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1 USCA Case # Document # Filed: 07/30/2013 Page 1 of 81 No UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Petition for Review of a Final Rule of the United States Environmental Protection Agency PROOF BRIEF OF AMICUS CURIAE THE OSAGE NATION IN SUPPORT OF RESPONDENT UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Michael C. Small AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, CA Phone: Facsimile: Donald R. Pongrace Ian Shavitz James E. Tysse AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Ave., NW Washington, D.C Phone: Facsimile: Attorneys for the Osage Nation

2 USCA Case # Document # Filed: 07/30/2013 Page 2 of 81 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), undersigned counsel certify as follows: A. Parties, Intervenors, and Amici Curiae. All parties, intervenors, and amici appearing in this court are listed in the Brief for Petitioner Oklahoma Department of Environmental Quality and the Brief for Respondent U.S. Environmental Protection Agency. B. Rulings Under Review. Under review is the final rule issued by the United States Environmental Protection Agency ( EPA ) titled Review of New Sources and Modifications in Indian Country, 76 Fed. Reg (July 1, 2011) ( Tribal New Source Rule ). C. Related Cases. References to related cases appear in the Brief for Petitioner Oklahoma Department of Environmental Quality and the Brief for Respondent U.S. Environmental Protection Agency. i

3 USCA Case # Document # Filed: 07/30/2013 Page 3 of 81 TABLE OF CONTENTS STATUTES AND REGULATIONS...1 INTEREST OF AMICUS CURIAE...1 FACTUAL BACKGROUND ON OKLAHOMA INDIAN COUNTRY...3 A. History Of Indian Lands In Oklahoma...3 B. Federal Superintendence Over Osage Lands...5 SUMMARY OF ARGUMENT...7 ARGUMENT...10 I. THE EPA PROPERLY CONCLUDED THAT FEDERAL AND TRIBAL GOVERNMENTS HAVE PRIMARY CLEAN AIR ACT REGULATORY RESPONSIBILITY FOR INDIAN COUNTRY...10 A. The Broad Statutory Definition Of Indian Country Sharply Demarcates The Line Between Federal And Tribal Regulatory Jurisdiction And That Of The States...10 B. The Tribal New Source Rule Properly Fills An Existing Gap In Clean Air Act Regulatory Coverage In Indian Country...15 II. THE TRIBAL NEW SOURCE RULE IMPOSES NO NEW OR INCREASED SIGNIFICANT BURDENS ON OIL AND GAS OPERATORS A. Determining Indian Country Status Is Already A Commonplace Undertaking For Oil And Gas Operators...19 B. Indian Country Status Is Easily Determined In The Vast Majority Of Cases...21 CONCLUSION...29 CERTIFICATE OF TYPE-VOLUME COMPLIANCE...30 CERTIFICATE OF SERVICE...31 STAUTORY AND REGULATORY ADDENDUM...32 ii

4 USCA Case # Document # Filed: 07/30/2013 Page 4 of 81 TABLE OF AUTHORITIES CASES: Alaska v. Native Village of Venetie Tribal Gov t, 522 U.S. 520 (1998)... 12, 23 *Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000)... 8, 17 Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir. 2012) Housing Auth. of the Seminole Nation v. Harjo, 790 P.2d 1098 (Okla. 1990) Hydro Resources, Inc. v. U.S. EPA, 608 F.3d 1131 (10th Cir. 2010)... 13, 23 Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Comm n, 829 F.2d 967 (10th Cir. 1987)... 12, 20 Magnan v. Trammell, No , 2013 WL (10th Cir. June 14, 2013) *Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001)... 9, 12, 13, 18 * Oklahoma Tax Comm n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991)... 12, 13, 15 Oklahoma Tax Comm n v. Sac & Fox Nation, 508 U.S. 114 (1993)... 4, 11, 13 Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010)... 6, 14, 15 Phillips Petroleum Co. v. U.S. EPA, 803 F.2d 545 (10th Cir. 1986)... 7, 17, 18 * Authorities chiefly relied upon are marked with an asterisk. iii

5 USCA Case # Document # Filed: 07/30/2013 Page 5 of 81 United States v. Burnett, 777 F.2d 593 (10th Cir. 1985) FEDERAL STATUTES: 18 U.S.C , 9, 11, 12, U.S.C c (1942) f (1938) (1924) (e) (4) U.S.C. 301(d)... 8, 10, 11, (a)(1) (d)(2)(B)... 10, 16 Act of June 5, 1872, ch. 310, 17 Stat. 228 (1872)... 1, 5 Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934)... 4 Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat (1936)... 4 Osage Allotment Act of June 28, 1906, ch. 3752, Pub. L. No , 34 Stat. 539 (1906)... 1, 6, 14 Pub. L. No , 2(a), 92 Stat (1978)... 6 Pub. L. No , 98 Stat (1984)... 6 FEDERAL REGISTER NOTICES: 63 Fed. Reg (Feb. 12, 1998) Fed. Reg (Jan. 19, 2005) Fed. Reg (March 21, 2005) Fed. Reg (Feb. 27, 2007) Fed. Reg (Oct. 1, 2010) Fed. Reg (July 1, 2011)... 1, 2, 3, 9, 11, 16, 17, 18, 19, 20, 22, 28 iv

6 USCA Case # Document # Filed: 07/30/2013 Page 6 of 81 FEDERAL REGULATIONS: 25 C.F.R (j) (a) , , 21 CONGRESSIONAL REPORTS: H.R. REP. NO (2004) OTHER AUTHORITIES: BIA, 51 Indian Affairs Manual Cohen s Handbook of Federal Indian Law (2012)... 3, 4, 5, 6 EPA Review of New Sources and Modifications in Indian Country, Response to Comments, available at Docket No. EPA-HQ-OAR , 28 National Indian Oil & Gas Evaluation & Management System see U. S. Dept. of Interior, Bureau of Indian Affairs, Division of Land Titles and Records Homepage, Land Titles and Records Homepage, 27 Rocky Mountain Mineral Law Foundation, Basics Of Successful Natural Resource Development Projects In Indian Country, No , 21, 26 Rocky Mountain Mineral Law Foundation, Examination Of Title To Indian Lands, No v

7 USCA Case # Document # Filed: 07/30/2013 Page 7 of 81 Paul W. Shagen, Indian Country: The Dependent Indian Community Concept and Tribal/Tribal Member Immunity from State Taxation, 27 N.M. L. Rev. 421 (1997) U.S. Dept. of Interior, Budget Justifications and Performance Information, Fiscal Year 2013: Indian Affairs available at 26, 27 U.S. Dept. of Interior, Bureau of Indian Affairs, Oil and Gas Management Software, IA/IEED/DEMD/TT/CompPM/ index.htm... 27, 28 U.S. Dept. of Interior, Office of Inspector General, Final Evaluation Report Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, No. CR-EV-BIA vi

8 USCA Case # Document # Filed: 07/30/2013 Page 8 of 81 GLOSSARY OF TERMS Bureau EPA Indian Oil & Gas System Bureau of Indian Affairs United States Environmental Protection Agency National Indian Oil & Gas Evaluation & Management System Osage Act Osage Allotment Act of June 28, 1906, Pub. L. No , 34 Stat. 539 (1906) Response to Comments Trust System Tribal New Source Rule EPA Review of New Sources and Modifications in Indian Country, Response to Comments (June 2011) available at Docket No. EPA-HQ-OAR Bureau s Trust Asset Accounting Management System Review of New Sources and Modifications in Indian Country, 76 Fed. Reg (July 1, 2011) vii

9 USCA Case # Document # Filed: 07/30/2013 Page 9 of 81 STATUTES AND REGULATIONS The rule under review is the Review of New Sources and Modifications in Indian Country, 76 Fed. Reg (July 1, 2011) ( Tribal New Source Rule ), which is set forth in the statutory addendum to the brief of respondent United States Environmental Protection Agency. Except for that Rule, all pertinent statutes and regulations cited in this brief are set forth in this brief s addendum. INTEREST OF AMICUS CURIAE 1 The Osage Nation is a federally recognized Indian tribe. Its reservation was established by Congress in See Act of June 5, 1872, ch. 310, 17 Stat. 228 (1872). The reservation s boundaries are co-extensive with present-day Osage County, Oklahoma, which covers 1.4 million acres. Since 1872, the Nation has operated its tribal government from that land. Today, the Osage tribe has over 17,000 members. The United States holds in trust certain properties of the Osage Nation pursuant to the Osage Allotment Act of June 28, 1906, ch. 3752, Pub. L. No , 34 Stat. 539 (1906) ( Osage Act ). The trust properties include the mineral rights to the subsurface estate underlying the reservation lands. Federal law treats 1 Pursuant to Federal Rule of Appellate Procedure 29(a) and D.C. Circuit Rule 29(b), the Osage Nation, a federally recognized Indian Tribe, has received the consent of all parties to file this amicus curiae brief. Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for either party authored this brief in whole or in part, nor did any counsel or party make any monetary contribution to fund the preparation or submission of this brief, and no person other than amicus curiae contributed money to prepare or submit this brief. 1

10 USCA Case # Document # Filed: 07/30/2013 Page 10 of 81 the Osage mineral estate and the income from the estate as tribal assets, protecting those properties from allotment and alienation. The Osage Nation has extensive experience in working with non-tribal businesses that seek to develop oil and natural gas resources on Osage lands. Because its land is both a generator of economic activity and the cultural and historic homeland for the Nation and its members, the Osage Nation has a strong interest in ensuring that pollution sources there are regulated consistently and evenhandedly under the Clean Air Act, either by the Osage Nation itself or by the federal government as trustee. The Osage Nation also has an interest in ensuring that Oklahoma does not encroach upon the Nation s historic and congressionally conferred primary jurisdiction over its land, which remains under federal superintendence. The Osage Nation agrees with the EPA that States and localities do not have Clean Air Act regulatory jurisdiction over Indian country. The Osage Nation also agrees with the EPA that a gap in the implementation of air quality programs under the Clean Air Act currently exists in Indian country, including Indian country in Osage County, and that the EPA s Tribal New Source Rule will close that gap. The Osage Nation files this amicus brief to reinforce the arguments advanced in support of that rule by the EPA and to address the arguments of amicus Oklahoma Independent Petroleum Association that the EPA lacks 2

11 USCA Case # Document # Filed: 07/30/2013 Page 11 of 81 authority to promulgate the Tribal New Source Rule and that the Rule will impose great burdens on businesses that seek to develop oil and natural gas resources in Indian country. FACTUAL BACKGROUND ON OKLAHOMA INDIAN COUNTRY Oklahoma argues that the EPA lacks jurisdiction to regulate non-reservation lands in Oklahoma (and elsewhere) under the Clean Air Act. Oklahoma Br. 11. Its brief ignores, however, that the Indian country over which federal and tribal jurisdiction extends in Oklahoma (and in other States as well) encompasses more than just formal reservations: it reaches all Indian lands that are under federal superintendence. See Cohen s Handbook of Federal Indian Law 3.04[2][c], 4.07[1] (2012) [hereinafter Cohen s Handbook.] The history of federal superintendence of Indian lands in Oklahoma, including the Osage Nation land (a history that Oklahoma ignores in its brief) illustrates why Congress authorized the EPA to regulate throughout the entirety of Indian country under the Clean Air Act. A. History Of Indian Lands In Oklahoma Long before Oklahoma became a State in 1907, it was home to many Indian tribes living in what was then called Indian Territory. Although some of those tribes resided in Indian Territory before contact with white settlers, the United States had relocated many other tribes, including the Osage, to Oklahoma beginning in the early nineteenth century, often involuntarily. See Cohen s 3

12 USCA Case # Document # Filed: 07/30/2013 Page 12 of 81 Handbook 4.07[a][1], at Some of the removed tribes, including the Osage, signed treaties with the United States that promised that their reserved lands would never be incorporated into a State without tribal consent. Id. at 289. In 1890, Congress passed the Oklahoma Organic Act, which established the Oklahoma Territory in what is now the western half of the State of Oklahoma, Oklahoma Tax Comm n v. Sac & Fox Nation, 508 U.S. 114, (1993). Consistent with the treaties between the United States and tribes in the Oklahoma Territory, however, [t]he Organic Act expressly preserved tribal authority and federal Indian jurisdiction in both the Oklahoma and Indian Territories. Cohen s Handbook, 4.07[1][a], at 290. At the end of the nineteenth century, the United States began to allot many tribal lands within the Oklahoma and Indian Territories to individual Indians. See Cohen s Handbook 4.07[1][a], at 290. In the mid 1930s, Congress ended the policy of individual Indian allotments with the passage of the Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934), and the Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat (1936). Together, these laws ensured that allotments for Indian tribes, including Oklahoma tribes, would remain in trust. See Cohen s Handbook 4.07[1][a], at 291, 4.07[1][b], at Today, Oklahoma is home to 38 federally recognized Indian tribes and nations. See 75 Fed. Reg (Oct. 1, 2010); Cohen s Handbook, 4.07[1][a], 4

13 USCA Case # Document # Filed: 07/30/2013 Page 13 of 81 at 288. Because all of the tribes and much of their lands remain under some form of federal superintendence, Cohen s Handbook, 4.07[1][b], at , Oklahoma has two Bureau of Indian Affairs Regional Office sites and seven Agency or Field Office sites. Among other things, these Offices work with State and local governments, tribes, and other interested parties in promoting Indian economic development and assist non-indian developers and commercial enterprises, including petroleum producers, in undertaking activities on tribal lands. 2 B. Federal Superintendence Over Osage Lands The Osage Nation is one of the 38 federally recognized tribes in Oklahoma. Its Reservation was formally established by Congress in 1872, see Act of June 5, 1872, ch. 310, 17 Stat The boundaries of the Osage Nation s land are coextensive with Osage County, which is the largest county in Oklahoma. Since the reservation s inception, the Osage Nation has operated its tribal government from this homeland and has protected important historic and cultural resources on behalf of the over 17,000 members of the Osage Nation. 3 In the early years of the twentieth century, substantial oil and gas reserves were discovered in the Osage Reservation. See Cohen s Handbook 2 See 3 See cdib/welcome_sub_page.aspx?subpage_id=2. 5

14 USCA Case # Document # Filed: 07/30/2013 Page 14 of [1][d][ii], at 303. To protect the Osage Nation s financial well-being and to prevent exploitation of individual tribal members, Congress enacted the Osage Allotment Act of June 28, Pub. L. No , 34 Stat Unlike many other allotment Acts of the era, which opened Indian lands to settlement by non- Indians, the Osage Allotment Act allotted the surface estate in trust exclusively for individual Osage members to ensure tribal cohesiveness. See Osage Nation v. Irby, 597 F.3d 1117, 1123 (10th Cir. 2010). The Osage Act also reserved the most valuable part of the Reservation the subsurface in trust exclusively for the benefit of the Osage Nation. Osage Act, 2-3. Congress extended the trust over the reserved mineral estate in perpetuity in See Pub. L. No , 2(a), 92 Stat (1978), as amended by Pub. L. No , 98 Stat (1984) (technical corrections). Of particular relevance to this case, federal regulations administered by the Osage Agency of the Bureau of Indian Affairs govern the production of oil, gas, and other minerals in Osage County. See 25 C.F.R. 214 ( Leasing of Osage Reservation Lands, Oklahoma, for Mining, Except Oil and Gas ); 226 ( Leasing of Osage Reservation Lands for Oil and Gas Mining ); see also id. 158 (covering non-mineral aspects of Osage Lands ). The State of Oklahoma historically has not attempted to assert jurisdiction or to contest the federal government s regulatory authority over the Osage mineral estate. See, e.g., Phillips Petroleum 6

15 USCA Case # Document # Filed: 07/30/2013 Page 15 of 81 Co. v. U.S. EPA, 803 F.2d 545, 549 (10th Cir. 1986) (noting that the State of Oklahoma made no attempt to assert jurisdiction over the Osage Reserve and [did] not contest the EPA s authority to promulgate the Safe Drinking Water Act regulation at issue). Today, the Osage trust land overseen by the [Bureau of Indian Affairs] consists of approximately 1.4 million acres which encompass the Osage Mineral Reserve, an additional 134, acres of individual restricted allotment lands within Osage County, and 1, acres of Osage Tribal Trust Land. 4 The Osage tribal government plays an important role in the administration of these lands. In particular, the Nation s Minerals Council exercises authority over mineral leasing in Osage County and approves all mineral leases. Through the exercise of this authority, the Minerals Council has gained substantial experience in working with businesses that seek to develop oil and natural gas resources on Osage lands. SUMMARY OF ARGUMENT 1. The Tribal New Source Rule is a valid exercise of the EPA s authority under Section 301(d) of the Clean Air Act. That provision authorizes the EPA to treat tribes in the same manner as States for purposes of the submission of the 4 U.S. Department of the Interior, Bureau of Indian Affairs, Osage Agency, 7

16 USCA Case # Document # Filed: 07/30/2013 Page 16 of 81 implementation plans required by the Act. The EPA s longstanding interpretation (which was previously unchallenged by Oklahoma) is that Section 301(d) leaves it to tribes in the first instance to regulate pollution sources within Indian country, as that term is defined in 18 U.S.C The EPA s position is firmly grounded in the text of the Clean Air Act. And if a tribe fails to submit an implementation plan, then the Clean Air Act s text with equal clarity authorizes the EPA to step in for the tribe and regulate in Indian country, which is precisely what EPA has done in the Tribal New Source Rule. The Act does not confer this backup regulatory authority in Indian country on States. Oklahoma and its amicus, the Oklahoma Independent Petroleum Association, are mistaken in arguing that Section 301(d) of the Clean Air Act does not authorize tribes or the EPA to regulate non-reservation lands, and that it is the States that have jurisdiction over such lands. That argument cannot be squared with a straightforward reading of the statutory definition of Indian country, which demarcates the firm boundary between federal and tribal regulatory authority and that of the States. What is more, an unbroken line of Supreme Court decisions has interpreted the term Indian country to encompass more than just formal reservations. And this Court s decision in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), upheld the EPA s authority to implement the Clean Air Act throughout the entirety Indian country, not just on land that qualifies as a 8

17 USCA Case # Document # Filed: 07/30/2013 Page 17 of 81 formal reservation. Oklahoma and the Association cite Michigan v. EPA, 268 F.3d 1075, 1079 (D.C. Cir. 2001), but that decision hurts rather than helps them. It specifically confirms the authority of tribes and the federal government to regulate under the Clean Air Act on any land, be it a formal reservation or not, that qualifies as Indian country within the meaning of 18 U.S.C The Association s claim that the Tribal New Source Rule will impose new and significant burdens on businesses seeking to develop oil and gas sources is beside the point because the mere existence of an asserted burden does not render the Rule invalid. The claim also is wrong. As the record documents, businesses subjected to the Rule already must determine, in the ordinary course of their routine activities, whether a particular tract of land is in Indian country and thus falls within either tribal or federal jurisdiction, rather than State jurisdiction. The Rule does not require businesses to undertake any new, significant landidentification actions that they are not already making. The record also shows that determining whether a particular tract of land is in Indian country is straightforward in the vast majority of case. A wide array of tested and proven tools, primarily administered by the Bureau of Indian Affairs in the Department of Interior, are readily available to stakeholders to facilitate that determination. The Association s counter-factual hypothesization of burdens that actual experience refutes provides no basis for upsetting the Rule. 9

18 USCA Case # Document # Filed: 07/30/2013 Page 18 of 81 ARGUMENT I. THE EPA PROPERLY CONCLUDED THAT FEDERAL AND TRIBAL GOVERNMENTS HAVE PRIMARY CLEAN AIR ACT REGULATORY RESPONSIBILITY FOR INDIAN COUNTRY A. The Broad Statutory Definition Of Indian Country Sharply Demarcates The Line Between Federal And Tribal Regulatory Jurisdiction And That Of The States The Clean Air Act requires States to submit for EPA s approval implementation plans for the regulation of sources of pollution within a State s jurisdiction. 42 U.S.C. 7410(a)(1). Section 301(d)(2) of the Act authorizes the EPA to treat Indian tribes in the same manner as States for purposes of the submission of implementation plans if, among other things, the regulatory functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe s jurisdiction. Id. 7601(d)(2)(B). The EPA s longstanding interpretation of Section 301(d)(2) (which Oklahoma failed to challenge at the time the agency issued it) is that the provision empowers tribes to exercise this authority in all areas of Indian country, as that term is defined in 18 U.S.C EPA Br. 5, 21. The Tribal New Source Rule was promulgated under Section 301(d) of the Clean Air Act. As such, and in accordance with the EPA s prior interpretation of Section 301(d), it applies only to lands that fall within the definition of Indian 10

19 USCA Case # Document # Filed: 07/30/2013 Page 19 of 81 country in 18 U.S.C See 76 Fed. Reg Under Section 1151, Indian country is (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. 18 U.S.C As the Supreme Court has recognized, Section 1151 s definition of Indian country is broad. Sac & Fox Nation, 508 U.S. at 123. It encompasses formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. Id. Although Section 1151 is codified in Title 18 of the U.S. Code, which generally governs criminal law, its definition of Indian country also generally applies in the civil arena. Alaska v. Native Village of Venetie Tribal Gov t, 522 U.S. 520, 527 (1998). In keeping with the expansive statutory definition, whether an area qualifies as Indian country does not turn on technical labels, such as whether the area actually is in trust or constitutes a reservation. Rather, the Supreme Court has identified the critical inquiry as whether the area has been validly set apart for the use of the Indians as such, under the superintendence of the [federal] 11

20 USCA Case # Document # Filed: 07/30/2013 Page 20 of 81 Government. Oklahoma Tax Comm n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991). It is an elemental principle of Indian law that, if an area is part of Indian country within the meaning of Section 1151, then primary jurisdiction [over the area] rests with the Federal Government and the Indian tribe inhabiting it, and not with the States. Michigan v. EPA, 268 F.3d 1075, 1079 (D.C. Cir. 2001) (quoting Venetie, 522 U.S. at 527 n.1). See also Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Comm n, 829 F.2d 967, 973 (10th Cir. 1987) (The term Indian [C]ountry *** refers to those lands which Congress intended to reserve for a tribe and over which Congress intended primary jurisdiction to rest in the federal and tribal governments ). Section 1151 s definition of Indian country has long been applied in determining the reach of EPA jurisdiction under federal environmental laws and the concomitant boundaries of State jurisdiction. See, e.g., Michigan, 268 F.3d at 1079 (Clean Air Act); Hydro Resources, Inc. v. U.S. EPA, 608 F.3d 1131 (10th Cir. 2010) (Safe Drinking Water Act). All three types of Indian country lands referenced in Section 1151 exist in Oklahoma. See, e.g., Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. at 511 (informal reservation); Housing Auth. of the Seminole Nation v. Harjo, 790 P.2d 1098, 1099 (Okla. 1990) (dependent Indian communities); 12

21 USCA Case # Document # Filed: 07/30/2013 Page 21 of 81 Magnan v. Trammell, No , 2013 WL , at **7-9 (10th Cir. June 14, 2013) (allotments). Amicus Oklahoma Independent Petroleum Association ( the Association ) contends that, historically, there have not been reservations in Oklahoma. Association Brief 8. The Supreme Court has said otherwise. In Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. at 511, the Court held that certain trust land in Oklahoma, while not a formal reservation, nevertheless, qualifie[d] as a reservation for purposes of Section 1151(a). Indeed, Section 1151 explicitly define[s] Indian country broadly to include formal and informal reservations. Sac & Fox Nation, 508 U.S. at 123 (emphasis added). 5 The Association s reliance on the Tenth Circuit s decision in Osage Nation v. Irby, supra, is misplaced. That case does not address the existence of informal reservations in Oklahoma at all. The Tenth Circuit in Irby did hold that the Osage Nation s formal reservation was disestablished by the Osage Allotment Act of F.3d at The Osage Nation respectfully submits that the Tenth Circuit was wrong on this question. First and foremost, several sections of the Osage Allotment Act 5 The EPA likewise has interpreted the term reservation to include informal reservations. See Indian Tribes: Air Quality Planning and Management, 63 Fed. Reg. 7254, 7258 (Feb. 12, 1998) ( reservation, as used in Clean Air Act, should be interpreted in light of Supreme Court case law to include[] trust lands that have been validly set apart for the use of a tribe ). 13

22 USCA Case # Document # Filed: 07/30/2013 Page 22 of 81 itself (sections 4, 7, and 11) referred to the Osage Reservation in the present tense, which undercuts the notion that the Act disestablished the Reservation. 34 Stat. 539, Furthermore, numerous subsequent federal statutes similarly referred to the Osage Reservation in the present tense, thus also connoting its continued existence. See, e.g., 25 U.S.C. 398 (1924) (providing for the leasing of unallotted land on Indian reservations "other than lands of the Five Civilized Tribes and the Osage Reservation"); 25 U.S.C. 396f (1938) (excepting from certain leasing provisions "the Crow Reservation in Montana, the ceded lands of the Shoshone Reservation in Wyoming, [and] the Osage Reservation in Oklahoma"); 25 U.S.C. 373c (1942) (excepting certain probate procedures from the "Five Civilized Tribes or the Osage Reservation"); see also H.R. REP. NO , at 1 (2004) ( The Osage Tribe is a federally recognized tribe with a nearly 1.5 million-acre reservation in northeast Oklahoma ). 6 In any event, Irby has no bearing on Osage County s status as at least an informal reservation, and thus Indian country, due to the extensive and continuing 6 The Department of Interior has indicated that it considers the Osage Reservation to be in existence. For one, in certifying the Osage Tribe Liquor Control Ordinance, it referred to the Osage Indian Reservation as described in the Act of June 5, 1872, which was the legislation that originally established the Osage Reservation. 70 Fed. Reg. 3054, 3055 (Jan. 19, 2005). There was no reference in the certification to any post-1872 disestablishment of the Reservation. Additionally, the Department of Interior approved a Tribal-State Gaming Compact between the Osage Nation and Oklahoma under the Indian Gaming Regulatory Act ( IGRA ). 70 Fed. Reg (March 21, 2005). IGRA authorizes Indian gaming on all lands within the limits of any Indian reservation. 25 U.S.C. 2703(4). The approval of the Compact thus indicates that the Department of Interior considered the Osage Nation s land to be a reservation. 14

23 USCA Case # Document # Filed: 07/30/2013 Page 23 of 81 federal superintendence of the surface mineral estate that the United States holds in trust for the Osage Tribe. See Citizen Band Potawatomi Indian Tribe, 498 U.S. at 511 (Indian country includes land that has been validly set apart for the use of the Indians as such, under the superintendence of the Government, even if not a formally designated reservation ). And Irby did not upset longstanding Tenth Circuit decisions, binding on the Irby panel, that particular Osage allotted lands and dependent Indian communities are Indian country. See, e.g., United States v. Burnett, 777 F.2d 593, 596 (10th Cir. 1985) (holding that a particular allotment in Osage County is Indian country). B. The Tribal New Source Rule Properly Fills An Existing Gap In Clean Air Act Regulatory Coverage In Indian Country In recognition of the primacy of tribal jurisdiction in Indian country, Section 301(d) of the Clean Air Act delegates authority to tribes, in the first instance, to regulate the environment in Indian country and develop an implementation plan, akin to State implementation plans. 42 U.S.C. 7601(d)(2)(B). When tribal governments do not develop their own implementation plan, the Clean Air Act is explicit that the EPA, not the State, then steps in to regulate in Indian country. Id. 7601(d)(4); see also EPA Br The EPA is therefore correct that its prior approval of State Implementation Plans under the Clean Air Act, including Oklahoma s plan, did not and, indeed, could not silently give States the go-ahead to regulate in Indian Country. Any 15

24 USCA Case # Document # Filed: 07/30/2013 Page 24 of 81 such transfer of authority from the federal government and tribes to the States would have to be explicit. Id. 4-5, 30. The Tribal New Source Rule is an exercise of EPA s authority under Section 301(d) of the Clean Air Act. Because most tribes, including the Osage Nation, have yet to develop implementation plans to regulate minor and nonattainment sources of pollution in Indian country, the Tribal New Source Rule fills the regulatory gap. 76 Fed. Reg. at 38753, The Rule s Federal Implementation Plan will cover Indian country unless and until such time as a tribe with jurisdiction replaces the federal program with its own Tribal Implementation Plan, approved by EPA through a Clean Air Act-mandated delegation process. Id. at Like Oklahoma, amicus Oklahoma Independent Petroleum Association contends that the EPA lacks authority under the Clean Air Act to impose Federal Implementation Plans on non-reservation areas in Indian country. Association Br. 9 n.4. See also Oklahoma Br. 11. This Court has held otherwise. In Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), it squarely rejected that same argument and upheld the EPA s authority to directly implement the Clean Air Act (and other federal environmental laws) in all of Indian country, not just on formal reservation land. Specifically, this Court held that it was undoubtedly reasonable for the EPA to interpret the Clean Air Act to allow the 16

25 USCA Case # Document # Filed: 07/30/2013 Page 25 of 81 federal government and tribes to regulate land over which the tribe could demonstrate inherent jurisdiction *** under general principles of federal Indian law, including both allotted land and dependent Indian communities. Id. at 1285, This Court is not alone in that straightforward reading of the statute. The Tenth Circuit reached the same conclusion in Phillips Petroleum supra. There, the Tenth Circuit held, in a case involving the Osage Nation, that the Safe Drinking Water Act empowered the EPA to prescribe regulations for Indian lands, in part because of the long history of congressional involvement with the oil and gas affairs of the Osage Indians. 803 F.2d at 556 & n.15. Importantly, the Tenth Circuit did not confine its reasoning to formal reservation lands. Both Oklahoma and the Association assert that the Tribal New Source Rule is invalid under this Court s decision in Michigan v. EPA. Association Br. 4-5; Oklahoma Br Not so. The parties in Michigan, in fact, agreed that the EPA has Clean Air Act regulatory jurisdiction over Indian country; they disputed only whether EPA has that authority when an area s status as Indian country is in question. 268 F.3d at This Court s ruling thus held narrowly only that, in areas where the status as Indian country is in question, States may regulate under their EPA-approved implementation plans. Id. at But when an area is in fact Indian country, the EPA retains its jurisdiction to regulate and thus to 17

26 USCA Case # Document # Filed: 07/30/2013 Page 26 of 81 cabin the reach of the State implementation plan. Id. The proof is in the Court s disposition in Michigan, which vacated only that portion of the rule authorizing EPA to treat lands for which EPA has deemed Indian country status to be in question as Indian country, leaving the rest of the rule intact. Id. at Accordingly, under Michigan, EPA may implement a federal program only for Indian country itself, 268 F.3d at , while Oklahoma may implement its plan only outside Indian country. That is precisely what the Tribal New Source Rule does. II. THE TRIBAL NEW SOURCE RULE IMPOSES NO NEW OR INCREASED SIGNIFICANT BURDENS ON OIL AND GAS OPERATORS. The Association claims (Br. 8-18) that the Tribal New Source Rule will burden oil and gas operators with determining whether a particular source of pollution is within Indian country. That is beside the point and wrong. It is beside the point because the Association does not contend that these supposed burdens render the Tribal New Source Rule arbitrary and capricious or otherwise invalid. Therefore, whether or not the burden the Association portends is real, it would not have any legal relevance because no one, not even the Association, argues that the cost of compliance invalidates the law. In any event, the Association s argument fails on its own terms because the Tribal New Source Rule will not impose any new or increased significant burdens 18

27 USCA Case # Document # Filed: 07/30/2013 Page 27 of 81 on businesses, which already routinely make business and operational decisions that factor in land s status (or not) as Indian country. A. Determining Indian Country Status Is Already A Commonplace Undertaking For Oil And Gas Operators The Tribal New Source Rule maps onto an existing body of regulatory law that oil and gas operators regularly navigate concerning land s status as Indian country. See Rocky Mountain Mineral Law Foundation, Basics Of Successful Natural Resource Development Projects In Indian Country, No. 5 RMMLF- INST, Paper No. 1 (2005) [hereinafter Mineral Law Foundation No. 5 ] at 3 ( Federal laws and regulations dominate development of natural resources on Indian lands for tribes, individual Indian landowners, and non-indians alike. ). 7 Thus, any prospective oil and gas developer who may be subject to the Tribal New Source Rule is almost inevitably routinely determining whether a particular parcel of land is Indian country in order to comply with federal regulations. Tellingly, the Association itself cites materials that predate the Tribal New Source Rule concerning Examination of Title to Indian Lands and Access to Indian Land and Title Records: Freedom of Information, Privacy and Related Issues in the context of mineral development. See Association Br. at v; 7 The Rocky Mountain Mineral Law Foundation is non-profit organization that studies laws and regulations related to mining, oil and gas exploration, and environmental protection. Its 61 trustees include 18 that represent mining and oil and gas associations. See 19

28 USCA Case # Document # Filed: 07/30/2013 Page 28 of 81 see also EPA Br. 75 (noting that, if operators did not already have to determine the ownership interest of the particular parcels they wish to operate on in Indian country regardless of the Indian country [New Source Review] Rule[,] *** the industry s experts would not have written so extensively on the subject ). One important illustration of the pre-existing federal regulatory scheme governing operations on Indian lands with which oil and gas developers are fully familiar is the requirement that the Secretary of the Interior, through the Bureau of Indian Affairs ( the Bureau ), must review and approve any leases or conveyances of tribal and trust land. See 25 U.S.C. 415; see also Indian Country, U.S.A., 829 F.2d at 976 ( Indian tribal lands in general are protected against conveyance, absent congressional consent. ). This means that an operator s choice of a source location and its securing of a right of access, occupancy, or use will have already put it on notice at the outset of the land s legal status as governed by tribal or federal law. The Bureau s leasing approval review procedure, in turn, triggers compliance with environmental review procedures related to Indian country, and a host of federal laws, including the Clear Air Act itself. Mineral Law Foundation No. 5, at 12. Similarly, the Bureau has promulgated various regulations pertaining to corporate leasing and permitting of natural resource extraction on Indian lands, see 25 C.F.R. 211 ( Leasing of Tribal Lands for Mineral Development ), 20

29 USCA Case # Document # Filed: 07/30/2013 Page 29 of 81 including regulations governing such activity as it relates to allotted lands, see id. 212 ( Leasing of Allotted Lands for Mineral Development ), and to lands occupied by Oklahoma tribes specifically, see, e.g., id. 213 ( Leasing of Restricted Lands of Members of Five Civilized Tribes, Oklahoma, for Mining ); 214 ( Leasing of Osage Reservation Lands, Oklahoma, for Mining, Except Oil and Gas ); 226 ( Leasing of Osage Reservation Lands for Oil and Gas Mining ); 215 ( Lead and Zinc Mining Operations and Leases, Quapaw Agency ). Wouldbe oil and gas operators will already have ascertained tribal lands status in order to comply with these regulations as well. Indeed, they have been making such determinations for many years since the regulations enactment, without the business-burdening costs that the Association hypothesizes. The Association, in fact, openly acknowledges that [o]perators frequently conduct some mineral title analysis for leasing and royalty purposes in Indian country. Association Br. 20 n7. The Tribal New Source Rule does not require Association members to do anymore than what they are already doing. B. Indian Country Status Is Easily Determined In The Vast Majority Of Cases In the underlying rulemaking proceeding, the EPA concluded that in most cases, determining whether sources are located within Indian country will be straightforward and non-controversial, and that EPA and sources will be able to easily assess whether a source is located within Indian country. EPA Review of 21

30 USCA Case # Document # Filed: 07/30/2013 Page 30 of 81 New Sources and Modifications in Indian Country, Response to Comments at (June 2011) ( Response to Comments ), available at Docket No. EPA-HQ-OAR See also Paul W. Shagen, Indian Country: The Dependent Indian Community Concept and Tribal/Tribal Member Immunity from State Taxation, 27 N.M. L. Rev. 421, 422 (1997) ( In most cases, it is clear whether a parcel of land included within a specific class of land is Indian country. ). The EPA is right. Indian allotments *** are easily recognized as Indian country, and it is generally clear whether an Indian reservation exists. Shagen, supra, at 422. Likewise, determining whether a tract is a dependent Indian community under Section 1151(b) is done through a simple and predictable test. Hydro, 608 F.3d at Under that test, land must have been set aside by the Federal Government for the use of the Indians as Indian land *** and must be under federal superintendence. Venetie, 522 U.S. at 527. The Association s members previous title searches (Association Br. 20) surely familiarized them with the established federal process in place for determining, with relative simplicity, tribal jurisdictional boundaries. The Association s brief casts aspersions on this process, especially the role of the Bureau, which is the chief repository of Indian country information. The 22

31 USCA Case # Document # Filed: 07/30/2013 Page 31 of 81 Association is tilting at windmills. The Bureau has a host of workable tools at its disposal to assist stakeholders in the identification process. 8 For instance, the Bureau is charged by statute and regulation with maintaining records of tribal titles and boundaries in Indian country. See 25 U.S.C. 5 ( directing Commissioner of Indian Affairs to make and keep a record of every deed executed by any Indian[,] *** which may require the approval of the Executive Branch); 25 C.F.R (charging the Bureau with the Federal responsibility to record, provide custody, and maintain records that affect titles to Indian land, to examine titles, and to provide title status reports ); see also BIA, 51 Indian Affairs Manual 4 (procedures and policy for Examination and Certification of Land Title regarding Indian trust and restricted lands under BIA). Additionally, the Bureau s Land Titles and Records Offices are charged with the Federal responsibility to record, provide custody, and maintain records that affect titles to Indian lands, to examine titles, and to provide title status reports for such land. 25 C.F.R (j). These Offices must also prepare and maintain maps of all reservations and similar entities within their jurisdictions to assist Bureau personnel in the execution of their title service 8 The EPA has pledged to work with all of the interested parties to assess the Indian country status of a particular source s location. EPA Br

32 USCA Case # Document # Filed: 07/30/2013 Page 32 of 81 responsibilities, with such maps reflecting not only prominent physical features and section, township and range lines, but also the individual tracts, tract numbers, and current status of the tract. Id Other special maps, such as plats and townsite maps, may also be prepared and maintained to meet the needs of individual Land Titles and Records Offices, Agencies, and Indian tribes. Id. Further, to assist tribes and other interested parties with land-title and other issues, the Bureau maintains Regional Offices, including two regional offices located in Oklahoma (the Eastern Oklahoma Region 9 and the Southern Plains Region 10 ), plus a larger number of Agency or Field Office sites, including one that assists the Osage Nation alone. 11 Recognizing that [t]he usefulness of a Land Titles and Records Office depends in large measure on the ability of the public to consult the records contained therein, the Bureau s policy is liberally to allow access to land records and title documents to the public. 25 C.F.R (a). As such, the Offices may conduct a title examination of a tract of Indian land [and] provide a 9 U.S. Department of Interior, Bureau of Indian Affairs, Eastern Oklahoma Region Overview, 10 U.S. Department of Interior, Bureau of Indian Affairs, Southern Plains Region Overview, 11 U.S. Department of Interior, Bureau of Indian Affairs, Osage Agency, 24

33 USCA Case # Document # Filed: 07/30/2013 Page 33 of 81 title status report upon request to those persons authorized by law to receive such information. Id As relevant here, those authorized to seek information about Indian land include any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate, such trust or restricted land or the interest in trust or restricted lands. 25 U.S.C. 2216(e) (allowing those individuals to find out if land is in Indian country, and to acquire the names and mailing addresses of the owners of any interest in trust or restricted lands, and information * * * and the percentage of undivided interest owned by each individual ). 12 There is more. The Bureau has the additional benefit of advanced software capabilities to coordinate and modernize record keeping. In particular, the Bureau s Trust Asset Accounting Management System ( Trust System ) provide[s] BIA and Indian tribal officials nationwide access to trust asset data (including land title records) and trust asset management tools. 72 Fed. Reg. 8772, 8774 (Feb. 27, 2007). The Trust System also offers mission critical land ownership information by stor[ing] up-to-date land ownership data on-line 12 The Association s claim (Br ) that the Privacy Act constrains such information sharing is unfounded. As the Rocky Mountain Mineral Law Foundation has explained, Congress enacted Section 217(e) of the Indian Land Consolidation Act Amendments of 2000 specifically [t]o overcome the BIA's privacy concerns over disclosure of basic landowner information[.] See Mineral Law Foundation No. 5, at 21; see also Rocky Mountain Mineral Law Foundation, Examination Of Title To Indian Lands, 2007, No. 4, RMMLF-INST Paper No. 13 (examiners are able to view necessary documents). 25

34 USCA Case # Document # Filed: 07/30/2013 Page 34 of 81 (including simultaneous display of title/legal interests and beneficial/equitable interests), and thus provides a comprehensive nation-wide system for the management of Indian lands with regard to land title and records for tribes and individuals at regional offices, agency locations, tribes that have contracted or compacted with the Land Titles and Records Program, and other trust management programs. U.S. Department of Interior, Budget Justifications and Performance Information, Fiscal Year 2013: Indian Affairs, at IA-RES-9 ( 2013 Budget Justifications ). 13 A key component of the Trust System is the Title Image Repository, which is the official Federal repository for all Federal Indian title documents, including patents, deeds, probate orders, leases, land/resource contracts, rights-of-way, easements, covenants, title status reports, Cadastral Surveys, and other documents affecting the title to Indian trust and restricted lands. 14 As of FY 2012, all Indian ownership of trust and restricted lands should be current, accurate, and up-to-date, as proven by the automated chains-of-title that are now stored electronically Budget Justifications, at IA-RES-10. Furthermore, the Bureau is in the process of rolling out an even more advanced mechanism for facilitating development on Indian lands, the National 13 Available at 14 U.S. Department of Interior, Bureau of Indian Affairs, Division of Land Titles and Records Homepage, (generally describing technology and services of Division of Land Titles and Records). 26

35 USCA Case # Document # Filed: 07/30/2013 Page 35 of 81 Indian Oil & Gas Evaluation & Management System ( Indian Oil & Gas System ). This new mechanism incorporates not only realty, leasing, and ownership information from the Trust System, but also census, geospatial, and many other data sources. 15 Its goal is to be an easy-to-use, map oriented software application to assist energy and mineral producing Indian Tribes in managing their energy and mineral resources, by incorporating realty, natural resource, geo-technical, and financial information on land parcels, leasing, and oil & gas resources in a userfriendly interface. 16 The Interior Department s Office of Inspector General recently highlighted the program s success and recommended that it be extended beyond the current twelve reservations it currently serves to additional tribes and Bureau locations across the United States. See Office of Inspector General, Final Evaluation Report Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, No. CR-EV-BIA at (Sept. 24, 2012). Finally, the argument regarding supposed burdens fails because Oklahoma has brought a facial challenge to the Tribal New Source Rule. Thus, even if there may be rare[] situations in which determining whether a particular parcel of land is in Indian country will be somewhat more complicated, Response to Comments at 129, hence raising questions about EPA s jurisdiction in such cases, this does not 15 See U.S. Department of Interior, Bureau of Indian Affairs, Oil And Gas Management Software, index.htm. 16 See id. 27

36 USCA Case # Document # Filed: 07/30/2013 Page 36 of 81 render the Rule invalid on its face. If Oklahoma believes that EPA is exceeding its jurisdiction in a particular case, then it is free to return to court with an as applied challenge to the Rule. Cellco Partnership v. FCC, 700 F.3d 534, 549 (D.C. Cir. 2012). In sum, determining whether an area is Indian Country routinely entails nothing more than making relatively simple inquiries with which the Association and its members are quite familiar. Hypothesized rare exceptions do not affect the Rule s facial validity. What is critical is that the Rule fits comfortably within the statutory text, as well as an existing informational system and experiential track record. 28

37 USCA Case # Document # Filed: 07/30/2013 Page 37 of 81 Review. CONCLUSION For the foregoing reasons, this Court should deny Oklahoma s Petition for DATED: July 30, 2013 /s/ Michael C. Small AKIN GUMP STRAUSS HAUER & FELD LLP Donald R. Pongrace Ian Shavitz James E. Tysse 1333 New Hampshire Ave., NW Washington, DC Telephone: Facsimile: Michael C. Small 2029 Century Park East, Suite 2400 Los Angeles, CA Telephone: Facsimile: Attorneys for the Osage Nation 29

38 USCA Case # Document # Filed: 07/30/2013 Page 38 of 81 CERTIFICATE OF TYPE-VOLUME COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned certifies that the foregoing brief is proportionally spaced, uses 14-point type, and contains 6573 words according to the word-count feature of Microsoft Word 2007, including words in footnotes, headings, and quotations. /s/ Michael C. Small 30

39 USCA Case # Document # Filed: 07/30/2013 Page 39 of 81 CERTIFICATE OF SERVICE It is hereby certified that all counsel of record who have consented to electronic service are being served with a copy of this document via the Court s CM/ECF system on this 30 th day of July The document will be served via overnight delivery on: Deana Marie Bennett Modrall Sperling Roehl Harris & Sisk, P.A. 500 Fourth Street, NW, Suite 1000 Albuquerque, New Mexico Robert Geoffrey Dreher U.S. Department of Justice 950 Pennsylvania Ave. N.W. Environment & Natural Resources Division Washington, DC /s/ Michael C. Small 31

40 USCA Case # Document # Filed: 07/30/2013 Page 40 of 81 STAUTORY AND REGULATORY ADDENDUM Act of June 5, 1872, ch. 310, 17 Stat. 228 (1872)... A-1 Osage Allotment Act of June 28, 1906, ch. 3752, Pub. L. No , 34 Stat. 539 (1906)... A-4 Pub. L. No , 2(a), 92 Stat (1978)... A-12 Pub. L. No , 98 Stat (1984)... A U.S.C A U.S.C A U.S.C A U.S.C A U.S.C A U.S.C A U.S.C A C.F.R A C.F.R A C.F.R A C.F.R A C.F.R A-41 32

41 USCA 7/30 Case # Document # Filed: 07/30/2013 Page 41 of 81 BY AUTHORITY OF CONGR~S& THE ~tatntts at largt AND PROCLA~IATIONS OF THE UNITED STATES OF Al\IERICA, FROM MARCH 1871 TO MARCH 1873, AND TREATIES AND POSTAL CONVENTIONS Q\ rrangcb irt Ql:bnnoiogical rbcr anb carcfullg collatcb l.uitb tbe dginal:6 at tmazbington, WITH REFERENCES TO THE MATTER OF EACH ACT AND TO THE SUBSEQUENT ACTS ON THE SAME SUBJECT. EDITED BY GEORGE P. SANGER, COUNSELLOR AT LAW. The right:\ au d. inten'::.t of the United States in the stereotype plates from which this work is printed are hereby reco<>nire<l, ac!,nowiedged, and declared by the publishers, acconling to the provisions of the joint resolution of Congress, passel! March 3, VOL. XVII. BOSTON: LITTLE, BROWN, AND COMPANY A-1

42 USCA 7/30 Case # Document # Filed: 07/30/2013 Page 42 of FORTY-SECOND CONGRESS. SEss. TI. On. 309, June 5,1872. CHAP. CCCIX.-An Act to carry into Effect the fourth Article of the Treaty <if February twent.q-three, eighteen hundred and sixty-seven, with the Seneca, Shawnee, Qua11aw, and other Indians. Preamble. WHEREAS, by the fourth article of the treaty of February twenty-third, Vol. xv. pp. eighteen hundred and sixty-seven, ~ith the ~hawnee, Quap_aw, a~d. other 514, 526. Indians, the strip of lands belongmg to said Quapaws _lymg wtthm the State of Kansas was sold to the United States, and mtended, by the actual settlers under emption laws of the United States; but whereas, by the manner of insertion of said amendment, the said lands are left without any provisions for their disposal: Therefore, for the purpose of carrying out the intention of the treaty and of its amendments, Be it enacted by the Senate and House of Representatives of the Um'ted Amendment of States of.america in Congress assembled, That the said amendment shall treaty declared to not be construed as authorizing or providing for the disposal of the lands fppjy tfth~at of the said Quapaw Indians, which, by the fourth article of the said treaty Q~a;a 0 w Indians. of February twenty-third, eighteen hundred and sixty-seven, were sold to the United States at one dollar and fifteen cents an acre, and lying and being within the boundary of the Indian Territory, but said amendment shall refer to, and be construed to authorize and direct, the disposal of the strip of land theretofore belonging to said Indians, lying and being within the State of Kansas, and which, by the aforesaid article of said treaty, were [was J sold to the United States for one dollar and twenty-five cents an acre. Certain land in SEc. 2. That the said strip of land within the State of Kansas, so Kansa~ ceded to ceded to the United States by the said Quapaw band of Indians, be, and ~e t~m~d States the same is hereby, declared open to entry and pre-emption, under the rkdia~s o;~~a~ pre-emption laws of the United States, at the price of one dollar and entry_ and pre- twenty-five cents an acre, excepting therefrom one half-section, to be e:o~~h~if-sec- patented to Sam_uel G. V ~llier, including his improvements! as provided ' paid for in the lawful money of the United States, at the proper land office of the United States, within one year from the date of settlement, or where settlement was made before the passage of this act, then within Tracts part on one year from the passage of the same : Provided, That in case any setthe Quapaw strip tler has entered upon and improved a single tract, not exceeding one hunand part on the d re d an d SIX t y acres, a par t o f w hi c h Is em b race d Ill sm a Q uapaw str1p, government strip. and a part on the government strip, so called, his entry of the part on the government strip, under the pre-emption laws, shall not prevent the entry of the remainder of his tract upon said Quapaw lands, in the State of Kansas, under this act. APPROVED, June 5, Jun~872:._ CHAP. CCCX.- An Act to confirm to the Great and Little Osage Indians a Reservation See Post, p in the Indian Territory. Preamble. ~HRREAS by the treaty of eighteen hundred and sixty-six between the Vol. xiv. PP Umted States and the Cherokee nation of Indians, said nation ceded to 790, 804. h t e _United States all its lands west of the ninety-sixth meridian west longttude, for the settlement of friendly I~dians thereon; and whereas 18iO,ch. 296, by act of Congress approved July fifteenth, eighteen hundred and seventy, v the President was authorized and directed to remove the. Great and Lito. xvt. P 62 0 tl e o sage I n a 1ans to a l ocat10n. m. t h e c herokee country west of the ninetv-sixth meridian t authorities ; and whereas it was provided by the same act of Congress that the lands of the Osages in Kansas should be sold by the United States, ~nd so much of the proceeds thereof as were necessary should be appro~r1ated for the payment to the Cherokees for the lands set apart for the said.~sages west of the ninety-sixth meridian; and whereas under the provisions of the above-mentioned treaty and act of Congress and A-2

43 USCA 7/30 Case # Document # Filed: 07/30/2013 Page 43 of 81 FORTY-SECOND CONGRESS. SEss. II. Ca. 310, concurrent action of the authorities of the United States and the Cher- Reservation of okee nation, the said Osages were removed from their former homes in the Great and the State of Kansas to a reservation set apart for them in the Indian kittle Osuge In Territory, at the time of the removal supposed to be west of the said ans. ninety-sixth meridian, and bounded on the east thereby, and upon which said Osages have made substantial and valuable improvements ; and whereas by a recent survey and establishment of the ninety-sixth meridian it appears t 1a e mos va ua upon which all their improvements are situated, lies east of the said meridian ; and whereas it therefore became necessary to select other lands in lieu of those found to be east of the established ninety-sixth meridian for said Osage Indians ; and whereas a tract has accordingly been selected, lying between the western boundary of the reservations heretofore set apart for said Indians and the main channel of the Arkan sas river, with the south line of the State of Kansas for a northern boundary, and the north line of the Creek country and the main channel of the Arkansas river for a southern and western boundary; and whereas the act of Congress approved July fifteenth, eighteen hundred and seventy, restricts the said reservation for said Osage Indians to '' a tract of land in compact form equal in quantity to one hundred and sixty acres for each member of said tribe ; " and whereas in a letter of the Cherokee delegation, addressed to the Secretary of the Interior on the eighth day of April, eighteen hundred and seventy-two on behalf of the Cherokee nation, containing their approval of and assent to the proposition to provide for the settlement of the Osage and Kaw Indians on that portion of the Cherokee country lying west of the ninety-sixth degree west longitude, south of Kansas, east and north of the Arkansas river : There fore, Be it enacted by the Senate and House of Representatives of the United America in Con ress assembled, That in order to provide said A tract of land Osage tribe of Indians with a reservatwn, an secur s~ ~f the 96th quantity of land suitable for cultivation, the following-described tract of ~~;t~snas~;sercountry, west of the established ninety-sixth meridian, in the Indian Ter- ~at ion forth~ ritory, be, and the same is hereby, set apart for and confirmed as their (,reat and _Little l B d b h.. h "d" Osage Indmns. reservatwn, name y: ounde on the east y t e mnety-s1xt men 1an, Boundaries. on the south and west by the north line of the Creek country and the main channel of the Arkansas river, and on the north by the south line of the State of Kansas : Provided, That the location as aforesaid shall be made under the provisions of article sixteen of the treaty of eighteen hundred and sixty-six, so far as the same may be applicable thereto : And provided further, That said Great and Little Osage tribe of Inrlians Location. Kansas InsKhall per~b t thfe sietdt~ementhw 1 ithidn the limi tsdof sdaid trac~ odf bland ~dofk] the ~~~t~!d~~t~! ansas tn e o n Ians, t e an s so sett 1e an occup1e y sa1 an- tract of the Gre"at sas Indians, not exceeding one hundred and sixty acres for each member a~d Little Osage of said tribe, to be paid for by said Kansas tribe of Indians out of the tnbes. proceeds of the sales of their lands in Kansas, at a price not exceeding that paid by the Great and Little Osage Indians to the Cherokee nation of Indians. APPROVED, June 5, CHAP. CCCXI.- An Act to provide for the Restoration of the Records of the Proceed- June 5, ing\ of the Court of lnquir.v concerniog the Operations if the Army under the Command neral Don Carlos Buell, in Kentucky and Tennessee. 'V HEREAS it appears in the matter of investigation ma e y e cour inquiry, in the years eighteen hundred and sixty-two and eighteen hundred and sixty-three, into the operations of the army under the command of General Don Carlos Buell, in Kentucky and Tennessee, that the records of the proceedings of said court are not to be found on the proper files in the 'V ar Department; and whereas it further appears that there is now in A-3

44 USCA Case 7/30# Document # Filed: 07/30/2013 Page 44 of 81 THE STATUTES AT LARGE OF THE UNITED STATES OF AJVIEiliCA FRo:\ I DECE:\IHER, l!w;). TO ~larch~ 1907 CO~ITHRE~T RE~OL!lTIO:\S OF THE TWO Hot;SES OF CO~GH1~SS AXD RECENT TREATIES, t'o~yentio~s, AND EXECUTIVE PIWCLA:\IATIONS EDITED, l'iuxted,,\:-\1> J'('I-ILli'IIEll BY ACTHORJTY OF COXGRESS L"XDEl{ THE llwectiox OF THE SECRETARY OF STATE VOL. XXXIV-IX THREE PARTS PAHT 1-Puhli< Ad~ and HP~olntion~ P :\HT 2-PriYatc-. \( t~ mul Ht'~olutima a111l ( 'olh'lll'l'('llt l{csolutions PAltT 3-'l'r( atip~ :uul Prn<'lmnations PART 1 "\Y ASHI~GTON G 0 Y E R X ::\1 E X T P R I :-l T I :-l G 0 F F I C J<j 1fl07 A-4

45 USCA Case 7/30# Document # Filed: 07/30/2013 Page 45 of 81 FIFTY-NINTH CONGRESS. SEss. I. Cns ( CHAP \.n Act To amend section twenty-eight hundred and forty-four June 28,1906. of the Revised Statute~ of the United States, and to pro1 ide for an authentication of [H. R l im oices of merchandise ~hipped to the United States from the Philippine Islands. [Public, No Be it enacted by tlte Senate and IIouseof Representatives of the United States of Americ11 in C'uJUfl'e-'.~ a;,;8emuled, That ~ection numbered Invoices.~.... l h d d. h d S l R.S.,sec.-844,p... l. twenty-e1g 1t un red an forty-four of t e Rense tatutes of t 1e umenucct. United StatPs is lwrcby anwndecl hy adding thereto the following: '' Pmt ided, That thl' authentication may he made by the collector or a Phi~bhr~~~~atinns in deputy collector of customs in the ca;;e of merchandise t:;hipped to the United Statel:l from the Philippine Islands." Approved,,June 28, HW6. CHAP An Act To authorize the Monongahela Connecting Railroad Com- June 28, pany to constru(ta bridge across the Monongahela River in the State of PennsylYania. --::cc[--:h-:c.:--r_. 1:-::-9-85_0._]_ [Public, No. 319.] Be it enacted by tlte Senate and IIuuse of Representati~ es oftlte United States of America In Conqre8s as'sen,oled, 'rhat the.:\ionong-ahela Con- 1fonongahelaRiver. neetin,g Railroad Company, a corporation organized nnder the la v~ of n:lu~~'r~i~~~djo~: the State of Penn~ylnmia. its snecef;sors and atisigns, he, and they are P'!-ny may bridge, at h b I. cl',.. d l 'd l Pittsburg, Pa. ere y, aut 1onze to construct. mmntmn, an operate a Jl'l ge am approaches thereto ncrosl:l the :\lonongahela Rh er at Pitt~:Jburg, from a point on the north shore between Hazlewood annue and the Glenwood highway bridge to a point on the south shore in the township of Baldwin or the township of Lowet Saint Clair, in Alleg-heny County, in the State of Penns_rh ania, in accordance with the provisions of the Ante, P 84. Act entitled "An Act to regulate the construction of bridges oyer navigable waters," approved March twenty third, nineteen hundred and six. SEc. 2. That the right to alter, amend, or repeal this Act is hereby Amendment. expressly reserved. Approved, June 28, CHAP An Act To authorize the board of supervisors of Sunflower County, Mississippi, to construct a bridge across Sunflower River. June 28, [H. R ] [Public, No. 320.] Be,it enacted by the Senate and IIouse of Representatives oft!te United Stotes of America in CongTess a;,;sembled, That the board of super- sunflower River. Ylsors o f.._ S un fi ower C oun t y, ":I b d tb h b Sunflower County, JJ lsslsslppl, e, an ey are ere y, an- 1\fi"' rna,, bridge, at thorized to construct, maintain, and operate tl bridge and approacbel:l Lehrton. thereto across the Sunflower Ri,-er at Lehrton, in Sunflower County, in the ~tate of ::\lississippi, in accordance with the prodsions of the Ante, p. 84. Act entitled "An Act to regulate the consti'uction of bridge,; Ol'el na\'igahle water,,'' appro> ed J\larch twenty-third, nineteen hundred and six. SEc. 2. That the right to alter, amend, or repeal thi;; Act is hereby expressly re,;erved. ApproYed, June 28, A';'endment. CHAP An Act For the division of the lands and funds of the Osage Indians in Oklahoma Territory, and for other purposes. June 28, [H. R ] [Public, No. 321.] Be,it enacted by the Senate and House of RepTesentathJes of the united States of Americ(t in Congress a-s8embled, That the roll of the Osage Osage Indians, tribe of Indians, as shown by the records of the Gnited States in the 0 ~fvision of tribal office of the United States Indian agent at the Osage Agency, Okla- la~~ib~tfi:on. A-5

46 USCA Case 7/30# Document # Filed: 07/30/2013 Page 46 of FIFTY-NINTH CONGRESS. SESS. I. CR homa Territory, as it existed on the first day of.january, nineteen hundred aml six, and all children born between January first, nineteen hundred and six, and.july first, nineteen hundred and seyen, to persons whose names are on said roll on January first, nineteen hundred and six, and all ehildren whose name,; are not now on said roll, but who worn born to member" of the tribe whose name,; were on the said roll on Jtmuary first, nineteen hundred and six, including the ehildren of members of the tribe who haye, or have had, white husbands, is hereby <leelared to he the roll of said tribe and to constitute the ~~~~~lent enroll- legal membership thereof: Pro1 ided, That the prineipal chief of the -=.:lent. Osages shall, within three months from and after the approval of this Act, file with the Secretary of the IntPrior a list of the names which the tribe claims were placed upon the roll by fraud, but no name shall be in< luded in said list of any person or his descendants that was placed on said roll prior to the thirty-first day of December, eighteen hundred and eighty-one, the date of the adoption of the Osage constitution, and the ~ecretary of the Interior, as early as practieable, shall carefully investigate such cases and shall determine which of said persons, if any' are entitled to enrollment; but the tribe must affirmatively Regtriction. show what names have been placed upon said roll by fraud; but where the rights of persons to enrollment to the Osage roll have been investigated by the Interior Department and it has been determined by the Secretary of the Interior that.~ueh persons were entitled to enrollment, their names shall not be stricken from the roll for fraud except upon newly discovered evidence; and the Secretary of the Interior shall ban authority to place on the Osage roll the names of all persons found by him, after investigation, to be so entitled, whose applications were pending on the date of the approval of this Act; and the Revision of roll. said Secretary of the Interior is hereby authoriy-cd to strike from the said roll the names of persons or their descendants which he filhh were ljlaced thereon by or through fraud, and the said roll as abov e pro dded, after the redsion and approval of the Secretary of the Interior, a;-; herein prodded, shall constitute the approved roll of said tribe; Decision of Secre- and the ttction of the Secretary of the Interior in the reyision of the tavor't~~ p. so5. roll a;; herein prm ided shall be :!inal, and the provisions of the Act of Congr<'ss of August fifteenth, eighteen hundred and ninety-four, Twenty-eig-hth Statutes at Large, page three hundred and fiye, granting p9r;-;ons of Indian blood who I-uwe been denied allotments the right to appeal to the courts, are hereby repealed as far as the same relate to the O,:age Indians; and the tribal lands and tribal funds of :,'aid tribe shall be equally divided among the members of,:aid tribe as hereinafter prodded_ Division of la.jhls. SEc. 2. That an lands belonging to the Osage tribe of Indians in Fir~t selection. Filing net ice. Time Jimit. Prol'i8us. Ratiticati1m. Failure to Heleer. Oklahoma Territory, except a:-; herein provided, >-;hall he dh-ided among the mem hers of said tribe, giving to each his or her fair share therpof in acrp;-;, as follows: Fir:<t. Each member of said tribe, as shown by the roll of membership made up as herein prodded, shall be permitted to select one hundred and sixty acres of land as a first selection; and the adult nwmhers shall select their tirst selections and file notice of the same with the C nitecl States Indian agent for the Osages within three months after the appro, al of this Act: Prol'ided, That all selections of lands heretofore made by any member of said tribe, against which no contest is pending, he, and the same are herpb!, ratified and confirmed as one of tlw seledions of such member. And if any adult member fails, refuses, or is unable to make such selection \Vithin said time, then it shall be the duty of the United States Indian agent for the Osages to make such selection for such member or members, subject to the approval of First selections for the ~Pcretary of the Interior. That all said first selections for minors shall be made by the United States Indian agent for the Osages, sub- ninors. A-6

47 USCA Case 7/30 # Document # Filed: 07/30/2013 Page 47 of 81 FIFTY-NINTH CONGRESS. SESS. I. CH ject to the approval of the Secretary of the Interior: Prm lded, That Parents may select. said fir,.;t selectionr; for minors hadng parents may he made by said parents, and the word "minor,. or "'minors., used in this Act shall be held to mean thobo who are under twenty-one years.of ag e: And pro- Timeofeelection. dderlfudher, That all children bom to menibers of said tribe between.january first, nineteen hundred and six. and the first day of.january, nineteen hundred and,.;en n, shall ha\ e their se'lections made for them within i:-iix months after apprm al of this Act, or within six months after their respecti, e birth.-.. That all children born to members of said tribe on and afhw the fir:o;t day of,january, ninetel'n hundrrd and seyen, aml hefore the first day of.tnly, nineteen hundred and sen'n, shall han:~ thcit ~mlrctions made for them on or before the last da\ of July, nineteen hundred and se\ en, the proof of birth of such ehildr en to he made to the C nited States 1ndian agent for the Osages. Second. That in making hi,.; or her first selection of land, as herein Pri~r rights proprodded for, a member shah not be permitted to iieled land alrpady tecte seleeted by, or in po::;r;cssion of, another member of ilaid tribe as a 1r:-;t Heleetion, nnles::; ;.;nch other mcmb ~r is in possession of more land than he and his familv are entitled to for first selections under this Aet; and in :-:uch cases the member in posses..;;ion and haying houses, orchan1s, barns, or plowed land thereon shall haye the prior right to make the first selection: J>rm id,,d, That where member:,; of the tribe are in pos- Prm iso. se,.;:sion of mm e land than the, are entitled to for first seleetions m~~~~~salofimprove hen'in, said member,.; shall han sixty daya after the appro\ al of this Act to clispo::;e of the imprm ements on said lands to other nwmbt"rs of the tribe. Third. After each member htts ~elected his or her first selection as Second selection. herein prodded, he or :'he shall he permitted to make a second selection of one hundred and sixty acres of land in the manner herein provided for the first "election. # Fourth. After each member has selected hb or her 8econd selection Third selection. of one hundred and sixty acres of land as herein proyide'cl, he or she shall he permitted to make a third selection of one hundred and sixty acre:; of lancl in the manner herein prodded for the first and,.;econd selections: Pm1 ided, That. all selection,.; herein provided for shall con- ~~~:~~~. form to the existing public surveys in tracts of not less than forty acres, or a legal snbdh i,.;ion of a less amount, designated a "lot."!fomesteads in E h 1 ' 'd 'J h ll J d,j l, J, ahenable. etc. ac mem Jer of,.;a1 tn Je s a Je pernutte to ues1gnate w 11c 1 of his three selections shall be a homestead, and his certificate of allotment and deed shall de,.;ignate the same as a hampstead, and the same shall be inalipnahlo and nontaxable until otherwise 1)l'OYided bv Act of Congress. The other two selections of each membei, together'with his surplus lands. share of the remaining lands allotted to the member. shall he known as :,;urplus land, and shall be inalienable for twenty-fire years, except as hereinafter prorided. Fifth. After each member has selected his or her first, second, and. Disposal of remain third selections of one hundred and sixty acres of land, as herein pro- mg lands. vided, the remaining lands of said tribe in Oklahoma Territory, except as herein prodded, shall be didded as equally as practicable among said memhcrs by a commission to be appointed to superrise the selection and dh ision of said Osage lands. Sixth. The selection and didsion of lands herein prorided for shall Commission. be made under the superdsion of, or by, a commission consisting of one member of the Osag e tribe, to lw seleeted by the Osage council, and two persons to be selected by the Commissioner of Indw.n Affairs subject to the approval of the Secretary of the Interior; and said eom- Duties. mission shall settle all controversies between members of the tribe relative to said selections of land; and the schedules of said selections and di, ision of lands herein prm ided for shall be subject to the approntl of the Secretary of the Interior. The surveys, salaries of said eom- Expenses. A-7 p, T te tl e v d 1-,....;. th.n r( >r e lf.c il.~ 0 l'l lc )' 0

48 USCA Case 7/30 # Document # Filed: 07/30/2013 Page 48 of FIFTY -NINTH CONGRESS. SEss. I. CH le~~j~~~~-to sell se- cei,\~,resteads Provisos. Taxation, etr. P!~itYfe 0 J~ etc.,lanrls mission, and a1l other proper expenses necessary in making the selections and division of land as herein provided shall be paid by the Secretary of the Interior, out of any Osage funds derived from the sale of town lots, -royalties from oil, gas, or other minerals, or rents from grazing land. Seventh. That the Secretary of the Interior, in his discretion, at the reque:;t and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of thi::; Act, ex- except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five yenrh, or during the life of the homestead allottee, if upon investigation, consideration, and examination of the request he shall find any sueh member fully competent and capable of transacting his or her own business and caring for hi::; or her own individual affairs: Pmv/ded, That upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall beeome subject to taxation, and such member, exc ept as herein provided, shall have the right to manage, control, and dispose of his or her lands the t-<nme as any citizen of the United States: Pwm:derl, That the surplwo lands shallue nontaxable for the period of three years from the approval of this Act., except where certificates of competenc.v are i:::;sued or in case of the death of the allottee, unless otherwise provided by Congres:-;: And prol'lded.furtlwr, That nothing herein sball authorize the sale of the oil, gas, coal, or other minerals covered by said lands, said minerals being reserved to the use of the tribe for a period of twenty-five years, and the royalty to be paid to said tribe as hip ~ndividual after 2i) years.. _..._. - tf 1 ~, c:, oc -' c ' cl istersofsaintfran- Land donated to. owner- hereinafter prodded lnrl J)l'OI'I:ded +',rl'fhel' Th 1t the oil o' ts coal and other nunerals upon s:wl allotted lands shall become the property of the individual owner of said land at the expiration of said twenty-five years, unless otherwise prodded for by Act of Congress. Eightb. There shall be resern'u from selection and didsion, as herein prm'ided, one hundred and :-ixty acres on which the Saiut Louis School, near Pawhuska, i:,; located, and the one hundred and sixt,y acres on which the Saint John's School, on Hominy Creek, Osnge Indian ReserYation, i:-; loeated, said tracts to conform to the public surveys; and said traets of land are herehv set aside and donated to the order of the Sisters of Saint Francis; ancl snid tracts shall he com eyed to said order, the Sisters of Saint Francis, as early as practicable, hy deed. L":ndsreserved near There 1-;hall also be reserved from selection and division fortv acres of Gra)' Horse. I and near G ray H orse, to he d esrg nate. d b y t l 1e.::"'ecretary '' of.-t I w I nterior, on which are located the dwelling houses of John N. Florer, \Valter 0. Florer, and.john L. Bird; and said.john N. Florer shall be allowed to purchase said forty acres at the appraised yalne placed thereon by the Osage Allotting Commission, the proceeds of the sale to be placed to the credit of the Indians and to be distributed like other fund::; herein pro\'ided for. d.;;1 '\;'~~ ~;:s.rur Ninth. There shall be reserved from selection and division, as herein prodded, the northeast quarter cif section three, town:,;hip twenty-five, range nine ea::;t, of the Indian meridian, and one hundred and sixty acres to conform to the public survey at the town of Gray Horse, including the Government doctor's building, other valuable buildings, and the cemeter.\', and the one hundred and sixty acres to conform to the public survev, adjoining or near the town site of Hominy; said land:-; or tracts are hereby set aside for the use and benefit of the Osage Indians, exdu:;i vely, ford welling purposes, for a period of twenty-five years from and after thn first day of January, nineteen hundred and ~f~isg.f reserved seven: Prm, ded, That :-aid land may, in the discretion of the Osage lands. tribe, be sold under such rules and regulations as the Secretary of the Interior may pre,;cribe; and the proceeds of the ::;arne under such sale shall be apportioned and placed to the ct edit of the individual members of the tribe according to the roll herein provided for. A-8 ~~ )[ ~d tl: ~t t ll f n h ti c rt 0 ~I \' I"I :1 )} e tr 'Cl e 81 0 i ). a H I.1 s tl ;. t f F It 0 y { t; e< ( 0 :I: n:

49 USCA Case 7/30 # Document # Filed: 07/30/2013 Page 49 of 81 FIFTY-NINTH CONGR;ESS. SESS. I. CH ! Tenth. The Osage Bo~trding School reserve of eighty-seven and s ~sa 1ge Boar~ng five-tenth acres, and the reservoir reserve of seventeen and three- c 00 reserve, e tenths acre~-;, and the agent's residence reserve, together with all the buildings located on said reservations in the town site of Pawhuska, as shown by the offieial plat of the game, an'l hereby reserved from selection and division as herein provided; and the same may be sold Sale of. in the discretion of the Osage tribe, under such rules and regulations as the 8ecretary of the Interior may provide: and the proc'eeds of Proceeds. such sale shall be apportioned and placed to the credit of the indiyidual membets of said :r tribe according t() the roll herein provided for. 0 Ele\'enth. 1 hbat.t 1 hd~ V nitedd St 1 a tes hindiabn.aldg?nt's offih~ehbuildifng, tlh1e b~i~i;is?~~~rnment sage counc1 m mg, an a ot er m mgs w IC are or t e occupaney and use of Government employees, in the town of Pawhuska, together with the lots on which the said buildings are situated, shall be sold to the highest bidder as early as practicable, under such rules and regulations as the Secretary oi' the Interior may prescribe; and \rith the proceeds he shall erect other suitable buildino-s for the ~r~ction of new. d l h l th.,.. d bmldmgs. uses mentwne, on sue 1 sites as e may se ect. e remammg procee s, if any, to be placed to the credit of the indiddual members of the. Osage tribe of Indians: Provided, That the house known as the chief's ~~1fdi_~gs reserved house, together with the lot or lots on which said house is located, and from sale. the house known as the L nited States interpreter\; house, in Pawhuska, Oklahoma Territory, together with the lot or lots on which said houses are located, shall be resetted from sale to the highe;;t bidder and shall be sold to the prindpal chief of the Osages and the United States interpreter for the Osag-es, respeetivel~, at the appraised value of the same, said apprni,ement to be made by the Osage town-site commission, subject to the approval of the Secretary of the Interior. Twelfth. That the cpmetery reserve of twenty ac'res in the town site do~~~ee,r~paw"~~~~~ of Pawhuska, as shmvn by the official plat thereof, is hereby set aside and donatpd to the town of Pawhuska for the purposes of sepulture, on condition that if said cemetery reserve of twenty acres, or an.~, })art - Reversion. thereof, is used for purposes other than that of sepulture, the whole of said cemetery reserve of twenty acres shall revert to the use and benefit of the indiddual members of the o.. age tribe, according to the roll herein prodded, or to their heirs; and said trad shall be conveyed to the said town of Pawhu,;ka by deed, and said deed shall reeite and set out in full the conditions under which the abm e donation and com e:vance are made. That the provisions of an Act entitled "An Act makin~ appropria- O ag:e. town ite... commission. tion,; for the current and contmgent expenses of the Inc ian Depart- Present Jaw not afment and for fulfilling treaty stipulations with yarious Indian tribes fected. for the fiscal year ending.tune thirtieth, nineteen hundred and six, and for other purposes," apprond March third, nineteen hunch ed and five, relating to the Osage Reservation, pages one thousand and Vol.33,pp.l06I,I062. sixty-one and 011e thousand and sixty-two, yolume thirty-three, C nited States 8tatutes at Large, be, and the same are hereby, continued in full force and effeet. SEc. 3. That the oil, gas, coal, or other minerals covered by the la~~s. lanlls for the selection and division of which provision is herein made LC!Ules. are hereby reserved to the Osage tribe i'or a penod of twenty-five years from and after the eighth day of April, nineteen hundred and six; and leases for all oil, gas, and other minerals, covered by selections and division of land herein prm ided for, may be made by the Osage tribe of Indians ti<j,rough its tribal <'Ouncil, and with the approval of the Secretary of the Interior, and under such rules and regulations as he may prescribe: Pro1 ided, That the royalties to he paid to the Osage and minerai Provisos. tribe under any mineral lease so made shall be determined by the Royalties. President. oi' the Vnited 8tate::;: And provided further, That no mining ~rospecting reoi' or prospecting for any of said mineral or minerals shall be per- stncted. mitted on the homestead selections herein provided for without the A-9

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