit it with the Secretary of the Mescalero Apache
Tribe for such further action as may be necessary. If he does not
sign an enactment of the tribal council, he shall, at the next meeting
of the tribal council following its submittal to him for signature,
return it to the tribal council with a statement of his objections. It
shall thereafter not become effective unless it is again approved
by two-thirds of the members present, providing that those present
constitute a quorum of the tribal council.

SECTION 2. Every resolution or ordinance which, under this
constitution is subject to review by the Secretary of the Interior, shall
be, within ten (10) days following its approval by the president or, in
the event of presidential veto, by a two-thirds majority of the tribal
council as provided in Section I of Article XII above, presented
to the Superintendent of the Mescalero Reservation. Within ten
(10) days after receipt thereof, the Superintendent shall approve or
disapprove the same.

SECTION 3. If the Superintendent shall approve any
resolution or ordinance subject to review by the Secretary of the
Interior, it shall thereupon become effective, but the Superintendent
shall transmit a copy of the same, bearing his endorsement, to the
Secretary of the Interior, who may within ninety (90) days from
the date of such approval by the Superintendent rescind the said
resolution or ordinance for any cause, by transmitting notification to
the President of the Mescalero Apache Tribe of such rescission.

SECTION 4. If the Superintendent shall refuse or fail to
approve any resolution or ordinance submitted to him within ten
(10) days after its receipt, he shall advise the tribal council of his
reasons therefor, and if the reasons appear to the tribal council
to be insufficient it may, by majority vote, refer the resolution or
ordinance to the Secretary of the Interior who shall, within ninety
(90) days from the date of receipt, approve or disapprove same in
writing; Provided, however, that such resolution or ordinance shall
become effective ninety (90) days after the date of receipt unless the
Secretary of the Interior shall disapprove in writing such resolution
or ordinance.

SECTION 5. Any resolution or ordinance that is, by the terms
of this constitution, subject to the approval of the Secretary of the
Interior, shall be presented to the Superintendent who shall, within
10 days after receipt thereof, transmit the same to the Secretary of
the Interior with his recommendation for or against approval.

SECTION 6. The said resolution or ordinance shall become
effective when approved by the Secretary of the Interior.

SECTION 7. Upon request by the tribal council, the
Secretary of the Interior may waive any requirement contained in
this constitution relating to review or approval of resolutions and
ordinances, or to the exercise of other powers of the tribal council.
Such waiver shall be for such period of time and under such
conditions as the Secretary of the Interior may prescribe.

ARTICLE XIII – TRIBAL BUDGET AND BUSINESS ENTERPRISES

SECTION 1. Before the beginning of each fiscal year, the
tribal council shall adopt and approve an annual tribal budget
providing funds for the support of all approved tribal programs. No
expenditures of tribal funds may be made except in conformity with
the approved budget. The annual tribal budget shall be subject to
such review and approval as may be required by the Secretary of the
Interior.

SECTION 2. The Mescalero Apache Tribal Council shall,
by ordinance, establish the principles and policies governing the
operation and control of all enterprises of the tribe.

ARTICLE XIV – REFERENDUM

SECTION 1. Upon receipt of a petition signed by at least
thirty percent (30%) of the qualified voters of the tribe and filed with
the secretary of the tribal council demanding a referendum thereon,
any proposed or enacted resolution, ordinance or other action of
the tribal council shall either be repealed by the tribal council or
be submitted by it to the electorate for decision by the tribe in a
general election to be held within thirty (30) days after receipt of the
petition. The referendum shall be conclusive only if at least thirty
percent (30%) of the qualified voters cast their ballots therein.

SECTION 2. When a majority of the members of the tribal
council shall request a referendum on any proposed or enacted
resolution, ordinance, or other action of the tribal council, the tribal
council shall call an election within thirty (30) days thereafter
at which the members of the tribe shall approve or disapprove,
by majority vote, the ordinance or action in question; Provided,
however, that such approval or disapproval shall be effective only
in the event thirty percent (30%) or more of the qualified voters cast
their ballots in such election.

SECTION 3. No referendum conducted pursuant to the
provisions of Section 1 above shall serve to abrogate, modify, or
amend any properly approved contract or agreement with third
parties who are not members of the Mescalero Apache Tribe.

ARTICLE XV – CONSTITUTIONAL AMENDMENT

SECTION 1. This constitution may be amended at an election
called by the Secretary of the Interior upon request by the tribal
council:
(a) Whenever, by majority vote of all members of the
tribal council, the governing body of the tribe shall
authorize the submission of a proposed amendment to
the electorate of the tribe, or
(b) Whenever a minimum of thirty percent (30%) of the
qualified voters of the tribe, by signed petition, shall
request such amendment.

SECTION 2. If, at such election, the amendment is adopted
by majority vote of the qualified voters of the tribe voting therein,
and if the number of ballots cast represents not less than thirty
percent (30%) of the qualified voters, such amendments shall be
submitted to the Secretary of Interior and, if approved by him, it
shall thereupon take effect.

ARTICLE XVI – SESSIONS OF THE TRIBAL COUNCIL

SECTION 1. The tribal council shall meet, upon 24 hours
written notice to the membership thereof by the president, at the seat
of tribal government, as provided in the bylaws; Provided, that no
less than four (4) quarterly sessions shall be held in any year.

SECTION 2. Special sessions of the tribal council may be
convened by the president or, if the president shall refuse to act,
such special sessions may be convened by any three (3) members of
the tribal council upon twenty-four (24) hours written notice signed
by said three (3) members.

ARTICLE XVII – QUORUM; VOTE

SECTION 1. Six (6) members of the tribal council shall
constitute a quorum of the membership thereof, provided that
the vice-president of the tribe may vote as a member of the tribal
council throughout the whole of that meeting only if a quorum is
not otherwise present. No enactment of the tribal council shall have
any validity or effect in the absence of a quorum of the membership
thereof.
SECTION 2. No resolution or ordinance of the tribal council
shall have any validity or effect unless it is passed by the tribal council
at a legally called session in which a quorum of the membership was
present, and until approved by the president or passed over his veto
as provided by Article XII.

ARTICLE XVIII – ORDINANCES AND RESOLUTIONS

SECTION 1. All final decisions of the tribal council, on
matters of permanent interest to members of the tribe and necessary
to the orderly administration of tribal affairs, shall be embodied in
ordinances, the format of which shall be established in the bylaws
of the tribal council. Such enactments shall be available for public
inspection at all reasonable times by members of the Tribe.

SECTION 2. All final decisions of the tribal council on matters
of temporary interest, or matters relating to particular individuals,
officials or circumstances shall be embodied in resolutions. Such
actions of the tribal council shall also be subject to public inspection
by members of the tribe.

ARTICLE XIX – PART 2 – THE EXECUTIVE DEPARTMENT:
COMPOSITION AND MANNER OF SELECTION

SECTION 1. The Executive Department of the Mescalero
Apache Tribal Government shall consist of a president, a vice president,
a secretary and a treasurer.

SECTION 2. The President and Vice-President of the
Mescalero Apache Tribe shall be elected. The remaining officers
shall be appointed by the president with the concurrence of the tribal
council, and persons appointed to fill such offices shall serve during
the pleasure of the president, provided that the tribal council must
concur in the removal from office of any appointive officer of the
tribe.

ARTICLE XX – PRESIDENT AND VICE-PRESIDENT:
TERM OF OFFICE AND QUALIFICATIONS

SECTION 1. The President and Vice-President of the
Mescalero Apache Tribe shall be elected for a term of two (2) years.
Candidates for the office of president and vice-president must
possess the same qualifications required of candidates for council
membership as set forth in Article VIII, Section 3 of this constitution.
The term of office of the president and vice-president shall begin at
the same time as the terms of members of the tribal council elected
at the same election.

ARTICLE XXI – PRESIDENT AND VICE-PRESIDENT:
VACANCIES AND REMOVAL FROM OFFICE

SECTION 1. In the event of a vacancy, for any cause, in the
office of the president, the vice-president shall assume the duties of
the president until a successor has been duly elected and qualified.
In the event of a vacancy, for any cause, in the office of the vice-president,
such vacancy shall be filled by a tribal member appointed
by the tribal council, such person to serve until a successor has been
duly elected and qualified. In the event of a vacancy, for any cause,
in both executive offices, such vacancies shall be filled at a special
election, called by the tribal council and conducted in conformity
with applicable sections of Article IX of this constitution; except
that the membership of the election board shall be appointed by the
tribal council.

ARTICLE XXII – DUTIES OF OFFICERS

SECTION 1. The President of the Mescalero Apache Tribe
shall exercise the following powers as the chief executive officer of
the tribe:
(a) The president shall serve as the Chairman of the
Mescalero Apache Tribal Council, but he shall not
have the right to vote on any issue except to break
a tie vote of the council in the absence of the vice-president.
(b) The president shall appoint all non-elected officials
and employees of the executive department of the
tribal government and shall direct them in their work,
subject only to applicable restrictions embodied in
this constitution or in enactments of the tribal council
establishing personnel policies or governing personnel management.
(c) The president, subject to the approval of the tribal
council, may establish such boards, committees or
sub-committees as the business of the council may
require, and shall serve as an ex-officio member of all
such committees and boards.
(d) The president shall serve as contracting officer for the
Mescalero Apache Tribe, following approval of all
contracts by the tribal council.
(e) The president shall have veto power over enactments
of the tribal council, as provided in Article XII, Section 1.
(f) Subject to such regulations and procedures as may
be prescribed by ordinance of the tribal council, the
president shall have power to grant pardon, after
conviction for all offenses, to restore tribal members to
eligibility for elective office in the tribal government,
subject to the restrictions contained in Article X, Section 1.
(g) The president shall direct the tribal police, to assure
the enforcement of ordinances of the tribal council.
(h) The president shall hold no other tribal office or
engage in private remunerative employment without
the consent of the tribal council, during his term as
president.

SECTION 2. In the absence of the president, the vice-president
shall preside and shall have all powers, privileges and duties of the
president.

SECTION 3. The vice-president may function as chairman
of the tribal council or of any committee thereof in the absence of,
or at the direction of, the president. When presiding as chairman
of the tribal council he shall have the right to vote only in the event
the council or any committee thereof is equally divided on an issue.
In his capacity as vice-president, he may be counted for purposes
of constituting a quorum at any such meeting and when so counted
may vote on any business then before the council.

SECTION 4. The vice-president may attend any session of
the tribal council or of any council committee and he may participate
therein, but he shall not have the right to vote unless required to
make a quorum or to break a tie.

SECTION 5. The vice-president shall perform such other
duties as the president, with the consent of the tribal council, may
direct.

ARTICLE XXIII- THE SECRETARY OF THE MESCALERO
APACHE TRIBE

SECTION 1. The Secretary of the Mescalero Apache
Tribe shall be appointed from within the membership of the tribal
council.

SECTION 2. The secretary shall call the roll, handle all
official correspondence of the council, keep the minutes of all
regular and special meetings of the tribal council, and it shall be his
duty to submit promptly to the Superintendent of the agency copies
of minutes of all regular and special meetings of the tribal council.
Following each general election, the secretary shall certify to the
Superintendent of the reservation the duly elected president, vice-president,
and councilmen. In the absence of the president and vice-president,
the secretary shall carry on the duties of the president,
subject to all restrictions thereon embodied in this constitution.

ARTICLE XXIV – TREASURER OF THE MESCALERO
APACHE TRIBE

SECTION 1. The treasurer shall be appointed from within the
membership of the tribal council.

SECTION 2. (a) The treasurer shall accept, receipt for, keep and
safeguard all funds under the exclusive control of
the tribe by depositing them in a bank insured by an
agency of the Federal Government, or in an Individual
Indian Money Account as directed by the Mescalero
Apache Tribal Council, and shall keep an accurate
record of such funds and shall report on all receipts and
expenditures and the amount and nature of all funds in
his custody to the council at regular meetings and at
such other times as requested by the council. He shall
not pay or otherwise disburse any funds in custody of
the council except when properly authorized to do so
by the council.
(b) The books and records of the treasurer shall be audited
at least once a year by a competent auditor employed
by the council, and at such other times as the council
may direct.
(c) The treasurer shall be required to give a surety bond
satisfactory to the council and the Commissioner of
Indian Affairs.
(d) The treasurer shall be present at all meetings of the
council unless prevented by circumstances beyond his
control.
(e) All checks shall be signed and all vouchers shall be
approved for payment by two officers of the tribe as
follows: the president or the vice-president, together
with the treasurer or, in his absence, the secretary.
(f) In the absence of the president, vice-president, and
secretary, the treasurer shall canyon the duties of the
president.

SECTION 3. The tribal council may require all responsible
tribal officials and employees to be bonded. The premium for the
bond shall be paid by the tribe.

ARTICLE XXV – PART III- THE JUDICIARY

SECTION 1. The judicial powers of the Mescalero Apache
Tribe shall be vested in the Tribal Courts, including a Trial and
Appellate Court. The jurisdiction of the Tribal Courts shall extend
to all matters, criminal and civil, except where prohibited by the
Constitution, laws or treaties of the United States of America, and
except as such jurisdiction may be otherwise limited from time to
time by ordinance of the Tribal Council. [As amended March 4,
1977]

SECTION 2. The criminal offenses over which the Courts
of the Mescalero Apache Tribe have jurisdiction may be embodied
in a Code of Laws, adopted by ordinance of the tribal council, and
subject to review by the Secretary of the Interior.

SECTION 3. The duties and procedures of the courts shall be
determined by ordinance of the tribal council.

ARTICLE XXVI – COMPOSITION OF THE TRIBAL COURTS

SECTION 1. The trial court shall consist of a chief judge and
two associate judges, appointed by the President of the Mescalero
Apache Tribe, with the concurrence of not less than a three-fourths
majority vote of the whole membership of the tribal council.

SECTION 2. The tribal council shall sit as a court of appeals
whenever necessary and may hear appeals at any regular or special
meeting.

SECTION 3. The tenure and salary of tribal judges shall be
established by ordinance of the tribal council.

SECTION 4. No person shall be appointed to the office of the
Tribal Judge unless he is an Indian as defined herein, not less than
thirty-five years nor more than seventy years of age; nor shall any
person be appointed as a Tribal Judge who has ever been convicted
of a felony, or, within one year, last past, of a misdemeanor*.

*An attempt was made to amend this Section in 1980. The total vote on the issue was
inadequate to validate the decision of the majority of the voters voting at that time.
Therefore, the Amendment was not adopted.

For purposes of this Section only, an “Indian” is defined as
follows: An individual who possesses at least one-quarter Indian
blood, and is a member of any federally-recognized Tribe, nation,
or band of Indians, or is an Eskimo, Aleut, or other Alaskan native.
[As amended February 3,1981]

ARTICLE XXVII – INHERENT POWERS OF THE
MESCALERO APACHE TRIBE

SECTION 1. No provision of this constitution shall be
construed as a limitation on the inherent residual sovereign powers
of the Mescalero Apache Tribe. Any such powers, not delegated to
the representative tribal government by this constitution, are retained
for direct exercise by the people through referendum, as provided
for herein, or for exercise by the tribal government following
amendment of the constitution.

ARTICLE XXVIII – SAVING CLAUSE AND REPEAL
OF PREVIOUS CONSTITUTION

SECTION 1. The Constitution and Bylaws of the Apache
Tribe of the Mescalero Reservation, approved on March 25, 1936,
under the provisions of Section 16 of the Act of June 18, 1934 (48
Stat. 984), as amended by the Act of June 15, 1935 (49 Stat. 378), is
hereby repealed and superseded by this constitution.

SECTION 2. All ordinances and resolutions heretofore
enacted by the Mescalero Tribal Business Committee shall remain
in full force and effect to the extent that they are not inconsistent
with this constitution.

SECTION 3. The incumbent tribal business committee and
incumbent tribal officers shall remain in office and shall be entitled to
exercise all powers granted by this constitution to the tribal council
and tribal officers until such time as the first election of the tribal
council and tribal officers is held under this constitution.

ARTICLE XXIX – OATH OF OFFICE

SECTION 1. No elective official of the Mescalero Apache
Tribe shall be officially installed in the office to which such
official is elected unless and until the following oath has been duly
administered by a Judge of the Mescalero Apache Tribal Court:
“I,                     , do solemnly swear that I will support and
defend the Constitution of the United States against all
enemies; that I will faithfully and impartially carry out
the duties of my office, uphold the Constitution of the
Mescalero Apache Tribe, and represent the interests of
the Mescalero Apache people. These things I will do
to the best of my ability, so help me God.”

ARTICLE XXX – RATIFICATION OF REVISED
CONSTITUTION

SECTION 1. This constitution, when adopted by a majority
vote of the qualified voters of the Mescalero Apache Tribe, voting at
an election called for that purpose by the Secretary of the Interior, in
which at least thirty percent (30%) of those entitled to vote shall cast
their ballots, shall be submitted to the Secretary of the Interior for
his approval, and shall be effective from the date of approval.

CERTIFICATION OF ADOPTION

Pursuant to an election authorized by the Secretary of the
Interior on December 11, 1964, the attached Revised Constitution
of the Apache Tribe of the Mescalero Reservation was submitted to
the qualified voters of the tribe and was on December 18, 1964, duly
adopted by a vote of 190 for and 103 against, in an election in which
at least 30 percent of the 635 members entitled to vote cast their
ballot in accordance with Section 16 of the Indian Reorganization
Act of June 18, 1934 (48 Stat 984), as amended by the Act of June
15,1935 (49 Stat. 378).


KENNETH L. PAYTON
Chairman, Election Board
CHRISTIE LA PAZ
Election Board Member
ALTON PESO
Election Board Member

APPROVAL

              I, John A. Carver, Jr., Under Secretary of the Interior of the
United States of America, by virtue of the authority granted me
by the Act of June 18, 1934 (48 Stat. 984), as amended, do hereby
approve the attached Revised Constitution of the Apache Tribe of
the Mescalero Reservation.

Approval recommended:

JAMES E. OFFICER
Associate Commissioner
Bureau of Indian Affairs

JOHN A. CARVER, JR.
Under Secretary of the Interior
[Seal]

WASHINGTON, D.C., January 12, 1965

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