Establishment of a Section 17 corporation is governed by a Section 17 of the IRA and by its implementing regulations.56 However, neither the statute nor its regulations contain detailed procedures for forming a Section 17 corporation. Therefore, there is significant flexibility in how the procedural requirements are met and there is wide variation in the contents of tribal Section 17 corporate charters. Additionally, staff at the BIA Central, regional and local offices may have differing interpretations of the formation requirements particularly with respect to whether a tribe is required to submit a petition for a charter. Recently, the BIA Central Office has delegated more approval power to the Regional offices.

Traditionally, Indian tribes were required to take the following five steps in order to secure final approval of a federally-chartered Section 17 corporation.

The regulations provide that a tribe may initiate the Section 17 corporation formation process by submitting a petition to the Secretary of the Department of the Interior to issue a corporate charter. Prior to the 1990 amendments to Section 17, some agency personnel and attorneys interpreted the petitioning requirement to apply only to tribes with constitutions. Pursuant to recent BIA practice, the formation process may be initiated by tribes with or without constitutions-- III-11 simply by passing a tribal resolution for the issuance of a charter--without submitting a formal petition.

The next step is to draft the corporate charter, which is a document similar in form and scope to Articles of Incorporation, but generally with more detail. The charter describes the organizational framework for the entity that the tribe is seeking BIA approval. The corporation must be structured as a legal entity that is wholly owned by the tribe, but separate and distinct from the tribal government.

Once drafted, the charter must be submitted to the tribe for approval. According to the BIA, the procedure for obtaining tribal approval is set by the law of the tribe, and not by federal law. If the tribe's constitution (or other organic documents) allows the Tribal Council to form corporations, a Council resolution is generally sufficient; if not, a vote of the general membership must be scheduled.

After the tribe signs the resolution or petition and approves the charter, both documents should be submitted to the local BIA office having administrative jurisdiction over the Tribe. Once received by the local BIA office, the documents will be reviewed to ensure that the submission is complete. If complete, the charter documents will be forwarded to the regional BIA office for further review and approval. (Under a recent delegation of authority, only if the regional BIA office proposes to disapprove the documents will they be forwarded to the Central or national BIA office for further review.) Upon a determination that the resolutions and proposed charter are consistent with tribal and federal law, and properly approved by the tribe, the Regional BIA office will issue an approved charter of incorporation.

Once the charter is approved, it will be returned to the Tribe for ratification. The Section 17 statutory provisions require that the corporate charter be ratified by the governing body of the tribe before it becomes effective. Once the charter is ratified by the Tribe, the statutory requirements are met and the charter becomes operable.

When Section 17 was first enacted, tribes were required to first organize a governing body under Section 16 in order to be eligible to organize a corporate entity under Section 17. The IRA was amended in 1990, and now tribes can form a Section 17 corporation regardless of whether they have formed their governing body pursuant to Section 16 of the IRA or pursuant to tribal law. Originally, the IRA did not apply to Alaska Natives or to Oklahoma tribes; it has subsequently been amended to extend to Alaska Natives and a similar provision was enacted for Oklahoma tribes.57 The Oklahoma Indian Welfare Act (OIWA) authorizes the formation of tribal corporations in a manner similar to the IRA and extends to tribes organized under the OIWA any other rights or privileges secured to an organized Indian tribe under the IRA.58 The 1990 amendments also extended the ability to form Section 17 corporations to tribes that voted to reject the IRA.

Neither the Section 17 statutory provisions nor the regulations provide guidance on how to amend a Section 17 corporate charter once it has been issued. For this reason, tribes frequently draft the corporate purposes section of the charter as broadly as possible to accommodate prospective changes in the Section 17 corporation's business activities and operation. In drafting the corporate charter, some tribes have vested tribal governing body (e.g., the Tribal Council) with authority to seek BIA approval of amendments as well as the authority to ratify such amendments. Once issued, a Section 17 corporate charter can not be revoked or surrendered, except by an Act of Congress.

When Section 17 was first enacted, tribes were required to first organize a governing body under Section 16 in order to be eligible to organize a corporate entity under Section 17. The IRA was amended in 1990, and now tribes can form a Section 17 corporation regardless of whether they have formed their governing body pursuant to Section 16 of the IRA or pursuant to tribal law. Originally, the IRA did not apply to Alaska Natives or to Oklahoma tribes; it has subsequently been amended to extend to Alaska Natives and a similar provision was enacted for Oklahoma tribes.57 The Oklahoma Indian Welfare Act (OIWA) authorizes the formation of tribal corporations in a manner similar to the IRA and extends to tribes organized under the OIWA any other rights or privileges secured to an organized Indian tribe under the IRA.58 The 1990 amendments also extended the ability to form Section 17 corporations to tribes that voted to reject the IRA. III-12

Neither the Section 17 statutory provisions nor the regulations provide guidance on how to amend a 17 corporate charter once it has been issued. For this reason, tribes frequently draft the corporate purposes section of the charter as broadly as possible to accommodate prospective changes in the Section 17 corporation's business activities and operation. In drafting the corporate charter, some tribes have vested tribal governing body (e.g., the Tribal Council) with authority to seek BIA approval of amendments as well as the authority to ratify such amendments. Once issued, a Section 17 corporate charter can not be revoked or surrendered, except by an Act of Congress.59