[Federal Register Volume 85, Number 234 (Friday, December 4, 2020)]
[Proposed Rules]
[Pages 78296-78300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25999]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 90

[212A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF58


Election of Officers of the Osage Minerals Council

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) proposes to revise its 
regulations governing elections of the Osage Nation to update and limit 
the Secretary's role to the task of compiling a list of voters for 
Osage Minerals Council elections. These proposed changes would reaffirm 
the inherent sovereign rights of the Osage Tribe to determine its 
membership and form of government.

[[Page 78297]]


DATES: Please submit your comments by February 2, 2021.

ADDRESSES: You may submit comments, identified by the number 1076-AF58, 
by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the number 1076-AF58 
in the subject line of the message.
     Mail or courier: Elizabeth Appel, Office of Regulatory 
Affairs & Collaborative Action, Office of the Assistant Secretary--
Indian Affairs, U.S. Department of the Interior, 1849 C Street NW, Mail 
Stop 4660, Washington, DC 20240.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Office of Regulatory 
Affairs & Collaborative Action, telephone (202) 273-4680, 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. Background
    A. History of the Rule
    B. Need for This Proposed Rulemaking
III. Overview of Proposed Rule
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement and Fairness Act
    D. Unfunded Mandates Reform Act of 1995
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Paperwork Reduction Act
    I. National Environmental Policy Act (NEPA)
    J. Consultation With Indian Tribes (E.O. 13175)
    K. Energy Effects (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Statutory Authority

    BIA is proposing this rule under the authority of the Act of June 
28, 1906, Public Law 59-321, 34 Stat. 539, as amended by the Act of 
December 3, 2004, Public Law 108-431, 118 Stat. 2609.

II. Background

A. History of the Rule

    The Department of the Interior provided testimony in support of the 
legislation proposed by the Osage Nation when the Nation sought to 
exercise its inherent sovereign rights. Thereafter, the United States 
Congress reaffirmed in 2004 the Nation's rights to determine its 
membership and form of government. The following discussion sets forth 
a brief historical account of the relationship between the Osage Nation 
and the Federal government.
    In 1906, Congress enacted the Osage Allotment Act, which is unique 
among Federal Indian laws in that it restricts the Osage Nation from 
defining its own membership rules, and prescribes a particular form of 
government, which the Nation could not change without seeking amendment 
or clarification of Federal law. In 2002, the 31st Osage Tribal 
Council, formed pursuant to the Osage Allotment Act, actively began 
seeking a legislative remedy to address the restrictions contained in 
the Osage Allotment Act.
    On July 25, 2003, Congressman Frank Lucas (R-OK) introduced H.R. 
2912, a bill reaffirming the rights of the Osage Nation to form its own 
membership rules and tribal government, provided that no rights to any 
shares in the mineral estate of the Nation's reservation are 
diminished. The bill also directs the Secretary of the Interior to 
assist the Nation in holding appropriate elections and referenda at the 
request of the Nation.
    H.R. 2912 was referred to the Committee on Resources. On March 15, 
2004, that Committee held a hearing on the bill in Tulsa, Oklahoma. 
Osage Nation officials, BIA representatives, and Osage people testified 
in favor of the bill. On May 5, 2004, the bill was favorably reported 
to the House of Representatives by unanimous consent. See H. Rpt. 108-
502. On June 1, 2004, the House of Representatives passed the bill and 
then sent it to the Senate, and it was referred to the Committee on 
Indian Affairs.
    On July 14, 2004, the Committee on Indian Affairs favorably 
reported H.R. 2912 to the Senate with a ``do pass'' recommendation. 
President Bush signed H.R. 2912 into law on December 3, 2004, and 
became Public Law 108-431, 118 Stat. 2609.
    The Commission began conducting town hall meetings in April 2005. 
Meetings were conducted in all Osage communities and other geographic 
areas with large concentrations of Osages. This was followed by a 
written survey mailed to all Osages with a Certificate of Degree of 
Indian Blood (CDIB) card. Input from the meetings and data obtained 
from the survey results were compiled to formulate key questions put 
forward to the Osage people for a vote in a referendum in November 
2005.
    The results from the referendum were used to draft an Osage 
Constitution, which was ratified on March 11, 2006, in a second 
referendum vote. The Osage Nation adopted a new constitutional form of 
government reorganized from a Tribal Council system into a tripartite 
system, which now includes an executive, legislative and judicial 
branch with a separation of powers between the three branches.
    This was followed on June 5, 2006, by the election of a Principal 
Chief and Assistant Principal Chief, Osage Nation Congress, and Osage 
Minerals Council. At the request of the Nation, the BIA provided 
technical assistance in conducting the election in accordance with 
Public Law 108-431, 118 Stat. 2609. With the elections completed, all 
elected officials were sworn into their respective offices on July 3, 
2006. Upon the swearing in of these elected officials, governmental 
authority passed from the Osage Tribal Council to the Osage Nation 
Constitutional Government. Thereafter, the Osage Tribe of Indians of 
Oklahoma became the Osage Nation.
    In 2008, the BIA formally acknowledged the name change of the Tribe 
from the Osage Tribe of Indians of Oklahoma to the Osage Nation and 
published the change in the Federal Register in the list of Indian 
Entities Recognized and Eligible to Receive Services from the United 
States Bureau of Indian Affairs. (See, 73 FR 18553, April 4, 2008.) 
Further communication between the Nation and the BIA eventually 
resulted in an agreement to begin an informal negotiated rulemaking 
process. In February 2010, representatives from the Osage Nation, the 
BIA Osage Agency, the BIA Eastern Oklahoma Regional Office, the Tulsa 
Field Solicitor's Office, and the BIA Central Office convened to form a 
joint regulation negotiation team. The team completed new and revised 
regulations to cover 25 CFR parts 90, 91, 117, and 158. The June 2010 
Election resulted in a change of administration of the Osage Nation, 
thereby, starting the process over again with a new vision from Osage 
Nation. The Osage Nation formed a new team in 2019 and they have 
reviewed and revised regulations to cover 25 CFR part 90. The team will 
continue working on parts 91, 117, and 158.

B. The Need for This Proposed Rulemaking

    Both the BIA and the Osage Nation recognized the need to update 
Federal regulations related specifically to the Osage Nation so that 
the regulations align with the Osage Nation's new form of government 
and address outdated regulations. In doing so, the parties

[[Page 78298]]

agreed to participate in informal rulemaking. This consensus-oriented 
process conducted between the BIA and the Osage Nation afforded an 
opportunity to collaborate and identify a rulemaking strategy to 
address issues and concerns contained in the regulations specifically 
affecting the Osage. The proposed rulemaking will clarify the BIA's 
role to better meet its fiduciary trust responsibilities and carry out 
the policies established by Congress to strengthen tribal sovereignty 
on a government-to-government basis. This rulemaking will also provide 
the BIA with the tools to more effectively and consistently manage 
trust assets and better serve the Osage Nation and Osage people.

III. Overview of Proposed Rule

    This rule governs BIA's role in providing information to the Osage 
Minerals Council Election Board for purposes of notice. The existing 25 
CFR part 90 is the authority for the release of otherwise potentially 
confidential information to the Osage Minerals Council Election Board. 
The alternative to these amendments would deprive the Osage Nation of 
the information it needs to accurately identify Osage voters. 
Amendments to this part focus on the BIA's procedures in compiling a 
complete annuitant list with addresses and headright interests to the 
Osage Minerals Council Election Board for purposes of identifying Osage 
voters.
    This proposed rule would delete most provisions of part 90 in their 
entirety because of the enactment of the Public Law 108-431, 118 Stat. 
2609, and subsequent adoption of the Constitution of the Osage Nation. 
Thus, the remaining purpose of this part is the authority for BIA to 
provide a list to the Osage Minerals Council Election Board of eligible 
headright interest owners in the manner requested by the Osage Nation. 
The Department may not generally release this information but this part 
provides authority for the release solely to the Osage Minerals Council 
Election Board for purposes of conducting elections for the Osage 
Minerals Council. The Privacy Act does not prohibit disclosure of the 
headright interests of eligible Osage voters for this purpose. The 
Department may provide the list of eligible headright interest owners 
as a routine use under the Privacy Act.
    In response to the Constitution of the Osage Nation, the BIA 
significantly reduced its role in the elections of the Osage Nation as 
of June 2006. The only remaining portion in part 90 describes the 
current role of the BIA in the Osage Minerals Council election process.
    The following distribution table indicates where each of the 
current regulatory sections in 25 CFR part 90 is located in the 
proposed 25 CFR part 90.

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        Current 25 CFR Sec.            Proposed 25 CFR Sec.             Title              Description of change
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N/A.................................  90.100...............  What role does BIA play in   Consolidated current
                                                              the Osage Minerals Council   Sec.  Sec.   90.21
                                                              elections?.                  and 90.35 into one
                                                                                           new section.
90.1................................  N/A..................  General, Definitions.......  Deleted.
90.2................................  N/A..................  General, Statutory           Deleted.
                                                              provisions.
90.21...............................  N/A..................  Eligibility, General.......  Revised and
                                                                                           incorporated into the
                                                                                           new Sec.   90.100.
90.30...............................  N/A..................  Elections, Nominating        Deleted.
                                                              conventions and petitions.
90.31...............................  N/A..................  Elections, Applicability...  Deleted.
90.32...............................  N/A..................  Elections, Election Board..  Deleted.
90.33...............................  N/A..................  Elections, Watchers and      Deleted.
                                                              challengers.
90.34...............................  N/A..................  None (Apparently omitted)..  ......................
90.35...............................  N/A..................  Elections, List of voters..  Revised and
                                                                                           redesignated as Sec.
                                                                                            90.100 (see first
                                                                                           row).
90.36...............................  N/A..................  Elections, Disputes on       Deleted.
                                                              eligibility of voters.
90.37...............................  N/A..................  Elections, Election Notices  Deleted.
90.38...............................  N/A..................  Elections, Opening and       Deleted.
                                                              closing of poll.
90.39...............................  N/A..................  Elections, Voters to         Deleted.
                                                              announce name and
                                                              residence.
90.40...............................  N/A..................  Elections, Ballots.........  Deleted.
90.41...............................  N/A..................  Elections, Absentee voting.  Deleted.
90.42...............................  N/A..................  Elections, Absentee ballots  Deleted.
90.43...............................  N/A..................  Elections, Canvass of        Deleted.
                                                              election returns.
90.44...............................  N/A..................  Elections, Statement of      Deleted.
                                                              supervisor.
90.46...............................  N/A..................  Elections, Notification of   Deleted.
                                                              election of tribal
                                                              officers.
90.47...............................  N/A..................  Elections, Contesting        Deleted.
                                                              elections.
90.48...............................  N/A..................  Elections, Notice of         Deleted.
                                                              Contest.
90.49...............................  N/A..................  Elections, Expenses of       Deleted.
                                                              elections.
----------------------------------------------------------------------------------------------------------------

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements. This proposed rule is also part of the Department's 
commitment under the Executive Order to reduce the number and burden of 
regulations.
    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities

[[Page 78299]]

and control regulatory costs. OIRA has determined that this rule is 
deregulatory because the updates will dramatically reduce the role of 
the Federal government in Osage Nation elections of officers.

B. The Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. Because this 
proposed rule is exclusively confined to the Federal Government, Osage 
Indians, and the Osage Nation, this rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose an unfunded mandate on State, 
local, or Tribal governments or the private sector of more than $100 
million per year. The proposed rule does not have a monetarily 
significant or unique effect on State, local, or Tribal governments or 
the private sector. A statement containing the information required by 
the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not 
required.

E. Takings (E.O. 12630)

    This proposed rule does not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630 because 
this proposed rule does not affect individual property rights protected 
by the Fifth Amendment or involve a compensable ``taking.'' A takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this 
proposed rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. A 
federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this rule: (a) Meets the criteria of section 
3(a) requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) Meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has substantial 
direct effects on one federally recognized Indian Tribe because the 
rule directly addresses the Osage Nation. The Department consulted with 
the Osage Nation on this proposed rule prior to its publication. This 
rulemaking is a result of a consensus-oriented process conducted 
between the Department of the Interior and the Osage Nation to identify 
a rulemaking strategy to address issues and concerns contained in the 
regulations related specifically to the Osage Nation, which no longer 
align with the Nation's form of government. The purpose of today's 
proposed rulemaking is to allow the Department of the Interior to 
better meet its fiduciary trust responsibilities and to carry out the 
policies established by Congress to strengthen Tribal sovereignty with 
regard to elections of Osage Nation officers.

I. Paperwork Reduction Act

    This proposed rule does not contain information collection 
requirements, and a submission to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) is not required. We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number.

J. National Environmental Policy Act

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. A 
detailed statement under the National Environmental Policy Act of 1969 
(NEPA) is not required because this is an administrative and procedural 
regulation. (For further information see 43 CFR 46.210(i).) We have 
also determined that this proposed rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each proposed rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and,
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 90

    Elections, Indians--tribal government.
    For the reasons given in the preamble, the Department of the 
Interior proposes

[[Page 78300]]

to amend Chapter 1 of Title 25 of the Code of Federal Regulations by 
revising part 90 to read as follows.

PART 90--ELECTIONS OF OSAGE MINERALS COUNCIL

Sec.
90.100 What role does BIA play in the Osage Minerals Council's 
elections?

    Authority:  5 U.S.C. 301; 25 U.S.C. 2, 9; Sec. 9, 34 Stat. 539; 
118 Stat. 2609.


Sec.  90.100   What role does BIA play in the Osage Minerals Council's 
elections?

    (a) The Superintendent of the Osage Agency must compile, at the 
request of the Chair of the Osage Minerals Council, a list of the 
voters of Osage descent who will be 18 years of age or over on the 
election day designated by the Osage Minerals Council and whose names 
appear on the quarterly annuity roll at the Osage Agency as of the last 
quarterly payment immediately preceding the date of the election. Such 
list must set forth only the name and last known address of each voter.
    (b) For purposes of calculating votes, the Superintendent must 
furnish to the supervisor of the Osage Minerals Council Election Board 
a separate list containing the name and last known address of each 
eligible voter and including the voter's headright interest shown on 
the last quarterly annuity roll.

Tara Sweeney.
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-25999 Filed 12-3-20; 8:45 am]
BILLING CODE 4337-15-P