[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.
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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