[Federal Register: April 25, 2007 (Volume 72, Number 79)]
[Proposed Rules]
[Page 20671-20693]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap07-22]
[[Page 20671]]
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Part III
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 700, 740, 746 and 750
Indian and Federal Lands; Proposed Rule
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 740, 746 and 750
RIN 1029-AC53
Indian and Federal Lands
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Notice of decision not to adopt proposed rule.
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SUMMARY: We, OSM, have decided not to adopt a proposed rule that would
have revised the definition of ``Indian lands'' for purposes of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed rule also would have revised both the Federal lands program
and the Indian lands program.
If adopted as proposed, the definition of Indian Lands would have
included allotted lands located within an approved tribal land
consolidation area but outside the boundaries of a reservation. Such
allotments would then have been subject to OSM's regulatory authority
under the Indian Lands Program. The only lands approved for coal mining
that would have been brought within the scope of our jurisdiction if
the proposed rule were adopted are 48 Navajo allotments overlying
leased Federal coal within the existing McKinley Mine permit area in
New Mexico. These allotments are currently regulated by the State.
We conclude that the record before us neither adequately supports
nor clearly precludes a finding of supervision in fact or in law.
Therefore, we conclude that off-reservation Navajo allotted lands may
be supervised by the Navajo Nation and thus may be Indian lands; but
that any determination as to supervision of specific off-reservation
Navajo allotted lands is more properly made on a case-by-case basis.
In this notice of final action, we are setting out our analysis of
the applicable law and the record before us. We are publishing this
analysis for two reasons. First, we intend this analysis to inform the
Navajo Nation and the Hopi Tribe and the public of the reasons for our
decision not to adopt the proposed rule. Second, we intend this
analysis to advise the public of how we anticipate addressing any
pending or future actions concerning supervision of allotted lands.
DATES: This decision is effective April 25, 2007.
ADDRESSES: The administrative Record for this rulemaking is located at
the Office of Surface Mining Reclamation and Enforcement,
Administrative Record, Room 101, 1951 Constitution Avenue, NW.,
Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Ms. Vermell Davis, Office of Surface
Mining Reclamation and Enforcement, 1951 Constitution Avenue, NW.,
Washington, DC 20240; Telephone (202) 208-2802. E-mail address:
gvdavis@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. What Amendments Did We Propose Concerning the Definition of
Indian Lands? What Action Are We Now Taking on the Proposed Rule?
II. How Do We Define Indian Lands Under the Existing Rule, and What
Lands Do We Regulate as Indian Lands Under That Definition?
III. Why Did We Propose the Rule?
IV. What Would Be the Effect of the Proposed Rule?
V. Why Have We Decided Not To Adopt the Proposed Rule?
VI. What Does the Record Establish Concerning the Basis for the
Proposed Rule?
VII. What Is the Effect of This Notice?
VIII. How Will This Issue Be Addressed After This Notice?
I. What Amendments Did We Propose Concerning the Definition of Indian
Lands? What Action Are We Now Taking on the Proposed Rule?
On February 19, 1999 we proposed a rule clarifying the definition
of Indian lands for the purposes of SMCRA, at 30 CFR 700.5. As
discussed in more detail below, the proposed rule would have amended
the existing definition by including as Indian lands:
``All allotments held in trust by the Federal government for an
individual Indian or Indians, the Indian titles to which have not
been extinguished, including rights-of-way running through such
allotments, where such allotments are located within a tribal land
consolidation area approved by the Secretary or his authorized
representative under 25 U.S.C. 2203.''
In the February 19, 1999 notice of proposed rulemaking, we also
proposed amendments to our Indian lands rules at 30 CFR part 750, and
to our Federal lands rules at 30 CFR parts 740 and 746, to reflect the
proposed change in the definition, and to clarify the effect of the
proposed change. These proposed changes are also discussed in more
detail below. For a full discussion of the proposed rule, see 64 FR
8464 (February 19, 1999).
We have decided not to adopt any of the proposed rules, for the
reasons discussed below.
II. How Do We Define Indian Lands Under the Existing Rule, and What
Lands Do We Regulate as Indian Lands Under That Definition?
The term ``Indian lands'' is defined at 30 CFR 700.5 as ``all
lands, including mineral interests, within the exterior boundaries of
any Federal Indian reservation, notwithstanding the issuance of any
patent, and including rights-of-way, and all lands including mineral
interests held in trust for or supervised by an Indian Tribe.''
The regulatory definition is identical to the definition of Indian
lands in SMCRA at 30 U.S.C. 1291(9). Under that definition, we have
asserted regulatory jurisdiction over all lands located within the
boundaries of Federal Indian reservations, and certain lands outside
reservation boundaries where the surface or mineral estate is held in
trust for or supervised by an Indian tribe. The off-reservation lands
include those portions of the Crow Ceded Strip that are within the
permit area of Westmoreland Resources' Absaloka Mine in Montana where
the mineral estate (i.e. the coal) is held in trust for and
beneficially owned by the Crow Tribe. We also regulate coal mining on
certain split-estate lands in the permit area of the McKinley Mine in
New Mexico, on which the Navajo Nation (``the Nation'' or ``the
Navajo'') owns the surface estate and the mineral rights are privately
owned.
As we noted in the proposed rule, the McKinley Mine has a permit
area of 18,692 acres. It is an active coal mining operation owned and
operated by the Pittsburg & Midway (P&M) Coal Mining Company. The mine
straddles the boundary of the Navajo Indian Reservation near the
Arizona-New Mexico border. The portion of the permit area that lies
within the Navajo reservation and on certain adjacent off-reservation
split-estate Navajo fee lands, is regulated by OSM. The remainder of
the mine, the so-called south area, is composed of Federal, private,
State, and allotted lands and is regulated under a permit issued by the
New Mexico regulatory authority (``the State'' or ``New Mexico'').
To date, P&M has mined approximately 2,905 acres in 45 of the 48
allotments included within the McKinley Mine permit area. Within the
next two years, P&M plans to mine the leased Federal coal on an
additional 18 acres in one of the previously disturbed allotments.
Beyond this, there is no further mining planned within allotments at
the McKinley Mine.
We assumed regulatory authority over the Navajo fee lands at the
McKinley
[[Page 20673]]
Mine subsequent to two 1994 district court decisions (Pittsburg &
Midway Coal Mining Co. v. Babbitt, No. Civ. 90-730 (D.N.M. Sept. 13,
1994); and New Mexico v. Lujan, No. 89-758-M (D.N.M. Feb. 14, 1994)).
Those decisions upheld the Department's interpretation that such lands
are Indian lands for purposes of SMCRA regulation because the Tribe's
ownership of the surface estate in fee simple renders the lands
supervised by the Tribe within the meaning of section 701(9) of SMCRA.
III. Why Did We Propose the Rule?
The Secretary agreed in a settlement agreement to propose a rule
clarifying the definition of Indian lands at 30 CFR 700.5. The
settlement agreement concerned consolidated actions filed by the Hopi
Tribe and the Navajo Nation, Hopi Indian Tribe v. Babbitt, Nos. 89-
2055, 89-2066 (D.D.C. June 20, 1995). For purposes of SMCRA and the
implementing regulations, the Secretary agreed to propose including
within the definition of Indian Lands ``all allotments held in trust by
the Federal Government for an individual Indian or Indians, the Indian
titles to which have not been extinguished, including rights-of-way
running through such allotments, where such allotments are located
within a tribal land consolidation area approved by the Secretary or
his authorized representative under 25 U.S.C. 2203.''
For purposes of this discussion, a brief history of the background
of the proposed rule may be helpful. The Surface Mining Control and
Reclamation Act of 1977, Public Law 95-87, 30 U.S.C. 1201 et seq.,
(SMCRA or the Act) provides statutory authority for the development of
regulations for surface coal mining and reclamation operations. Section
710 of SMCRA concerns the regulation of surface coal mining operations
on Indian lands. Sections 710(d) and (e) identify the applicable SMCRA
regulatory provisions for surface coal mining operations on Indian
lands. The Secretary of the Interior issued a final rule on September
28, 1984, implementing the requirements of sections 710(d) and (e) of
SMCRA (49 FR 38462). A new subchapter, Subchapter E--Indian Lands
Program, was added to 30 CFR Chapter VII. Subchapter E included Part
750--Requirements for Surface Coal Mining and Reclamation Operations on
Indian Lands, and Part 755--Tribal-Federal Intergovernmental
Agreements.
Our regulations at 30 CFR Part 750 specify the applicable
requirements for coal exploration and for surface coal mining and
reclamation operations on Indian lands, including permit review and
permit processing; permit applications; performance standards; bonding;
inspection and enforcement (I&E); and various other provisions. Section
750.6 designates OSM as the SMCRA regulatory authority on Indian lands
and describes our permitting, consultation and I&E responsibilities
under SMCRA. Section 750.6 also specifies the Indian lands
responsibilities of the Bureau of Land Management (BLM), the Bureau of
Indian Affairs (BIA), and the Minerals Management Service (MMS).
The final Indian lands rule promulgated in 1984 was challenged on
various grounds by certain States (New Mexico ex rel. Energy and
Minerals Dep't, Mining and Minerals Div'n v. United States Dep't of the
Interior, Civ. No. 84-3572 (D.D.C.)), and by the National Coal
Association and American Mining Congress (NCA v. United States Dep't of
the Interior, Civ. No. 84-3586 (D.D.C.)).
The Department of the Interior settled those two challenges by
entering into separate agreements with the plaintiffs in which we
agreed to undertake further rulemaking actions concerning the Indian
lands program. The second round of Indian lands rulemaking led to the
issuance of a final rule on May 22, 1989 (54 FR 22182). The 1989 final
rule, issued jointly by OSM and BIA, amended our regulations at 30 CFR
part 750, as well as BIA's regulations at 25 CFR part 200 governing
leases of coal on Indian lands.
In the preamble to the 1989 final rule, we clarified that we are
the exclusive SMCRA regulatory authority on Indian lands until the
United States Congress enacts legislation pursuant to section 710(a) of
SMCRA, to allow Indian Tribes to assume full regulatory authority over
surface coal mining operations on Indian lands, and the Tribes elect to
do so.\1\ We also clarified that, for purposes of SMCRA regulatory
jurisdiction, we considered off-reservation individual Indian
allotments to be Indian lands only if an interest in the surface or
mineral estate is held in trust for or supervised by an Indian Tribe.
We did not, however, amend the regulatory definition of Indian lands at
30 CFR 700.5.
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\1\ SMCRA was amended on December 20, 2006, to provide for
tribal primacy. As amended, SMCRA section 710 provides in relevant
part as follows:
``(j)(A)(1) In General.--Notwithstanding any other provision of
law, an Indian tribe may apply for, and obtain the approval of, a
tribal program under section 503 regulating in whole or in part
surface coal mining and reclamation operations on reservation land
under the jurisdiction of the Indian tribe using the procedures of
section 504(e).''
Tax Relief and Health Care Act of 2006, Pub. L. 109-432, Div. C,
Title II, Subtitle A.
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The Hopi Tribe and the Navajo Nation challenged the 1989 final rule
on several grounds. The Navajo Nation asserted that individual Indian
trust allotments are Indian lands subject to OSM regulation under SMCRA
and that the Secretary may not lawfully allow or delegate to the States
any permitting or regulatory authority under SMCRA on such lands. The
Tribes' challenges were subsequently consolidated and, in April 1995,
were settled in an agreement between the Department of the Interior and
the two plaintiff Tribes. The U.S. District Court for the District of
Columbia approved the settlement in June 1995. See Hopi Indian Tribe v.
Babbitt, Nos. 89-2055, 89-2066 (D.D.C. June 20, 1995).
Under the terms of the settlement, the Secretary agreed, among
other things, to propose a rule clarifying the definition of Indian
lands at 30 CFR 700.5 for purposes of SMCRA and the implementing
regulations. Specifically, the Secretary agreed to propose including as
Indian lands ``all allotments held in trust by the Federal Government
for an individual Indian or Indians, the Indian titles to which have
not been extinguished, including rights-of-way running through such
allotments, where such allotments are located within a tribal land
consolidation area approved by the Secretary or his authorized
representative under 25 U.S.C. 2203.''
We proposed the clarified definition of Indian lands on February
19, 1999 (64 FR 8464). We also proposed several changes to the Indian
lands program at 30 CFR part 750 to make those regulations consistent
with the proposed change in the definition of Indian lands. We further
proposed various rule changes to the Indian lands program and to the
Federal lands program at 30 CFR parts 740 and 746 to specify the
applicable regulatory requirements for mining operations involving the
mining of leased Federal coal on Indian lands. We anticipated that the
necessity for such requirements would arise for the first time, should
we ultimately adopt the revised definition of Indian lands.
We held a public hearing on the proposed rule in Albuquerque, New
Mexico on June 8, 1999. The public comment period on the proposed rule
was originally scheduled to close on April 20, 1999, but we
subsequently extended the comment period through June 21 after we
received several requests for an extension. Commenters included the
Navajo Nation, the State of New Mexico, the National Mining
[[Page 20674]]
Association and Pittsburg & Midway Coal Company (McKinley Mine).
IV. What Would Be the Effect of the Proposed Rule?
A. What Lands Would Be Affected?
If adopted as proposed, the definition of Indian Lands would
include allotted lands located within an approved tribal land
consolidation area but outside the boundaries of a reservation. Such
allotments would then be subject to OSM's regulatory authority under
the Indian Lands Program. The only lands approved for coal mining that
would be brought within the scope of OSM's jurisdiction if the proposed
rule were to be adopted are 48 Navajo allotments overlying leased
Federal coal within the existing McKinley Mine permit area in New
Mexico. These allotments are currently regulated by the State. The
McKinley Mine permit area straddles the boundary of the Navajo
Reservation near the Arizona-New Mexico border. The portions of the
permit area that lie within the reservation boundaries and on an
adjacent parcel of off-reservation Navajo fee lands, are collectively
referred to as the north area and are regulated by OSM. The remainder
of the mine, the so-called south area, is composed of Federal, private,
State, and allotted lands occurring in a complex checkerboard pattern,
and is regulated by the State of New Mexico. The allotted lands include
all or part of 48 individual allotments, 45 of which contain leased
Federal coal and three of which contain unleased Federal coal. No other
coal mines in the U.S. would be affected by the proposed rule at this
time.
B. How Would the Proposed Rule Affect Funding Under SMCRA Title V and
Title IV, and Responsibility for AML Reclamation?
Effect on Allocation of Title IV Funding and Responsibility for AML
Reclamation: As we explained in the proposed rule, we collect AML
reclamation fees from coal mining operations pursuant to Title IV of
SMCRA and the implementing regulations. Historically, fifty percent of
the fees from coal produced from State and private lands within a
State, or from coal produced from Indian lands, is allocated to the
respective State or Tribal share for use, once appropriated, on
eligible reclamation projects and activities. The Navajo Nation, as
well as the Crow and Hopi Tribes, have approved Title IV programs.
However, beginning with fees collected during fiscal year 2008, States
and Indian Tribes that have certified the completion of all coal-
related reclamation under section 411(a) of SMCRA, as the Navajo Nation
has done, will receive payments from unappropriated funds in the U.S.
Treasury in lieu of that allocation. Noncertified States, such as New
Mexico, will receive their 50% allocation in the form of grants for AML
reclamation purposes. Tax Relief and Health Care Act of 2006, Public
Law 109-432, Div. C, Title II, Subtitle A.
If allotted lands were designated Indian lands as proposed, the
resulting change in the jurisdictional status of Navajo consolidation
area allotments would mean that the Navajo Nation would receive
Treasury payments equal to 50% of the AML reclamation fees generated by
coal production on those allotments. The change also would mean that
New Mexico would no longer receive 50% of the fees generated by coal
production on those allotments.
Effect on Allocation of Title V Funding: In the proposed rule, we
noted that the change in definition of Indian lands, if adopted, could
also potentially reduce the amount of annual funding that we provide to
the State of New Mexico to support the implementation of its Title V
regulatory program. As we explained in the proposed rule, the State's
Title V funding formula is based, in part, on the total acreage subject
to State regulatory jurisdiction; thus, the proposed change in the
Indian lands definition could result in a small decrease in the State's
annual Title V grant since it would immediately reduce the amount of
land subject to State regulation.
V. Why Have We Decided Not To Adopt the Proposed Rule?
With the publication of the February 19, 1999, proposed rule, we
met our obligation under the 1995 settlement agreement to propose the
change in the definition of Indian Lands. As discussed above, we then
reviewed the rulemaking record and decided whether to adopt a final
rule in consideration of all of the information in the record. We
further considered the extent to which it was appropriate to pursue any
other rulemaking to address the question of when allotments are
supervised by a tribe. Finally, we evaluated further actions that are
likely on the underlying issue.
A. How Did We Determine What Action To Take on the Proposed Rule?
In determining what action to take in this final rulemaking, we
were required to evaluate the administrative record to determine
whether the record supports a determination that all allotted lands in
an approved tribal land consolidation area are supervised by an Indian
tribe. Effectively, to adopt the proposed rule, we would need to find
that the Navajo Nation supervises Navajo allotments located outside the
reservation but within the Navajo Land Consolidation Area.
As a first step in our evaluation, we determined what is meant by
the term ``supervised by'' in the SMCRA definition. We also extensively
researched the legal and historical background of the definition of
Indian Lands. As discussed below, we concluded that to ``supervise''
means to have the function, right, or authority to superintend,
regulate, or oversee a person or thing. Thus in general, a tribe
supervises lands if the tribe has the function, right, or authority to
superintend, regulate, or oversee the lands or what is done affecting
the lands.
We then reviewed the record and concluded that the record does not
support a determination that all allotted lands in an approved tribal
land consolidation area are supervised by an Indian tribe.
Specifically, the record does not demonstrate whether or not the Navajo
Nation supervises the off-reservation Navajo allotted lands in the
approved Navajo tribal land consolidation area.
B. What Are Our Reasons for Not Adopting the Proposed Rule?
1. Summary
After reviewing the entire administrative record, including all
comments received on the proposed rule, we conclude that, for the
reasons set out below, the record does not support a finding that all
allotted lands in an approved tribal land consolidation area are Indian
lands for purposes of SMCRA; and that the record also does not support
a conclusion one way or the other as to whether off-reservation Navajo
allotted lands are supervised by the Nation. Further, as discussed
below, we conclude that (1) this jurisdictional issue has arisen only
once so far, and is unlikely to arise frequently in the future.
(However, the proposed rule would be over-inclusive, because it would
also apply without further analysis to any other similarly situated
allotments that might occur; and this is not appropriate, because case-
by-case analysis of all relevant facts and law is required for any such
determination of tribal interests.) and (2) this issue is not suited to
a rulemaking of nationwide applicability, but rather should be
addressed in case-by-case determinations.
[[Page 20675]]
For the above reasons, we conclude that the record before us
neither adequately supports nor clearly precludes a finding of
supervision in fact or in law. Therefore, we conclude that off-
reservation Navajo allotted lands may be supervised by the Navajo
Nation and thus may be Indian lands; but that any determination as to
supervision of specific off-reservation Navajo allotted lands is more
properly made on a case-by-case basis. Hence, we have decided not to
adopt the proposed rule.
2. What Is the Meaning of ``Supervised by''?
Statutory construction is a two-step process. In the first step, we
ask whether the intent of Congress is clear. Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984),
reh'g denied, 468 U.S. 1227 (1984) (``Chevron''). If so, we ``must give
effect to the unambiguously expressed intent of Congress.'' Id. at 842-
43. We must ascribe to the statutory words their plain and ordinary
meaning, absent convincing reasons to the contrary. The words are the
best indicators of legislative intent. See, e.g., Save Our Cumberland
Mountains v. Clark, 725 F.2d 1422 (D.C. Cir. 1982). See also Chevron,
467 U.S. 837, 839.
In the second step of statutory construction, if Congress has not
``spoken to the precise question at issue,'' our construction of the
statute must be ``permissible,'' i.e., ``rational and consistent with
the statute.'' See Chevron, 467 U.S. at 842, 843.
a. Is the Statute Ambiguous?
Summary: SMCRA does not define ``supervised by,'' and the
legislative history of SMCRA is silent as to Congress' intention.
However, a statute is not ambiguous if the terms used have a commonly
accepted interpretation. After review of all comments on the proposed
rule, and the materials discussed below, we conclude that, in general,
a tribe supervises lands if the tribe has the function, right, or
authority of superintending, regulating, or overseeing those lands.
Thus, the Indian lands criterion, ``supervised by,'' addresses whether
the tribe has the function, right, or authority of regulating,
superintending, or overseeing the lands in question, and what is done
affecting those lands. Although we found many variations in the
definitions and synonyms ascribed to these terms, we believe that the
thrust of relevant definitions and interpretations may be summarized as
follows: ``supervise'' or ``supervision'' means the function, right, or
authority of superintending, regulating, or overseeing a person or
thing. We conclude that this is the meaning intended by Congress.
No SMCRA Definition or SMCRA Legislative History: The term
``supervised by'' is neither defined in SMCRA nor explained in the
legislative history of the statute. See Valencia Energy Co., 109 IBLA
40 (1989), aff'd, New Mexico ex rel. Energy, Minerals & Natural
Resources Dep't v. Lujan, No. 89-758-M, 21 ILR 3113 (D.N.M. February
14, 1994) (``Valencia'').
Commonly Accepted Interpretation of ``Supervise'' or
``Supervision'': To ascertain whether the term has a commonly accepted
interpretation, and therefore is not ambiguous, we reviewed definitions
and interpretations of the word ``supervise'' given in various
dictionaries, a thesaurus and relevant case law. One widely used
dictionary says ``supervise'' means: ``to direct and inspect the
performance of; superintend.'' (The American Heritage Dictionary,
Second College Edition (1982)). Another dictionary says ``supervision''
refers ``to the function of watching, guarding, or overseeing.'' (The
American Heritage Dictionary of the English Language, Fourth Edition
(2000)). Similarly, other definitions of ``supervise include:
``superintend, oversee,'' (Merriam Webster's Collegiate Dictionary,
Tenth Edition (1996)); and ``1. To direct and watch over the work and
performance of others (synonyms: boss, overlook, oversee, superintend).
2. To control the course of (an activity).'' (Roget's II: The New
Thesaurus (1980)). In addition, Black's Law Dictionary defines
``supervise'' as ``to have general oversight over, to superintend or to
inspect.'' Black's Law Dictionary (7th ed. 1999).
Case law interpreting the word ``supervise,'' gives some similar
interpretations of the term. For example:
According to the Century Dictionary, * * * the word
``supervise'' means to oversee; have charge of, with authority to
direct or regulate. * * * New York Life Ins. Co. v. Rhodes, 60 S.E.
828, 831, 4 Ga. App. 25.
* * * * *
Common meaning of ``supervise'' is to superintend which means to
have charge and direction of, to direct course and oversee details,
to regulate with authority, to manage, to have or exercise the
charge and oversight of, to oversee with power of direction, to take
care of with authority. Nederlandsch-Amerikaansche-Stoomvaart-
Mattschappij; Holland-America Line v. Vassallo, Tex. Civ. App., 365
S.W. 2d 650, 656 [sic].
* * * * *
The words ``supervise,'' ``superintend,'' and ``oversee,'' in
ordinary use and common acceptance, have substantially the same
meaning, which is to have or exercise the charge and oversight of.
Bacigalupo v. Fleming, 102 S.E.2d 321, 325, 199 Va. 827.
Words and Phrases, ``Supervise'' (2001).
Although we found many variations in the definitions and synonyms
ascribed to these terms, we believe that the thrust of relevant
definitions and interpretations may be summarized as follows:
``supervise'' or ``supervision'' means the function, right, or
authority of superintending, regulating, or overseeing a person or
thing. Under the first prong of the Chevron test, and after review of
all comments on the proposed rule, and review of the materials
referenced in this preamble, we conclude that this is the meaning
intended by Congress. Thus, we conclude that the statute is unambiguous
as to the meaning of the term ``supervised by.''
b. What Is Our Alternative Interpretation of the Statute, if a Court
Were To Disagree With Our Construction Above?
Although we conclude that the statutory term ``supervised by'' is,
for purposes of the proposed rule, unambiguous, we recognize that, in
light of the variations in meaning ascribed to the term in different
contexts, it is possible that a court might conclude differently. If a
court did so hold, then in the absence of clear statutory language or
express Congressional direction, OSM has the authority to make a
reasonable or permissible interpretation of the statutory phrase.
Congress, when it leaves ambiguity in a statute to be implemented by an
agency, is presumed to intend that the ambiguity will be resolved by
the agency, and intends the agency to have the discretion allowed by an
ambiguity. Chevron, 467 U.S. 837, 843; Smiley v. Citibank, 517 U.S.
735, 740-41 (1996).
If a court were to disagree with our construction of the term
``supervised by'' as used in SMCRA Sec. 701.9, as unambiguous, and
were to rule that, on the contrary, the term is ambiguous, the term
would have to be construed under a Chevron Step II analysis. Using that
alternative analysis we conclude that a tribe supervises lands if the
tribe has the function, right, or authority of superintending,
regulating, or overseeing those lands. Thus, for purposes of our review
of the record and action on the proposed rule, we conclude that the
Indian lands criterion, ``supervised by,'' addresses whether the tribe
has the right or authority to regulate, superintend, or oversee the
lands in question (or the function of
[[Page 20676]]
doing so); or whether the tribe has the right or authority to regulate,
superintend, or oversee what is done affecting those lands (or the
function of doing so).
c. What Is the Relationship of Tribal Supervision to the Roles of Other
Governments on Lands?
A determination as to tribal supervision does not require that we
compare state or Federal supervision versus tribal supervision in order
to determine whether allotments are Indian lands. Rather, we determine
whether the tribe's interests or actions suffice to constitute
supervision for purposes of SMCRA. Nothing in the SMCRA definition
requires that the tribe have exclusive supervision or primary
supervision. Thus, the definition does not require that either a state
or the Federal Government be excluded from supervising the land.
Similarly, the statute does not require that the tribe have a greater
supervisory interest or role than a state or the Federal Government
does. Further, the definition does not require that the supervision
specifically relate to SMCRA or coal mining. This is consistent with
the fact that OSM is the SMCRA regulatory authority on designated
Indian lands, and that a state is typically the SMCRA regulatory
authority on other lands. Thus, either a state or OSM would have the
primary ``supervisory'' responsibility for regulating surface coal
mining operations and their effects on lands under SMCRA. However, the
definition does require that a tribe supervise the lands. In this
regard, supervision of activities that may significantly affect lands
(such as building, grazing, and other land uses, water pollution, etc.)
may be evidence of, or an aspect of, supervision of the lands. We
believe that, logically, supervision of actions that affect lands is a
basic means of supervising the affected lands.
d. Is Our Construction of ``Supervised by'' Consistent With SMCRA Case
Law?
Our construction of ``supervised by'' and ``supervise'' is not
controverted by the decisions in either of the two cases concerning the
interpretation and application of the term under SMCRA. Valencia Energy
Co., 109 IBLA 40 (May 26, 1989) (``Valencia''), aff'd sub nom. New
Mexico v. Lujan, No. 89-758-M (D.N.M. February 14, 1994), 21 I.L.R.
3113 (June 1994); and Pittsburg & Midway Coal Mining Co. v. OSMRE, 115
IBLA 148 (1990) (``Pittsburg & Midway''), aff'd, The Pittsburg & Midway
Coal Mining Co. v. Babbitt, No. 90-730 (D.N.M. September 12, 1994).
Neither of the two cases has led to a decision that defines the term
specifically and unambiguously. Further, neither case has yielded a
final decision that addresses the applicability of the term to allotted
lands.
Valencia addressed our interpretation that certain lands, in which
a tribe held a fee interest in the surface, were ``Indian lands'' under
SMCRA. One of our bases for our interpretation was that land owned by
the Nation necessarily constituted land ``supervised by'' the Nation.
We argued to the IBLA that, ``if ownership were not supervision, it
would be impossible for a property interest to reach the level of
supervision.'' The IBLA agreed. 109 IBLA 40 (1989). In its appeal to
the IBLA, Valencia had advanced the argument that, ``[s]ince the lands
in question are not presently within the Tribe's regulatory
jurisdiction, * * * it is beyond the power of OSMRE to include such
lands within the definition of ``Indian lands.'' 109 IBLA 51. Further,
Valencia had argued that, since the Navajo Nation had conveyed all its
rights to the surface for approximately 50 years, it had no supervisory
authority over the land until the expiration of the lease term. Id. at
52. In rejecting Valencia's arguments, the IBLA concluded that, ``where
an Indian tribe owns either the mineral estate or the surface in fee of
any land outside of the exterior boundaries of an Indian Reservation,
such land is ``supervised by an Indian tribe'' within the meaning of 30
U.S.C. 1201(9) (1982) and is properly subject to the Federal Program
for Indian Lands established in 30 CFR Part 750.'' Id. at 67. The IBLA
found that, while an OSM analysis ``provided more than a sufficient
basis upon which to find that the Navajo Tribe did exercise supervision
in fact, we are also of the view that supervision in law, i.e., mere
ownership of the surface fee, was sufficient, in and of itself, to
compel the conclusion that the lands at issue were `Indian lands.' ''
109 IBLA at 65.
The Valencia holding on ownership of either the mineral or surface
estate was also followed by the IBLA in Pittsburg & Midway. Pittsburg &
Midway concerned a consolidated set of cases, related to a permit
issued by OSM. The permit effectively asserted jurisdiction under the
SMCRA Indian lands program over two categories of lands: Off-
reservation lands in which the surface estate is owned by the Navajo;
and any allotted lands held by members of the Navajo Nation that might
be determined by OSM to be supervised by the Tribe. See Memorandum of
the Office of Surface Mining Reclamation and Enforcement at 9-10 and
Attachments A and B, and Memorandum of the Office of Surface Mining
Reclamation and Enforcement on the Issue of Jurisdiction over Off-
Reservation Indian Tribal Split Estate Lands at 5 and n. 2, Pittsburg &
Midway, 115 IBLA 148 [ref. OHA Docket No. TU-6-2-PR]. At that time, we
did not identify any specific off-reservation allotted lands as being
supervised by the Nation. The permittee challenged our jurisdiction to
issue permits for any off-reservation lands within the mine. The Navajo
Nation intervened in the case, and asserted, inter alia, that OSM had
jurisdiction over all of the mine lands, including the off-reservation
allotments.
The permittee argued that ``Indian lands'' does not apply to lands
outside a reservation where a tribe owns only the surface estate,
because the SMCRA definition requires that the tribe also own the
mineral estate. The IBLA held that we had jurisdiction to issue the
permit with respect to the off-reservation lands in which the Navajo
held only the surface estate. The IBLA also held that our
interpretation of the definition, as set out in Valencia, was
reasonable and therefore the definition applies to ownership of a split
estate. The IBLA noted that it is clear that supervision is one of the
rights encompassed in fee simple ownership of land, and rejected the
permittee's assertion that ``supervision'' must mean unfettered
management of land. 115 IBLA 156. Concerning one of the consolidated
cases, the IBLA concluded that the Administrative Law Judge's decision
did not provide a basis for the judge's determination that the off-
reservation allotted lands in the permit area are not supervised by the
Tribe. Id. at 161. The IBLA held further that the question cannot be
resolved in the absence of a hearing. Therefore, the IBLA remanded the
case for a hearing and decision on the question of whether the off-
reservation allotted lands were ``Indian lands'' because they were
``held in trust for or supervised by'' the Tribe. Id. The remanded case
on allotted lands was subsequently stayed in 1992 pending the outcome
of the district court appeal of the case (Pittsburg & Midway Coal
Mining Co. v. OSM, Docket Nos. TU 6-2-PR, TU 7-6-R, TU 6-60-R, order
entered October 16, 1992 (OHA Hearings Div.). Subsequently, it is our
understanding that the remanded case was informally stayed by consensus
of the parties pending final disposition of the litigation that led to
the 1995 settlement agreement discussed above. Then the case was
informally stayed pending final action on our proposed Indian lands
rule published on February 19, 1999. The
[[Page 20677]]
remanded case has now been dismissed without prejudice, although OSM
stated that it did not support the dismissal, because this rulemaking
was pending and dismissal of the case could impede resolution of the
``Indian lands'' status issue. Pittsburg & Midway Coal Mining Co. v.
OSM, OSMRE's Response to Order to Show Cause, Docket Nos. TU 6-2-PR, TU
7-6-R, TU 6-60-R (OHA Departmental Hearings Div.).
Regardless of whether the term ``supervised by'' is construed under
Chevron Step I or Step II, we conclude that, consistent with Valencia,
supervision of lands may be supervision in fact or supervision in law
(or a mixed question of fact and law). That is, supervision may exist
either because a tribe has the right or authority to superintend,
regulate, or oversee the lands [supervision in law]; or because the
tribe currently or historically superintends, regulates, or oversees
the lands [supervision in fact]; or both.
e. Is Our Construction of ``Supervised by'' Consistent With Other
Legislative History Relevant to Congress' Intent in SMCRA?
Our interpretation is also consistent with the interpretation of
the phrase ``supervised by an Indian tribe'' in the legislative history
of another bill considered by Congress at the same time it considered
SMCRA, the Land Use Policy Planning and Assistance Act of 1973 (LUPA).
In Valencia, in evaluating the evidence of Congress' intent on this
issue, we noted that LUPA contained a definition of ``Indian lands''
similar to that in SMCRA and was drafted at approximately the same time
as the SMCRA definition of ``Indian lands.'' In explaining the scope of
the phrase ``supervised by an Indian tribe'' in LUPA, the Senate Report
on the bill noted that the phrase ``is intended to cover lands which
are Indian country for all practical purposes but which do not enjoy
reservation status.'' S. Rep. No. 93-197, at 127 (1973). The committee
noted that tribal land use planning programs would be largely
meaningless if the tribes could not control key reservation tracts that
they did not own ``or lands outside a reservation which they own or for
which they possessed administrative responsibility.'' Id. (Emphasis
added). From this, we argued in Valencia that lands owned by an Indian
tribe are ``Indian lands'' under SMCRA section 701(9).
Valencia argued that recourse to the legislative history of LUPA
was unwarranted because it involved a different piece of legislation,
that was never enacted, and that was considered four years before SMCRA
was adopted. Valencia also argued that, regardless of what may have
been contemplated by the original drafters of the language, their
interpretation could not be said to be binding on the Congress that
adopted SMCRA. However, the IBLA rejected all of these arguments,
noting that: LUPA was considered by the same committee that was
formulating an earlier version of SMCRA; the definition of ``Indian
lands'' in the bills was identical; and in the ensuing 4 years, the
SMCRA definition of ``Indian lands'' remained the same. The IBLA
concluded that ``[i]t is simply logical to assume that a single
legislative committee, reviewing two separate pieces of legislation,
both containing the same verbatim definition, intended the same
interpretation of that definition'' in both pieces of legislation. 109
IBLA 50. The IBLA also noted that Valencia's argument would have had
more force if there had been any indication in the legislative history
of a subsequent change in Congress' interpretation, but no such change
had occurred, despite Congress' continual reexamination of the
provision until passage. 109 IBLA 61 [citing In re: Permanent Surface
Mining Regulation Litigation, 627 F.2d 1346, 1364 (DC Cir. 1980)].
Noting that the Court of Appeals for the District of Columbia had
relied heavily on the legislative history of LUPA in interpreting SMCRA
section 710, the IBLA stated that recourse to the legislative history
of LUPA to construe the phrase ``supervised by an Indian tribe'' in
SMCRA section 701(9) was proper. 109 IBLA 62. As noted above, Valencia
was upheld by a district court on appeal.
The legislative history of LUPA using the phrase ``lands * * * for
which they possessed administrative responsibility'' to refer to lands
supervised by a tribe, is consistent with our interpretation of the
term ``supervised by.'' However, even if it were argued that the IBLA
erred and that the legislative history of LUPA does not establish
beyond dispute Congress' intent with regard to the interpretation of
``supervised by,'' we are not relying solely upon that legislative
history to establish Congress' intent with regard to the phrase.
Rather, as discussed above, we conclude that Congress intended the
commonly understood meaning; namely, ``supervise'' or ``supervision''
means the function, right or authority of superintending, regulating,
or overseeing a person or thing. And, as discussed above, if a court
were to conclude that Congress' intent was not clear, we believe that
our interpretation is reasonable.
3. Does the Record Demonstrate Navajo Nation Supervision of Off-
Reservation Allotted Lands in the Consolidation Area?
After review of the record before us, including all comments, we
conclude that the record does not demonstrate that, in general, all
tribes supervise their members' allotted lands. The record does not
demonstrate any relevant interests or functions that all tribes have on
their tribal members' allotted lands. More specifically, as discussed
below, the record does not clearly demonstrate whether the Navajo
Nation supervises the Navajo allotted lands outside the Navajo
reservation, in the approved tribal land consolidation area. The record
does not clearly and indisputably establish the extent to which the
Nation supervises those lands in law because of any sovereign or
congressionally delegated authority on these allotted lands relevant to
supervision of the lands under SMCRA. Likewise, it is not clear whether
the Nation supervises those lands in fact because of any actions or
programs of the Nation that amount to superintending, regulating, or
overseeing the lands. Thus, the record does not establish whether the
Nation supervises any allotted lands in fact or in law. Equally
important, for any interests that the Nation may assert that it has or
any actions that the Nation may take on allotted lands, the record does
not clearly demonstrate relevance or significance to tribal supervision
of those lands under SMCRA. In summary, the record is inadequate to
support a determination as to whether any Navajo off-reservation
allotted lands are supervised by the Navajo Nation and are thus Indian
lands. Therefore, we conclude that the record does not support the
proposed rule.
a. Why Is Case-by-Case Analysis Needed for Evaluation of Tribes'
Authorities Over Allotted Lands?
We could find no consistent rule articulated by the courts
concerning tribal authority over any off-reservation lands or land
uses, although in general the commentators and decisions referenced in
this notice emphasize the need for full discussion of all relevant
factors, including legal and factual parameters concerning a tribe's
authority. Tribes' authorities over various types of lands have long
been the subject of contention and confusion.
[[Page 20678]]
Some courts' decisions make general statements about tribes'
authorities.\2\
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\2\ For example, decisions hold that tribal governments are
distinct, independent political communities, [Worcester v. Georgia,
31 U.S. (6 Pet.) 515, 559 (1832)] with inherent attributes of
sovereignty [United States v. Mazurie, 419 U.S. 544, 557 (1975)].
The Supreme Court has described tribes' status as:
`` `An anomalous one and of complex character,' '' for despite
their partial assimilation into American culture, the tribes have
retained `` `a semi-independent position * * * not as States, not as
nations, not as possessed of the full attributes of sovereignty, but
as a separate people, with the power of regulating their internal
and social relations, and thus far not brought under the laws of the
Union or of the State within whose limits they resided.' ''
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980)
[quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173
(1973)]; see also United States v. Kagama, 118 U.S. 375, 381-82
(1886).
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The Supreme Court has stated that tribes' inherent sovereign powers
are presumed to be retained unless ``withdrawn by treaty or statute, or
by implication as a necessary result of their dependent status.''
United States v. Wheeler, 435 U.S. 313, 323 (1978). See also Dean B.
Suagee, Christopher T. Stearns, Indigenous Self-Government,
Environmental Protection, and the Consent of the Governed: A Tribal
Environmental Review Process, 5 Colo. J. Int'l L. & Pol'y 59, 72, n. 48
(1994).
Some commentators assert that tribes typically have little or no
authority or jurisdiction over off-reservation lands.\3\ In contrast,
other authors note that, in general, tribal authority to regulate in
Indian country ``arises from the inherent sovereign powers of the
native nations;'' and assert that
---------------------------------------------------------------------------
\3\ For example, one author noted that Indian tribes derive
powers from three principal sources: inherent tribal sovereignty,
treaties with the United States, and delegation from the United
States Congress [citing Montana v. United States, 450 U.S. 544, 563-
65 (1981)]. Walter E. Stern, Environmental Regulation on Indian
Lands: A Business Perspective. 7-SPG Nat. Resources & Env't 20-21
(1993). However, Stern concluded that, by virtue of Indian tribes'
status within the Federal system, their inherent sovereign powers
are diminished. ``Tribal sovereignty is subject to limitation by
specific treaty provisions, by [Federal] statute, * * * or by
implication due to the tribes' dependent status. [Babbitt Ford, Inc.
v. Navajo Tribe, 710 F.2d 587, 591 (9th Cir. 1983), cert. denied,
466 U.S. 926 (1984).]'' Id. Stern focuses on the fact that ``[t]he
U.S. Supreme Court emphasizes there is ``a significant geographical
component to tribal sovereignty'' [White Mountain Apache Tribe v.
Bracker, 448 U.S. 136 (1980).]'' and concluded that, ``[a]bsent a
treaty provision or express congressional delegation of authority,
tribal powers extend only to the reservation boundary.'' Id. The
author did recognize that some tribes assert jurisdiction over non-
Indian off-reservation activities, and specifically acknowledges
that ``the Navajo Tribe asserts taxing jurisdiction over the
``Eastern Navajo Agency'' area to the east and south of its
reservation.'' However, the author pointed out that this assertion
was then the subject of litigation, citing Pittsburgh [sic] & Midway
Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990). 7-SPG
Nat. Resources & Env't 20-21 (1993).
Any judicial determination of the sovereign powers of a native
nation begins with the doctrine that tribes retain all inherent
powers of national sovereignty that have not been ceded by treaty,
excised by federal legislation, or divested by the courts as
inconsistent with the federal government's assertion of superior
sovereignty. The domestic test for the exercise of native
governmental powers thus is not whether a native nation has a
sovereign power, but whether the tribe has lost it. The initial
existence of tribal sovereign powers is presumed.\4\
---------------------------------------------------------------------------
\4\ Judith V. Royster and Rory Snow Arrow Fausett, Control of
The Reservation Environment: Tribal Primacy, Federal Delegation, And
The Limits of State Intrusion. 64 Wash. L. Rev. 581, 593-594 (1989)
(Emphasis added; citations omitted).
On several occasions, the Department of the Interior has stated its
position on the question of tribal authority over property. However,
those positions have emphasized that the powers of a particular tribe
must be based on case-by-case detailed analysis of all legal
authorities applicable to the tribe.\5\
---------------------------------------------------------------------------
\5\ In one instance, the Solicitor of the Department of the
Interior determined that, in general, the sovereign powers of the
tribe extend over the property as well as the person of its members,
and are not restricted to lands or funds it owns. Memorandum Opinion
of the Solicitor, Department of the Interior, M-27781, Powers of
Indian Tribes (55 I.D. 14, 44 (1934)); limited on other grounds, 77
I.D. 49 (1970). However, the opinion emphasized that, while some
generalizations can be made about what tribal powers have been
recognized in the past, the powers of a particular tribe can only be
ascertained by considering all legal authorities applicable to that
tribe: ``My answer * * * then, will be general, and subject to
correction for particular tribes in the light of * * * [any]
treaties or statutes * * * restricting or enlarging the general
authority of an Indian tribe.'' Memorandum Opinion, 55 I.D. 17-18.
---------------------------------------------------------------------------
All of the evaluations of tribal authority that we have reviewed
emphasize case-by-case detailed analysis, because the circumstances of
each tribe are unique, relative to the tribe's sovereignty,
jurisdiction, and interests. Those circumstances may be quite complex,
and all relevant legal authorities and all relevant facts must be
reviewed before a determination can be made with regard to a particular
tribe, particular lands, or particular tribal requirements.\6\
---------------------------------------------------------------------------
\6\ Thus, one author notes that tribal, state, and Federal
environmental regulatory jurisdiction over natural resources
development and other business activities, both on reservations and
on other Indian lands, eludes precise definition because of the
unique attributes of tribal sovereignty and the relationships
between tribes and states, the Federal Government, and private
business, as well as the lack of clear direction or standards of
review from the courts. Walter E. Stern, Environmental Compliance
Considerations For Developers of Indian Lands, 28 Land & Water L.
Rev. 77, 78 (1993). The determination as to whether a tribe has a
particular right, authority, or interest typically requires detailed
analysis of complex factual and legal issues, and each analysis must
stand on its own merits. Because of Indian tribes' ``anomalous''
status as ``not * * * possessed of the full attributes of
sovereignty,'' courts struggle constantly with the extent to which
inherent tribal powers remain, or alternatively, have been
diminished as a result of Indian tribes' dependent status. Id., 86.
---------------------------------------------------------------------------
A determination should include both generally and specifically
applicable parameters, because some legislative schemes are applicable
only to specific tribes or groups of tribes. ``Accordingly, in addition
to general principles of federal Indian law, one must consider any
statutes, treaties, judicial decisions, or executive actions that may
be directed to a particular tribe or to a class of tribes.'' Stern,
supra note 2, at 85 & n. 85. Further, courts generally inquire into all
of the facts and circumstances behind each assertion of tribal
authority. Because of Indian tribes' dependent status, the Supreme
Court has found limitations on tribal authority, which depend on the
context in which the issue arises. Id, at 85-86.
b. What Is the Relevance of ``Indian Country'' Law?
As discussed below, it is now settled law that off-reservation
allotted lands are a category of lands included in ``Indian country.''
A number of judicial decisions address the Indian country status of
off-reservation lands in which Indians have interests, as well as the
interests of the Federal Government and Indian tribes in those lands.
We have reviewed the decisions concerning Indian country status to
evaluate whether they aid in determining the interests of tribes
generally in allotted lands. We found some useful guidance, but could
find no cases that clearly establish any generally applicable
conclusions as to any interests that all Indian tribes might hold in
Indian country. Rather, the reverse is true: as discussed herein, any
determination as to the interests of any tribe in lands must be made on
a case-by-case basis, considering all relevant facts and law.
The proposed rule language concerning allotted lands is somewhat
similar to the language addressing allotted lands in the definition of
``Indian country'' in 18 U.S.C. 1151. That provision states that:
[T]he term ``Indian country'' * * * means (a) All land within
the limits of any Indian reservation under the jurisdiction of the
United States Government * * *, (b) all dependent Indian communities
within the borders of the United States * * *, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.
Under this provision, for purposes of federal criminal and civil
jurisdiction,
[[Page 20679]]
Indian allotments are Indian country. By its terms, the definition
relates only to federal criminal jurisdiction. It establishes the basis
for asserting federal criminal jurisdiction over ``Indian country.''
However, it has been recognized as also generally applicable to
questions of Federal civil jurisdiction. See Alaska v. Native Village
of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998) (``Venetie''); and
DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S.
425, 427, n. 2 (1975).
The U.S. Supreme Court has noted that allotments are parcels
created out of a diminished Indian reservation and held in trust by the
Federal Government for the benefit of individual Indians. Venetie, 522
U.S. 529. The court's decision stated that the original reservation in
Venetie was Indian country ``simply because it had been validly set
apart for the use of the Indians as such, under the superintendence of
the Government'' [citing United States v. Pelican, 232 U.S. 442, at 449
(1914)] (emphasis in original). The decision then concluded that, after
the reservation's diminishment, the allotments continued to be Indian
country, as ``the lands remained Indian lands set apart for Indians
under governmental care; * * * we are unable to find ground for the
conclusion that they became other than Indian country through the
distribution into separate holdings, the Government retaining
control.'' Id. Venetie noted that the Supreme Court in numerous cases
has relied on a finding of both a Federal set-aside [a setting apart of
lands for Indians] and Federal superintendence in determining that
Indian lands are Indian country, in order to confirm Federal
jurisdiction over them. 522 U.S. 530. The court pointed out that
``[t]he federal set-aside requirement ensures that the land in question
is occupied by an ``Indian community.'' 522 U.S. 531. The second
requirement, of Federal superintendence, ``guarantees that the Indian
community is sufficiently ``dependent'' on the Federal Government that
the Federal Government and the Indians involved, rather than the
states, are to exercise primary jurisdiction over the land in question.
Id. The court found that the lands in question in Venetie were no
longer superintended by the Federal Government. 522 U.S. 533.
The Tribe had contended that the requisite Federal superintendence
was present because the Federal Government provides ``desperately
needed health, social, welfare, and economic programs'' to the Tribe.
The court rejected this argument, stating that ``health, education, and
welfare benefits are merely forms of general federal aid; * * * they
are not indicia of active Federal control over the Tribe's land
sufficient to support a finding of Federal superintendence. 522 U.S.
534 (emphasis added). The court thus drew a distinction between
providing government aid or service to Indians, on the one hand, and
controlling land sufficient to establish superintendence of that land,
on the other.
The Supreme Court has analyzed what is required for Federal
``superintendence'' of allotted lands for purposes of 18 U.S.C. 1151.
Venetie, supra. We believe the logic of the Venetie analysis is
applicable to evaluation of tribal supervision of lands under SMCRA
701(9). That is, analysis of whether a tribe supervises allotted lands
under SMCRA should address not whether the tribe provides services or
aid to the allottees, but rather whether the tribe supervises the
allotted lands in question.
c. Why Is Further Information Needed?
The record does not clearly or persuasively establish whether or
how any Navajo tribal authorities, rights, or functions, singly or
cumulatively, constitute tribal supervision of Navajo allotted lands,
in law or in fact, either as a result of tribal sovereignty or as a
result of delegation from Congress. It is possible that, taken
cumulatively, the Nation's rights, authority, or functions on tribal
members' allotted lands may properly be deemed supervision of those
lands in fact or in law, or both. Information relevant to analysis of
tribal supervision in law might include, for example: Treaties,
executive orders, Federal statutes, and Federal and tribal case law or
tradition relevant to a tribe's interests in or authority over the
allotted lands; and any other relevant requirements and programs of a
tribe. Further, historical information about the allotted lands and
tribal activities affecting the lands may indicate whether a tribe has
supervised the allotted lands in fact. However, as discussed below, the
record provides relatively little relevant and clearly persuasive
information concerning whether the Navajo Nation supervises off-
reservation allotted lands.
The 1995 Navajo Nation Code (NNC) does provide that it applies to
allotted lands. The 1995 NNC provides that:
The Territorial jurisdiction of the Navajo Nation shall extend
to Navajo Indian Country, defined as all land within the exterior
boundaries of the Navajo Indian Reservation or of the Eastern Navajo
Agency, all land within the limits of dependent Navajo Indian
communities, all Navajo Indian allotments, and all other land held
in trust for, owned in fee by, or leased by the United States to the
Navajo Tribe or any Band of Navajo Indians.
NNC Title 7, 254 (1995).
However, as discussed below, the record does not clearly establish
what authorities or rights the Nation currently asserts in or on
allotted lands in the consolidation area, what legal support there is
for those authorities or rights, or what actions the Nation takes to
implement those authorities or rights on allotted lands. It is not
clear from the record before us on the proposed rule what questions, if
any, there may be concerning the authority or rights of the Nation over
off-reservation allotted lands. Equally importantly, it remains unclear
whether or for what reasons any such authorities, rights, or actions
should be deemed tribal supervision of allotted lands. And it is
unclear whether the Navajo Nation asserts supervision in fact, in law,
or both, over the allotted lands. Some of the programs and authorities
the Nation asserts or had previously asserted it has on allotted lands,
such as ``treatment as a state'' under the Safe Drinking Water Act (42
U.S.C. 300f et seq.), and authority to tax, are asserted by other
commenters to be non-existent, unexercised, or too tangential or
otherwise irrelevant to the issue of supervision of these lands for
purposes of SMCRA. The record includes little or no current
documentation or discussion of scope, purpose, effect, authority for,
or implementation of these programs, or any others. We have found no
judicial decisions or other authority that clearly establish the nature
or extent of any Navajo Nation authority or rights over all Navajo
allotments in the consolidation area. Thus, the record is inadequate to
support a determination as to what supervision, if any, the Nation may
have of the off-reservation allotted lands.
4. Is the Proposed Rule Appropriate in Scope? Is This Issue Likely To
Be Raised for Other Allotted Lands in the Foreseeable Future?
We considered whether the specific question raised by the proposed
rule would likely be raised for other lands in the future. A
combination of unusual factors would be needed for this particular
jurisdictional issue to arise; allotments would have to be outside the
reservation, overlie coal reserves and be within a recognized Indian
land consolidation area. We are not aware of any contemplated mining
operations that would be likely to raise the issue in the foreseeable
future.
[[Page 20680]]
Nonetheless, in the future it is possible that other tribal land
consolidation areas could be approved that would include allotted lands
and thus would be covered by the proposed rule. Under the proposed
rule, those allotted lands would be deemed to be supervised by the
tribe in question. However, we have no basis for determining at this
time whether any such allotted lands would be supervised by a tribe.
Such a determination would be particularly inappropriate in view of the
fact that, as discussed infra, the Federal Government makes
determinations about the authority of a particular tribe on particular
lands on a case-by-case basis, based on consideration of all relevant
law and facts concerning the tribe and lands in question.
5. What Procedural Concerns Does the Proposed Rule Raise?
For determinations in which witness expertise or personal knowledge
may be critical, or in which evidentiary weight or credibility may be
important, an administrative proceeding should afford interested
persons the opportunity to present relevant and probative information
or testimony and to comment or cross-examine as appropriate, and thus
to address the weight and credence to be given to the record before the
decision maker. For several reasons, we believe such opportunity may be
particularly important concerning the issues in the proposed rule. The
issues and facts in this matter are complex and contentious, and the
accuracy and adequacy of a number of commenters' contentions has been
called into question. The proposed rule would result in a change in
regulatory primacy over Navajo allotted lands under SMCRA, and any such
change might affect the responsibilities, funding, and costs of
interested persons, including the State, the Navajo Nation, and the
McKinley mine operator. Further, there is a paucity of relevant and
dispositive documentation in the record before us. We anticipate that
case-by-case determinations will provide all interested persons with
ample notice and opportunity to participate, and thus will allow
development of a more complete record and a more informed decision.
6. Is National Rulemaking Appropriate on This Matter?
Does this issue warrant a change in nationwide regulations? We do
not think it does, for the reasons discussed above, and for the
following reasons. Ordinarily, questions requiring national rulemaking
involve issues that arise with some frequency and are of importance in
multiple areas of the country. We know of only one instance where this
issue has arisen--at the McKinley Mine in New Mexico. In the years that
we have sought to address this issue, including the many months that it
took to prepare the proposed rule and the more than eight years since
the proposed rule was published, we have yet to learn of another
instance where this jurisdictional issue is relevant. We do not believe
that creating nationally applicable regulations to resolve a local and
infrequently arising question is an appropriate use of the Federal
regulatory process.
C. How Did We Evaluate the Record in Deciding What Action To Take on
the Proposed Rule?
We reviewed the record before us to determine what relevant
information has been provided. We considered both the relevance and
significance under SMCRA of any alleged supervisory function, right, or
authority.\7\ For any asserted tribal supervisory function, right, or
authority concerning allotted lands, we evaluated whether the record
demonstrated that the Nation actually possesses the function, right, or
authority (supervision in law),\8\ and if so, whether the record
demonstrated that the Nation actually exercises the function, right, or
authority over the Navajo allotted lands (supervision in fact).\9\
Further, we evaluated whether the record demonstrates, either
individually or cumulatively, supervision of the allotted lands or
activities affecting the allotted lands. Our review addressed the
following factors, as well as any other relevant information in the
record:
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\7\ The analysis of one author suggests some tribal functions or
authorities that may constitute supervision of lands. That
discussion notes that:
``[T]wo aspects of tribal sovereign authority crucial to mineral
development [are] taxation and environmental regulation.
``Other police [regulatory] powers relevant to mineral
development include the powers to regulate health and safety,
building standards, water use, zoning, and labor.''
Judith V. Royster, Mineral Development in Indian Country: The
Evolution of Tribal Control Over Mineral Resources, 29 Tulsa L.J.
541, 607 and n. 607 (1994) (Citations omitted).
\8\ Supervision in law of allotted lands might be demonstrated
by factors such as: specific authority or rights of the tribe to
oversee, regulate, or superintend allotted lands that may amount to
supervision of the lands (for example, whether the Navajo Nation has
sovereignty over off-reservation allotments by virtue of the
allotments' status as real property of the allottees); specific
Navajo authority or rights on allotted lands because the lands are
Indian country, in light of any Navajo sovereignty over its Indian
country; tribal authority over individual allotments because of
delegation from Congress, e.g., under 28 U.S.C. 1151. Relevant
information could include, for example, pertinent treaties, Federal
statutes and executive orders, Federal case law, and tribal law and
history or tradition, as well as discussion of how and why a tribe's
sovereignty over or authority on the lands is or is not supervision
in law of the lands.
\9\ Supervision in fact might be demonstrated by information
about specific ways in which the tribe actually functions to
oversee, regulate, or superintend allotted lands (as contrasted, for
example, with tribal programs that are primarily social services to
the allottees). Relevant information could address actions a tribe
has taken or is taking to adopt, administer, or enforce programs
affecting use of allotted lands.
---------------------------------------------------------------------------
Established Tribal Authority Under Federal Law: Are the lands in
question presumed or deemed as a matter of federal law or treaty to be
subject to the tribe's sovereignty? For example, does the tribe have
specific recognized authority over the allotted lands because of their
status as Indian country? Or has the Federal Government delegated to
the tribe or recognized in the tribe specific authority over the lands?
Has the Federal Government delegated to the tribe authority over the
lands by necessary implication? If so, does the record establish the
nature or extent of the tribe's sovereignty or authority (as
distinguished from Federal sovereignty) over these lands? And if so,
have any significant and relevant aspects of tribal sovereignty or
authority over these lands been ceded by treaty, removed by Federal
statute, or otherwise divested or limited? Does the tribe exercise any
such authority?
Land Use Regulation: Does the tribe have authority over land use on
the allotted lands? Specifically, does the tribe have zoning or land
use planning authority? Does the tribe have authority over building on
the lands? Does the tribe have documented authority over grazing on
allotted lands? Has the tribe adopted a building code, a land use plan,
or zoning for the lands, or otherwise taken action to regulate use of
the lands? Does the tribe supervise, or has the tribe historically
supervised grazing on the allotted lands?
Taxation: What taxation authority or jurisdiction does the tribe
have on the lands? For example, does the tribe have the authority to
tax these lands or activities affecting these lands, or materials or
profits from the lands?
Environmental Regulation: What environmental regulatory authority
does the tribe have over or affecting the lands? For example, what
authority if any, does the tribe have to regulate water use, water
quality, or health and safety on the lands? What environmental
regulatory requirements, if any, does the tribe actually apply on these
lands?
[[Page 20681]]
Public Works Authority: Does the tribe have relevant public works
authority over the lands? Has the tribe done, authorized, or funded any
relevant public works projects on the lands?
Other: Does the tribe have other functions, rights, or authorities
on the allotted lands that establish ``supervision'' of the lands for
purposes of SMCRA? For example, does the tribe have a sovereign
interest in or congressionally delegated authority over the postmining
uses of those lands? Or does the tribe have a sovereign interest in the
potential effects of surface coal mining operations on the lands in
question because of any potential effects on the health, safety, and
welfare of tribal members, or on the economy of the tribe?
VI. What Does the Record Establish Concerning the Basis for the
Proposed Rule?
In addition to our review of relevant materials, discussed above,
the record includes numerous materials submitted by commenters,
including both documentary submittals and other comments on the
proposed rule. Our evaluation of these materials follows.
A. What Does the Record Establish Concerning Congress' Intent Regarding
the Indian Lands Status of Indian Country?
The Navajo Nation asserts that SMCRA and its legislative history
indicate that ``lands held in trust for or supervised by'' a tribe were
intended by Congress to include Indian country. The Nation asserts that
legislative history shows Congress' intent to prohibit state regulation
of allotments.
New Mexico argues that Congress knew how to provide for Indian
lands status over ``Indian Country'' if that is what Congress intended,
but that they chose not to. The State asserts that it would be
inappropriate to supply by rulemaking what Congress deliberately did
not do itself. The State also asserts that nothing in the legislative
history or the definition of ``Indian lands'' supports a conclusion
that Congress intended allotments to be Indian lands.
NMA contends that Congress did not use the term ``Indian country,''
which had been defined in LUPA, because it did not intend the terms to
be synonymous.
As noted earlier in this preamble, we have found no legislative
history of SMCRA that clearly sets out Congress' intent on this issue.
However, we believe the relevant LUPA legislative history (discussed
above), considered with the analysis in Venetie of Indian country law
under 18 U.S.C. 1151 (discussed above), suggest that allotted lands'
status as Indian country may mean that a tribe has interests in those
lands relevant to a case-by-case determination on tribal supervision of
lands (for example, see the discussion of tribal authority to tax
Indian country lands in Pittsburg & Midway v. Watchman, 52 F.3d 1531
(10th Cir, 1995) (``Watchman''), summarized infra).\10\ As discussed
above, we have found widespread variability among legal commentators
and court decisions as to what interests and authority tribes may have
or typically have in Indian country or on allotments. Therefore, a
determination of tribal interests and authority necessarily must be
made on a case-by-case basis looking at all identified relevant
factors.
---------------------------------------------------------------------------
\10\ OSM recognizes that some authors make broad and general
assertions. For example:
``In Indian country, Natives enjoy inherent sovereignty, i.e.,
the right of self-government and self-determination. Specifically,
in Indian country, a tribal government has the following powers: to
enact and impose taxes; to adopt and enforce its own internal tribal
laws; * * * to issue marriage licenses; to buy and sell real
property; to regulate land use; [and] to provide essential and non-
essential governmental services. * * * [Stephen C. Pevar, The Rights
of Indians and Tribes 16 (1992); Felix Cohen, Handbook of Federal
Indian Law 246-57 (Rennard Strickland & Charles F. Wilkinson eds.,
1982)]. Also in Indian country, * * * tribal governments enjoy the
same sovereign immunity possessed by Federal and state governments.
[See Pevar, supra, at 309 (citing Oklahoma Tax Comm'n v. Citizen
Band Potawatomi Indian Tribe, 498 U.S. 505, 508 (1991); Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978))]. They can be sued only
if they consent or if they engage in acts beyond the scope of their
authority. [See id.]''
Marilyn J. Ward Ford, Indian Country and Inherent Tribal
Authority: Will They Survive ANCSA? 14 Alaska L. Rev. 443 (1997).
---------------------------------------------------------------------------
We are not persuaded by the arguments of New Mexico and NMA
concerning the relevance of the legislative history of LUPA in
interpreting SMCRA's Indian lands provisions. As discussed in Valencia,
and in this preamble, SMCRA, the legislative history of SMCRA, and LUPA
are consistent with a determination that allotted lands may be Indian
lands, but do not compel a conclusion as to whether any specific
allotted lands are in fact supervised by a tribe and therefore are
Indian lands. Similarly, in light of our discussion of the LUPA
legislative history, we do not find helpful the contention that
Congress did not intend ``Indian country'' and ``Indian lands'' to be
synonymous. Neither the proposed rule nor our decision not to adopt the
proposed rule relies on a conclusion that the terms are synonymous.
B. What Is the Legal Authority for the Proposed Rule?
1. What Is the Statutory Authority for the Proposed Rule?
P&M asserts that we do not have the statutory authority to adopt
the proposed rule because the SMCRA definition of Indian lands does not
include Indian allotment lands and urges that the proposed rule should
be withdrawn on that ground.
We are not persuaded by this comment. We have the authority to
interpret and apply by rule the applicable provisions of SMCRA
concerning this issue. This authority is derived from a variety of
SMCRA provisions, including sections 102(b) and (m), 201(c)(1), (2),
and (13), 701(11), and 710(h).
2. What Are the Effects of the Judicial and Administrative Cases Cited
by Commenters Concerning the Proposed Rule?
None of the judicial or administrative cases cited by commenters
establishes whether or not the Navajo Nation supervises the allotted
lands in question.
The Navajo Nation asserts that the courts and the IBLA have
determined that allotted lands are Indian lands for purposes of SMCRA.
Specifically, the Nation refers to the language in Montana v. Clark
equating ``Indian lands'' with ``all lands in which the Indians have an
interest'' (749 F.2d 740, 752 (DC Cir. 1984), cert. denied, 474 U.S.
919 (1985)), and the Valencia and P&M decisions, which referred to this
Montana language. The Nation concludes that under the reasoning of
these three decisions, all trust allotments are clearly ``Indian
lands'' because they are lands in which Indians have an interest. The
Nation also refers to the IBLA discussion in Valencia of the
legislative history of LUPA, which the Nation asserts was a related
bill. That legislative history defined the phrase ``all lands held in
trust [for] or supervised by any Indian Tribe'' as, inter alia, ``lands
which are Indian country for all practical purposes but which do not
enjoy reservation status,'' and ``lands outside a reservation which
[the Indian tribes] own or for which they possessed administrative
responsibility.'' S. Rep. No. 197, 93d Cong., 1st Sess. 127 (1973),
quoted in Valencia Energy Co., 109 IBLA at 50. The Nation also argues
that numerous cases concerning ``Indian country'' establish that
allotments are Indian country, that Indian country defines the tribe's
territorial jurisdiction, and that Indian country, including
allotments,
[[Page 20682]]
defines the area of exclusive tribal and Federal authority. The cited
cases include: Oklahoma Tax Comm'n. v. Sac & Fox Nation, 508 U.S. 114
(1993); California v. Cabazon Band of Mission Indians, 480 U.S. 202,
207 n.5 (1987); DeCoteau v. District County Court for Tenth Judicial
Dist., 420 U.S. 425, 427 n.2 and 445-446 (1975); and McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164, 169 and n.4 (1973).
We do not agree that the courts have determined that allotted lands
are Indian lands under SMCRA. Further, the record does not establish
that LUPA was related to SMCRA. Rather, as the Valencia decision
indicates, LUPA was considered at the same time, by the same
congressional committee, and used the same terminology (see preceding
discussions of LUPA legislative history). However, the definition used
by Congress in 1973 for LUPA is consistent with our conclusion that
allotted lands, as Indian country, may be supervised by a tribe for two
related reasons. First, allotted lands are Indian country and under
Venetie and Watchman the Nation has some degree of authority over
Indian country, including allotments. Second, although it is not clear
on the record before us what relevant authority the Nation does have on
allotted lands, a tribe with authority over allotted lands may have
some function, right, or authority to superintend, regulate, or oversee
the lands. Some of the cases cited by the Nation do not concern the
territorial jurisdiction of the Nation, but rather the jurisdiction of
another tribe. Other cases cited by the Nation do not address the
authority held by all tribes in Indian country, but rather the
authority of the Federal Government in Indian country.
The Navajo Nation asserts that the Energy Policy Act of 1992
(EPACT) confirms Congress's understanding that allotments are ``Indian
lands'' under SMCRA because Title XXVI of EPACT authorizes grants to
tribes to develop, administer, and enforce ``tribal laws and
regulations governing the development of energy resources on Indian
reservations'' [citing 25 U.S.C. 3504(a)]. The Nation notes that, for
purposes of this provision, the definition of ``Indian reservation'' on
which tribes may regulate, specifically includes off-reservation, or
``public domain,'' Indian allotments. 25 U.S.C. 3501(2). The Navajo
Nation also asserts that EPAct and SMCRA should be read harmoniously.
We do not agree that the Energy Policy Act confirms Congress'
understanding that allotments are ``Indian lands'' under SMCRA.
Although the authorizing provisions and definition cited by the Nation
are found in legislation that also amends SMCRA, as noted above the
provisions themselves do not concern SMCRA, but rather 25 U.S.C.
3504.\11\ Therefore, we see no compelling argument why these provisions
of EPACT and SMCRA should be read harmoniously, particularly since they
were enacted 15 years apart, and to achieve different purposes. In
fact, the very definition the Nation cites defeats the Nation's
argument because ``reservation'' clearly does not mean the same thing
under SMCRA that it is defined to mean under EPACT. As the Nation's
comment recognizes, the definition of ``Indian reservation'' in EPACT
includes off-reservation allotments. By contrast, the SMCRA definition
of ``Indian lands'' includes lands within Federal Indian reservations
and lands held in trust for or supervised by an Indian tribe. Thus,
SMCRA recognizes that off-reservation Indian lands (including any
allotments that qualify) are not deemed reservation lands for purposes
of SMCRA.
---------------------------------------------------------------------------
\11\ Section 3504 was added by the Energy Policy Act of 1992 to
Title 25 U.S.C., Indians, in a new Chapter on Indian Energy
Resources. Section 3504 authorized grants to tribes for development
and implementation of tribal programs for development of energy
resources, in general. Section 3504 authorized grants from 1994 to
1997, as well as technical assistance and training from the
Department of the Interior and the Department of Energy. Pub. L. No.
102-486, Sec. 2604, 106 Stat. 2776, 3114 (1992).
---------------------------------------------------------------------------
The State notes that a 1987 decision in The Pittsburg and Midway
Coal Mining Co. v. OSM specifically quoted a Senate Report that stated
that ``[t]he conference report limits the definition [of Indian lands]
to lands within the external boundaries of a Federal Indian reservation
and to all other lands, including mineral interests, held in trust by
the Federal Government for any tribe.'' The Pittsburg and Midway Coal
Mining Co. v. OSM, at 11, No. TU 6-2-PR, United States Dept. of the
Interior, Office of Hearings and Appeals (1987) (``1987 Pittsburg ALJ
decision'') [citing Senate Report No. 94-101 at 85-86 (1975)]. The
State further notes that the ALJ in that case concluded that OSM
arguably exceeded its statutory authority when its 1984 Indian lands
rules purported to regulate as ``Indian lands'' those off-reservation
lands held in trust for or supervised by individual Indians. 1987
Pittsburg ALJ Decision at 11 [citing 49 F. R. 38463 (September
28,1984)]. The State points out that the ALJ concluded that OSM's
subsequent change of position on this issue had comported with the
statutory definition of Indian lands and the legislative history of
SMCRA. 1987 Pittsburg ALJ Decision at 12.
This comment by the State is inapposite for several reasons and,
therefore, we do not find it persuasive. First, this ALJ decision on
this issue was overturned by the Interior Board of Land Appeals (IBLA)
on appeal and remanded for a hearing and decision on the merits. The
Pittsburg and Midway Coal Mining Co. v. OSM, and Navajo Tribe of
Indians, 115 IBLA 148, 160 (1990). Second, the cited ALJ decision
language addressed OSM's earlier regulatory language that would have
treated as Indian lands all lands held in trust for or supervised by
individual Indians. The 1999 proposed Indian lands rule, and this
decision not to adopt the proposed rule, would not have this effect.
Rather, the proposed rule and this decision address whether, under
SMCRA, we deem specific categories of allotted lands to be supervised
by a tribe. The IBLA emphasized in its 1990 decision overturning the
ALJ's opinion that allotted lands may be regarded as ``Indian lands''
if they are held in trust for or supervised by an Indian tribe.
The State asserts that the proposed rule does not accurately
reflect the decision in Valencia. The State alleges that the proposed
rule relies on Valencia for the proposition that ``Indian lands'' under
SMCRA include ``Indian country.'' The State asserts that Valencia
actually found that the definition of ``Indian country'' was not
relevant to its inquiry in that matter, and quotes a passage from
Valencia:
Thus, the fact that the land may not be `Indian country' for the
purposes of state criminal jurisdiction is simply irrelevant to the
question of whether these lands are properly deemed `Indian lands'
for the purposes of SMCRA.
Valencia, 109 IBLA at 67 (1989).
We do not agree. Valencia does not conclude that the definition of
``Indian country'' is irrelevant to whether lands that are Indian
country are ``Indian lands'' under SMCRA. This comment by the State
misreads the language of the proposed rulemaking, and, in quoting a
brief portion of Valencia out of context, mischaracterizes that
decision. Further, as discussed below, the proposed rulemaking did not
rely on Valencia for the proposition that Indian lands under SMCRA
include Indian country. Rather, the proposed rulemaking identified
several possible bases for determining that allotted lands are ``Indian
lands,'' but did not say that we relied on any of those possible bases.
The 1999 proposed rule discussion suggested that one of the
possible bases
[[Page 20683]]
would be a two-part determination: first, that Congress intended the
reference to lands ``supervised by'' an Indian tribe in the SMCRA
definition of ``Indian lands'' to include lands encompassed by the term
``Indian country;'' and second, a determination that allotted lands are
Indian country. The proposed rule discussion noted that OSM had taken
the position that Congress intended the phrase ``lands * * * supervised
by'' an Indian tribe to include lands encompassed by ``Indian country''
[citing Valencia, 109 IBLA 59 (1989)]. The proposed rule referred to
our Valencia brief discussing the LUPA legislative history of the
phrase ``supervised by an Indian tribe.'' That legislative history says
Congress intended the phrase to cover ``lands which are Indian Country
for all practical purposes but which do not enjoy reservation status.''
S. Rep. 93-197, 127 (1973). In our Valencia brief we asserted that
Congress must have intended the same terms (``supervised by'') and the
almost identical definitions of ``Indian lands'' to have the same
interpretation, as discussed in the LUPA legislative history. The
proposed rule points out that the IBLA affirmed our analysis at 109
IBLA 60; and that the IBLA's decision was upheld on appeal.
Valencia does not support the State's comment that the ``Indian
country'' definition is irrelevant to an Indian lands determination.
Rather, the statement referred to by the State occurs in the IBLA's
analysis of an altogether different issue. The IBLA was discussing the
argument by the State and the mine operator that assertion of OSM
jurisdiction over tribal fee lands would conflict with Congress' intent
to avoid altering the jurisdictional status quo.\12\ The IBLA
determined that tribal fee land must be ``Indian land'' under SMCRA and
that the fact that tribal fee land may not be ``Indian country'' for
purposes of state criminal jurisdiction is irrelevant to whether the
lands are ``Indian lands'' under SMCRA. Id. Thus, in effect the IBLA
held that if lands meet the SMCRA definition they will be deemed
``Indian lands'' for purposes of SMCRA, even if they have been found
not to meet the definition of ``Indian country'' for other purposes.
---------------------------------------------------------------------------
\12\ The IBLA rejected both this argument and the underlying
assumption that a parcel subject to a state's general regulatory or
police powers before SMCRA's enactment, must also be subject to the
state's regulatory authority under SMCRA. 109 IBLA 66. The IBLA
rejected the argument because SMCRA itself is an assertion of
Federal authority under the Commerce Clause to regulate all surface
coal mining activities in states, and SMCRA allows state primacy
only on non-Indian and non-Federal lands--thereby establishing the
jurisdictional status quo for SMCRA purposes. Id. The IBLA noted
that state inability to regulate Indian lands under SMCRA does not
affect exercise of state jurisdiction under other authority. 109
IBLA 67.
---------------------------------------------------------------------------
The State also argues that the settlement agreement reached in
Mescal v. United States of America underscored the State's conclusion
that allotments are not supervised by a tribe [citing Mescal v. United
States of America, No. Civ. 83-1408 (D.N.M.)]. The State asserts that
the settlement establishes that allottees own the beneficial title to
minerals underlying their allotments. The State asserts that Mescal
supports its position that allotments are owned by individual Indians
and the United States Government, not by the Tribe, and are not tribal
land.
We find these arguments inapposite and unpersuasive for several
reasons. First, and most importantly, tribal title to lands is not
required in all cases under the SMCRA definition of ``Indian lands.''
Rather, tribal supervision is the relevant prerequisite; and in some
cases allottee ownership might be concomitant with tribal supervision
of the lands. Second, the settlement agreement did not confer on
allottees present title to the coal underlying the allotments. Rather,
the Federal Government continued to hold title to the coal until the
end of existing coal leases, but BLM records would give constructive
notice of allottees' beneficial title to the minerals. The agreement
provides for transfer of mineral title to the allottees at a later
date, upon the expiration of existing Federal coal leases. Thus, the
agreement did not change vested record title in the leased Mescal
lands. Third, settlement agreements and consent decrees, by their very
nature, have no precedential effect. Rather, they are binding between
the parties to the agreement concerning the matters addressed in the
agreement.\13\
---------------------------------------------------------------------------
\13\ See, e.g., 18 Moore's Federal Practice Sec. 131.13[2],
134.01 (3d ed. 2004); and Wright, Miller & Cooper, Federal Practice
and Procedure: Jurisdiction Sec. 4443 (2d ed. 2002).
---------------------------------------------------------------------------
The State also refers to another line of cases that it contends
established the State's regulatory authority over allotments, and
allowed the State's regulatory authority over all of South McKinley
mine to remain in place: New Mexico v. United States, Civ. No. 84-3572
(D.D.C. 1984) and the 1987 settlement agreement with the Navajo Nation
in New Mexico v. Navajo Tribe of Indians, No. Civ. 87-1108. The State
asserts that it and Pittsburg and Midway ``have, for over a decade,
relied on that state of affairs, have stabilized regulation of South
mine, and have adapted to the regulatory scheme in place.'' The State
asserts that to require changes in regulation and bond release
standards would be unfair, unwise, and contrary to law. Similarly, the
National Mining Association (NMA) asserts that the proposed rule is
inconsistent with the settlement agreement reached between OSM and
NMA's predecessor organizations (the National Coal Association and the
American Mining Congress) in companion litigation, NCA v. United States
Dep't of the Interior, Civ. No. 84-3586 (D.D.C.).
We do not agree. Neither our commitments in the settlement
agreements nor our 1989 clarifying rulemaking excluded Navajo allotted
lands from consideration as to whether the tribe supervised them, or
from the definition of Indian lands. Thus, the settlements could not
preserve the State's regulatory authority over allotments, if those
allotments are found to be Indian lands, because, as discussed above,
SMCRA does not authorize state regulatory jurisdiction over Indian
lands. The litigation was started by the State's challenge to our
assertion of exclusive regulatory authority over Indian lands under the
1984 Indian lands regulations. The preamble to those regulations
included ``inadvertent and unintentional'' language that, in relevant
part, asserted that we would ``continue to regulate as Indian lands
allotted lands, and all lands where either the surface or minerals are
held in trust for or supervised by an Indian tribe or individual
Indians.'' 49 FR 38463 (1984) (emphasis added). The Navajo Nation
intervened as of right in that litigation and filed a counterclaim
requesting a declaratory judgment that certain lands in New Mexico are
``Indian lands.'' Subsequently the National Coal Association and the
American Mining Congress also intervened. The parties other than the
Nation reached settlement. The State agreed that it would not contest
the position of the Secretary of the Interior ``that he is the
exclusive regulatory authority with respect to surface coal mining
operations on Indian lands within the State.'' We agreed to issue a
statement concerning the preamble to the final Indian lands rule
clarifying that the ``Secretary does not consider individual Indian
allotted lands outside the exterior boundaries of the Indian
reservation to be included in the definition of `Indian lands.' '' The
trial court ordered the plaintiffs' actions dismissed; but the
counterclaim of the Tribe was unaffected. New Mexico v. United States
Dep't of the Interior, No. 84-3572 (D.D.C. August 6, 1985), aff'd. New
Mexico ex rel. Energy and Minerals
[[Page 20684]]
Dep't v. United States Dep't of the Interior, 820 F.2d 441 (DC Cir.
1987). In 1988, the Department published a proposed rule correcting its
statement in the 1984 Indian lands rule preamble. In 1989, the
Department published a final rule stating that, ``for purposes of
surface coal mining regulatory jurisdiction, off-reservation allotted
lands are include [sic] in the SMCRA definition of Indian lands only if
an interest in the surface or mineral estate is held in trust for or
supervised by an Indian tribe.'' 54 FR 22184 (May 22, 1989).
As the IBLA has pointed out, all that the settlement [and the
Department's 1989 final rule clarifying its policy] on the Indian lands
status of allotted lands decided was that lands cannot be considered
Indian lands simply because they are allotted to individual Indians, as
had been asserted in the 1984 Indian lands preamble. Pittsburg & Midway
Coal Mining Co. v. OSM, 115 IBLA 148, 161 (1990), aff'd Pittsburg &
Midway Coal Mining Co. v. Babbitt, Civ. 90-730 (D.N.M. 1994).
Likewise, the settlement agreement between the Navajo Nation and
the State (which could not bind OSM in any case) did not purport to
address the Indian lands status of off-reservation allotted lands. The
State filed a motion to dismiss the Tribe's counterclaim on the 1984
rule for lack of jurisdiction, arguing that, under SMCRA section 520,
the claim must be brought only in the judicial district in which ``the
surface coal mining operation complained of is located.'' In November,
1985, the district court dismissed the Tribe's counterclaim. On appeal,
the DC circuit vacated the district court's order denying the Tribe's
counterclaim and instructed the district court to transfer the
counterclaim to the United States District Court for the District of
New Mexico. New Mexico ex rel. Energy and Minerals Dep't v. United
States Dep't of the Interior, 820 F.2d 441 (D.C. Cir. 1987). The
transferred litigation was settled and approved by consent decree. New
Mexico ex rel. Energy, Minerals and Natural Resources Dep't v. Navajo
Tribe, No. Civ. 87-1108 (D.N.M. 1992). The settlement agreed that
specified reservation and tribal trust lands are ``Indian lands,'' and
that other lands may constitute ``Indian lands.'' The Tribe and the
State did not waive their respective positions as to the ``Indian
lands'' status under SMCRA of any lands not listed in the settlement.
In summary, neither settlement agreement established State regulatory
authority under SMCRA over allotments, and neither agreement could
preserve State regulatory authority over allotments found to be Indian
lands; and neither the State nor Pittsburg & Midway could reasonably
rely on the settlements to preclude our proper evaluation of the Indian
lands status of allotted lands.
C. What Does the Record Establish as to Supervision by a Tribe of
Individual Indian Trust Allotments in Approved Tribal Land
Consolidation Areas?
Neither the comments, nor the other documentation in the record,
separately or cumulatively, clearly confirms whether any Nation
programs or authorities amount to supervision of specific allotted
lands or of all allotted lands in the consolidation area. As discussed
below, we decline to take administrative notice of materials not
submitted. In any case-by-case determination, commenters may provide
information as to whether any programs of the Navajo Nation constitute
supervision of the allotted lands.
The Navajo Nation asserts that the Nation does in fact supervise
allotted lands within the Navajo consolidation area. The Nation asserts
that Navajo supervision over Navajo trust allotments is conclusively
presumed, and clear. However, the Nation cites to no authority for this
specific presumption. The Nation lists certain Navajo Nation ordinances
and other provisions that it maintains the Nation applies and
implements on allotted lands. For example, the Nation asserts that,
pursuant to the Navajo Nation Code (``NNC''), the Nation applies to
allotments its laws regarding the following: Agriculture and livestock,
protection of the environment, regulation of commerce and trade,
community development, courts and procedures, domestic relations,
education, elections, fiscal matters, health and welfare, motor vehicle
code, labor, land, law and order, mines and minerals, parks and
monuments, professions and occupations, public utilities and
communications, water, conservation, wildlife, and taxation. The Navajo
Nation requests that we take administrative notice of the Navajo Nation
Code and its laws.
The Nation asserts that, in Pittsburg & Midway Coal Mining Co. v.
Saunders, No. Civ. 86-1442 M (D.N.M. 1988), rev'd on other grounds, 909
F.2d 1387 (11th Cir.), cert. denied, 498 U.S. 1012 (1990), decision
after remand, 52 F.3d 1531 (10th Cir 1995), the district court examined
a 1.9 million acre area that includes all of the P&M South McKinley
Mine as well as several thousand Navajo trust allotments and found that
the Nation provides to Navajos in that area a variety of services,
including community services, health, education, and water resources;
and that the Nation provides law enforcement and hears the vast
majority of civil and criminal disputes in the Tribal Court. The Nation
references the Nation's criminal jurisdiction over allotted lands,
through the Navajo Tribal Court of Indian Offences; and provides copies
of affidavits submitted in Saunders, concerning Navajo governmental
authority and activity on allotted lands in such matters as
demographics, land consolidation, education services, social services,
health services, police services, cultural resources protection and
ethnography, and (for the McKinley Mine permit area) land status and
social services. The Nation also submitted a copy of a 1984 memorandum
from a Department of the Interior Administrative Law Judge (ALJ) in a
probate proceeding involving certain Navajo allotments. The memorandum
discusses the applicability of the escheat provision of the Indian Land
Consolidation Act (the Act was subsequently held unconstitutional).
That memorandum found that the Tribe ``exercises civil governmental
powers over the [allotted] lands'' [in the Eastern Navajo Agency]
involved in the proceeding.
We conclude that neither the Nation's comments, nor the affidavits,
nor the 1984 ALJ memorandum, separately or cumulatively, clearly
confirms any Nation programs or authorities as demonstrating
supervision of specific allotted lands or of all allotted lands in the
consolidation area. And, for the reasons outlined below, we decline to
take administrative notice of the other materials referenced by the
Navajo Nation.\14\ In the cited Pittsburg & Midway decision, the issue
before the court was whether the P&M South McKinley mine is on the
Navajo Reservation or in Indian country, so that the court was required
to abstain from exercising jurisdiction over P&M's challenge to the
Navajo Nation's tax on P&M's coal mining activities. Thus, only the
status of the McKinley mine lands was at issue. The decision stated
that the Tribe provided services in the area to allottees, including
community development, child development, social services, health,
education, youth
[[Page 20685]]
development, and water resources, and law enforcement. The decision
discusses the role of the Nation in Navajos' lives in the area.
However, the decision does not discuss how or why any tribal authority,
program, or service concerns allotted lands in particular, or amounts
to supervision of those allotted lands. Further, the decision does not
discuss any programs or services in such detail as to support a
conclusion as to whether they amount to supervision of the allotted
lands.
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\14\ As discussed below, we anticipate that, in any case-by-case
determination, the Nation may provide information about any programs
that constitute supervision in fact or in law of the allotted lands;
i.e., overseeing, regulating, or superintending the allotted lands
or activities affecting the lands (as contrasted, for example, to
programs that constitute general social services to allottees). In
such a proceeding, the Nation may also request administrative notice
of relevant materials, as appropriate.
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The affidavits submitted by the Nation concern primarily the
provision of various types of social services, and tribal acquisition
of title, as well as the importance of off-reservation cultural
resources to the Nation. The 1986 Elwood affidavit asserts that, at the
time of the affidavit, the Nation regulated grazing on lands in the
1908 extension of the Navajo Nation in New Mexico, including BLM and
BIA lands, tribal trust lands, tribal fee lands, and allotted lands,
pursuant to a cooperative agreement. We believe the affidavit refers to
a February 8, 1965 memorandum of understanding (MOU) among the Navajo
Nation, BIA, and BLM concerning grazing administration of the Eastern
Navajo Agency Administration Area. That MOU subsequently has been
extended by amendment, most recently in January, 2003. The affidavit
does not specifically assert that the Nation has independent authority
to regulate grazing on allotted lands, outside of any authority
delegated by BIA or BLM under the cooperative agreement. The Elwood
affidavit does assert that the predominant use of lands within Navajo
Indian country is for grazing by Navajo livestock. We have reviewed the
January, 2003 extension of the February 8, 1965 MOU. The MOU specifies
that there are three groups of Indian grazing communities, designated
by District, in the Eastern Navajo Agency. However, Section III.E. of
the January, 2003 extension specifically provides that, ``Individual
Indian trust patent allotments and Navajo ranches shall not come under
the administrative jurisdiction of the cooperative agreement as
approved.'' Thus, the memorandum of understanding does not apply to
Indian allotted lands. However, the holders of an allotment may
voluntarily authorize regulation of grazing by BIA. Within the Eastern
Navajo Agency, there are roughly 4,500 allotments. These allotments
comprise the majority of the Navajo allotments within the approved
tribal land consolidation area. Of those allotments, the necessary
authorization for regulation by BIA has been given for roughly 1000
allotments. For those allotments for which BIA is authorized to
regulate grazing, BIA issues grazing permits. However, we have found no
information in the administrative record confirming that the Navajo
Nation regulates grazing on allotted lands.
The 1984 ALJ memorandum discusses whether, for purposes of the
applicable statutory criterion, those trust or restricted lands at
issue were subjected to the Navajo Nation's jurisdiction. It states
that ``the Tribe asserts general subject matter jurisdiction'' in the
Eastern Navajo Agency, but specifically confirms only that ``the Tribe,
BIA, and IHS [Indian Health Service] provide law enforcement, health,
education, and social services'' in the Eastern Navajo Agency. Thus,
the categories of programs confirmed are apparently services to
individual Navajo; and the memorandum does not differentiate between
the roles of the Nation and those of BIA and IHS.
New Mexico's comments concerning the Nation's assertions about
supervision of grazing, state status under SDWA, and power to tax, are
discussed below. New Mexico asserts that the other functions and
authorities which the Nation maintains it has on allotted lands concern
very limited and general supervision. The State did not list those
functions and authorities. The State asserts that those references are
unpersuasive where Congress has not specifically applied SMCRA to
mining on allotments.
As discussed above, we conclude that the record before us is not
adequate to support a conclusion as to whether the Nation's functions
and authorities constitute supervision of the relevant allotted lands.
Further, we conclude that this issue may be properly addressed in case-
by-case determinations. Any such determination can address whether the
Nation supervises particular allotted lands in view of any specific
relevant Tribal programs or authorities.
Both New Mexico and NMA comment in effect that the Nation does not
supervise allotted lands if the Nation's alleged supervisory functions
or roles do not pertain to SMCRA or surface coal mining operations. New
Mexico asserts that references in the proposed rule to incidental
supervision on topics that have nothing to do with mining do not
establish supervision over mining. NMA maintains that the authority to
tax bears little relationship to supervision of lands within the
context of SMCRA.
We do not agree. We believe these comments mistake the issue. The
definition of ``Indian lands'' does not require that a tribe's
supervision must directly pertain specifically to SMCRA program
implementation or to surface coal mining operations. Rather, the
definition simply requires that a tribe supervise the lands, as
discussed above. And, as discussed above and in Valencia, supervision
may exist as a matter of fact or as a matter of law; and jurisdiction
or control over mining is not required. Thus Valencia found that,
because the Nation owned the surface in fee, the Nation supervised the
lands at issue in that case as a matter of law, even though the Nation
had leased the coal rights. 109 IBLA 66. Further, Valencia emphasizes
the Tribe's continuing interest in the postmining condition and use of
lands as relevant to evaluation of tribal supervision under SMCRA. Id.
We do not agree that authority to tax lands or what is done on or
produced from lands necessarily bears little relationship to
supervision of lands. Rather, taxation of land or activities on land,
or of materials harvested from land, may be an aspect of supervision of
the lands. For example, such taxation may be authorized because of a
government's authority over the lands; and may be a means of regulating
or controlling what is done on the lands, or a source of funding for
such regulation.
Regarding specific categories of alleged Tribal supervision, we
received the following comments:
The Navajo Nation asserts that it supervises grazing on allotted
lands outside the reservation. New Mexico asserts that the reference to
grazing is not compelling because the allotments are not being grazed,
but rather are being mined. NMA asserts that the Nation is not
supervising grazing on allotted lands outside the reservation.
The record does not demonstrate whether any allotted lands outside
the reservation are grazing lands. Further, the record does not
demonstrate whether or when those lands have been grazed. Likewise, the
record is unclear as to whether the Navajo Nation has authority to
supervise grazing on off-reservation allotted lands, or does supervise
any grazing on such lands. And finally, the record does not
conclusively demonstrate whether the Nation has an interest in or
authority over the pre-mining and post-mining use of the allotted
lands, and thus has authority to supervise such grazing as a matter of
law, whether or not it supervises grazing as a matter of fact. A case-
by-case determination may address all of these questions.
The Navajo Nation asserts that they have ``state'' status for
purposes of implementing the Safe Drinking Water
[[Page 20686]]
Act (SDWA) on off-reservation allotted lands. However, they cite no
authority for this proposition. New Mexico asserts that, for off-
reservation lands, the Navajo Nation is not treated as a state under
the SDWA, having withdrawn its request for treatment as a state outside
its reservation. In support of this contention, the State cites a
letter dated August 9, 1991 from H. Seraydarian, USEPA Region IX, to
New Mexico Governor King. However, our records indicate the State did
not attach a copy of that letter.
We find that the record contains no dispositive documentation or
authority as to whether the Navajo Nation has ``state'' status for
purposes of implementing the SDWA on allotted lands. In any case-by-
case determination, interested persons may provide documentation to
support any relevant assertions on this topic.
NMA asserts that the Navajo Nation's authority to regulate under
the SDWA could not have been contemplated by Congress during its
consideration of SMCRA because the Navajo Nation's treatment as a state
did not occur until after 1986. We find this assertion unpersuasive.
SMCRA does not require that only supervision of lands under statutes
that existed as of the date of enactment of SMCRA may be considered;
and nothing in SMCRA or its legislative history supports such a
conclusion. If Congress had intended such a result, it could have
inserted specific language to that effect in SMCRA.
Citing 56 FR 64876 (December 12, 1991), NMA asserts that the Navajo
Nation does not have ``state'' status under the Clean Water Act on off-
reservation allotted lands; only on reservation lands. NMA also asserts
that, to make a fair determination of regulatory authority on off-
reservation allotted lands, we must look at all types of regulatory
authority over the lands, and consider the entities that exercise the
authority, rather than the few unrepresentative examples of authority
given in the proposed rule preamble. For the following reasons, we find
these comments not helpful. The referenced 1991 USEPA rulemaking
concerns interpretation of a particular Federal statute not at issue in
this rulemaking. We have found no relevance of the 1991 USEPA
rulemaking to this rulemaking, and no relevance to this rulemaking has
been asserted by commenters. A reference to an unrelated statute under
which a tribe does not supervise lands is not germane. Further, we do
not agree that we must inventory all possible authorities under which
any entity might possibly regulate or otherwise supervise allotted
lands, in order to make a determination as to whether a tribe
supervises those lands. It is doubtful whether such an inventory is
possible. But in any case, nothing in SMCRA compels or authorizes a
comprehensive determination of the nature, extent, or focus of all such
authority over allotted lands. And even if such an inventory were
feasible, it would serve no purpose: as noted above, SMCRA does not
require that a tribe exercise more authority or supervision of lands
than does a state or the Federal Government; nor does SMCRA require
exclusive tribal supervision. SMCRA requires only that a tribe
supervise the lands.
Citing Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531
(10th Cir. 1995) (``Watchman''),\15\ the Navajo Nation asserts that the
Tenth Circuit has confirmed the Nation's authority to tax mining on
trust allotments. The Nation characterizes this authority as the
potentially most intrusive type of regulatory jurisdiction--``the power
to tax involves the power to destroy.'' New Mexico asserts that the
Navajo Nation does not tax allotted lands.
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\15\ Watchman was a supplemental opinion related to Pittsburg &
Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990)
(see note 3, supra.), cert. denied, Navajo Tax Com. v. Pittsburg &
Midway Coal Mining Co., 498 U.S. 1012 (1990).
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We conclude that Watchman does not unequivocally establish whether
the Nation has the authority to impose a business tax on coal mining of
all relevant allotted lands. However, because this decision provides
potentially relevant or instructive discussion of a number of issues,
we have evaluated it in some detail. In Watchman, Pittsburg & Midway
Mining Co. (``P&M'') sought an injunction and declaratory judgment that
the Navajo Nation lacked jurisdiction to impose a tax on P&M's mining
activities on the off-reservation portion of McKinley mine, the ``South
McKinley Mine.'' The Navajo Nation asserted that the Federal court
should abstain based on the tribal abstention doctrine, and allow the
Navajo tribal court to hear the issue first. Among other arguments, the
Nation argued that the South McKinley mine area is Indian country
within the meaning of 18 U.S.C. 1151. In relevant part, that provision
reads as follows:
18 U.S.C. 1151. Indian country defined
Except as otherwise provided in sections 1154 and 1156 of this
title, the term ``Indian country'', as used in this chapter, means
(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same.
The district court refused to dismiss P&M's complaint for failure
to exhaust tribal remedies, holding that the area was not Indian
country. The appellate court reversed that holding, and remanded for
further findings by the district court, concerning whether the entire
South McKinley Mine permit area is a dependent Indian community (and
therefore, Indian country). The appellate court noted that P&M
challenged the Navajo Nation's taxing authority, which was a basic
attribute of its sovereignty. 52 F.3d 1531, 1538. The appellate court
concluded that:
The power to tax is an essential attribute of Indian sovereignty
because it is a necessary instrument of self-government and
territorial management. * * * It derives from the Tribe's general
authority, as sovereign, to control economic activity within its
jurisdiction, and to defray the cost of providing governmental
services by requiring contributions from persons or enterprises
engaged in economic activities within that jurisdiction.* * * [T]he
power to tax is a sufficiently essential aspect of sovereignty to
require P&M to initiate its jurisdictional challenge in Navajo
tribal court.
* * * * *
P&M's lawsuit presents a direct challenge to the Navajo Nation's
jurisdiction and involves the interpretation of Navajo law.* * * A
myriad of legal and factual sources must be consulted to resolve the
complicated and intertwined issues implicated in cases like this
one.
The existence and extent of a tribal court's jurisdiction will
require a careful examination of tribal sovereignty, the extent to
which that sovereignty has been altered, divested, or diminished, as
well as a detailed study of relevant statutes, Executive Branch
policy as embodied in treaties and elsewhere, and administrative or
judicial decisions. Resolution of these issues also requires close
examination of the historical and present-day status of the area in
question.
Id. (Citations omitted; emphasis added).
The appellate decision notes P&M's arguments that the tribal
abstention doctrine should not apply because the attempt to tax is
patently violative of express jurisdictional prohibitions, and that the
Tribe has no authority to regulate non-Indian activities on non-Indian
lands. The court did not elaborate on these arguments, and disagreed:
[[Page 20687]]
P&M is correct that the Navajo Nation as a dependent sovereign
lacks the inherent authority of a full-fledged sovereign. * * *
Nonetheless, * * * [t]he question is not whether the Navajo Nation
possesses inherent authority as a sovereign to tax P&M, but whether
18 U.S.C. 1151 is a Congressional delegation of this authority
throughout Indian country.
52 F.3d 1531, 1540 (emphasis added). The Court continued:
We hold Sec. 1151 represents an express Congressional
delegation of civil authority over Indian country to the tribes. As
a result, the Navajo Nation has authority to tax any mining
activities taking place in Indian country without violating any
express jurisdictional prohibitions.
52 F.3d 1531, 1541 (Citations omitted; emphasis added). The Court did
not elaborate as to what civil authority over Indian country Congress
had delegated to tribes. Nonetheless, the court concluded that it was
not clear whether the area within the South McKinley Mine that was not
allotted lands is Indian country. The court also concluded that, if the
South McKinley non-allotted lands are not Indian country, then the
allotted lands within the mine did not sufficiently implicate Indian
sovereignty or other important interests of the Nation, and thus tribal
abstention is not required. 52 F.3d 1531, 1542. In a footnote, the
court specifically alluded to the authority of the Navajo Nation to tax
on allotted lands. The court noted that
Of course, if the entire mine was located on Navajo trust
allotments, there would be no question about the doctrine's
applicability.* * * [W]e believe the Navajo Nation has the authority
to apply its Business Activities Tax to the source gains from the
47% portion of the South McKinley Mine that lies within the
individual Navajo trust allotments.
52 F.3d 1531, 1542 n.11. However, the court also recognized that
the Nation's authority over allotted lands was not at issue in the
case. Therefore, this footnote appears to be dictum. In fact, it may be
doubly dictum, because the basic holding of the case was that the issue
of jurisdiction or authority to impose the tax should be decided in the
first instance by the tribal court.\16\ Thus, it does not appear that
the decision holds what the Nation asserts it holds. We expect that, in
any case-by-case determination, interested persons may provide
information on whether the Nation has relevant authority to tax on off-
reservation allotted lands. That information may address whether the
circuit court's statement in Watchman that the Nation has the authority
is binding precedent or is dictum; if it is dictum, whether it should
be given weig 