IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Transcription

1 Appellate Case: Document: Date Filed: 10/14/2011 Page: 1 CORA JEAN JECH, et al., v IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Plaintiffs-Appellants, THE UNITED STATES, et al., Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Oklahoma The Honorable Terence C. Kern District Judge District Court Case No. 09-CV TCK-TLW APPELLANTS OPENING BRIEF Respectfully submitted, William R. Grimm, 3628 Cori D. Powell, BARROW & GRIMM, P.C. 110 W. Seventh Street, Suite 900 Tulsa, OK Telephone: (918) Facsimile: (918) STATEMENT REGARDING ORAL ARGUMENT Counsel does not request oral argument.

2 Appellate Case: Document: Date Filed: 10/14/2011 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS... i ATTACHMENTS... iii TABLE OF AUTHORITIES... iv STATEMENT OF PRIOR OR RELATED APPEALS... vi STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUES... 1 I. THE DISTRICT COURT ERRED IN DETERMINING THAT THE BIA S REFUSAL TO CONDUCT AN ELECTION FOR THE GOVERNING BODY OF THE OSAGE MINERALS ESTATE UNDER THE OSAGE ALLOTMENT ACT OF JUNE 28, 1906, 34 Stat. 539, AS AMENDED AND TITLE 25 PART 90 OF THE CODE OF FEDERAL REGULATIONS WAS NOT A FINAL AGENCY DECISION II. THE DISTRICT COURT ERRED IN DETERMINING THAT THE PLAINTIFFS WERE REQUIRED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES... 2 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS HISTORY OF THE OSAGE TRIBE OSAGE TRIBAL GOVERNMENT REAFFIRMATION ACT & 2010 ELECTIONS LETTERS TO THE BIA AND THE BIA S RESPONSE... 8 SUMMARY OF THE AGRUMENT ARGUMENT i

3 Appellate Case: Document: Date Filed: 10/14/2011 Page: 3 1. STANDARD OF REVIEW PLAINTIFFS SEEK REVIEW OF A FINAL AGENCY DECISION A. THE LETTERS FROM THE BIA TO SHAREHOLDERS ARE FINAL AGENCY DECISIONS B. THE BIA S DECISION NOT TO CONDUCT THE 2006 & 2010 ELECTIONS WERE FINAL WHEN RENDERED C. THE BIA S DECISION WAS NOT MADE INOPERATIVE PENDING APPEAL ALTERNATIVELY, AGENCY REVIEW WOULD BE FUTILE CONCLUSION STATEMENT OF COUNSEL AS TO ORAL ARGUMENT CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE ii

4 Appellate Case: Document: Date Filed: 10/14/2011 Page: 4 ATTACHMENTS: Cora Jean Jech, et al. v. The United States, et al.4:09-cv tck-tlw Report and Recommendation by Magistrate Judge T. Lane Wilson... 1 Cora Jean Jech, et al. v. The United States, et al.4:09-cv tck-tlw Order by Judge Terence Kern... 2 Cora Jean Jech, et al. v. The United States, et al.4:09-cv tck-tlw Judgment by Judge Terence Kern... 3 Osage Allotment Act of June 28, 1906, 34 Stat. 539, as amended... 4 Pub. L (1978), Amendment to the 1906 Osage Allotment Act... 5 Title 25 C.F.R. Part 90 Election of Officers of the Osage Tribe... 6 Reaffirmation of Certain Rights of the Osage Tribe, Pub. L , 118 Stat Cohen s Handbook of Federal Indian Law, (Nell Jessup Newton, ed., LexisNexis Mathew Bender 2005 ed.)... 8 iii

5 Appellate Case: Document: Date Filed: 10/14/2011 Page: 5 TABLE OF AUTHORITIES FEDERAL CASES Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000) 14, 18, 20 Becker v. Federal Election Commission, 112 F. Supp. 2d 172 (D.Mass. 2000)... 25, 26 Bethlehem Steel Corp. v. EPA, 669 F.2d 903 (3rd Cir. 1982)... 20, 25 Choate v. Trap, 224 U.S. 665 (1912) Darby v. Cisneros, 509 U.S. 137 (1993)... 22, 23, 24 Holt v. U.S., 46 F.3d 1000 (10th Cir. 1995)... 15, 16 Forest Guardians v. U.S. Forest Serv., 579 F.3d 1114 (10th Cir. 2009)... 14, 25 Logan v. Andrus, 640 F.2d 269 (10th Cir. 1981)... 5, 6, 20, 21 Marrow v. U.S., 243 F. 854 (8th Cir. 1917) Montoya v. Chao, 296 F.3d 952 (10th Cir. 2002) Oregon Natural Desert Association v. Green, 953 F. Supp.1133 (D. Or. 1997)... 23, 24 Qwest Communications Intern, Inc. v. FCC, 398 F.3d 1222 (10th Cir. 2005) Seminole Nation of Oklahoma v. Norton, 223 F. Supp. 2d 122 (D.D.C. 2002)... 14, 17, 18, 22 Taylor v. Tayrien, 51 F.2d 884 (10th Cir. 1931)... 5 Vann v. Kempthorne, 467 F. Supp. 2d 56 (D.C.C. 2006) FEDERAL STATUTES 5 U.S.C , 16, 17 5 U.S.C. 706(2) iv

6 Appellate Case: Document: Date Filed: 10/14/2011 Page: 6 25 C.F.R , C.F.R C.F.R C.F.R , 15, U.S.C Administrative Procedures Act, 5 U.S.C. 700, , 2 Fed. R. App. P. 32(a)(7)(c), I Fed. R. Civ. P. 12(b)(1) Pub. L , 5, 7 and 8, 92 Stat (1978), as amended by Pub. L. No , 98 Stat (1984)... 2, 6 Pub. L. No , 71 Stat. 471 (1957)... 2 Reaffirmation of Certain Rights of the Osage Tribe, Pub. L , 118 Stat Osage Allotment Act of June 28, 1906, 34 Stat , 2, 4, 5, 6, 7 SECONDARY SOURCES Cohen s Handbook of Federal Indian Law, (Nell Jessup Newton, ed., LexisNexis Mathew Bender 2005 ed.) 4.07(1)(d)... 4, 5 v

7 Appellate Case: Document: Date Filed: 10/14/2011 Page: 7 PRIOR OR RELATED APPEALS None. vi

8 Appellate Case: Document: Date Filed: 10/14/2011 Page: 8 The Appellants, Cora Jean Jech, Charles Tillman, Dudley Whitehorn, Joe Hall, Joanna Barbara, R.E. Yarbrough, Cody Tucker and John Johnson (collectively Plaintiffs ), for their opening brief state: STATEMENT OF JURISDICTION The Plaintiffs initiated this case against the United States of America, Department of Interior ( DOI ), Ken Salazar, Bureau of Indian Affairs ( BIA ) and Larry Echohawk (collectively Federal Defendants ) in the United States District Court for the Northern District of Oklahoma, asserting jurisdiction under the Administrative Procedures Act, 5 U.S.C (Aplt. App. at 15). 1 This Court has jurisdiction pursuant to 28 U.S.C because this is an appeal from the District Court s final order entered March 31, 2011, affirming and adopting the Report and Recommendation of the Magistrate granting Defendants Motion to Dismiss and dismissing all of the Plaintiffs claims. (Aplt. App. at 384) (Attachment 2); Aplt. App. at 385 (Attachment 3). Plaintiffs timely filed their notice of appeal on April 28, (Aplt. App. at 13). STATEMENT OF THE ISSUES I. THE DISTRICT COURT ERRED IN DETERMINING THAT THE BIA S REFUSAL TO CONDUCT AN ELECTION FOR THE GOVERNING BODY OF THE OSAGE MINERALS ESTATE UNDER THE OSAGE ALLOTMENT ACT OF JUNE 28, 1906, 34 Stat. 539, AS AMENDED AND TITLE 25 PART 90 OF THE CODE OF FEDERAL REGULATIONS WAS NOT A FINAL AGENCY DECISION. 1 All citations to Appellant s Appendix will be in the form (Aplt. App. at ) indicating the exhibit letter and page number of the document in Appellants Appendix. Where the document is also attached to Appellants Opening Brief, the citation format will be (Aplt. App. at ) (Attachment ).

9 Appellate Case: Document: Date Filed: 10/14/2011 Page: 9 II. THE DISTRICT COURT ERRED IN DETERMINING THAT THE PLAINTIFFS WERE REQUIRED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES. STATEMENT OF THE CASE Plaintiffs are individual legal members of the Osage Tribe of Indians ( Osage Tribe ) as defined by the Osage Allotment Act of June 28, 1906, 34 Stat. 539, as amended (the 1906 Act ). 2 (Aplt. App. at 16) (Attachment 4). Plaintiffs initiated this lawsuit against the Federal Defendants under the Administrative Procedures Act, 5 U.S.C. 700, et. seq. ( APA ), seeking a mandatory injunction requiring the BIA to conduct elections for the Chief, Vice-Chief and eight-member tribal council prescribed by the 1906 Act to govern the Osage Tribe ( Tribal Council ) and to recognize such Tribal Council as the independent governing body of the Osage Mineral Estate. (Aplt. App. at 20-21). The Federal Defendants filed their Motion to Dismiss claiming the District Court lacked jurisdiction because: (1) Plaintiffs failed to exhaust their administrative remedies; (2) Plaintiffs failed to join a necessary and indispensible party; and (3) Plaintiffs claims involved an intra-tribal dispute. (Aplt. App. at 74). Plaintiffs responded that the exhaustion of administrative remedies was not required because (1) the BIA s decision was final under the APA; (2) Plaintiffs request involved pure questions of law; and (3) exhaustion of administrative remedies would be futile. (Aplt. App. at 108, ). In addition, Plaintiffs denied that the Osage Nation Act, as amended by Act of March 2, 1929, 5, 7, 45 Stat. 1478; Pub. L. No , 71 Stat. 471 (1957); Pub. L , 5, 7 and 8, 92 Stat (1978), as amended by Pub. L. No , 98 Stat (1984) (technical corrections). 2

10 Appellate Case: Document: Date Filed: 10/14/2011 Page: 10 was a necessary and indispensible party and further denied this dispute was simply an intra-tribal dispute. (Aplt. App. at ). Federal Defendants also filed a Motion to Limit Review to the Administrative Record (Aplt. App. at 235) and subsequently, on or about December 9, 2010, produced the administrative record (Aplt. App. at 246). Plaintiffs filed their Response to Motion to Limit Review to the Administrative Record (Aplt. App. at 274) and their Motion to Require Federal Defendants to Supplement Administrative Record (Aplt. App. at 252). The Magistrate conducted a hearing on whether Plaintiffs were required to exhaust their administrative remedies. 3 (Aplt. App ). The Magistrate issued his Report and Recommendation on February 28, 2011, determining that the District Court lacked subject matter jurisdiction because Plaintiffs failed to exhaust their administrative remedies and deemed all other issues moot as a result. (Aplt. App. at ). (Attachment 1). Plaintiffs filed their Objection to Report and Recommendation on March 14, 2011, objecting to the Magistrate s decision. (Aplt. App. at 335). By Order dated March 31, 2011, the District Court affirmed and adopted the Magistrate s Report and Recommendation (Aplt. App. at 384) (Attachment 2) and subsequently entered a Judgment of Dismissal (Aplt. App. at 385) (Attachment 3). Plaintiffs initiated the instant appeal to the District Court s Order and Judgment of Dismissal. 3 The Magistrate had previously conducted a hearing on Federal Defendants Motion to Dismiss on the issue of failure to join a necessary and indispensible party, but never decided that issue because his ruling on the exhaustion issue was dispositive. 3

11 Appellate Case: Document: Date Filed: 10/14/2011 Page: 11 STATEMENT OF THE FACTS Plaintiffs are legal members of the Osage Tribe because they own headrights, which are vested private property interests that entitle the owner to a pro rata share in the revenues from the Osage Mineral Estate (defined below). (Aplt. App. at 113). Additionally, the headright entitles the Shareholders to vote in tribal matters in proportion to their respective headright pro rata share. (Aplt. App. at 114). 1. History of the Osage Tribe By way of brief history, the Osage Tribe was created by the 1906 Act. (Aplt. App. at ). The 1906 Act, among other things, required the creation of a final tribal roll of the members entitled to receive distributions ( 1); reserved mineral rights to the Osage Tribe in the allotted lands ( 3); set aside a trust fund for the sale of lands and income from the Osage Mineral Estate ( 3); and prescribed a form of tribal government ( 9). Section 1 of the 1906 Act limited the enrollment of members in the Osage Tribe to persons on the roll at the time of the 1906 Act and their children born before July 1, 1907 ( Alotted Members ). (Aplt. App. at ) (Attachment 4). The reservation of the mineral rights to the Osage Tribe for the allotted lands under the 1906 Act 3 is commonly referred to as the Mineral Estate. (Aplt. App. at 114) The roll created by the 1906 Act is the permanent basis for per capita distributions of tribal income and property and it converted the right to receive tribal property distributions into a restricted tenancy in common in the persons on the 1906 roll. Cohen s Handbook of Federal Indian Law, (Nell Jessup Newton, ed., LexisNexis Mathew Bender 2005 ed.) (hereinafter Cohen ), 4.07(1)(d) (Attachment 8); (Aplt. 4

12 Appellate Case: Document: Date Filed: 10/14/2011 Page: 12 App. at 114). The right to receive mineral revenue distributions from production of the Osage Mineral Estate is a headright. Taylor v. Tayrien, 51 F.2d 884, (10 th Cir. 1931); (Aplt. App. at 114). The 1906 Act, as subsequently amended, provided the headrights would pass to the heirs, devisees and assigns of the Allotted Members. See Cohen, 407(1)(d) (Attachment 8); (Aplt. App. at 114). Consequently, some Osage do not own headrights ( Non-Headright Osage ), others may own a fractionalized interest in a headright, while others may own multiple headrights. Id. In fact, some headrights are owned by non- Osage. Id. A headright is a substantial private property right because it provides Mineral Estate production revenues for quarterly distribution to the individual members of the Osage Tribe. Id. Persons who own headrights are commonly referred to as Shareholders. 2. Osage Tribal Government The 1906 Act prescribed a form of tribal government, which included a Principal Chief, Assistant Principal Chief and eight (8) member Osage Tribal Council ( Tribal Council ) and that such government would be selected by an election of the Osage Tribe (i.e. Shareholders) Act, 9 (Attachment 4). Congress imposed upon the Secretary of Interior the duty of general supervision over the affairs of the Osage Tribe Act, generally (Attachment 4). The Tribal Council was vested with the power to administer the Mineral Estate under the 1906 Act. Logan v. Andrus, 640 F.2d 269, 271 (10 th Cir. 1981). The 1906 Act s provisions for elections of tribal officials and the Tribal Council were amended in 1978 to require elections every four years in a manner prescribed by 5

13 Appellate Case: Document: Date Filed: 10/14/2011 Page: 13 the Secretary of the Interior Act, as amended by Pub. L (1978) (Attachment 5). Elections for the Osage Tribe are governed by Title 25 C.F.R. Part 90 Election of Officers of the Osage Tribe ( the CFRs ). (Attachment 6). Only Shareholders are permitted to vote in elections for the government of the Osage Tribe under the 1906 Act. See Logan, 640 F.2d at 271. The BIA is charged with the responsibility of administering and supervising the elections of the Osage Tribe. See 25 CFR Part 90, generally (Attachment 6); (Aplt. App. at ). The CFRs provide voting eligibility requirements for members of the Osage Tribe which, among other things, provide that only headright owners over the age of 18 and whose names appear on quarterly annuity roll at the Osage Agency were permitted to vote in elections or qualified to hold any tribal office (CFR 90.21); and each ballot cast had exactly the same value as the voter s headright interest shown on the last quarterly annuity roll (CFR 90.21). (Aplt. App. at ); CFRs (Attachment 6). Thus, each headright owner was entitled to a vote that was directly proportional to his headright interest, much like shareholders in a corporation. CFR (Attachment 6). 3. Reaffirmation Act Historically, in addition to governing the Minerals Estate, the Principal Chief, Assistant Principal Chief and eight-member Tribal Council handled all tribal matters. See Logan, 640 F.2d at 271. However, despite the fact that numerous persons were considered Osage and entitled to federal benefits, only those with headrights were considered legal tribal members who could vote for the governing body of the Osage Tribe. Id. (Aplt. App. at ). To rectify this apparent dichotomy, Congress passed 6

14 Appellate Case: Document: Date Filed: 10/14/2011 Page: 14 the Reaffirmation of Certain Rights of the Osage Tribe, Pub. L , 118 Stat ( Reaffirmation Act ). Reaffirmation Act (Attachment 7). The Reaffirmation Act clarified that legal membership in the Osage Tribe means those persons eligible for allotments of Osage Reservation lands and pro rata share of the Osage mineral estate as provided in the [1906] Act, but not membership in the Osage Tribe for all purposes. Reaffirmation Act (Attachment 7). The Reaffirmation Act specifically reaffirms the inherent sovereign right of the Osage Tribe to determine its own membership and form of government, provided that the rights of any person to the Osage mineral estate shares are not diminished thereby. Id. The Reaffirmation Act did not purport to repeal, modify or supersede the 1906 Act, as amended, or CFRs; rather, its intent was to clarify the right of all Osage people to be considered tribal members and self-govern tribal affairs outside the Minerals Estate. (Aplt. App. at 117) & 2010 Elections Thereafter, a new form of tribal government was proposed by the Osage Reform Commission to the 31 st Tribal Council of the Osage Tribe. (Aplt. App. at 117). The new government was ratified 4 by a majority vote of a minority number of the total Osage people, both Shareholders and Non-Headright Osage, and subsequently became the Osage Nation which is governed by the Osage Nation Constitution. (Aplt. App. at 37, 38, 55, 61). The new Osage Nation Constitution inexplicably addressed the Minerals Estate, 4 There remains some question whether the ratification of the new Osage Constitution was properly certified by the BIA in an election wherein at least thirty percent (30%) of the tribal members entitled to vote cast their ballot in accordance with 25 CFR 81.23, but that is not an issue in this appeal. 7

15 Appellate Case: Document: Date Filed: 10/14/2011 Page: 15 which it reserved to the Osage Nation (not the Osage Tribe, as prescribed in the 1906 Act), and established a minerals council as an agency within the Osage Nation (the Agency ) to manage the Minerals Estate. (Aplt. App. at 56-57). However, the Agency s authority is subject to the decisions of the Chief of the Osage Nation and the laws enacted by the Osage Nation s Congress, rather than the Secretary of Interior as provided in the 1906 Act. (Aplt. App. at 56-57). While the Agency members are elected by the Shareholders, the Chief, Assistant Chief and members of Congress of the Osage Nation are elected by both Shareholders and Non-Headright Osage. (Aplt. App. at 55). Thus, under the Osage Nation Constitution, the Minerals Estate is no longer controlled solely by the Tribal Council for the benefit of the Shareholders, but a majority of the Osage Nation, both Shareholders and Non-Headright Osage alike, which is directly contrary to the Reaffirmation Act. (Aplt. App. at 118). In the June 2006 election, the BIA did not administer an election for the Principal Chief, Assistant Principal Chief and Tribal Council and recognize the same as the independent governing body of the Minerals Estate. (Aplt. App. at 118). Instead, the Osage Nation conducted elections for its Chief, Assistant Chief, Congress and members of the Agency 5 ( 2006 Election. ). (Aplt. App. at 29). 5. Letters to the BIA and the BIA s Response Prior to the 2006 Election and in the months and years after, concerned Shareholders called upon the BIA to conduct an election for the governing body of the 5 The members of the Agency were elected solely by Shareholders as provided in the Osage Nation Constitution. 8

16 Appellate Case: Document: Date Filed: 10/14/2011 Page: 16 Minerals Estate in accordance with the 1906 Act and CFRs, which the BIA repeatedly refused to do. Specifically the Shareholders expressed their concern in the following correspondence: A. Letter from Osage Shareholders Association (of which Plaintiffs are all members) to BIA Superintendant, Melissa Currey, and copied BIA Area Director, Jeanette Hannah and Acting Deputy Secretary of the Interior, Jim Cason, dated March 20, 2006, to inform [the BIA] of [the Shareholders] strong opposition to the Osage Tribe s proposal to delegate authority for the upcoming June [2006] elections to the Osage Governmental Reform Commission (OGCR), and to reiterate our continuing objection to the newly ratified Osage Constitution. The Osage Shareholders Association went on to explain their position that the Osage Nation Constitution was contrary to the 1906 Act because it did not provide a principal chief, vicechief and eight member council independent of the Osage Nation and pointed out that [w]e are not sure whether the Chief and the Vice Chief of the Mineral Estate can be jettisoned from our governmental structure (and these labels appropriated for the use of the new government) without a change to the governing federal law. (Aplt. App. at ). B. Letter from Charles Tillman (Appellant and past Chief of the Osage Tribe) to BIA Superintendant Melissa Currey and BIA Regional Director Jeannette Hanna, dated December 21, 2006, explaining in detail to the BIA 9

17 Appellate Case: Document: Date Filed: 10/14/2011 Page: 17 that the 2006 Election failed to comply with Federal law and specifically pointing to the fact that: 1. No principal chief or assistant principal chief was elected by the headright owners to govern the management of the mineral estate, along with 8 council members; 2. The actions and activities of a council elected by the headright owners cannot be subject to a veto power of a principal chief, who was not elected by said annuitants. (Aplt. App. at ). C. As well as numerous other letters from concerned Shareholders expressing similar concerns and complaining that the June 2006 election violated the 1906 Act, specifically: (i) letter from John R. Davis, to BIA Superintendant Melissa Currey, dated January 12, 2007 (Aplt. App. at 361); (ii) letter from John Raymond Dennison to Senator James M. Inhofe, Members of the Indian Affairs Committee, Senator John McCain and BIA Superintendant Melissa Currey dated January 17, 2007 (Aplt. App. at 362); (iii) letter from Judith Soudan to the Department of Interior, Bureau of Indian Affairs, Osage Agency, attn: Melissa Currey dated October of 2007 (Aplt. App. at 364); and (iv) letter from Brenda Brunger to the Department of Interior, Bureau of Indian Affairs, Osage Agency, attn: Melissa Currey dated October of 2007 (Aplt. App. at ). The Federal Defendants responded to these letters repeatedly refusing to take action and reaffirming its settled position that the Reaffirmation Act permitted the Osage Nation Constitution to control the Mineral Estate, specifically: 10

18 Appellate Case: Document: Date Filed: 10/14/2011 Page: 18 A. Letter from BIA Director William Ragsdale in response to Appellant Charles Tillman s letter (identified above), dated March 19, 2007, and stating that: The [Reaffirmation Act] included a provision that the rights of any person to Osage mineral estate shares are not diminished thereby. The Osage Constitution, adopted by the vote of the Osage people as determined by the previous elected tribal leadership and council, upheld the intent and direction of the Congress in this regard. There is no need for the BIA to take any further or new action at this time to protect the Osage mineral estate for those Osages that share in it, which is your concern as a headright holder. (Aplt. App. at ) B. Letter from BIA Superintendant Melissa Currey to Osage Annuitant, dated February 21, 2007, which recited virtually the same language as Mr. Ragsdale s letter to Mr. Tillman, and again noted [a]s such, there is no action to be taken by the Bureau at this time for the concerns outlined in the letter. (Aplt. App. at ). C. Most importantly, a letter from Carl J. Altman, Assistant Secretary Indian Affairs to Jenny Miller, dated January 28, 2008, the highest ranking official in which he explains that the Reaffirmation Act enabled the Osage Tribe to determine their form of tribal government and redefine its membership. He goes on to state that the BIA provided technical assistance in the 2006 Election and that [t]he Osage Constitution, adopted by a vote of the Osage people, upholds the intent and direction of the Congress in this regard. The Assistant Secretary Indian Affairs concludes by stating [t]he BIA 11

19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 19 will take no further actions in this issue since it is an internal tribal matter that is best addressed the [sic] proper tribal forum... Furthermore, we have fulfilled obligations established by the [Reaffirmation Act]. (Aplt. App. at 351). D. Letter from BIA Regional Director to Jenny Miller, dated February 28, 2008, which references numerous letters from Ms. Miller to the BIA as well as the letter from the Assistant Secretary- Indian Affairs, identified above, to reinforce its position. The Regional Director explains that the BIA s position has not changed [a]nd as clearly stated in the January 28, 2008 correspondence to you from the Assistant Secretary Indian Affairs, the [BIA] will take no further actions in this issue since it is an internal tribal matter... and the [BIA] has fulfilled its responsibilities under the [Reaffirmation Act]. (Aplt. App. at ). In addition, the Regional Director notes [a]s to your request for a meeting on the contents of your correspondence, a meeting would not change the Bureau s position that the matters which you provide comments are ones which are better raised within the Tribal government itself. (Aplt. App. at ). E. Letter from BIA Acting Director to Chairman of the Agency (Minerals Council under the Osage Nation) John Mashunkashey, dated February 12, 2010, denying the Agency s request that the BIA conduct an election in accordance with the CFRs and noting [t]he Department s 12

20 Appellate Case: Document: Date Filed: 10/14/2011 Page: 20 existing position regarding the intent of the [Reaffirmation Act] eliminates the BIA s authority under the [CFRs]. (Aplt. App. at ). In response to the Federal Defendants repeated reaffirmations that it would take no action to conduct an election for the Tribal Council to govern the Mineral Estate under the 1906 Act and CFRs and recognize such Tribal Council as the independent governing body of the Osage Mineral Estate, Plaintiffs initiated this action under the APA seeking a mandatory injunction that the BIA follow the 1906 Act and CFRs. (Aplt. App. at 15-73). SUMMARY OF THE ARGUMENT The sole issue on appeal is whether the District Court has subject matter jurisdiction to review the BIA s decision not to administer elections for the governing body of the Mineral Estate consisting of a Principal Chief, Assistant Principal Chief and eight-member Tribal Council in accordance with the 1906 Act and CFRs. The District Court has the authority to review final agency decisions under the APA and the BIA s decision is a final agency decision. 5 U.S.C The Plaintiffs do not dispute that they did not exhaust administrative remedies, rather, they dispute that exhaustion was required because they are appealing a final agency action by the BIA or, alternatively, exhaustion would be futile. In the instant case, the BIA (1) did not in fact administer the 2006 and, since the Complaint was filed, the 2010 Elections for the Principal Chief, Assistant Principal Chief and Tribal Council of the Mineral Estate; and (2) unwaveringly repeated its position that the Reaffirmation Act rendered the CFRs moot and absolved the BIA of any responsibility for the elections for the governing body of the Mineral Estate. 13

21 Appellate Case: Document: Date Filed: 10/14/2011 Page: 21 Indeed, the Assistant Secretary of Indian Affairs, the highest ranking official in the BIA, stated that the BIA would not take any action in regard to administering elections for the governing body of the Osage Mineral Estate. (Aplt. App. at 351). Given the above facts, the BIA s decision is necessarily final because letters from an agency may be final decisions where such letters reflect settled agency positions from which legal consequences flow. Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, (D.C. Cir. 2000); Seminole Nation of Oklahoma v. Norton, 223 F.Supp.2d 122, 141 (D.D.C. 2002). In addition, decisions by the Assistant Secretary of Indian Affairs are final under the DOI s own regulations. See 25 C.F.R Finally, due to the unique circumstances in this case that the BIA has not fulfilled its obligations through two election cycles, the BIA s decision is final under the APA because it marks the consummation of the agency s decisionmaking process is an action by which rights or obligations have been determined or from which legal consequences will flow. Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d at Alternatively, exhaustion would be futile. The Tenth Circuit recognizes that exhaustion may be futile where (1) an agency lacks the authority or ability to resolve the claim; (2) the issue is purely a matter of statutory interpretation; and (3) the court would not benefit from the development of a full administrative record. See Forest Guardians v. U.S. Forest Serv., 579 F.3d 1114, 1122 (10 th Cir. 2009). In this action, Plaintiffs seek a declaratory judgment regarding the rights and obligations of the BIA and the Shareholders since the passage of the Reaffirmation Act. It is a matter of pure statutory interpretation regarding agency authority and the facts are 14

22 Appellate Case: Document: Date Filed: 10/14/2011 Page: 22 largely undisputed. Moreover, the BIA has repeatedly reinforced its position on this matter by both its actions and words. As such, this is the epitome of a case where exhaustion of administrative remedies would be futile. Therefore the District Court has subject matter jurisdiction to review the BIA s decision not to administer the 2006 and 2010 Elections for a Tribal Council in accordance with the 1906 Act and CFRs because it is a final agency decision or, alternatively, exhaustion of administrative remedies would be futile. ARGUMENT The Magistrate s Report and Recommendation ( Recommendation ) adopted by the District Court found that the Plaintiffs failed to exhaust their administrative remedies as provided in 25 C.F.R. Part 2 and, thus, the District Court lacked subject matter jurisdiction over Plaintiffs APA claims. (Aplt. App. at ). Plaintiffs do not dispute that they did not follow the appeal procedures outlined in 25 C.F.R. Part 2; rather, Plaintiffs dispute that they were required to initiate that process because (1) Plaintiffs seek review of a final agency decision under the APA; and (3) exhaustion in the instant case would be futile. Therefore, the District Court has subject matter jurisdiction because Plaintiffs claims are proper under the APA. 1. Standard of Review The Court reviews a district court s dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction de novo. Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995). A jurisdictional challenge may take two forms, first a facial attack that questions the sufficiency of the complaint or, alternatively, a party may challenge the facts upon 15

23 Appellate Case: Document: Date Filed: 10/14/2011 Page: 23 which subject matter jurisdiction depends. Id. at In the latter case, the District Court has discretion to consider and weigh facts related to jurisdiction. Id. The Court should accept the district court s findings of jurisdictional facts unless they are clearly erroneous. Montoya v. Chao, 296 F.3d 952, (10th Cir. 2002). In the instant case, the District Court considered facts outside the Complaint to determine whether the BIA made a final agency decision and whether the Plaintiffs exhausted their administrative remedies. Specifically, the District Court considered the actions of the BIA in refusing to conduct the 2006 and 2010 Elections and the letters to and from the BIA regarding the BIA s refusal to conduct the 2006 and 2010 Election. (Aplt. App. at , 405, ). However, the BIA s action/inaction and the facts and content of the letters are undisputed. 6 It is also undisputed that Plaintiffs did not proceed with an administrative appeal as provided in 25 C.F.R. Part 2. Therefore, the issue for the Court to determine is whether, as a matter of law, the letters and actions of the BIA constitute a reviewable agency decision under the APA. 2. Plaintiffs Seek Review of a Final Agency Decision 7 The APA permits review of final agency decisions. 5 U.S.C An agency decision is final when rendered unless a statute or agency rule requires (1) an appeal to a 6 While the Federal Defendants mischaracterize the relief Plaintiffs seek, the Federal Defendants have not disputed the facts as presented by Plaintiffs. (Aplt. App. at 83-86, ). 7 Appellants raised the issue that the BIA s actions in not conducting an election and letters from the BIA to concerned Shareholders constitute final agency action in the proceedings below. (Aplt. App. at , , ). 16

24 Appellate Case: Document: Date Filed: 10/14/2011 Page: 24 superior agency authority before an initial decision becomes final; and (2) that the initial decision is inoperative pending appeal. 5 U.S.C The APA requires the reviewing court to hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law. 5 U.S.C. 706(2)(A). Plaintiffs specifically challenge the BIA s decision to declare the Mineral Estate election procedures under the CFRs, moot and its refusal to conduct an election pursuant to the 1906 Act and CFRs for the Principal Chief, Assistant Principal Chief and eight (8) member Tribal Council to govern the Mineral Estate. The Federal Defendants decision in that regard is final because (i) the BIA pronounced its settled agency position through a series of letters to respond to the concerns of Shareholders, including Appellant Charles Tillman, and the Osage Shareholder s Association, of which all Plaintiffs are members; and (ii) due to the unique circumstances of the Osage Tribe and this case, the BIA s decision was final when rendered because it would not be made inoperative pending appeal and it was a decision from which legal consequences flow. A. The Letters from the BIA to Shareholders are Final Agency Decisions The Recommendation wholly rejects the cases recognizing that letters from agency officials may be final agency decisions subject to judicial review. In Seminole Nation, 223 F.Supp.2d 122, 141 (D.D.C. 2002), the district court held that a letter explaining the Secretary of Interior s decision not to recognize a tribal 17

25 Appellate Case: Document: Date Filed: 10/14/2011 Page: 25 government was a final agency action noting that a guidance document reflecting a settled agency position and having legal consequences for those subject to regulation may constitute final agency action for the purpose of judicial review. Id. at 142 (quotations omitted). The Seminole Nation Court relied on Barrick Goldstrike Mines, Inc., 215 F.3d 45 (D.C. Cir. 2000) which held that [t]hat the issuance of a guideline or guidance may constitute final agency action has been settled in this circuit for many years, and listed numerous cases where letters stating agency positions constitute final agency action. Id. at 48. The D.C. Circuit further recognized that a series of letters, as opposed to a single letter, may constitute final agency action. Id. at In the instant case, the Federal Defendants denied several requests by concerned Shareholders for an election for the governing body of the Minerals Estate and declared the CFRs moot in a definitive and unwavering manner. Specifically: (i) letter dated January 28, 2008 from the Assistant Secretary of Indian Affairs stating [t]he BIA will take no further actions in this issue since it is an internal tribal matter... (Aplt. App. at 351); (ii) letter dated February 28, 2008 from the Regional Director of the BIA the position of the Bureau of Indian Affairs has not changed [since your last letter]... a meeting [with you] would not change the Bureaus position... (Aplt. App. at ); (iii) letter dated March 19, 2007 from the Director of the BIA [t]here is no need for the BIA to take any further or new action at this time to protect the Osage mineral estate (Aplt. App. at ); (iv) letter dated February 12, 2010 from the Director of the BIA - [t]he Department s existing position regarding the intent of the 2004 Act eliminates the 18

26 Appellate Case: Document: Date Filed: 10/14/2011 Page: 26 BIA s authority under the Part 90 regulations [CFRs] (Aplt. App. at ) (collectively the BIA Letters to Shareholders ). Notably, one letter was from the Assistant Secretary of Indian Affairs, the highest ranking official charged with the responsibility of Indian affairs in the DOI, aside from the Secretary of the DOI and Deputy Secretary of the DOI, and the highest ranking official of the BIA. (Aplt. App. at 351). Decisions by the Assistant Secretary of Indian Affairs are final under 25 C.F.R. 2.6, which states Finality of decisions : (c) Decisions made by the Assistant Secretary Indian Affairs shall be final for the Department and effective immediately unless the Assistant Secretary Indian Affairs provides otherwise in the decision. 25 C.F.R The DOI s treatment of decisions from the Assistant Secretary of Indian Affairs as final under its own regulations, coupled with the repeated and unwavering pronouncements of the BIA s settled position in the BIA Letters to Shareholders, leave no room to doubt the finality of the BIA s decision. Tellingly, despite repeatedly receiving letters expressing objections to the governance of the Mineral Estate, neither the BIA, nor the DOI ever advised a concerned Shareholder (who were not represented by counsel at the time), of their right to appeal the Federal Defendants decision in the BIA Letters. B. The BIA s Decision not to Conduct the 2006 & 2010 Elections were Final When Rendered The Magistrate found that exhaustion is required because 25 C.F.R. 2.6 provides that the Federal Defendants decisions are not final if they are subject to further agency review. While that may be true in most instances, the Federal Defendants decision in the 19

27 Appellate Case: Document: Date Filed: 10/14/2011 Page: 27 instant case does not meet the requirements to delay finality under the APA. The Federal Defendants apply the concepts of exhaustion and finality interchangeably; however, exhaustion refers to the steps which the litigant must take whereas finality refers to the conclusion of activity by the agency. Bethlehem Steel Corp. v. EPA, 669 F.2d 903, 908 (3rd Cir. 1982). It is recognized that a guidance document reflecting a settled agency position and having legal consequences for those subject to regulation may constitute final agency action for judicial review. Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000). In such cases, courts require that the action mark the consummation of the agency s decisionmaking process and that it is an action by which rights or obligations have been determined or from which legal consequences will flow. Id. (internal citations and quotations omitted). The Tenth Circuit has recognized that the 1906 Act set up the machinery for the administration of the Osage mineral estate and described and declared the rights vested in the individuals. Logan v. Andrus, 640 F.2d 269, 270 (10th Cir. 1981) (emphasis added). The Logan Court further noted that part of this machinery for the administration included the election of a Principal Chief, Assistant Principal Chief and eight-member Tribal Council elected solely by headright owners to govern the Mineral Estate. Id. It has also long been recognized that property interests granted by the United States to individual Indians once vested, may not be abrogated by statute. Choate v. Trap, 224 U.S. 665, 674 (1912); see also Marrow v. U.S., 243 F. 854 (8th Cir. 1917) ( There is no question that the government may, in its dealings with Indians, create property rights which, once vested, even it cannot alter. ). 20

28 Appellate Case: Document: Date Filed: 10/14/2011 Page: 28 Since the passage of the Reaffirmation Act, the BIA has absolved itself of responsibility for the administration of the Mineral Estate and permitted the Osage Nation to conduct two separate elections affecting the Mineral Estate with only minor technical assistance from the BIA. (Aplt. App. at 351, 407). The Osage Nation conducted an election for an eight-member Agency within the Osage Nation to manage the Mineral Estate in June of 2006 and June of (Aplt. App. at 29, 407) This Agency is subject to the control of a Chief, Assistant Chief and Osage Nation Congress that are elected by both Shareholders and Non-Headright Osage. (Aplt. App. at 56-57). The basic facts reveal the 2006 and 2010 Elections represent a significant departure from the prior form of governance of the Mineral Estate because: (1) the Mineral Estate no longer has a Principal Chief and Assistant Principal Chief elected solely by Shareholders; and (2) the Mineral Estate is subject to the control of a Chief, Assistant Chief and Osage Nation Congress elected, in part, by Non-Headright Osage. See Logan, 640 F.2d at 271 (noting that [t]he right to vote under the 1906 Act was limited to owners of headrights and that persons that do not have headrights cannot vote for the Osage government as it existed at the time). As explained above, the loss of control of the Mineral Estate is an individual property right that was diminished when the Plaintiffs were not afforded the election process proscribed by the 1906 Act and the CFRs. 8 The BIA s failure to administer the 2006 and 2010 Elections for the Mineral Estate necessarily represents the consummation of the BIA s decisionmaking process and 8 Plaintiffs agree that the Reaffirmation Act permits the Osage Nation to self-govern in any manner it chooses for all matters outside the Minerals Estate. 21

29 Appellate Case: Document: Date Filed: 10/14/2011 Page: 29 is a decision by which rights and obligations are determined and from which legal consequences flow. Relying on Barrick, supra, the District Court in Vann v. Kempthorne, 467 F.Supp.2d 56 (D.C.C. 2006) ( Vann I ) found that the Secretary of Interior s decision to recognize the Cherokee leaders elected in an election was a final agency action. Vann I, 467 F.Supp.2d at 71 (D.C.C. 2006) (rev d and remand on other grounds)(internal quotations omitted)(emphasis added). In so holding the Vann I court noted the decision need not be the last administrative action contemplated by the statutory scheme. Rather an agency action is final where rights or obligations have been determined or from which legal consequences will flow. Id. As explained above, the Court in Seminole Nation, found that a decision not to recognize a tribal council was a final decision. Seminole Nation, 223 F.Supp. at 142. Similarly, the BIA s recognition of the Agency as the governing body of the Mineral Estate and the BIA s refusal to conduct an election under the 1906 Act and CFRs finally determines the rights of the Shareholders with respect to the governance of the Mineral Estate. Federal Defendants claim the BIA has not finally determined its role in administering the Mineral Estate after recognizing a new government for the past five years during which time the new government conducted two separate elections is simply nonsensical. C. The BIA s Decision was not Made Inoperative Pending Appeal In Darby v. Cisneros, 509 U.S. 137 (1993) the Supreme Court considered whether an opportunity for further agency review precluded judicial review and determined that 22

30 Appellate Case: Document: Date Filed: 10/14/2011 Page: 30 [c]ourts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become final under [the APA]. Id. at 154. With respect to finality, the Supreme Court noted that to prevent a decision from becoming final, the agency rule must require (1) an appeal to a superior agency authority before an initial decision becomes final; and (2) that the initial decision is inoperative pending appeal. Id. at 152. In Oregon Natural Desert Ass n v. Green, 953 F.Supp.1133 (D. Or. 1997), the Court determined that the DOI s regulations were inadequate where they required exhaustion but did not render the particular decision inoperative pending appeal. Id. at The District Court noted that making the decision inoperative was unequivocal and went on to state that the party challenging the action was not required to proceed with its appeal to the IBLA prior to seeking review of [the decision]. Id. (emphasis added). The Magistrate reasoned that because Plaintiffs did not initiate an appeal, the requirement that the Federal Defendants decision remain inoperative pending appeal did not apply, however that is directly contrary to the holding in Oregon Natural Desert which stated just the opposite that the party challenging the decision need not proceed with an appeal if the decision would be effective during the appeal. Id. The Magistrate further reasoned that Plaintiffs did not propose a manner in which the decision could be inoperative pending appeal. (Aplt. App. at 331). Plaintiffs urge the Court that this reasoning proves their point. If the decision cannot be inoperative pending appeal, then it must be a final decision under Darby, supra, or Oregon Natural Desert, supra. Plaintiffs further respectfully disagree that the APA requires unrepresented 23

31 Appellate Case: Document: Date Filed: 10/14/2011 Page: 31 individuals to bear the burden of telling a federal agency how to make their decision inoperative pending appeal and no such requirement appears in either Darby, supra, or Oregon Natural Desert, supra. While both the Magistrate and Federal Defendants argue that the cases cited above are distinguishable, the rule of law stated in those cases is quite straight-forward and applicable to a variety of circumstances, including this case. Darby, supra, and Oregon National Desert, supra, and Vann I stand for the proposition that an opportunity for additional agency review is insufficient where the agency decision is already final under the APA. Moreover, it is not as if the BIA was unaware of the concerns and objections to the governance of the Mineral Estate. The BIA had numerous letters from concerned Shareholders prior to both the 2006 and 2010 Elections, yet took no action. The letters from Shareholders included, among others, the following: (i) letter from the Osage Shareholders Association, March 20, 2006 (of which all Plaintiffs are members) (Aplt. App. at ); and (ii) letter from Charles Tillman, dated December 21, 2006) (Aplt. App. at ) (additional letters were identified in Summary of Facts, supra). As the BIA was aware of the potential violations of federal law prior to the 2006 and 2010 Election yet took no action or suggest further agency review, its decision was not interlocutory, rather it was a considered final decision. The BIA s decision was final when it did not, in fact, conduct the 2006 and 2010 Elections and did not purport to make its decision inoperative pending appeal. Therefore, under Darby, supra, and Oregon National Desert, supra, and Barrick, supra, exhaustion of administrative remedies that do not affect the finality of the decision are not required. 24

32 Appellate Case: Document: Date Filed: 10/14/2011 Page: Alternatively, Agency Review Would be Futile 9 In the event the Court finds that the BIA s decision was not final under the APA, this is the epitome of a case where exhaustion would be futile. Repeatedly, courts note that the exhaustion requirement serves various functions, namely, (i) it is recognition of agency autonomy; (ii) it develops a factual background; and (iii) it permits the agencies to apply any special expertise they may have and enables the agencies to correct their own errors. See Bethlehem Steel Corp., 669 F.2d at 907. The pivotal issue in this case is the interpretation of the Reaffirmation Act; specifically, whether such act overrules or supersedes the 1906 Act with respect to the governance of the Mineral Estate. As such, the exhaustion requirement would not tend to serve its purpose in this case. The Tenth Circuit recognizes that exhaustion may be futile where (1) an agency lacks the authority or ability to resolve the claim; (2) the issue is purely a matter of statutory interpretation; and (3) the court would not benefit from the development of a full administrative record. See Forest Guardians v. U.S. Forest Serv., 579 F.3d 1114, 1122 (10 th Cir. 2009). In Becker v. Federal Election Commission, 112 F.Supp.2d 172, 176 (D.Mass. 2000), the court considered whether the exhaustion requirement applied under the APA on a claim that the Federal Election Commission exceeded its authority and noted that courts are equipped to settle issues of law in cases involving challenges to an agencies power. Id. The court went on to hold that as the challenge in that case involves a 9 Plaintiffs raised the issue that exhaustion of administrative remedies would be futile at Aplt. App. at ,

33 Appellate Case: Document: Date Filed: 10/14/2011 Page: 33 question of law involving the agency s power, exhaustion is not required. Id. Similarly, as explained above, the issues in this case involve pure questions of law regarding the Federal Defendants power to recognize the Osage Nation as the governing body of the Minerals Estate and exhaustion would be futile. The Magistrate recognized that futility exception to the exhaustion requirement and noted it may be futile when there is a pronounced decision by a final decision maker. (Aplt. App. at 332). As noted above, the Assistant Secretary of Indian Affairs in the DOI, the highest ranking official with respect to Indian Affairs aside from the Secretary and Deputy secretary of the DOI and the highest ranking official in the BIA, wrote a letter in which he stated the BIA will take no further action on this issue, the issue being the failure of the Federal Defendants to conduct an election in accordance with the 1906 Act and CFRs as made clear from the context of the letter. (Aplt. App. at 351). Moreover, this Court notes that where the agency has repeatedly stated its position and shown no signs of a willingness to reconsider, exhaustion would be futile. See Qwest Communications Intern, Inc. v. FCC, 398 F.3d 1222, 1231 n. 4 (10 th Cir. 2005). As evident from the numerous BIA Letters to Shareholders cited above, Federal Defendants position in this matter is unwavering and pronounced by a high level, perhaps even final, decision makers on this issue and exhaustion would be futile. The foregoing makes clear that even if the APA requires exhaustion, it is futile to require the Plaintiffs to present pure questions of law to an agency that unwaveringly pronounced its position on this matter numerous times from officials throughout the 26

34 Appellate Case: Document: Date Filed: 10/14/2011 Page: 34 organizational hierarchy, beginning with the superintendent of the Osage Agency through the Assistant Secretary of Indian Affairs. CONCLUSION The Federal Defendants claim that the BIA s decision not to administer the 2006 and 2010 Elections and not to conduct future elections for a Principal Chief, Assistant Principal Chief and Tribal Council under the 1906 Act and CFRs is nonsensical. Everyone in the BIA from the Assistant Secretary of Indian Affairs to the Superintendant of the Osage Agency has confirmed the BIA s settled position in this matter. The BIA simply seeks to delay further the inevitable result of judicial review of its interpretation and application of the Reaffirmation Act. Based on the authority cited above, the BIA s decision is either final because it represents the culmination of the agency decisionmaking process from which obligations and legal consequences flow; or agency review would be futile in this case because by words and actions the BIA has repeatedly affirmed its position on its obligations since the Reaffirmation Act. In either event, judicial review is appropriate under the APA and the District Court has subject matter jurisdiction to consider the merits of Plaintiffs claims. As such, Plaintiffs respectfully requests that the Court reverse the District Court s Order and find that the District Court has subject matter jurisdiction under the APA to consider Plaintiffs claims. 27

35 Appellate Case: Document: Date Filed: 10/14/2011 Page: 35 STATEMENT OF COUNSEL AS TO ORAL ARGUMENT Counsel does not request oral argument. BARROW & GRIMM, P.C. By s/cori D. Powell Cori D. Powell William R. Grimm W. Seventh Street, Suite 900 Tulsa, OK (918) (918) (Fax) ATTORNEYS FOR PLAINTIFFS-APPELLANTS 28

36 Appellate Case: Document: Date Filed: 10/14/2011 Page: 36 CERTIFICATE OF COMPLIANCE Section 1. Word Count As required by Fed. R. App. P. 32(a)(7)(c), I certify that this brief is proportionally spaced and contains 7,409 words. Complete one of the following: x I relied on my word processor to obtain the count and it is Microsoft Word 2007; I counted five characters per word, counting all characters including citations and numerals. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. By s/cori D. Powell Cori D. Powell

37 Appellate Case: Document: Date Filed: 10/14/2011 Page: 37 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS I hereby certify that a copy of the foregoing APPELLANT S OPENING BRIEF, as submitted in Digital Form via the court s ECF system, is an exact copy of the written document filed with the Clerk and has been scanned for viruses with the Trend Micro OfficeScan Client for Windows version , Virus Definition File Dated: October 14, 2011, and according to the program, is free of viruses. In addition, I certify all required privacy redactions have been made. By s/tracy L. Costa Tracy L. Costa, Legal Assistant 30

38 Appellate Case: Document: Date Filed: 10/14/2011 Page: 38 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of October, 2011, I electronically transmitted APPELLANTS OPENING BRIEF to the following: Katherine W. Hazard Katherine.Hazard@usdoj.gov Phil E. Pinnell phil_pinnell@usdoj.gov I further certify that on the 14th day of October, 2011, I served a true and correct copy of APPELLANTS OPENING BRIEF by first class mail, with proper postage fully prepaid thereon, on the following, who is not a registered participant of the ECF System: Barbara M R Marvin U.S. Dept. of Justice Environment & Natural Resources 601 D Street NW, Room 3129 Washington, DC s/cori D. Powell Cori D. Powell S:\WPDOC\8261\000\Plead_Opening Brief_FINAL_cdp.doc 10/14/2011 tlc 31

39 Case 4:09-cv TCK-TLW Document 57 Filed in USDC NO/OK on 02/28/11 Page 1 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA CORA JEAN JECH, et al., Plaintiffs, \ J vs. ) ) THE UNITED STATES OF AMERJCA, et al., Defendants. ) ) ) ) ) ) Case No. 09-cv-818-TCK-TLW REPORT AND RECOMMENDATION Before the undersigned United States Magistrate Judge for Report and Recommendation is defendants' Motion to Dismiss. (Dkt. # 15). Plaintiffs filed a response, and defendants filed a reply. (Dkt. ## 19, 22). Two hearings were conducted, one on July 7, 2010 and another on February 8, (Dkt. ## 36, 55). Also before the undersigned for Report and Recommendation are defendants' Motion to Limit Review to the Administrative Record ( dkt. # 28), defendants' Motion to Stay ( dkt. # 29), and plaintiffs' Motion to Require Federal Defendants to Supplement Administrative Record ( dkt. # 51). Defendants' Motion to Dismiss asserts that the Court lacks subject matter jurisdiction, that plaintiffs have failed to join an indispensable party, and that plaintiffs' complaint involves an intra-tribal dispute which is not appropriate for federal judicial review. (Dkt. # 15). As set forth below, the undersigned finds that the Court lacks subject matter jurisdiction and RECOMMENDS that defendants' Motion to Dismiss (dkt. # 15) be GRANTED and that the remaining motions (dkt. ## 28, 29, 51) be DENIED as moot. ATTACHMENT 1

40 va:se q:u::1-lv-uuo I O-J \...1"\- I LVV UOCUmeni Of t-1180 In U~UG 1\JU/UK On UL/L~/11 J-lage L Ot 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 2 Factual Background The Osage Allotment Act and the Reaffirmation Act Plaintiffs are eight individual members of the Osage Tribe of Indians, as defined in the Osage Allotment Act of June 28, 1906, 34 Stat. 539, as amended (the "1906 Act"). (Dkt. # 2 at 2). Plaintiffs are descendants of the original Osage allottees enrolled under Section 1 of the 1906 Act and are shareholders entitled to receive distributions from the Osage Mineral Estate ("Mineral Estate"), which is held in trust by the United States ("Tribal Trust"). Id. at 4. Tribal Trust distributions, called headrights, are substantial property rights which provide quarterly income distributions to the shareholders. I d. at 5. Because headrights may pass to heirs, devisees, and assigns of the original allottees, some Osage now own no headrights or small fractions of headrights, while others own multiple headrights. I d. Some headright owners are not Osage at all. Id. Among other provisions, the 1906 Act prescribes the form of the Osage tribal government. I d. at 3. The 1906 Act provides for the election of a Principal Chief, an Assistant Principal Chief, and an eight-member Osage Tribal Council. I d. at 7. According to the 1906 Act, the election of the Osage Tribal Council and the tribal officers is.governed by the Commissioner of Indian Affairs. Id. The procedures for the election are codified at 25 C.F.R. Part 90 ("Part 90"). Id. Part 90 provides: Only members of the Osage Tribe vvho will be eighteen years of age or over on election day and whose names appear on the quarterly annuity roll at the Osage Agency as of the last quarterly payment immediately preceding the date of election will be entitled to hold office or vote for any tribal officer. 25 C.F.R Under Part 90, each voter is entitled to cast one weighted ballot based on the value of the voter's headright interest, as reflected in the last quarterly annuity roll. I d. Part 90 2

41 Lase 4:u~-cv-uu<:nts-l GK-1 LVV uocument t>f 1-Jied in u~uc NU/OK on 02/28/11 Page 3 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 3 also assigns to the BIA certain responsibilities for the administration of tribal elections. (Dkt. # 16 at 3). On December 3, 2004, Congress enacted the Reaffirmation of Certain Rights of the Osage Tribe, Pub. L. No , 118 Stat (2004) (the "Reaffirmation Act"). (Dkt. # 2 at 9). In the Reaffirmation Act, Congress specifically found that "[t]oday only Osage Indians who have a headright share in the mineral estate are 'members' of the Osage Tribe." Reaffirmation Act, Pub. L. No , 1(a)(3), 118 Stat. 2609, 2609 (2004). Accordingly, "Osage Indians without a headright interest cannot vote in Osage government elections and are not eligible to seek elective office in the Osage Tribe as a matter of Federal law." Id. 1(a)(4). However, in Section 1 (b)(i) of the Reaffirmation Act, Congress clarified that the term "legal membership," as used in the 1906 Act, "means the persons eligible for allotments of Osage Reservation lands and a pro rata share of the Osage mineral estate as provided in [the 1906 Act], not membership in the Osage Tribe for all purposes." Id. at 1(b)(l). The Reaffirmation Act reaffirmed "the inherent sovereign right of the Osage Tribe to determine its own membership, provided that the rights of any person to Osage mineral estate shares are not diminished thereby." Id. The Reaffirmation Act also reaffirmed "the inherent sovereign right of the Osage Tribe to determine its own form of government." I d. at 1 (b)(2). The Tribe's Action and the BIA's Inaction Plaintiffs claim that the Reaffirmation Act inspired Jin1 Gray, the Principal Chief at the time of enactment, to launch the Osage Nation Government Reform Project. (Dkt. #2 at 10). Plaintiffs allege that the Government Reform Project ultimately led to a "complete overhaul of the Osage Tribal government as it has existed for the past 100 years." Id. at 12. As a part of this "overhaul,'' on March 11, 2006, the Constitution of the Osage Nation was adopted. Id. Plaintiffs allege that all Osage persons eighteen years or older whose name appeared on the Master List of 3

42 Gase 4:U8-CV-UU~$1ts-l CK-1 LVV Uocument bf t-iled in USDC NLJ/OK on 02/28/11 Page 4 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 4 Voters and who had acceptable proof of voter identification, irrespective of headright ownership, were eligible to vote on the adoption of the new Osage Constitution. I d. Plaintiffs claim that the Osage Constitution abolishes the Osage Tribal Council and establishes a Minerals Council that has the authority to manage the Osage Mineral Estate but is subject to the decisions of the Principal Chief and the Osage Nation Congress. Id. at Furthermore, plaintiffs allege that on June 12, 2006, both the Minerals Council and the Principal Chief were elected by a vote of Osage persons eighteen or older who presented an Osage Membership Card and not by headright owners. Id. at 15. Because the Osage Constitution was ratified by, and the tribal officials were elected by, persons who, at least in part, were not headright owners, plaintiffs claim they have suffered a diminishment in the their headright interest in the Mineral Estate. I d. at 17. In an effort to restore his alleged rights as a headright owner, on December 21, 2006, plaintiff Tillman wrote a letter to the Superintendent of the Osage Agency and Regional Director of the Bureau of Indian Affairs ("BIA"), making the BIA aware of the problems connected with the Osage Nation's control of the Mineral Estate and demanding that the Department of the Interior ("DOl") and Secretary of Interior conduct the Osage Tribal Council elections in accordance with the 1906 Act, as amended. 1 Id. at 16. On March 19, 2007, W.P. Ragsdale, the Director of the BIA, responded to Tillman's letter? (Dkt. # 19, Ex. C). Director Ragsdale's 1 The BIA is a bureau of the DOL See 2 Plaintiffs also attached a letter from Melissa Currey, Superintendent of the Osage Agency, to Osage Annuitant Diane Simpkins, who is not a party in this case. (Dkt. # 2, Ex. E). In this letter, dated February 21, 2007, Superintendent Currey stated, "[i]t is the position of the Bureau that the [Osage Nation] Constitution... upheld the intent and direction of the Congress... " Id. The Superintendent further stated that "there is no action to be taken by the Bureau at this time for the concerns outlined in the letter," and that "the Bureau has upheld its responsibilities pursuant to Public Law " I d. Not only is Ms. Simpkins not a party to this case, but also plaintiffs failed to submit a copy of her letter to Superintendent Currey, so the undersigned cannot determine what the "concerns outlined in the letter" were. Thus, the context in which Exhibit E was sent is not clear, and the exhibit, even assuming it is relevant to plaintiffs' claims, is not 4

43 '.Jase 4:u~-cv-uu~::nts-l GK-1 LVV uocument or t-iled 1n u~uc NU/UK on UL/Ltl/11 Page 5 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 5 letter affirmed that the Osage Constitution "upheld the intent and direction of the Congress." I d. Furthermore, the letter stated, "[t]here is no need for the BIA to take any further or new action at this time to protect the Osage mineral estate for those Osages that share in it, which is your concern as a headright holder." Id. This Lawsuit Defendants in this case are the DOl, Ken Salazar as Secretary of the Interior, the BIA, and Larry Echohawk as Assistant Secretary-Indian Affairs. (Dkt. # 2 at 1). On December 30, 2009, plaintiffs filed the present action against defendants seeking a declaratory judgment and a mandatory injunction. ld. at 1 & Plaintiffs assert that the BIA is responsible for administration of the Osage Tribe elections under 25 C.F.R. Part 90 and that the BIA failed to fulfill that responsibility when it supervised neither the ratification of the Osage Constitution nor the election of the Principal Chief and Minerals Council. ld. at 12, 15. Plaintiffs claim that the BIA' s failure to supervise the ratification of the Osage Constitution and the election of the Principal Chief and Minerals Council resulted in a diminishment in the headright owners' interests in the Minerals Estate, because non-headright owners now exercise primary control and authority over the _Osage Mineral Estate. ld. at 18. Plaintiffs also claim that defendants' refusal to administer the elections disenfranchised the headright owners in violation of the 1906 Act and the Reaffirmation Act. ld. Plaintiffs have asked the Court to enter a declaratory judeu1ent of the rights of the parties involved. Id. Specifically, plaintiffs ask the court to declare that: (1) the Reaffirmation Act did not supersede or rescind the 1906 Act, but rather clarified the 1906 Act by differentiating between legal membership in the Osage Tribe and membership in the Osage Tribe for all helpful to the undersigned. In addition, further assuming that the context of Exhibit E is the same as Mr. Tillman's letter, the undersigned's recommendation does not change. 5

44 vase q:u~-cv-uutnt5-l GK-1 LVV uocument bf t-iled in USDC NO/OK on 02/28/11 Page 6 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 6 purposes; (2) the provisions of the 1906 Act with respect to the legal members and the Osage Mineral Estate remain in full force and effect; (3) the right to vote for a Tribal Council member, the Chief, and the Assistant Chief were fundamental and inalienable property rights associated with the ownership of a headright; ( 4) the proportionality between the value of a ballot and the amount of the headright is a fundamental and inalienable property right associated with the ownership of a headright; and (5) the DOl and BIA are required to conduct elections for the Minerals Estate and Tribal Council to manage and control the Minerals Estate pursuant to the 1906 Act and the Code of Federal Regulations. Id. at In addition, plaintiffs seek a mandatory injunction requiring defendants to: (I) conduct an election for a Principal Chief, Vice Chief, and Minerals Council in accordance with 25 C.F.R. Part 90, and (2) take any action necessary to reinstate the Minerals Council and Mineral Estate as separate and independent from the Osage Nation. Id. at Analysis Defendants seek dismissal of plaintiffs' claims on three grounds: ( 1) that the Court lacks subject matter jurisdiction, because plaintiffs failed to exhaust their administrative remedies; (2) that dismissal is required under Rule 19 of the Federal Rules of Civil Procedure, because plaintiffs have failed to join the Osage Nation as an indispensable party; and (3) that plaintiffs' complaint involves an intra-tribal dispute, which is not appropriate for federal judicial review. (Dkt. # 15). Because the undersigned finds that defendants' first argument is clearly dispositive, the other two issues are not addressed. Subject Matter Jurisdiction Defendants argue that plaintiffs' claims should be dismissed under Fed. R. Civ. P. 12(b)(l), because the Court lacks subject matter jurisdiction. (Dkt. # 16 at 2). Federal courts are courts of limited jurisdiction, and parties invoking federal jurisdiction bear the burden of 6

45 case 4:U8-cv-UUt$1~-l CK-1 LW Document 57 Filed in USDC NO/OK on 02/28/11 Page 7 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 7 presenting "evidence sufficient to establish the court's subject matter jurisdiction by a preponderance of the evidence." United States ex rei. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n.5 (1Oth Cir. 1999). Accordingly, plaintiffs in this case bear the burden of establishing subject matter jurisdiction. However, in a case involving claims against the federal government, plaintiffs have the added burden of showing that defendants have waived their sovereign immunity from suit. "[I]t is axiomatic that the United States may not be sued without its consent and the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). See also Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823 (1Oth Cir. 1981) ("It has long been established that the United States may not be sued without its consent."). In this case, it is undisputed that defendants are federal agencies and officers of those agencies. (Dkt. # 2 at 2-3). Therefore, to establish subject matter jurisdiction, plaintiffs must prove that defendants have consented to being sued. Normandy Apartments, Ltd. V. U.S. Dept. of Housing and Urban Development, et. al., 554 F.3d 1290, 1295 (1Oth Cir. 2009) ("The defense of sovereign immunity is jurisdictional in nature, depriving courts of subjectmatter jurisdiction where applicable.") Plaintiffs seek to meet their burden by relying on three federal statutes: 28 U.S.C (2010), 25 U.S.C. 345 (2006), and 5 U.S.C. 702 (2006). (Dkt. # 2 at 3, 18). Specifically, plaintiffs assert that 28 U.S.C provides for the relief they request and that 5 U.S.C. 702 and 25 U.S.C. 345 act as waivers of defendants' sovereign immunity. Id. Defendants argue that none of these statutes allows for jurisdiction in this case. (Dkt. # 16 at 2). 28 U.S.C The Declaratory Judgments Act Plaintiffs argue that they are entitled to seek a judicial declaration of their rights pursuant to the Declaratory Judgments Act, 28 U.S.C (Dkt. # 2 at 18). In pertinent part, Section 7

46 Gase 4:u~-cv-uutntj-JGt\-l LVV uocumeni ot ruea 1n u~ug 1'\JU/Ut\ on ul.tl.on 1 t-'age o or-~~ Appellate Case: Document: Date Filed: 10/14/2011 Page: (a) states: In a case of actual controversy within its jurisdiction,... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Id. However, as defendants point out, Section 2201 does not create an independent basis for jurisdiction. Amalgamated Sugar Co., 664 F.2d at 822 ("It is settled that 28 U.S.C does not itself confer jurisdiction on a federal court where none otherwise exists. That statute... does not extend subject matter jurisdiction to cases in which the court has no independent basis for jurisdiction."); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) ("[In adopting the Declaratory Judgment Act,] Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction."); Monks v. Hetherington, 573 F.2d 1164, 1167 (loth Cir. 1978) ("[T]he declaratory judgment act does not confer jurisdiction."). The Declaratory Judgments Act merely creates a remedy in cases otherwise within the court's jurisdiction. Amalgamated Sugar Co., 664 F.2d at 822. Accordingly, Section 2201 does not confer jurisdiction on this Court and cannot be the basis of the remedy sought by plaintiffs, unless plaintiffs also establish that either 5 U.S.C. 702 or 25 U.S.C. 345 provides an independent basis for jurisdiction. 25 u.s.c. 345 Plaintiffs next assert that 25 U.S.C. 345 confers subject matter jurisdiction in this case. (Dkt. # 2 at 3). Section 345 provides: All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; 8

47 l..ct!::ie Lf:Ut1-cv-uutnt5-l GK-1 LVV Uocument tjf 1-iled in USDC NO/OK on 02/28/11 Page 9 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 9 and said district courts are given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant)... Id. The Supreme Comi has interpreted Section 345 to grant federal courts jurisdiction in "two types of cases: (i) proceedings 'involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty,' and (ii) proceedings 'in relation to' the claimed right of a person of Indian descent to land that was once allotted." United States v. Mottaz, 476 U.S. 834, 845 (1986) (quoting Section 345). However, the Court further stated that "[t]he structure of 345 strongly suggests... that 345 itself waives the Government's immunity only with respect to the former class of cases: those seeking an original allotment." Id. at See also Affiliated Ute Citizens v. United States, 406- U.S. 128, 142 (1972) ("Allotment is a term of art in Indian law. It means a selection of specific land awarded to an individual allottee from a common holding.... Section 345 authorized, and provides governmental consent for only actions for allotment.") (citations omitted); Harkins v. United States, 375 F.2d 239, 241 (loth Cir. 1967) (finding that "Section 345 gives no general consent of the United States to be sued even in connection with its administration of allotments"). Plaintiffs do not seek an original allotment. The Osage lands and the minerals which are the subject of this dispute have already been allotted. As plaintiffs state in their complaint, "the 1906 ii:..ct, among other things,... allotted Osage lands ( 2) [and reserved] mineral rights to the Osage Tribe in the allotted lands ( 3)..." (Dkt. # 2 at 3). Plaintiffs' claims arise out of "the interests and rights of the Indian[s] in [their] allotments or patents" after they have acquired them. Mottaz, 476 U.S. at 845. Therefore, plaintiffs' claims relate to the administration of their allotments. As a result, Section 345 does not confer subject matter jurisdiction in this case. 9

48 va:st:: t.u~-lv-uuo 1 o- 1 \.A\.- 1 LVV uocumen1 ::Jt ruea 1n u~uv 1\IU/Ut\ on ULIL~rl 1!-'age 1 u ot 1 ~ Appellate Case: Document: Date Filed: 10/14/2011 Page: 10 5 U.S.C The Administrative Procedures Act Finally, plaintiffs assert that jurisdiction exists under the Administrative Procedures Act, 5 U.S.C. 702 (the "APA"). (Dkt. # 2 at 3). The APA provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensible part';. 5 U.S.C Another District Court Judge from the Northern District of Oklahoma recently quoted the Tenth Circuit in holding that the APA "provides a 'general waiver of sovereign immunity in all civil actions seeking equitable relief on the basis of legal wrongs for which government agencies are accountable."' Gilmore v. Salazar, No. 10-CV-0257-CVE-PJC, 2010 WL , at *5 (N.D. Okla. Sept. 21, 2010) (quoting United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 549 (loth Cir. 2001)). Nonetheless, the APA also provides that "[ n ]othing herein [] affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground... " 5 U.S.C Thus, although Section 702 states that an action in federal court seeking relief other than money damages shall not be dismissed because the United States is a party, the statute also tnakes clear that other statutory qualifications or limitations on judicial review apply. I d. Such a qualification is found in 5 U.S.C. 704, which states, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." In United Tribe of Shawnee Indians, the Tenth Circuit interpreted Section 704 to make "agency action [] reviewable in two instances: when it is 'made reviewable by statute' and when it constitutes 'final agency action for which there is no other adequate 10

49 va,::,c; <-t.u;:~-l,.,v-uvo 10-1 vi"\.- I LVV UUGUJrterH '0/ r11e0 In U~UC, 1\JU/Ut\. On UL/Lt5rl 1 t-'8q8 11 Of 18 Appellate Case: Document: Date Filed: 10/14/2011 Page: 11 remedy in court."' 253 F.3d at 549. Since the BIA's actions are not "made reviewable by statute," plaintiffs must establish that their claims fall under the "final agency action" provision of Section "Agency action is not final until a party has exhausted all available administrative remedies prescribed by statute or an agency rule." Gilmore, 2010 WL at *6. "If exhaustion of administrative remedies is required by statute or agency rule, a federal court may not assert jurisdiction over a case until the party seeking judicial review has exhausted his administrative remedies." Id. (citing White Mountain Apache Tribe v. Hodel, 840 F.2d 675 (9th Cir. 1988) ). Courts apply the doctrine of exhaustion of administrative remedies because doing so: [A]ffords administrative agencies an opportunity to correct their own errors prior to judicial intervention, thus mooting many issues before they reach the courts. The exhaustion requirement also serves to maximize efficient administrative process by preventing repeated judicial interruption. Additional reasons for the exhaustion doctrine include respect for "notions of administrative autonomy" and an interest in preserving the effectiveness of agency operations, which could be threatened by "frequent and deliberate flouting of administrative processes." Gilmore, 2010 WL at *6 (citing St. Regis Paper Co. v. Marshall, 591 F.2d 612 (loth Cir. 1979)). "Exhaustion serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." Shawnee Indians, 253 F.3d at 550 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992) (internal quotation marks omitted)). Here, defendants claim that judicial reviev; under the i\.p A is not appropriate, because plaintiffs have not exhausted their administrative remedies as required by Section 704. (Dkt. # 16 at ). Plaintiffs do not dispute that they have not exhausted their administrative remedies. (Dkt. # 19 at 9). Instead, plaintiffs claim that exhaustion is not required in this case 3 As discussed supra at 8-10, plaintiffs attempt to rely on 25 U.S.C. 345 fails, because this case does not involve an original allotment. Plaintiffs offer no other statute under which the BIA' s action are reviewable. 11

50 L..ase 4:u~-cv-uut5H:>-I LK-1 LVV uocument or t-llea 1n u~uc NU/UK on UL/Ltl/11 1-'age 12 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 12 because: (1) plaintiffs seek review of a final agency decision under the APA; (2) plaintiffs' claim involves pure questions of federal law; and (3) exhaustion would be futile. I d. As to the first argument, plaintiffs cite Vann v. Kempthome, 467 F.Supp.2d 56 (D.D.C. 2006). In Vann, the district court held that final agency action "need not be the last administrative action contemplated by the statutory scheme. Rather an agency action is final where rights or obligations have been determined or from which legal consequences will flow." Id. (rev'd and remanded on other grounds). Plaintiffs claim that the BIA's decision in this case is "unequivocally final," because plaintiffs "have suffered and continue to suffer irreparable harm as a result of the BIA' s unwavering position." (Dkt. # 19 at 11 ). Thus, plaintiffs argue that exhaustion is not necessary in this case, because "[ c ]ourts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become 'final' under [the APA]." (Dkt. # 19 at 11) (citing Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 2548) (1993). However, the context of the Supreme Court's statement in Darby is important, since the Court was considering whether or not courts could impose "additional exhaustion requirements beyond those provided by Congress or the agency" in a situation where all administrative appeals mandated by th.e applicable agency had been exhausted. Id. The Court framed the issue as follows: The last sentence of 10( c) refers explicitly to "any form of reconsideration" and ~~an appeal to superior agency authority." Congress clearly was concerned with making the exhaustion requirement unambiguous so that aggrieved parties would know precisely what administrative steps were required before judicial review would be available. If courts were able to impose additional exhaustion requirements beyond those provided by Congress or the agency, the last sentence of 10( c) would make no sense. To adopt respondents' reading would transform 10( c) from a provision designed to "'remove obstacles to judicial review of agency action,"' Bowen v. Massachusetts, 487 U.S., at 904, 108 S.Ct., at 2737, quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 593, 99 L.Ed. 868 (1955), into a trap for unwary litigants. Section 10( c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency 12

51 Gase 4:u~-cv-uutnts-l GK-1 LVV uocument or ruea 1n u:::>ug 1\IU/UK on UL!Ltsn -~ t-'age 1~ or 1~ Appellate Case: Document: Date Filed: 10/14/2011 Page: 13 rule; it would be inconsistent with the plain language of 1 0( c) for courts to require litigants to exhaust optional appeals as well. Id. at , Thus, the Court, in Darby, reaffirmed its view that a litigant must exhaust "all intra-agency appeals mandated either by statute or by agency rule" before filing a lav;suit in federal court. Id. The Tenth Circuit's interpretation of the.a..pi:\~ is no different: "if an agency decision is subject to appeal within the agency, a party must appeal the decision to the highest authority within the agency before judicial review is possible." Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (loth Cir. 1994) (interpreting 25 U.S.C. 2.6(a)). Here, the DOl has "instituted an administrative procedure [for the BIA] by which a party may challenge the Secretary's inaction concerning a particular issue." Coosewoon, 25 F.3d at 925. Specifically, 25 C.P.R. 2.8(a) provides as follows: (a) A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, can make the official's inaction the subject of appeal, as follows: (1) Request in writing that the official take the action originally asked of him/her; (2) Describe the interest adversely affected by the official's inaction, including a description of the loss, impairment or impediment of such interest caused by the official's inaction; (3) State that, unless the official involved either takes action on the merits of the written request within 1 0 days of receipt of such request by the official, dr establishes a date by which action will be taken, an appeal shall be filed in accordance with this part. Id. The regulations further provide that the official receiving the appellate ~~request must either make a decision on the merits of the initial request within 10 days from receipt of the request for a decision or establish a reasonable later date by which the decision shall be made, not to exceed 60 days from the date of request." 25 C.P.R. 2.8(b). If the official neither makes a final decision, nor sets a date on which the decision shall be made, the official's inaction is then appealable as set forth in the regulations. Id. 13

52 Gase 4:U8-cv-uutn tl-1 CK-1 LVV uocument ~~ I- lied m U~LJC NLJ/UK on 02/28/11 Page 14 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 14 The DOl's regulations also address the issue of finality, which is a separate consideration from that of exhaustion: No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department [of Interior], shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. 704, unless v1hen an appeal is filed, the official to \Vhom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately. 25 C.P.R Thus, the DOl's regulations establish a procedure for appealing a BIA decision and infom1 the public as to when a BIA decision is considered "final." 4 Here, plaintiffs failed to follow the DOl's regulations. In December, 2004, one plaintiff wrote to "the BIA Superintendent[,] Melissa Currey[,] and BIA Regional Director, Jeanette Hanna, to advise them that the 2006 Election" did not comply with federal law. (Dkt. # 19 at 6). In the letter, this plaintiff argued that "the office of the superintendent is not providing the oversight and support required by Pederallaw" and made an "urgent request that [the BIA] take immediate steps to rectify the unlawful situation currently existing, as a result of [the BIA's] failure to hold elections as required by Pederallaw." (Dkt. 19, Ex. A). The letter also "urgently request[ed]" that the BIA officials "uphold [their] duty, as trustee, in the management of all matters concerning the Osage Mineral Estate including elections, leasing, royalty revenues, and the claims of the annuitants... " I d. Plaintiffs do not claim to have taken any other steps in the administrative process. Although the letter to the BIA officials satisfied the requirements listed in 25 C.P.R. 2.8(a)(l)-(2), it failed to satisfy the requirements of Section 2.8(a)(3), which requires that the request "[ s ]tate that, unless the official involved either takes action on the merits of the written request within 10 days of receipt of such request by the official, or establishes a date by which 4 Plaintiffs do not challenge these regulations. 14

53 va~e t+:u~-cv-uutn~-1 GK-1 LVV uocument bf riled 1n U~LJC NLJ/OK on 02/28/11 Page 15 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 15 action will be taken, an appeal shall be filed in accordance with this part." 5 Furthermore, even if the letter satisfied the requirements of Section 2.8(a)(3), the agency's response, or lack thereof, would still not represent a final decision, since 25 C.F.R. 2.6(a) provides that any decision which is subject to appeal to a superior authority is not final. Instead, the agency's alleged inaction would have provided plaintiffs with the right to seek further review from the next agency official identified in the regulations. "[P]laintiffs should have made a formal request for the Agency to consider their request for BIA action and, if that was unsuccessful, should have pursued an administrative remedy with a higher-level official at the BIA." Gilmore, 2010 WL at *10. Because the decision at issue was "subject to appeal to a superior authority," and because plaintiffs failed to pursue that appeal, the decision it is not a final decision and plaintiffs have not exhausted their administrative remedies. Thus, the BIA's decision is not eligible for judicial review. 25 C.P.R Nonetheless, plaintiffs argue that the BIA's decision "not to conduct the 2006 Election" was a final agency decision, because it was not made "inoperative pending appeal." (Dkt. # 19 at 10). In support of this argument, plaintiffs cites Oregon Natural Desert Assoc. v. Green, 953 F. Supp. 1133, 1141 (D.Or. 1997). In Green, the district court relied on Darbyv. Cisneros for the proposition that "in the event an agency rule requires appeal before Oudicial] review, the agency rule must also provide that the administrative action is made inoperative pending that review." 5 On Jan. 19, 2011, plaintiffs also filed a Motion to Require Federal Defendants to Supplement Administrative Record, attaching as exhibits several more letters. (Dkt. # 51.) These exhibits include letters attached to previous filings and two new letters from persons who are not parties to this case (Dkt. # 51, Ex. 1.) As with the letter to Diane Simpkins, discussed supra n.l, plaintiffs have not attached the letters which were sent to the BIA. Furthermore, defendants assert, and plaintiffs agree, that these newly attached letters do not satisfy the requirements of 25 C.F.R. Part 2. 15

54 Case 4:09-cv TCK-TLW Document 57 Filed in USDC NO/OK on 02/28/11 Page 16 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 16 Id. (citing Darby, 509 U.S. at 154). 6 Plaintiffs argue that because "the BIA's decision not to conduct the 2006 Election became final when it did not in fact conduct the 2006 Election," the decision was not made "inoperative." (Dkt. # 19 at 1 0.) Accordingly, plaintiffs contend that exhaustion of their administrative remedies is not required here. Plaintiffs' argument is misplaced. In Green, the plaintiffs "appealed the River Plan to the Interior Board of Land Appeals... and that appeal [was] pending." ONDA, 953 F.Supp. at Here, plaintiffs have made no appeal at all, so there is no appeal pending. Thus, even assuming that the BIA's decision, as characterized by plaintiffs, was a final agency decision, plaintiffs' decision not to appeal deprived the BIA of any opportunity to make its decision "inoperative." Requiring an agency decision to be made inoperative even when no appeal has been made would be nonsensical. Moreover, the agency "action" in this case is very different from the "action" contemplated by the court in Green. In Green, plaintiffs sought to enjoin the Bureau of Land Management from implementing a river management plan that would permit specific activities in the Donner and Blitzen River system. 953 F. Supp. at The plaintiffs sought to forestall "further implementation of the activities authorized in the river management plan." Id. Here, plaintiffs are not seeking to enjoin the BIA from engaging in certain activities. Rather, plaintiffs seek to require affirmative action from the BIA, wanting the BIA to "[ c ]on duct an election for a Principal Chief, Vice-Chief and 1vlinerals Council." (Dkt. 2 at 19.) Further, plaintiffs do not explain how the BIA' s action in "refusing to administer the election for ratification of the Osage 6 Although Darby discusses the requirement that agency decisions be made inoperative on appeal, that issue \Vas not at question in the case. Instead, Darby considered "v1hether federal courts have the authority to require that a plaintiff exhaust administrative remedies before seeking judicial review under the [ AP A], where neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review." Darby, 509 U.S. at

55 case 4:U8-cv-UUtl1H-I CK-1 LW LJocument 57 t-iled in USLJC NLJ/OK on 02/28/11 Page 17 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 17 Nation Constitution, refusing to conduct the election of the Tribal Council and otherwise refusing to acknowledge the Mineral Estate..."could be made inoperative. (Dkt. 2 at 18.). Finally, plaintiffs argue that "the pure statutory nature of the[ir] claim coupled by the undisputed nature of the facts in the case" render any administrative appeal either unnecessary or futile. Id. at 13. Plaintiffs also argue that exhaustion would be futile, because "the agency has repeatedly stated its position and shown no signs of a willingness to reconsider." Id. The Tenth Circuit has recognized that exhaustion may not be required when administrative remedies would be futile. Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720, 724 (loth Cir. 1996). However, the Tenth Circuit explained that "[a]dministrative remedies are generally futile or inadequate when plaintiffs allege structural or systemic failure and seek systemwide reforms." ld. at 725 (citing Assoc. for Cmty. Living in Colo. v. Romer, 992 F.2d 1040 (loth Cir. 1993) (internal quotations omitted)). Alternatively, administrative remedies may be futile when there has been "a preannounced decision by the final administrative decision-maker" or there is "objective and undisputed evidence of administrative bias which would render pursuit of an administrative remedy futile." White Mountain Apache Tribe, 840 F.2d at In this case, plaintiffs' do not assert the presence of any "systemic failure." Neither do plaintiffs challenge the DOl's regulations regarding administrative appeals. Rather, plaintiffs merely claim that the BIA has failed to perform a duty required by a federal regulation. (Dkt. # 2 at 18). Further, there has been no "preannounced decision by the final adn1inistrative decisionmaker," and there is no "undisputed evidence of administrative bias." Although plaintiffs cite to letters from the Director of the BIA and the Superintendent of the Osage Agency 7 to show that the department had an existing position, plaintiffs have not shown that "[t]he Secretary of the 7 As discussed supra n.1, the letter from the Superintendent of the Osage Agency is not addressed to a plaintiff in this case. Furthermore, plaintiffs failed to submit a copy of the letter to which the Superintendent is responding, so the precise context of the letter is not clear. 17

56 L.a:se q:utj-cv-uutn~-ll.a\-1 LVV uocument bf t-iled in USDC NO/OK on 02/28/11 Page 18 of 19 Appellate Case: Document: Date Filed: 10/14/2011 Page: 18 Interior has [] made a definitive statement concerning the [] decisions at issue." Begay v. Pub. Serv. Co. ofn.m., 710 F.Supp.2d 1161, 1205 (D. N.M. 2010) (quoting White Mountain Apache Tribe, 840 F.2d at 678). "Thus, [plaintiffs] ha[ ve] not demonstrated that administrative remedies in this case are futile." Id. Moreover, contrary to plaintiffs' position, exhaustion of administrative remedies is required in cases involving "questions of statutory interpretation." Olsen & Co. v. Sec. & Exch. Comm'n, 546 F. Supp. 272, 273 (D. Utah 1982) (citing Aircraft and Diesel Equipment Corp. v. Hirsch, 33-1 U.S. 752, (1947)). In fact, the Tenth Circuit has recognized that "[a]gency review... prior to judicial consideration is desirable even where pure questions of law are concerned, in order to provide the court with the benefit of the agency's considered interpretation of its enabling authority" and to "preserve[] the opportunity for the agency to correct an illconceived regulation and moot the issue without judicial interference." St. Regis Paper Co. v. Marshall, 591 F.2d 612, 614 (1Oth Cir. 1979). Accordingly, the fact that this case may involve statutory interpretation does not create an exception to the exhaustion requirement. Recommendation The undersigned RECOMMENDS that defendants' Motion to Dismiss ( dkt. # 15) be GRANTED and that all remaining motions (dkt. ## 28, 29, 51) be DENIED as moot. Objection In accordance with 28 U.S.C. 636(b) and Fed. R. Civ. P. 72(b)(2), a party may file specific written objections to this report and recommendation. Such specific written objections must be filed with the Clerk of the District Court for the Northern District of Oklahoma by March 14, If specific written objections are timely filed, Fed. R. Civ. P. 72(b)(3) directs the district judge to: 18

57 va;:,~ 't.u:j-vv-uuo I o- I vi"\.- I LVV UUGUHJerll 0/ In U~Ul.. I'JU/Ut\ On UL/Ltlrl 1!-'age 18 Of 1 ~ Appellate Case: Document: Date Filed: 10/14/2011 Page: 19 determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. See also 28 U.S.C. 636(b)(l). The Tenth Circuit has adopted a "firm waiver rule" which ~~provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of factual and legal questions." United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (loth Cir. 1996) (quoting Moore v. United States, 950 F.2d 656, 659 (loth Cir. 1991)). Only a timely specific objection will preserve an issue for de novo review by the district court or for appellate review. SUBMITTED this 28th day offebruary, T. Lane Wilson United States Magistrate Judge 19

58 Case 4:09-cv TCK-TLW Document 60 Filed in USDC NO/OK on 03/31/11 Page 1 of 1 Appellate Case: Document: Date Filed: 10/14/2011 Page: 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA CORA JEAN JECH, et al., v. Plaintiffs, THE UNITED STATES OF AMERICA, et al., Defendant. ) ) ) ) ) ) ) ) ) Case No. 09-CV-818-TCK-TLW ORDER OnFebruary28,2011, Magistrate Judge T. Lane Wilson filed a Report and Recommendation ("Report") wherein he recommended that Defendants' motion to dismiss (Doc. 15) be granted and that all other pending motions (Docs. 28, 29, and 51) be denied as moot. Now before the Court is Plaintiffs' objection to the Report (Doc. 58) and Defendants' response thereto (Doc. 59). Pursuant to Federal Rule of Civil Procedure 72(b ), the Court has reviewed the record de novo. After thorough consideration of both it and Plaintiffs' objection, the Court finds no reason either in law or in fact to depart from the recommendation set forth in the Report. Therefore, Plaintiffs' objection (Doc. 58) is overruled, and the Report (Doc. 57) is affirmed and adopted as the Order of the Court. Defendants' motion to dismiss (Doc. 15) is GRANTED. All other pending motions (Docs. 28, 29, 51) are DENIED as moot. SO ORDERED this 31st day of March, TERENCE C. KERN UNITED STATES DISTRICT JUDGE ATTACHMENT 2

59 Gase 4:u~-cv-uu~n ~-I GK-1 LVV uocument t>1 t-iled 1n u~uc NU/UK on U~/~1/11 Page 1 of 1 Appellate Case: Document: Date Filed: 10/14/2011 Page: 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA CORA JEAN JECH, et al., v. Plaintiffs, THE UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) " ) ) ) ) ) Case No. 09-CV-818-TCK-TLW JUDGMENT OF DISMISSAL By Order entered this date, the Court dismissed Plaintiffs' claims. (See Doc. 60). Accordingly, a judgment of dismissal is hereby entered. SO ORDERED this 31st day of March, TERENCE C. KERN UNITED STATES DISTRICT JUDGE ATTACHMENT 3

60 Appellate Case: Document: Date Filed: 10/14/2011 Page: 22 FlF''l'Y-NJ.NTH CONGRE~S. 8E88. I. VHS. 3lS OB.AP. 3560,-.t\n.t\\~t 1'o "mend section twunty.elght hundred and forty-four Jun1.128, of tho Hu\'U:wcl t:;tntuto.:l of the Unilcll Stnttl8 1 and to prtl\ ide for an nuthenu~tlon of- - ~ ~ l\j 7 Ml~!... in\'oit..'t.'tt of rnen:lumtliho t~hlppml to tho Unltt cl Stute!;! from tho PhiUJlplne Islands.!J'uhlh:, Nu.lllH.J BtJ lt trmwtt:c./. by t!..tt ~...~'trnato and 1/oul:ltJt;'/~ Reprtllltmtatlves oft!uj Unitt:d A)'tlltt:8 tf(... imt:'l't.'ca /n (_(m~1't:.. : WNJt'JJIUt'd, Thnt. ~:~ection numbered w~~~~~;~.-.!14-&,jt.;.;,j, twenty-u1ght hundred nnd lol'ty-fom of the Htwtsed Statutes of the tujwn,jt~,l. l~ nitml Stutel!4 is hot eb, lllll~ih.lml hy mlding thet etu the following: 1 1 rovldedl That tho milhentieut.iorl muy he wad() by the collector or u i't~!i~;~~~!~: 1111 " 1111 In deputy collector of eustom8 in the eustl of merchandise ~;hipped to the United ~t:atm~ from tho Philippine l!-ilnnds." Approved,.Junn 28, lhotl. CHAP An Ad To nnthorize thtj ~Jonongnhda Connecting Rnilrond Corupany to l'oniltrud.a hrid:,_'l.~ ncroh!'! thul\lononguheln River in t.he Stutc of Pemu~yl\'auiH. J uuo 211, 1\IUII. Ill. H. 1~.] [J'ublfc:, No. ln!l.] BrJ it t:lulcttd O!f tltt~ Senate and IIotUirJU,t' Reprat.: ntat ives 'if the Un.itt:d,\'tatt'H u,f...:lmt:j lcu /-n Coug1'e88 f188tjjjtbled, That the lhonongu.helu. Con- 1\lonungahcla ruvcr. nceting Haill'oud (;ompany. n corporation org1mi.zed undm the lav;8 of m!~:i!:~~~~r=dgg~:: the St.at.e of Pennsyhranin, its stll'eessors n.nd nssigns. h ~, and they nre f, 1 \1 ~b~nypbt'ldgo,~~.t hereby: authorized tu construct. mui nb1in, and operate 11 bridge ami rg, n. npprmwhes thereto ueros~ the Monongahela H.ivet' at Pittsbm g, from u point ou the north short~ betwe(~n H11Z1owood avenue nnd the GIPil woud bighw::.v bridge to u point on the south ~hom in the town~hip of B11ld win or the township of Lmnw :;uiut Clnir, iu Allegheny County, in the State of Penns_yhanio., in ue, or dunt e with the provisions of tho -~nte, P s-t. Act entitled HAn Act to regnlute the construction of by jdges m er uadguble wuten;," approved l\jur( h twenty third, nineteen hundrt~lt nrh.l.::~ix. ~~-~o. 2. Thnt the right to alter, uuwnd, or repenl this Aet is hereby.amendment. expressly resented. Appro\ ed, June ~8, CHAP. 3~71.-An..:\etTo uuthorize tho board of supcrvil-lor:o~ of Sunflow~rCounty, :;\lishikbippi, to eonstrud 11 bridge acroi'ih Huntlower River..Tune 28, [U. R. 1\l&'ri.J [J'nblll', No. S:...l().J Btl it enacted by tlu1 Senate and llmt8t~(~l Repre.."le.Jiia.thJe,~oft!ttJ On tt:.d Slutrw of...-lmr:.l'tt'(f. :n timgrtjbij lui8t-tjjtmt:d, That the board of 1!1Upcr - Suuf1owcr IUvcr. ' 'f '-.:! l.l C t ~1 ' ' b ] tl h b ~unflnwt r County, nsurs o ounuower oun y,.l.l' ls~ll':lslppt, e, unc: wy nr e ere y, ~~~~<-..., muy bridge, 111 thor-ized tu l'uostrud, maintain. and operate 11 bridg-e und approaches Lchrton. thprdu ucross the Sunflower H.in r at I.Jelu ton, in Suntlower County, in the State of.mi~:;sissippi~ in ucrordnnce with the pro, isions of the Antt, p. 84. Ad entitled ~~An Act to n:gnlrlte the l~oustl'i.wtion of bl'idges over narig-nl.jie waterl':l," approved 1rlureh t.wenty-third~ nineteen hundred nml ~ix. -- H~t~c. 2. Th11t the right to alter, umend, or repeal thil':l Act is hereby Amendment. expressly rc.served. Appr on~cl,.j nne 2H, CHAP An.Act For the division of tljo lnm1h n.wl funtls ofthe Osage Indlnn~ in Oklahomu. Territory, and for other purposes. Jnnl\ 2H, [H. R ) [Publ!c, Xll. 321.] Be it ~~nacted by the Rt..>'lwte and 1 lm.t.se of Rep1 esentat ifvea R.ft!uJ United Sta.te.'l o.f.. llmr."'l'l:cn. /n Couqre.'!S {!.88t:mbled, Thut the roll of the Ol:iuge OHnge Indlnns, tribe of Indian~, RS shown' hy the recur d:-~ of tbp. Unitt 'd t;tates in the 0 l~(~:lalon of 1.rtbnl ofiice of the U nit.ed St.ntes lndiun ngent nt the Osuge Agency, Okla- la~~i~\ciuu. ATTACHMENT 4

61 Appellate Case: Document: Date Filed: 10/14/2011 Page: :FI}"''TY-NlNTH CONGU.Ji~S~. SENS. L Cn. 35d. IHOu. homn. 'ft.writory, ns it uxh;ted on tho fir:;t du.y of.jnnuury, uiuetoo1t hundl"od and six, nml ILll {lhildl eu bot n betwmm.lunuul")' Hrt-it, niueteon hund1~cd uud six, twd.july 1irHt, nineteen hun.dt od 1~11d r.~e\'bn, tu pm sons wlioso munes um on salci roll on.janmu y fil"r;l, 111neteen hun. dred nnd six, and llll ehildt on whoso rutujlij:j al'e not now on l':lllirl roll, but who woro born to mcmhers of the tribe whoso JlllliW/'0 W(!J'H on tho ~mid roll on J1umary first, nineteen hundred aml ::;ix, inchuling the ehildrun of momhers of the tribe who huve, ot han~ lmd, white hw;. bands,ishereb:y tledrlred to ho the ro1l of snid tl'ibe nud t.o c onhtitutp the ~~~~~~;lant n- log11.l membel,'s'bip thereof: l~rum'rled, That the prhwipo.l chit 3 f of t.he lhjut. euro Ostl.bJ'CH sh"ll, within throe months from and 1\fter the nppro\ nl of thih Act, tile with tho Secretnry of tho Interior fl Hst of the llllllle~ which the tribo clnims wem placed upou the roll by fruud, but no mmw ahull be indudeu in said lit;t of any per8on or his dp.scendu.nt~ that WILS p]nced on ~mid roll prior to the tlurty-firht du.y of December, l~ighteen hundred uud eil!ht.y one, the dnte of the adoption of the Osn.ge eonmtitution, and di'e ~eeretu.ry of the Interior, as en.l'ly as pr 1wtieuhlc, shall curefully inve~tig-nte such cu.semnnd shall determine whil'h of :;aid persons, if any, are entitled to enrollment; but the tribe must ultirml:ltively show whu.t uames ha\'e heen placed upon said roll b_y fruud; hut where the rights of persons to enrollment to the Osage roll huve been ith e~:~ti.b.-ated by the Intel'ior Departim.mt and it hns been determined hy the Secretnry of the Interior thnt litwh per sons w~re l ntith d to enrollment, their nn.nms shllll not be stricken from the t o1l fo1 fmud except upon newly disco\'th'ed evidence; and the Secret.nry of tho Interior "'bull han3 authority to plncu on the Osage roll the muues of nll persons found by him, ufter investigation, to be so entitled, who.-.;e npplicntions were pending on the date of lhe tlpprovn.l of t.hh; Act: und the Revl!!lon of roll. onid Secl'etnry of the Interior is hereby authorized to strikn from ~he suid roll the namp..s of persons or their c'ie.scendnnts whieh ht~ limb wer o )Jinced thereon by o1 through fm.ud, nnd tho ~nid roll n::; nho, e proyided, nft.er the revho~ion aud n.pprov1a:l of the Hect etury of tim Interior, as her ein pr ovitlcd, shnjl com~titnte the nppr oved t nll of ~aid tribe; Ptwl.!liun ol &t'cn... nnd the action of the Secretary of the Jnterior in the revi.sin11 of the t.nv;.rn~\.. so.<.. rolln!'! het ein provided shall be iinn.l, and the pro\'i~ioh;-; nf the Act of Congt ess oi August fifteenth, eighteen hundretl nml ninety-four, Twenty-eighth Stntntes nt Ln.rge, pnge threo hundred and tin'. grunting p'}r:;ons of lndian blood who hnvc heen denied nllut.meutl':! the l'ight to uppcnl to the court~, nrc hereby repealed ns ftu a~ tlw :-;nme relnte to the o~uge lndinns; nnd the tril:ml land8 and tribal fund~ of ~ ldd t1 ibc Hhull he equally divided umong tho member:::; uf :-;ni1l tj ibr. as hereinafter prodded. fll\'lslou or hlllll><. SEC. 2. Thnt all lund::~ belonging to the Osage trihe of Iudian::; in Oklnhonm Territory, except a::; heroin provided, :;hull he dh ided Fi.,.l!lt'it c ticm, Filiug llulic-1". Thor!limlt. Prm um~. Hullllt"ntlrm. nmong- tho memhcrh of ~n.iu tt ihe, gid!!g to euch hit: or!wr fni1 ;-;hare t.hercof in uc rcl:l~ tl8 fo1lows: Fir::;t. Each nwmber of sttid tribe, a~ shown by thn roii of memher :;hip mnde up n~ het ein provided, :;h.nll he permitted to l'elt et one hundred nnd sixty nct'«'h uf land ns a tir::~t selection; and t.l.1c' uuult nwmbe1 s shnll sele:.~ct tht:>ir lirst seleetiow; llnd file not.ieo of the ~arne with the C nited Stn.tes lnrlinn u.gent fur the Ot~uge!:i within thrt e months 11fter the apprm ul of this Act: }Jruv/dtHl, That nll selection!:! of lnnjr heretofom. mnde by nny member of said tribe, ugainst \"hich no contest is pending, be, nnd thn :;ame nre hor eb)r, rntitied nnd contirnwd as one of Fullur~ 1 " Ht>lec r. thp ~elcdions of :-~uch membrw. And if any adult mpmbt t fnil~, refwml':!, ur i:-; unn.ble to nmke :-;uch ~ele<.'tion within suid time, then it shall be the duty of the C"nit.ed St.ate~ Indian n.gent for tlh) 0:-;ageg to make :-;nr:h Helection for!:lli.ch member or members. Hubject to the approval of Fi.,.t!wl"t~tlon11 f r the Secretary nf the I utm ior. Thnt all said :first seleetions for minors.-.:hall he mnde h,,. tho U nhecl States Indian agent' for the Osn~es, sub- ninon-.

62 Appellate Case: Document: Date Filed: 10/14/2011 Page: 24 FI F'l'Y -N lnth CONU ltess. th!ss. l. Cu. 357i. 1\)IJU. jeet to thu n.pprovu.l of tlw :-;llcl'oull',\' of tlu~ lutel'ior: l)i'oi!i d,.,7. Thut Ptirl!l(lt ruu)' "'' 1 '"'L ~-..id tit s.t..~olm:1tiow~ fot tuiuor:; hu.ving pnl uut~ tllll\' hll umdc! '' '" tiuid pau'\mts, u.nd tlu~ wm d "'lllinot '' oa miuor..;" used fu ~-hh; Aet. dudllh~ hold to me m tho~o who Ul'll undtll' t.wtmty-ouo.vmu M of t~g'll:.l uti,,.,. l'hu~:.. t o;.,h!dicm. -~ i.dt!tl.jitl'lhr.l', Thnt tdl chililrun lma u to momhm r:~ of ~uid tril.lb lwtwl't!ll.jtuhll1l'v tirst. ninotoon bunda ed nnd six, und tlw lir~t un \' of.i tlltlllll'\", ninekoil hnmh't1d und :i Wl'n, shull hn\'o theia sl'let!tithjh rijudt~ fllt' tlu:ul within ~ix months n.fttn npprornl of this.\ct~ ot \dlhiu :.;ix llhtiithl'l nfter tlwir l'l~::;peeth e bh tlu;. Thut all r.hildt un horn to memhpi'~ of stud tl'ibfl on n.nd after tiw Jir:;t dny of.ltumury, nineteen hmidn d nnd Htweu, und h(~fore the tir:.;t dn\ of.jnlv, nineteen huudt t d alltl l'it'\'t n, shall llll\'e tbeil :~elections Imtde fur thmu on Ol' bofot c tlw ln:-:t dn r of July, nineteen hundn~d nud St!\'t'll, tho proof of hir t h of ~m.h I' hi l(hl'll tu bu mmlo to the United StntP:-; lndiu.n u.gent foa the Osages. Secontl. Thn.t ia1 umking hi~ or her fil'st I'Wioction of land, 11~ IH rtdn l'ritir rl~ht" proprovided for, n. mmnbet :o;}mlf not he permit.ted to :;oihd lund ulj't'atly t ll'1 seledecl hy, or in posaession of. tmuthnr memhpt' of suid tribe n~ u '"ir:4 :-~eledion, unles~ sueh other member is in,poshl'sl:don of moro Iuud thun hn und his family are entith.. ~d to for tir:-;t sole:,ctions und~r t.his Ad~ nml in l'iuch euse~ the menrbea in po~sel'l:o;iou nml hn.\'ing ho11ses, m t bards, hnrus. or plowed land thereon shull luwe the prio1 right to umk.t the tir~t :sclectwn: l~nmided That where membet'h of the tribe uri' in po:-:- J"rm i.!uj. :st~~sion of more land tlmu tlwr HI'P tmtitled to for first St'lt ctton... u.~.~~~l"'llnrlmpro\ ehoj t~in, suid mean))(ll's shull }m, e ~ixty dun; ttftcr the nppl'o\ u.l of thi..; Act to dispose of tho iinp m cnwnt~ on sn.ld. land~ to other memht>r~ nf the t.l'ihe. Third. After l~ach member hal~ ::;elected his or her tin~t seipl'lion u..; ::;ecc.mcl "~'ll!t tluu. herein provirled, he or she l'!hall he permittetl to muke n second :-;t lection of one hundred nnd :-:ixt~ lll'res of hu1d in the manner hm Pin pro-,~idpd for tlu~ firl:jt selection. Fom th. After each uwmhcr lms,.,elected his or her :meond :;dt\d iu11 Thll'11 ~ ~lt!t Uon.. of one hundred und sixty acres of land us ln~rein provided, he or :-;he sbnll be pea mitted to mn.ke n. third stdeutiou of one hundred Ulltl ~ixty uct'el:l of land in the mnunet herpin provi1led for the tirl':'t am\ : weoml seledions: l)i'oi.'i;ded, Thnt. nil sele.diom; herein pt'0\ id.cd for :-:hall eon- 7 f~~~:~;:~. forn1 to the existing puhlit sul, ey~ in trncts of not less t.lmn forty tu~re~, or a leg11l subdivision of 11 less nmount, designated n Iut..., 111 f~~;~;: 1 ~..;~~:: 1 1 H ln- Ent~h mcmbet of said tl'ibe shnll he pp-rmit.ted to designate wh il h of hi:; thme seleetionl:l shall he IL homestead. und his certtti{'.flte of allotment and deed shull desigamte thp sumc ns n homestend, and the Sllllte shnll be ina.linnnhle and nontnxnhlo until nt"herwhm provided hy..-\et of Congres1-:1. Tho other two selet:tionl:' of euch rucmhet, toget.her with hi:-\ ~urphu-1 l!lnds. share of the remninfncr lund:; nllot.tcu to the member, shnll he known a~ Murplus land, and shall be innlienuhle fo1 twenty-five _yeu.r:;, except as hereinafter provided. Fifth. After each member hu.s selected. his or he1 tirst. seeond, nnd. Dl;>1k'-?11 of rellll11n thit d selections of one hundred und sixty twt es of lnnd, us hel'l:lin pro- mg IIIIIU!!. vided~ the remaining lands of ~nid. tribe in Oklnhonm Terl'itorv, <>xcnpt as herein prm idod, shah be divided n.s CfJmtlly ns practicabfn nmong snid members by n commis~ion to be n ppomted to supervise the -;election and divihion of said OAAge lands. Sixth. The selection and diri~ion of lands heroin PI'OYided for t~hull Couu~.l.sa.lon. be made under the supervision of, or by, a couuni~:;ion consisting of one member of the Osage tribe, to l.11.. scleeted by tho Osag-e eouncil, and two persons to be seleeted by the CommisBioner of Indum Affah-8 subject to the approval of the t-)ecretn.ry of the Interior; and said eom- Duties. shall settle all contronn i-:!ies between member:-; of the tribe mis~ion relative tq said selections of ln.nd; and the schedulea of snid selections and division of lunds herein provided for shall bo suhjeet to the u.rproy~ll of the Secrotnry of the Interior. The SUI'Yeys, sala1 ies of SRJc.l t om- ExpeD.Se6.

63 Appellate Case: Document: Date Filed: 10/14/2011 Page: JiTF'T\' -N INTJl CO:\U 1-Ht:~~- S!i1B~. I. L'u mh1t!iou: uud all oth.. r />rr>fh'i' t.:qwol'!os rwcesiinr.r in making tlw.'>t lt-t tions nud divi~ion of tlih u:-; lwrein providlld t-ihaji ho puici hy the St'l'l't:'tiLl'Y of tho.lult l"llll", out of ILIIY o.. ~ugt' fund8 dm in'd fl om till: ~nlo uf town lots, roynltil~:-; fl'um uil, brtls, o1 other minpi'his. or renl:i f1 om gtnzino- hmd..\nlhvr,,,. '" '* 1 11 ~~ &n tmth. Thnt tho Hm~retni y of tho J nt.wior~ in hih disel' tiou, nt tho )ocll.. t h~lltf><. r I'PlJUest. n.nd U}JOil tho petition of nuy ndult memb(~t of tht~ ll'ilm, muy i~tm to such mumlwr n. cm c.itit nte of compa>tency, 1mthot izin~ him to :-;p}l nnd eon\'c.y any of tho ]a~u]h deeded him. by rell8oll of thir~ Ad, Huml l'ltt ll b~ x e.xep}jt his honwstead, which :-;hull rt-mnin innlienn.ble aml nontnxnhle ::l'c>pll'l.l. l for n ptwiod of tweuty-ti\'o )'t nr:-:~, ur du1 ing tho life of trw homest.end ullotteo, if upon inn~..,ti,hrntiun, consitlln'ntion, nud nxamiuntion of the requet-~t he ~:~hnjl find nny stwh mom her fully competpnt and t n puhle of trunl-lucting his ot her own businom.s nncl ~1Lring fur his ot h, r own iuuif'n r i~.<tor<. Yidnnl ntl'uirs: l~rot,id,,d, Tlmt uppn the is:;mmce of such ecrtilit nte of 1'11::'1.1~llllll, tttl'. l~om/>otmwy tho lnndh of sue~ member (~xccpt his OJ' bt>r horuc.::\tm1~) ~hnl hcl'omo ~ul.jject to tnxnt.ton, nud ~uch member, exeept n~ lwrem prodded, to~ hall have the righ.t to munngl~, l'ontrol, und d i:;;po:-;c of his or lwr Iundt'! tha ~nnw n~ uuy citizen of tho United StntPs: ]j, m id~:d, Thnt the surplus lamls ~lmll be nontaxable fur the period of three years fr om the npprornl of thil;.aet., except where cet tificatc~:;; of coml?ctencv ure issued. or in cnse of the denth of the u.llottee, un lc:-;s otht>r'wjse ;,;, f 11 et, 1 t. J.u.. JN JH'O\:ided br Uon(J're:;::::...:lwlf.''o ~ idt:.d f'u.rth.n, That nothino het eiul'!lball oro 1 11 t ~ 1 n,,..., unthor1ze the sn)~ of the or, gas, coni, m otbet mmera.lh covered hy said lnnds, said minernls being reserved to the m~e of the trihe for a JeJ jud of twenty-tire JPili'H, nnd the roynlty t.o be paid to l:tuid tribe n.s l. _lndh hln~l "wlwr HWeinafterpruvided: Am/.jJI'OL'i:tlerl fi,.rtl~er Thn.ttheoil. (ras eonl nnd Dlpnfter:!:-.l't u ~., o ~,, otlwt uunm"ftls upou ~;:ml n!jotted lands shall become t}w pr opcrty of the indiddnnl ownel' of tmitl lnod nt the cxpimtion of said twenty-fh e year:;, 1mlel'!l:-; othenri:-;c 1wm ided for by Act of Uougrese:.. :31~L n~ni:::alutfml EiLJ hth. Them shall be rescitl'd from selection and clidsion, ns Cll-1. h r' l l l d l d. h. } I I..! Lanll rtunu~ed 1. tl. Cl'ern prone PC~ one l't'l nn s1xt.y acres on w IC 1 t 1e.:Jillllt. 40\118 Sehoul, nenr lln.whu::~lm, is loented, nnd the ouc hundr cd nnd sixty nt res on which the StLint.. John~s School, on Horui11y Creek, Ol;nge lndinn Re~elTnt.ion, i::~ loenh'd. snicl trn.cts to conform to tho pnhlit :-~nn eys; and ~tiid trn.ct8 of lnnd nre lw.rcln set nside uud donn.ted to thf order of the Ki.:-;t.t>r~ of Snint Fmnci::;~ nnil su.id trn.l't~!:4hall he con n~n'd to said onler, the Si:'lte ~ of 8nint Fr-ruu. i.:-;, us cndy as pt'acticnhl;.., h_\' dped.. Lu:nd:-<rl.serve.. Jn.:ur Tlll't'n ~hall ulso be rn~en prl from scleet.ion n.nd dtvision forb ntn's of bnn lbjr!it'.. l I lnnd nent Gray Hor::-;P, to ho deswnatn by t 1e SecreW.r~ of t H~ nterior, 011 whid1 nro locnted the tlwelling houses of John N. Florer, W.. ult.er 0. Florer, nnd.john L. Bird; nnd Stlid.John N. Ji'lm c J'.:-;hnll be nllowed to purchase tinid fmt.' ncrc~ nt the nppmi:;bd nrhw phtced thel'eon by the Osug-e Allotting Commi8:::ion, t.he proceed.:; of thp. ::;ale to be placed to the ct.-dit of the Indiam; anc~ to be distributed like other. fum.l.o:: herein provided for. d,!-:n~~ ~~~~~-lor Ni!1!h~ T~ere sh~tll he rcse~ ved!rom.sel~~tion and diyi.:;ion, fls he~ ein prnnctt>d, tjle nort.twn:;t qua1 ter of seetmn tht N~, town~bip twenty-tive, mnge nine en.::~t, of t.hc Indinn meridinn, und one hundr ed n.nd sixty ncrcs to eonform to th(~ public surycy at the town of Grtly Horse, including the Gove1 nnwnt doetor's building, ~.t.her vnluuhle bnildings, nnd the cemetery, nml thn one hundred nnd sixty am es to eon form to tho public sm ver, adjoijjiug o1 nf'nr the town site of Hominy; said land:-; ot tracts n.re herelw ~l't ll"~ide for tbe use untl benefit of the 0:-:ul.!e Inu ian~. exdu::oivoly, for rl welling purposes, fm a period of twt'-nty-ti;e years f1 um and after thn tit ~t dny of Jnnnnry, nineteen hundred and ;~;~: id~.r re.. encd. l:leyen: I~ m. ided, Tlmt :-:n id land muy, in t~e diseretion of the Osage lan l.s. tr1be. be sold under such 1 nh~s and regula.twns ns the Srcretai'y of the Interior 1nay pre!:mrihe~ and. tho proceeds of tho ~arne under such ~Rl<' shu II be apportioned und placed to the credit of the individuulwembtrs of the tribe according to t b1~ roll herein provided for.

64 Appellate Case: Document: Date Filed: 10/14/2011 Page: 26 Fl~TY-NlNTU CONORESH. S~<~Hs. 1. Cu. 357~ '1\ nth. l'tw Osugtl Buau diug- :--;1 houl l'p~tw\'1' of eighty-tm\'en uud...,:;;~tr~--~~~~~~-~.r:~~.~~k tin h nth nt t'l's, nllll tho l'l\1'\l'l'\'oit t e~pl'\'u of ~m t~nt.ceu und tl.n t ltmths ttttps, and t.lw "g-uut'r; l't siupnt c l't~l'iel'n~, tug(1the1 with ull tlw lmilding-:-; luentl'(l on!:mid rospn utiou!'> in the town site of Puwbu:-.kn, n."' :-.bown hy tlw otlil'inl pint uf tlw l"uiih', nl'l' herphy l'm<t.!l'\'ctl froru :-~ch dion urad didsion as lwr.. in pro, iuptl~ und tlw RIUJJe nmy he r{ojcl!-l~~o:t ut. in t.ih' dil'lt'l'pt.ion of tbt OsugP tnht, undt>l' sud1 1 ult l'l nnd regulutiulll" ns tim ~t'l'l'd.un uf the lntprior Hill\' pr m idp: nnd tho prot'c(~t\s of l'r.. t.. 1 " :-:ul'h snip :-;hull l;o uppol'tiuned nud phl;'i'd lo I he t rndit of tlw imli\'idunl llll'udu l's of :-~uid tnhe Ul'L'OI'diug- to tho t oll hm t~in pr ovicled fm. Elen uth. That till' t nited 8tnh s lndiun n~piit'!>i ottiee building. tl11. :-.u''.. r liun-rnm nt 0 ') } 'll' d )) I b '(-1' } } f ) IJ :IItling..,r. l('. :oo~agn CtlllllCI lui ( tug, Ull tl ot lt'l' lll UlllJ{t; W lic 1 ILI'O ot t It' oeeupmu y llnd usr~ of Uovenmwnt Pmployees, 111 the town of Puwhu!'\kll, tog-, t!h r with the lots uu whieh the snid buildings lll'c situated, 1-'hllll bo sold to t~h! highest bi.ddet us enl'ly ns pmct_ieable, under ~'~!ll'h rull's und J'Pg"lllatlonr.~ n~ the :-;, t J etnry of the InterJot' may prescnlu ; allll with the pr uceeds he ijhnll Pl't~rt otlu r suitable build[ng::~ fu1 t.lw J.:n-cttun u! new. h th.. hui~dingu. u-;e.... mt ntioued, on sue h stte~ ns e mny ~Piect., o remauung pt ocped:-~, if m1 \'. to he plueed to the credit of the indh itlunl rnt~mi.h~t ::~ of the 0:-\ng-~; 1 r i he of I ndinn=--: Prm i,/,-d~ Thut tbe house known n.101 the chit~f'r; ~~~i~i~;gh re~~rved html"p, togpther with tlu~ lot or lot~ on which suitl house is located, und rrowz;alt!. the hou... o known ns the L' nited ~tutt ::~ i nterp1 etm ';o; homm, in Pnwhu:-;ka, Oklnho11tn Tt>rTi tor y, together wit.h the lot or lots on whirh -Hni(l ~10t1s~s are lol'lllptl. slmll Lc rescr, eu fr<'lll ~mle to tho highe:-;t bidder nnd shall he sold to thn pr incipol ( bief of ti.jp Osag-PI:l and the United Stntecl iutt'j'[h't tt~r fo1 tho 0!-IUJ.!t~s. l'p...;pt t t.in~l.', nt the npprnised \ ul11e of the,!o:llihp, Haiti npprui:-.t'iupiit to he mrule by thn Osu~e towrhjite commi1-l-.siun, ~mhjpt't to the npprond of thp Set retar y of the Interior. 1\n-.lfth. Tlmt tbe C('met~ y resprn~ of twl'nty neres in the towu sit~> do~~"'~~~ n~~~~~ of Puwhn:-~kn, ns :;hown b.r the otticinl plut thpreof, is herehy set a:-;ide nml LlormtPd to the town of Pnwhuslm fo1 t.he purposes of ~::~cpulturp, on l'onrlition thnt it :5nid ct ~ml"h'l',\. l'l'.:-;ertc of t.weuly ncr es, m any part the1 ent i:; IIRed for pua po~:~es othet thnn thnt of sepuhm c, tlw wholp of Ren:n;ion. Sllid cpmptt ry re~prn~ of twenty ne1 es ~hull I'P\'Prt to the U:o;L' and bpiwfit of the imli\.'idual 111Pillht'I'S of tbn O~uge trijm, UCCOI'ding to the roll berein pl'odded, nr to theit heirs~ uml Hnirl t.mc t!;hull he convpyptl to tlw snid town of Pawbn~kn, b\ deed, nnd ~-mid tlped ~hull re('itc nnd set out in full the conditions under which tbe abm e donation and con\ pylltwn un' mude. ~ Thnt. tho prodsions of. un Act entitled '"An Act makin~ U]JJD0}11'in- Cll_rumi.-.. Oroge ion. town-site twns for the current and contmgent expenses of t.be In mn upart.- 'TeHL nt Juw nul llf. llll'nt nncl for fulfilling trenty stipulntions with yarious Indian trihes rectcd. for the tiscal yr-ne Pndin9;,Tune thirtieth, ninehwu hundt ed and six, nncl f{}r ot.!1er pt1rpo~eh, ' appro, pd ~1ni... ch third!\ 11inctP~11 huntl red nnu fin~. relating to the Osage RP~('l'\"n.t.ion, png-cs ono thousnnd und \'ol.~~.pjt.l061,1062. oi:x ty-one nnd or1e thousnnd und sixt.\ -two,,-olnme thirty-three, U nlted Stntt:>s ~tntute~ nt Lnrge, be, u.nd the snmc are hereby, continued in full force nod effect. SEc. 3. That the oil~ gas, coal, or other minerals covered by the. Ja~~~. a.nd miner& lands fm the seleetion and dh ihion of whil'h prod~ion i::; herein mndc Le!Uies nrn bert~hy reserved to the Osage tribe for u perwd of twenty-ti\ e ~ enr8 from nntl nfter the eighth dny of April, nin~teen hundred and t;i:x ~ and 11'118t:'S for n.ll oil, g-us, and other minerals. covm ed by selections mul di, i8ion of 1a.nd herein prm i(h d for, nmy be made by the Qt-;uq-e tribe of IndianR through its trihnl eonncil. und with the upet ovul ~f thn St:i'i'et!li',Y of the Interior, and undlt stwh rul '1:1 and regutntions a::;; be may prt:>serihe: f>rorided, That thn royalties to he paid to the Osa~e Prollisos. tribe under any mineral Jense flo made ~hall be determined by tne Royalties. President of the ltnii:pd State:-~:.lml prmjidt:dfm t!lt>'l, Tlmt no mining rr..o~pecung reof o1 pro:;pef'ting for nny of ~nirl minprnl or minm1lls shah be per- atnc~-d. mitted on the homestead selections herein provided for without the

65 Appellate Case: Document: Date Filed: 10/14/2011 Page: FIFTY-NINTH CONGRESS. HEB8. 1. CH. :157~. lhuf.>. written co.nsent of the SecJ ebtry of the Interior: I J/'OI'I:dml, h.otot:rl,tej', ExiHtlng contmu!j!, Thn.t nothing het ein cojtttdned shall be cow;tt ued as u.fl"eeting any valid eta., not ulfeotcd.,, l. ~ ox1shng e~se ot contr(l,{.\t, Trust fund. S.J<~C. 4. That ull funds belonging to the Osage tribe, and ull moueyli due, and au moneye~ that may become due, or may he; eaftej' he found. to he due thl said Osage tribe of Indians.. ~:~ha.u be held in tt nst hy the United StateR for tbe period of" twe[jty five years from and uftej' t~e first day of,jannnry, nineteen hundred and seven, PXcept as herem provided: tui 1 d rugu.tion ol First. ~hut all the funds of the Osage tribe of Indians, and all the 1 moneys n9-\y due or that may hereaftrr be found to be due to the sa1r Osage tribe of Indians, and all moneys that mo.y he recei,~ed from the sale of their lands in Kansas under existing laws, and all moneys found to be due to said Osage tribe of Indians on claims against the United States after all proper expenses are paid, shall 'he segregated as soon Pro rtlta dtvlslon. after January fir~:~t, nineteen hundred and seven_~ as is pt-act.icaljle and placed to..t~e credit of the individual members of the said Osage tribe on a basis:.qf. a pro rata dlvision among the m eri!bers of said tribe~ as shown by the authorized roll of membership as ~crein provided for, or to their heirs as hereinafter provided., said cre.dit to draw interest as Interes~ panncnt.r. now authorized by law; and tbe inter~st. that lji~y accrue thereon shall be paid qmhterly to the members en~tled thei eto, except in the ca~:~e of minors~ in which case tb~.int,erest shairbe":paid quarterly to the PrQVUtM. I!_Rrents iuitil said nlldol' arrives. ~t ::,tb~. age of twenty-one years: Mlsuge of Interest Provided- That if the Commissionei :of "Iridiu,'n.".A.ffairs becomes sa tis- ned.that.t~.:_sa.id inter~st of any.mi.nq~)~ 9~i.#gJ~isued o~ squandered money of minors.. ' , he may, :W:It~pld the paymeut.. of StJCh:I~~res~r_ ;~nd yrom'.dedfurther,. di~~:nents to gua.r-.that:8sid]nterest of.minors whose.paris:nts. ~1-"e.; ;~eceased shall be paid..~.their- h~p,l guardians, as above v.. ~o~tled.: :'."_'.~.: '. Deposit ol Iunds to Se. d Th th 1 d 'f'' '"I' ' ] d h crooft oqnd~_s. - mfti'e~i-l~~:s~s a: on eth~l:nt f~~c: 1 hiecl~~:~wtibii~!ddl:~io'n :~e h~~ei!. pro,;ide4 ;.::a_hd afl moneys receivedjro.~'~1.1_e_:: ~)~:::.Qf town ]ot~t together ~ wiiji. the l?,~t~~ings. t~er~on,.and allt' 9-~,~y~.f~~:~jyed from tlle sale of.the. three reservations of one hundred and:::stxtynwres each heretofore i:!d!~~t:~~t~;r~:l i~~~~t~:~:~~ ~~-~~~ lr#i~cle~~:!!~ili::~~dft ~(the-~e~f?~rs of the Osage tribe ofl~~aiis :_~s:;.9ther moneys of said DL'Itributionof. ti:~~~-~re t<j)?~. deposited un~~r t~e.;~r~~~s-~_<?.li~:_or;~.pis A~t, and. t~e sa~e shall be dtstnbuted to the Indtvidual: members:;of satd Osage tnbe ac~ofding.::~9;:the roll providea fo~. h ~re:~9-;..iti'th.~;,#i~nner and at tbe same th.ne th~t;~yp1ents are mad~.o - inter~t.91y~t~~)~.;moneys held in trust for the.o~g~~ by the United State~,. ex~~p(a~: 9~rein provided. 'lo~~l:~{~u:=.ed.third..!-~~re shall be set aside. fr_o:ql.._the t~y~-~~~es received from oil and-gjl~ -~QtW exceed fifty tpousand do,la!t(.p. ~:~nnum for ten years froq~ the: ftr~t~dav of Januarv. nineteen.hundi etj)indseven, for the sup ~rt of the~.q~age Boarding School and-: f~r-oth.~f.-schools on the Osage.~.ndian Reservation conducted or to be established G.L"ld conducted for th.e educatio'~: :of OsaO'e children.. ~ :.'.: : ~or agency pur. Fourth. ~h_ ere shall be set.~ide and ~ese~v~4: from the royalties ~ - receivetl"f~nfoil, gas, coal, or.othei;_mb:ier~l.le~s~;..:~md moneys received frpm the saj~~:of town lots, and rents: from. gr.azing.lauds not to exceed thh ty t}lo~s~nd dollars per ~nnum ~or.. ag~ncy_p~l~;~ses and an.emerge'ucy fund_..::fo;t the Osage tribe, which shall :.b~: pii1d out from t1me to t~e,.upon::~~~~requisition of t.he Osage tribalco_li,~~~l, with the approval of the S~c:re~ry of the InterJOt' :.< :ru~~~l.n.~ti~o!t~t. SEc. ::~~~ rp.:~t at t.he expini~io~ of.. ~_Q.e {>S-f:iQ~.. ~q.f twenty-five.years. - from an(;l ~ff.e.~ tbe first day of_ January, nmet~~~.i::hundred and seven, ' the lhrids, -~Hi.eral interests, and moneys, hereltt;jj'fovided for a.nd held.. in tr~t. by.-~th:e united States sho.jl be.the: ap~ol~te property of the individual members of the Osage tt ibe;. according_ to the roll herein provided for,.or their heirs, as he'rein provide~,-~n~ deedl!l. to said lands

66 Appellate Case: Document: Date Filed: 10/14/2011 Page: 28 FIFTY-NINTH CONGUESK SEss. 1. Cu tt 545 shall be i.-;::;ued to said members, or to theil heirs, lui heroin provided, and ~aid moneys :-~hall be di~tribntt d to said memberli, or to their hein;, u~ her ein p1 oviubd, and snid member s shall ba\ c full control of Haid lands. moneys, und mineral interest.,, except n~o~ hereinbefore pro, idpd. 8Ec. U. Thnt the lands. monrrs~ and minernl intet cst~, herein ]H'o- Rlgh~ ur lnhl'rltdded fur, of any decea~::~ed member of the Osage tribe shall descend l'o unc. his or her legal 'heirs, according to the laws of the TeJTitory of Oklahoma, or of the State in which said t eseryation may be hereinuftt>r incorpomted, except where the deeedent lea\ cs no issue, nor husband Exel ptluu. nor wife, in which case said lunds, moneys, and mineral intere.r;t:; mu:-;t go to the mother and ruther equaiiy. SEc. i. That the lands herein pt o, ided for are set aside for the sole P'f~~: iur iunulng use nncl beuetit of the individual members of the tribe entitled thpreto, or to thei1 heirs, as herein provid ed.; and said members, or thp-ir bpir:-;, shall ha, e the right to use and to lease said lands for farming, grazing~ or any other purpose not otherwise specifically provided for herein, and said member s shall have full control of the same, including the proceeds thereof: lhjvide.d, That parents of minor members of the fz.~~?! t.. "ont ~l tribe shall have the control and USe of said minors' lands, together with min~rs' land.~.._ v the proceeds of the E~ame, until said minors arrive at their majorit,t: And prul /dt~rl further, That nil leases given on said lands for the Appro, ul nt ler!le.s. benefit of the indhridual members of the tribe entitled thereto, m for their heirs, shall be subject only to the approval of the Secretary of the Interior. SEc. 8. That all deeds to said Osage lands or any part thereof shall Det-dll. be executed by the principal chief for the Osages, but no such deeds shall be valid until approved b.v the Secretary of the Interior. SEc.!i. That there shall be a biennial election of officers for the J:Jf::tlo~~C:t~: Osag~ tribe as follows: A ~rincipal_chief, an ~ssis~nt principal chief, and eight members of the Osage tnbal council, tc;frsucceed the officers elected in the year nineteen hundred and six, said ~flicers to be elected at a ~eneral election to be held in the town of Paw-huska, Oklahoma Territory, on the first Monday in J nne; and the first election for said officers shah be held on the first Monday in June, nineteen hundred and eight~ in the manner to be prescribed by the Commissioner of Indian Affairs, and said officers shall be elected for a period of two years, commencing on the first day of Jul.y following said election, and m case of a vacancy in the office of principal chief 7 by death, resignation, or otherwise, the assistant principal chief shah succeed to Maid office, and al1 vacancies in the Osage tribal council shall be filled in a manner to be prescribed by the Osag e tribal council, and the Secretary of the lnteriot is hereby authorized to remove from the council any member or member~ thereof for good cause, to be by him determined. SEc. 10. That public highways or roads, two rods in width, being Public highways. one rod on each side of all ~ection lines, in the Osage Indian Reseryation, may be established without any compensation therefm. SEc. 11. That all lands taken m condemned by any miirou.d com- L!!.ndR for m!!ror:.a nany in the Osage Reser\ration, in pur~uance of any.act of Congress 1.JUv~~~: p. 4i. v1 regulation of tl.je Department of the Interim, for l'ight:s of way, station gmunds, side tracks, stock pens and cattle yards, water :stations, terminal facilities, nnd any other rnih oad purpose, shall be~ and are hereby, re:::erved from selection and allotment and confirmed in such railroad companies for their u:;e and benefit in the construction, operation, nnd maintenance of tbeit railroads: Provided, That such ~~~~gi,nn. rnilroad eompanie:s ~hall not take oi' acquire hereby hny right or title to any oil, goa~, ot otber minerul in any of soid lands. SEc. 12. Tbat all things necessary to cart y into effect the provisions Enforcement. of this Act not otherwise herein specifically provided for shall be done under the authm ity and direction of the Secretary oi the Interior. Approved,.June 28, VOL.XXXI\", PT ]-3{)

67 SEC. 9. Under such regulations as the Secretary of the..., PL , OCTOBER... Appellate Case: Document: Date Filed: 10/14/2011 Page: 29 PL , OCTOBER 21, 1978, 92 Stat 1660 UNITED STATES PUBLIC LAWS 95th Congress - Second Session Convening January 19, 1978 DATA SUPPLIED BY THE U.S. DEPARTMENT OF llistice. (SEE SCOPE) Additions and Deietions are not identified in this document. PL (S 1081) OCTOBER 21, 1978 An Act to amend certain laws relating to the Osage Tribe of Oklahoma, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 9 of the Act of June 28, 1906 (34 Stat. 539, 545), as amended, is further amended to read as follows: "There shall be a quadrennial election of the officers of the Osage Tribe as follows: A principal chief, an assistant principal chief, and eight members of the Osage Tribal Council shall be elected to succeed the officers elected in the year 1974 at a general election to be held in the town of Pawhuska, Oklahoma, on the first Monday in June 1978 and on the first Monday in June of each fourth year thereafter, in a manner to be prescribed by the Secretary of the Interior, and said officers shall be elected for a period of four years commencing on the first day of July following the election. In case of a vacancy in the office of principal chief or other officer by death, resignation, or otherwise, the vacancy shall be filled in a manner to be prescribed by the Osage Tribal Council. In the event of a common disaster and a quorum of five of the Osage Tribal Council does not survive, the Secretary shall appoint a principal chief and/or the number of councilmen necessary to complete a total of eight, to serve until the next quadrennial election. The Secretary is hereby authorized to remove from the council any member or members for good cause, to be by him determined, after the party involved has had due notice and opportunity to appear and defend himself. The tribal government so constituted shall continue in full force and effect until January 1, 1984, and thereafter until otherwise provided by Act of Congress.". SEC. 2. (a) The first paragraph of section 3 of the Act of June 24, 1938 (52 Stat. 1034, 1035), as amended, extending the mineral estate reserved to the Osage Tribe by the Act of June 26, 1906 (34 Stat. 539), is further amended by striking the phrase ''until the eighth day of April1983, and thereafter until otherwise provided by Act of Congress" and substituting, in lieu thereof, the phrase "in perpetuity". (b) The second paragraph of section 3 of the Act of June 24, 1938 (52 Stat. 1034, 1035), as amended, is amended by striking the phrase "unless otherwise provided by Act of Congress" and inserting, in lieu thereof, the phrase "and thereafter until otherwise provided by Congress". (c) The fourth paragraph of section 3 of the Act of June 24, 1938 (52 Stat 1034, 1036) is amended by striking the ph..rase "January 1, 1984" and inserting, in lieu thereof, the phrase "January 1, 1984 and thereafter until otherwise provided by Congress". SEC. 3. (a) The Act of February 5, 1948 (62 Stat. 18) II 25 USC 331 II is hereby repealed. (b) Any Osage Indian having received a certificate of competency under paragraph 7 of section 2 of the Act of June 28, 1906 (34 Stat. 539, 542); section 3 of the Act ofmarch 2, 1929 (45 Stat. 1478, 1480); or the Act offebruary 5, 1948 (62 Stat. 18), II 25 USC 331 I I may make application to the Secretary of the Interior to revoke such certificate and the Secretary shall revoke such certificate: Provided, That revocation of any certificate shall not affect the legality of any transactions heretofore made by reason of the issuance of any such certificate. Restrictions against alienation of lands heretofore removed are not reimposed. (c) Sections 3 and 4 of the Act offebruary 27, 1925 (43 Stat ); and section 4 of the Act of March 2, 1929 (45 Stat. 1478, 1480); and sections 1 and 3 of the Act of June 24, 1938 (52 Stat. 1034) are hereby amended by striking, wherever 'vvestlav lnexf 20'11 Thomson Reuters. No claim to original U.S. Government Works. ATTACHMENT 5

68 SEC. 9. Under such regulations as the Secretary of the..., PL , OCTOBER... Appellate Case: Document: Date Filed: 10/14/2011 Page: 30 they occur, the phrases "of one-half or more Indian blood", "of more than one-halflndian blood", "of one-half or more Osage Indian blood", and "or who is one-half or more Osage Indian blood". SEC. 4. In order to conserve natural resources and provide for the greatest ultimate recovery of oil and gas underlying the Osage mineral estate, the Secretary of the Interior is authorized to establish rules and regulations under which oil and gas leases producing from a common source of supply may be unitized. SEC. 5. (a) Section 8 of the Act of April18, 1912 (37 Stat. 86, 88), is hereby amended to read as follows: "Any person of Osage Indian blood, eighteen years of age or older, may dispose of his Osage headright or mineral interest and the remainder of his estate (real, person, and mixed, including trust funds) from which restrictions against alienation have not been removed by will executed in accordance with the laws of the State of Oklahoma: Provided, That the will of any Osage Indian shall not be admitted to probate or have any validity unless approved after the death of the testator by the Secretary of the Interior. The Secretary shall conduct a hearing as to the validity of such will at the Osage Indian Agency in Pawhuska, Oklahoma. Notice of such hearing shall be given by publication at least ten days before the hearing in a newspaper of general circulation in Osage County, Oklahoma, and by mailing notice of such hearing to the last known address of all known heirs, legatees, and devisees. The cost of publication shah be borne by the estate. The ruies of evidence of the State of Okiahoma shah govern the admissibiiity of evidence at such hearing. All evidence relative to the validity of the will of an Osage Indian shall be submitted to the Secretary within one hundred and twenty days after the date of the petition for approval of such will is filed with the Secretary, unless for good cause shown the Secretary extends the time: Provided, That such time shall not be extended beyond six months from the date of the first hearing. For purposes of determining the validity of any will, the Secretary is hereby granted the same subpena power as is vested in the courts. All costs of obtaining witnesses and evidence before the Secretary shall be borne by the party producing such witnesses or evidence, subject to such costs being taxed to the estate in the event that the District Court of the State of Oklahoma having jurisdiction should determine such costs beneficial to the whole estate. Notwithstanding any appeal from the decision of the Secretary, approval of such will by the Secretary shall entitle it to be admitted to probate without further evidence as to its validity or, upon disapproval thereof, the heirs may immediately petition for letters of administration in the district court. No appeal from the order of the Secretary approving or disapproving any will shall stay the issuance of letters testamentary or of administration: Provided, That such letters shall not confer power to sell any restricted assets by virtue of any provision in such will, pay or satisfy legacies, or distribute property of the decedent to the heirs or beneficiaries until the final determination of the appeal, but all other action taken by the district court pending said appeal shall be valid and binding. No court except a Federal court shall have jurisdiction to hear a contest of a probate of a will that has been approved by the Secretary. Such appeals shall be on the record made before the Secretary and his decisions shall be binding and shall not be reversed unless the same is against the clear weight of the evidence or erroneous in law.". (b) Section 3 of the Act of April 18, 1912 (37 Stat. 86), is hereby amended to read as follows: "That the property of deceased and of orphan minor, insane, or other incompetent Osage Indians, such incompetency being determined by the laws of the State of Oklahoma which are hereby extended for such purpose to all Osage Indians, shall, in probate matters, be subject to the District Court of Oklahoma having jurisdiction. A copy of all papers filed in the district court shall be served on the Superintendent of the Osage Agency at the time of filing, and said Superintendent is authorized, v;henever the protection of the interest of the Osage Indian requires, to appear in the district court. The Superintendent of the Osage Agency or the Secretary of the Interior, whenever he deems the same necessary, may investigate the conduct of executors, administrators, guardians, or other persons having charge of the estate of any minor, incompetent, or deceased Osage Indian. Whenever he shall be of the opinion that the estate is in any manner being dissipated, wasted, or permitted to deteriorate in value by reason of the negligence, carelessness, or incompetency of the executor, administrator, guardian, or other person in charge of the estate, the Superintendent of the Osage Agency or the Secretary is authorized, and it shall be his duty, to report said matter to the district court, take the necessary steps to have such case fully investigated, and prosecute any remedy, either civil or criminal, as the exigencies of the case may require. The costs and expenses of any civil proceedings shall be a charge upon the estate of the Osage Indian or upon the executor, administrator, guardian, or other person in charge of the estate of the Osage Indian and his surety, as the district couj."'i: shall determine. Every bond of the executor, administrator, guardian, or other person in charge of the estate of any Osage Indian shall be subject to the provisions of this section and shall contain therein a reference hereto: Provided, That no guardian shall VV-estl.3f 1 NNexr 20'11 Thomson Reuters. No claim to original U.S. Government Works. 2

69 SEC. 9. Under such regulations as the Secretary of the..., Pl , OCTOBER... Appellate Case: Document: Date Filed: 10/14/2011 Page: 31 be appointed for a minor whose parents are living unless the estate of said minor is being wasted or misused by such parents: Provided further, That no land shall be sold or alienated under the provisions of this section without approval of the Secretary.". (7) Section 7 of the Act offebruary 27, 1925 (43 Stat. 1008, 1011), II 25 USC 331 II as amended, is hereby further amended to read as follows: "Hereafter none but heirs of Indian blood and children legally adopted by a court of competent jurisdiction and parents, Indian or non-indian, shall inherit from Osage Indians any right, title, or interest to any restricted land, moneys, or Osage headright or mineral interest.". (d) Notwithstanding the provisions of subsections (a), (b), and (c) of this section, II 25 USC 331 II disposition of any Osage headright or mineral interest shall be subject to the provisions of section 7 of this Act. SEC. 6. (a) With the approval of the Secretary of the Interior, any person of Osage Indian blood, eighteen years of age or older, may establish an inter vivos trust covering his headright or mineral interest except as provided in section 8 hereof; surplus funds; invested surplus funds: segregated trust funds; and allotted or inherited land, naming the Secretary of the Interior as trustee. An Osage Indian having a certificate of competency may designate a banking or trust institution as trustee. Said trust shall be revocable and shall make provision for the payment of funeral expenses, expenses of last illness, debts, and an allowance to members of the family dependent on the settlor. (b) Property placed in trust as provided by this section shall be subject to the same restrictions against alienation that presently apply to lands and property of members of the Osage Tribe, and the execution of such instrument shall not in any way affect the tax-exempt status of said property. SEC. 7. After passage of this Act, II 25 USC 331 II a person not of Osage Indian blood, except a child legally adopted by an Osage Indian in any court of competent jurisdiction and the lineal descendants of such adopted child, subject to the stipulation that such adopted child or his lineal descendants cannot alienate his Osage headright or mineral interest and the devolution thereof is limited to intestacy, will, or inter vivos trust the same as if he were of Osage Indian blood, is prohibited from receiving more than a life estate in an Osage headright interest owned by an Osage Indian, such adopted child or his lineal descendants, whether such interest is received by will, inter vivos trust, or Oklahoma law of intestate succession. Upon the death of such recipient, the Osage headright or mineral interest shall vest in the remaindermen thereof who are of Osage Indian blood, adopted children, and/or lineal descendents of such adopted children designated by the will or inter vivos trust of the deceased Osage Indian, his adopted child, or the lineal descendants of such adopted child. If such instrument does not designate remaindermen thereof who are of Osage Indian blood, adopted children and/or lineal descendants of such adopted children, or if the deceased died intestate, the Osage headright or mineral interest shall vest in his heirs pursuant to the Oklahoma law of intestate succession, subject to the above limitations. On the death of the non-osage beneficiary or heir, except in the case of adopted children or lineal descendants of such adopted children, such Osage headright or mineral interest shall vest in the Osage Tribe and the Tribe shall pay the estate of the non-osage beneficiary or heir the market value of such Osage headright or mineral interest. Payments under this section shall be made from Osage tribal mineral funds authorized to be expended by section 8(b) hereof. SEC. 8. (a) Any individual right to share in the Osage mineral estate (commonly referred to as "headright") owned by a person not of Indian blood may not, without the approval of the Secretary of the Interior, be sold, assigned, or transferred. Sale of any such interest shall be subject to the right of the Osage Tribe to purchase it within forty-five days at the highest legitimate price offered the owner thereof. (b) Prior to the time and tribal mineral income is segregated for distribution to individual headright owners, the Secretary of the Interior, at the request of the Osage Tribal Council, may direct the use of any such income for the purchase of Osage headright interests offered for sale to the Osage Tribe pursuant to this section or vested in the Osage Tribe pursuant to section 7 of this Act. SEC. 9. Under such regulations as the Secretary of the Interior may prescribe, the heirs and legatees of any deceased owner of an Osage headright or mineral interest, real estate on which restrictions against alienation have not been removed, and funds on deposit at the Osage Agency may be determined by the Secretary if such aggregate interests do not exceed $10,000: Provided, That no court of competent jurisdiction has undertaken the probate of the deceased's estate and a request for such administrative determination has been made to the Secretary by one or more of the heirs or legatees. VVestlavvNexr 201 i Thomson Reuters. No claim to original U.S. Government Works. 3

70 SEC. 9. Under such regulations as the Secretary of the..., PL , OCTOBER... Appellate Case: Document: Date Filed: 10/14/2011 Page: 32 Approved October 21, LEGISLATIVE HISTORY: HOUSE REPORT No , accompanying H.R (Comm. on Interior and Insular Affairs). SENATE REPORT No (Select Comm. on Indian Affairs). CONGRESSIONAL RECORD, Vol. 124 (1978): Sept. 8, considered and passed Senate. Oct. 3, H.R considered and passed House; passage vacated, and S. 1081, amended, passed in lieu. f""\._..l ""' C'1----.L-...].:_ yy -~--..l Vl;L. I,.:lt:Ili:iU; I.,;Ulll,;Ullt:U 111 lluu:;t; i:illlt;;uwht;;llt:s. End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. V./estlav.;Nexr 2011 Thomson Reuters. No claim to original U.S. Government Works. 4

71 90.1 Definitions., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 33 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) General As used in this part: 25 C.F.R Definitions. Currentness (a) The term supervisor means the tribal election official chosen and appointed by the Principal Chief or Assistant Principal Chief to act as chairman of the election board and shall in the absence of the supervisor denote the Assistant Supervisor. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End ofdocument 2011 Thomson Reuters. No claim to original U.S. Government Works. ATTACHMENT 6 Vlestl;;r.'vNexr 20'11 Thomson Reuters. No claim to original U.S. Government VVorks.

72 90.2 Statutory provisions., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 34 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annas) General 25 C.F.R Statutory provisions. Currentness Section 7 of the Act of March 2, 1929 (45 Stat. 1481) provides in part as follows: That there shall be a quadrennial election of officers of the Osage Tribe as follows: A principal chief, an assistant principal chief, and eight members of the Osage tribal council, to succeed the officers elected in the year 1928, said officers to be elected at a general election to be held in the town of Pawhuska, Oklahoma, on the first Monday in June 1930 and on the first Monday in June each four years thereafter, in the manner to be prescribed by the Commissioner of Indian Affairs, and said officers shall be elected for a period of four years commencing on the 1st day of July following said elections. * * * SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 7 6 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. \PlestlavvNexr@ 2011 Thomson Reuters. No clairn to original U.S. Government VVorks.

73 90.21 General., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 35 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annas) Eligibility 25 C.F.R General. Currentness Only members of the Osage Tribe who will be eighteen years of age or over on election day and whose names appear on the quarterly annuity roll at the Osage Agency as of the last quarterly payment im.lti.ediately preceding t..he date of election will be entitled to hold office or vote for any tribal officers. Each such voter shall be entitled to cast one ballot and each ballot shall have exactly the same value as the voter's headright interest shown on the last quarterly annuity roll. Any fraction of a headright, however, shall be valued as to the first two decimals only unless such interest is less than one-hundredth of a share, then it shall have its full value. (Authority: 45 Stat. 1481) Credits [43 FR 8798, Mar. 3, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. \Nestl.3 1 NNexr@ 2011 Thomson Reuters. No claim to original U.S. Government VVorks.

74 90.30 Nominating conventions and petitions., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 36 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Nominating conventions and petitions. Currentness Conventions shall be held on or before the first Monday in April of the year in which a quadrennial election is held, and there shall be written reports of such conventions, duly certified by the secretary or presiding officer showing total number of qualified voters in attendance, together with the names of candidates nominated for the various offices: Provided, That at least 25 qualified voters shall have been in attendance at any such convention; also, names of any independent candidates nominated by petition of not less than 25 qualified voters, each signature to be witnessed by two persons, shall be filed with the supervisor not later than 5 p.m. on the first Monday in April of the year in which a quadrennial election is held in order that such names may be placed on the official ballot. No person shall be considered a candidate for tribal office unless and until the requirements of this section have been met. Credits [32 FR 10253, July 12, Redesignated at 47 FR 13327, March 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Govemment Works. VVestta'.vNexr@ 201'1 Thomson Reuters. No claim to original U.S. Government Works.

75 90.31 Applicability., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 37 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annas) Elections 25 C.F.R Applicability. Currentness The manner of carrying out elections to be held under the act of June 28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45 Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471), is covered in the regulations set forth in this part. The next election will be held on the first Monday in June and subsequent elections will be held on the first Monday in June each four years thereafter. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. 'v'vestla 1 NNexr@ Thomson Reuters. No claim to original U,S. Government \Norks.

76 90.32 Election Board., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 38 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Election Board. Currentness The Principal Chief, or in his absence, the Assistant Principal Chief shall, not more than seventy-five days nor less than sixtyfive days preceding the day appointed by law for the holding of an election of officers of the Osage Tribe, issue in the form and manner prescribed in , an election notice and appoint an election board consisting of a Supervisor who shall be chairman, Assistant Supervisor, five judges, one of whom in addition to his regular duties shall act as interpreter, and five clerks, whose duties shall be to conduct the election as provided in the regulations in this part: Provided further, That the Superintendent on the recommendation of the election board may designate extra clerical assistants. Prior to the date ofthe election, the election board shall assemble and make necessary arrangements for the election in a building to be designated by the Superintendent of the Osage Agency as the polling site and make the necessary preparation for receiving prospective voters, for receiving absentee ballots, and see to it that voting booths are arranged to afford privacy. Members of the election board and any extra clerical assistants designated by the Superintendent under authority contained in this section, other than employees of the Osage Agency when duly appointed or designated as provided for in this part may be compensated for conducting each quadrennial election at rates to be fixed by the Osage Tribal Council. If a member of the election board desires to be relieved from duty for any cause, he shall notify the Principal Chief or in his absence the Assistant Principal Chief, in writing to that effect and the Principal Chief, or in his absence the Assistant Principal Chief shall designate someone else to serve as a member of the election board. The Supervisor, or in his absence the Assistant Supervisor, shall see that the rules prescribed for conducting the election are faithfully carried out. The ballots shall be handed out by a judge to the voters as they present themselves to vote, after being identified by a clerk who shall be supplied with a copy of the list of voters prepared pursuant to The judge before handing out a ballot shall remove the detachable portion. A judge shall receive the ballot after the voter has indicated his choice thereon by placing an "X" mark opposite the name of each candidate for whom he desires his vote counted and shall deposit same in the ballot box. The duties of the remaining judges in conjunction with the Supervisor will be to read the names on the ballot when requested so as to identify the candidates or furnish such other information as may be desired in that connection and also to assist prospective voters unable because oflanguage difficulties or physical incapacity to cast votes for candidates of their choice, and to undertake such other duties as may be assigned by the Supervisor. Credits [27 FR 2458, March 15, Redesignated at 47 FR 13327, March 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestlav'i'Nexr 20'11 Thomson Reuters. No claim to original U.S. Government Works.

77 90.33 Watchers and challengers., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 39 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annas) Elections 25 C.F.R Watchers and challengers. Currentness Any candidate or political party may name a person to act as watcher and challenger at any election provided for by the regulations in this part. Each watcher and challenger shall be appointed in writing by the candidate or political party he or she represents. The watchers and challengers shall have the right to be present in the polling place but outside the voting booths and to watch the election officials, the balloting, the call, the tally, and the recording of the result of the vote. It shall be the duty of the watcher to watch, listen, and observe the count for all candidates voted for to insist upon an honest and fair count but shall have no further authority than to have the election judges and clerks note or record any objections to the count and to challenge the result thereof. The challenger shall have the right to question any voter and his right to vote. Watchers shall not divulge or give out any intimation or information as to the count prior to announcement by the election board and shall be subject to the same rules governing the election board with regard to leaving and returning to the polling place. A watcher or challenger shall receive no compensation for his services. Credits [27 FR 2458, Mar. 15, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. /Vestlav!Nexr@ Thomson Reuters. No claim to original U.S. Government Works.

78 90.35 List of voters., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 40 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R List of voters. Currentness The Superintendent of the Osage Agency shall compile a list of the voters of the Tribe who are qualified under Such iist shall set forth only the name and last known address of each voter. The Superintendent shall furnish copies of the list to the Supervisor of_the election board and shall post copies at the headquarters of the Osage Agency at Pawhuska, Okla., and such other places as the election board may determine to be appropriate. The compilation, posting and distribution of copies to the Supervisor of the election board shall be done as soon as possible after preparation of the last quarterly annuity roll preceding the election. Copies of the list shall also be made available to all qualified candidates for office and for the purpose of checking off the name of each voter as his ballot is cast and for determining, in the event of question, the right of any individual to vote. Credits [27 FR 2458, Mar. 15, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 7 6 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestla-..vNexr 2011 Thomson Reuters. No claim to original U.S. Government Works.

79 90.36 Disputes on eligibility of voters., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 41 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Mfairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Disputes on eligibility of voters. Currentness (a) The election board shall flx a date not less than five days before the election at which time all complaints will be heard. The election board shall, at least three days before the date of election, determine any claim or challenge as to the right of any person to be listed on the roll of eligible voters. (b) Any voter of the tribe shall have the right to challenge any person presenting himself to vote and it shall be the duty of the supervisor and a judge of the board to make such investigation then and there as they deem essential, and decide the question of whether or not a person is a listed voter. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VV'estlav.;Nexr 20'! 1 Thomson Reuters. No claim to original U.S. Government Works.

80 90.37 Election notices., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 42 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Election notices. Currentness The election notice shall set forth the place, date and time for holding the election, qualification of voters, method of nominating candidates, and closing date for same, method of locating each name on the ballot and the names of each member of the election board. As soon as possible a copy of the notice of the election, after approval by the Superintendent of the Osage Agency, shall be mailed to each qualified voter at his last known address. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestla'.vNexr@ 20'!1 Thomson Reuters. No claim to original U.S. Government \'Yorks.

81 90.38 Opening and closing of poll., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 43 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annas) Elections 25 C.F.R Opening and closing of poll. Currentness The poll shall remain open without intermission from 8 a.m. to 8 p.m. on the date of the election. When all else is in readiness for the opening of the poll the supervisor shah open the ballot box in view of the other election officers, shall turn same top down to show that no ballots are contained therein, and shall then lock the box. and retain the key in his possession. Credits [32 FR 10253, July 12, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestlavvNexr 201 I Thomson Reuters. No claim to original U.S. Government VVorks.

82 90.39 Voters to announce name and residence., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 44 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Voters to announce name and residence. Currentness Each voter shall upon presenting himself to vote announce to the clerk his name, and address. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, ~vlar. 27, 1958, unless othervvise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. 20'! 1 Thomson Reuters. No claim to original U.S. Government Works.

83 90.40 Ballots., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 45 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections Ballots. Currentness The Superintendent of the Osage Agency shall have ballots printed showing the name and the office for which each candidate has been nominated and also space for showing the vaiue of the respective baliots. The Superintendent shah have recorded on a detachable portion of each ballot the name of the voter. The value of each voter's ballot shall be recorded on the principal portion of the respective ballots. Any faction or group has the right to nominate any candidate it chooses, in accordance with the regulations prescribed in this part. The names of such candidates shall be printed on the ballot in the manner set forth as follows: (a) Under the heading, Principal Chief, with notation to vote for one, shall appear names of all candidates for that office. Under the heading, Assistant Chief, with notation to vote for one, shall appear the names of all candidates for that office. Under the heading, Members of Council, with notation to vote for eight, shall appear names of all candidates for council. Names of candidates for office shall appear only once on ballot, regardless of the fact that they may have been nominated on more than one ticket. The order in which names of qualified candidates for office will be placed on the ballot shall be by lot method of drawing in a manner to be determined by the tribal council, and to be free from or regardless of party or factional affiliations. A candidate may use one nickname. Titles and professional designations will not be shown on the ballot. A record shall be kept of any ballots that may be mutilated, canceled, or used as samples. (b) A space will be provided on each ballot in which the clerk prior to issuing the ballot shall note the value of the ballot which shall be exactly the same value as the voter's headright interest as shown on the last quarterly annuity roll, except any fraction of a headright shall be valued as to the first two decimals only unless such interest is less than one one-hundredth then it shall have its full value. As verification the clerk shall initial the ballot so numbered in the margin. In addition each ballot shall be stamped "Official Ballot" (facsimile signature Supervisor Osage Election Board). Should any voter spoil or mutilate his ballot in his effort to vote he may surrender the ballot to the supervisor who shall give the voter in lieu thereof another ballot which shall show its appropriate value. The spoiled or mutilated ballot or any portion of a spoiled or mutilated ballot shall be retained with other records pertaining to the election. Credits [32 FR 10253, July 12, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. V,testlav Nexr@ 2011 Thomson Reuters. No claim to original U.S. Government Works.

84 90.41 Absentee voting., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 46 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annas) Elections 25 C.F.R Absentee voting. Currentness (a) An eligible voter who will be unable to appear at the poll in Pawhuska on election day shall be entitled to vote by absentee ballot. Absentee ballots shall be identical to the ballots described in with the exception that each such ballot shall be stamped "Absentee Ballot," and reflect the date of issuance. All applications for absentee ballots shall be made in writing by the voter. Each ballot shall indicate the value of the vote to which the voter is entitled. The supervisor shall maintain a file of all applications, together with a record of the names and addresses of all persons to whom absentee ballots are mailed or delivered, including the date of mailing or delivery. All absentee ballots must be postmarked and be in the Pawhuska Post Office prior to 8 a.m. on election day. (b) It shall be the duty of the supervisor, upon receipt of an application, to mail or deliver to the applicant an envelope containing a ballot (after removing the detachable portion), and an inner and outer envelope as described herein. This shall be done not more than 30 days before the election, except that the envelopes and ballots may be mailed to absentee voters residing outside the continental limits of the United States at any time after mailing of the election notice. (c) If the absentee ballot and accompanying envelopes are to be mailed to the prospective voter, the written request must be submitted to the supervisor on or before 5 p.m. of the Wednesday preceding the election. The absentee ballot and accompanying envelopes may be delivered personally to the prospective voter any time prior to the opening of the poll. (d) The absentee voter shall mark the ballot and seal it only in the inner envelope. The following shall be printed on the inner envelope: Absentee Ballot ELECTION OF OFFICERS OF THE OSAGE TRIBE JUNE_,19_ (e) The absentee voter shall enclose the inner envelope in the outer envelope and after sealing same shall execute the certificate imprinted thereon which certificate shall be in the following form: I will be unable to appear at the poll in Pawhuska, Oklahoma, on the_ day of June 19_ and have enclosed my ballot for the election of officers of the Osage Tribe. 1 Criminal penalties are provided by statute for knowingly filing false information in such statements ( 18 U.S.C ). (Voter's signature) The outer envelope shall be pre addressed as follows: Supervisor, Osage Election Board, Post Office Box_, Pawhuska, Okla '/'lestl:rwnexr@ 2011 Thomson Reuters. No claim to original U.S. Government Works.

85 90.41 Absentee voting., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 47 (Authority: 45 Stat. 1481) Credits [23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at 43 FR 8799, Mar. 3, Redesignated at 47 FR 13327,Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. vv~stlav1ne.kf 2011 Thomson Reuters. No claim to original U.S. Government Works. 2

86 90.42 Absentee ballots., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 48 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Departrp.ent of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Absentee ballots. Currentness The absentee ballots shall remain in the locked box in the post office, Pawhuska, Okla., until 8 a.m. on the day of election at which time the supervisor or assistant supervisor of the eiection board, accompanied by the Superintendent of the Osage Agency or his designated representatives, shall receive the locked box from the post office and shall personally transport the locked box to the polling site where it shall be delivered immediately to the supervisor or assistant supervisor of the election board. The supervisor or the assistant supervisor in the presence of at least two judges shall unlock the locked box containing the absentee ballots and shall then determine whether the person whose name is signed to the statement is a qualified voter of the Osage Tribe and check said voter off the poll list before opening the outer envelope. After it has been determined which of the absentee ballots have been cast by duly qualified electors, the supervisor in the presence of the election board shall cause the valid ballots in the sealed inner envelopes to be placed in the ballot box. Credits [32 FR 10254, July 12, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestl.::PNNexr 2011 Thomson Reuters. No claim to original U.S. Government Works.

87 90.43 Canvass of election returns., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 49 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections Canvass of election returns. Currentness (a) Imrnediately after the polls are closed at 8 p.m., the counting of the ballots shall commence. The supervisor and not less than two judges shall remain continuously in the room until the ballots are finally counted. One or more judges shall act as official counters and two or more clerks shall record the value of each vote and shall comprise a vote tallying team. The vote shall be recorded on two tally sheets by each team of judges and clerks under the name of each candidate for whom the voter designated his choice. The count shall continue until all votes have been recorded. The duties of the remaining officials of the election board will be to assist in conducting the election. After the vote of each ballot is recorded, the ballot shall be pierced by needle and string and after the ballots have been so counted, the ends of the string shall be tied together. After all other ballots have been counted, the sealed inner envelopes containing the absentee ballots shall be opened and all ballots found to be valid shall be counted and treated in the same manner as other valid ballots. All ballots and mutilated ballots; registration lists of voters, both absentee and those appearing at the poll; all tally sheets; and all other election materials shall be placed in the ballot box which shall be locked. The supervisor shall then deliver the locked ballot box and keys to same to the Superintendent, Osage Agency, and the box shall be retained in a safe place until opened by order of the supervisor or election board in the event a contest is filed. If no contest is filed, the ballots shall be destroyed 180 days after the election. No infonnation concerning voting shall be posted or made public information until after 8 p.m. (b) Should any ballot be marked for more than one principal chief or assistant chief or for more than eight councilmen, only that section of the ballot wherein the error was made shall be declared void and the remaining section or sections shall be counted in the same manner as other ballots. Absentee ballots shall be declared void when items other than the ballot are enclosed in the inner envelope, the voter fails to sign the statement appearing on the outer envelope, and for failure to seal the inner envelope or enclose the inner envelope in the outer envelope. Votes cast for individuals whose names are not printed on the official ballot shall not be counted. Credits [32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Govemment Works. VVestlawNexr 2011 Thomson Reuters. No claim to original U.S. Government Works.

88 90.44 Statement of supervisor., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 50 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annas) Elections 25 C.F.R Statement of supervisor. Currentness Following the election a statement is to be prepared by the supervisor pertaining to the conduct of the election and certifying to the correct tabulation of the votes for each candidate. The statement shah also set forth the names of the elected candidates and the office to which each was elected. The statement shall be duly acknowledged before an officer qualified to administer oaths and delivered to the Superintendent of the Osage Agency. Credits [32 FR 10254, July 12, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Dowment 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestlav.;Nexr 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

89 90.45 Electioneering., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 51 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Electioneering. Currentness No person shall be allowed to electioneer within the building where and when the election is in progress and it will be the duty of the supervisor to request the detail of a police officer to assist him in maintaining order about the building during the progress of the election. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. 1 v'vestla 1 NNexr 2011 Thomson Reuters. No claim to original U.S. Government Works.

90 90.46 Notification of election of tribal officers., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 52 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Notification of election of tribal officers. Currentness The Superintendent of the Osage Indian Agency shall in due time give written notice to candidates of their election to the various tribal offices and as soon thereafter as practicable such tribal officers shall appear and subscribe to oath of office before an officer qualified to administer oaths and such oaths shall be delivered to the Superintendent and by him transmitted to the Commissioner of Indian Affairs. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. vvestlav;~nexr 2011 Thomson Reuters. No claim to original U.S. Government VVorks.

91 90.47 Contesting elections., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 53 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part go. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Contesting elections. Currentness Any unsuccessful candidate may before noon on Monday next following the tribal election file with the supervisor a challenge to the correctness of the vote cast for the office for which he was a candidate, which challenge must be accompanied by a deposit of $500. The election board or the supervisor shall order a recount and proceed with same as provided in this part. If the recount results in the contestant being elected, the deposit shall be refunded; otherwise, the deposit shall be used to defray all expenses of said recount and any balance not so used shall be returned to the contestant. Credits [32 FR 10254, July 12, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestlav.;Nexr 20'11 Thomson Reuters. No claim to original U.S. Government Works.

92 90.48 Notice of contest., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 54 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs & Annos) Elections 25 C.F.R Notice of contest. Currentness It shall be the duty of the supervisor, to serve upon the contestee, or contestees, directly affected by such challenge or contest, a true copy of said written application, the original of which is required to be filed with the supervisor. Said service shall be made in person, where possible, within twenty-four hours after the filing of said original challenge or contest, and where personal service is impossible within such time, on account of the absence of contestee, or contestees, from Osage County, or for any other reason, it is hereby made the duty of the supervisor to serve a true copy upon the Superintendent of the Osage Indian Agency: Provided, That for the purpose of such constructive service, the Superintendent is hereby made and constituted the service agent of each and every candidate in all tribal elections, and by filing petition as a candidate, such candidate shall thereby be presumed conclusively to have accepted the terms and provisions hereof and specifically the constructive service as aforesaid. SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. VVestlav.;Nexr 201 i Thomson Reuters. No claim to original U.S. Government Works.

93 90.49 Expenses of elections., 25 C.F.R Appellate Case: Document: Date Filed: 10/14/2011 Page: 55 Code of Federal Regulations Title 25. Indians Chapter I. Bureau of Indian Affairs, Department of the Interior Subchapter F. Tribal Government Part 90. Election of Officers of the Osage Tribe (Refs &Annos) Elections 25 C.F.R Expenses of elections. Currentness All expenses of elections including compensation to the members of the election board and any clerical assistants designated by the Superintendent under 90.32, stationery supplies, meals, printing and postage shall be borne by the Osage Tribe as set forth in an appropriate Osage Tribal Council resolution establishing current pay scale. Credits [27 FR 2459, Mar. 15, Redesignated at 47 FR 13327, Mar. 30, 1982] SOURCE: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982., unless otherwise noted. AUTHORITY: Sec. 9, 34 Stat. 539, sec. 7, 45 Stat. 1478, 71 Stat Current through October 6, 2011; 76 FR End ofdocument 2011 Thomson Reuters. No claim to original U.S. Government Works. vvestlav tnexr 20'1 1 Thomson Reuters. No claim to original U.S. Government Works. 1

94 REAFFIRMATION OF CERTAIN RIGHTS OF THE OSAGE..., PL , December... Appellate Case: Document: Date Filed: 10/14/2011 Page: 56 PL , December 3, 2004, 118 Stat 2609 UNITED STATES PUBLIC LAWS 1 08th Congress - Second Session Convening January 7, 2004 Additions and Deletions are not identified in this database. Vetoed provisions within tabuiar materiai are not displayed PL (HR2912) December 3, 2004 REAFFIRMATION OF CERTAIN RIGHTS OF THE OSAGE TRIBE An Act To reaffirm the inherent sovereign rights of the Osage Tribe to determine its membership and form of government. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REAFFIRMATION OF CERTAIN RIGHTS OF THE OSAGE TRIBE. (a) FINDINGS.-The Congress finds as follows: (1) The Osage Tribe is a federally recognized tribe based in Pawhuska, Oklahoma. (2) The Osage Allotment Act of June 28, 1906 (34 Stat. 539), states that the "legal membership" of the Osage Tribe includes the persons on the January 1, 1906 roll and their children, and that each "member" on that roll is entitled to a headright share in the distribution of funds from the Osage mineral estate and an allotment of the surface lands of the Osage Reservation. (3) Today only Osage Indians who have a headright share in the mineral estate are "members" of the Osage Tribe. ( 4) Adult Osage Indians without a headright interest cannot vote in Osage government elections and are not eligible to seek elective office in the Osage Tribe as a matter of Federal law. (5) A principal goal of Federal Indian policy is to promote tribal self-sufficiency and strong tribal government. (b) REAFFIRMATION OF CERTAIN RIGHTS OF THE OSAGE TRIBE.- (1) MEMBERSHIP.-Congress hereby clarifies that the term "legal membership" in section 1 of the Act entitled, "An Act For the division oflands and funds of the Osage Indians in Oklahoma Territory, and for other purposes", approved June 28, 1906 (34 Stat. 539), means the persons eligible for allotments of Osage Reservation lands and a pro rata share of the Osage mineral estate as provided in that Act, not membership in the Osage Tribe for all purposes. Congress hereby reaffirms the inherent sovereign right of the Osage Tribe to determine its own membership, provided that the rights of any person to Osage mineral estate shares are not diminished thereby. (2) GOVERNMENT.-Notwithstanding section 9 of the Act entitled, "An Act For the division oflands and funds of the Osage Indians in Oklahoma Territory, and for other purposes", approved June 28, 1906 (34 Stat. 539), Congress hereby reaffirms the inherent sovereign right of the Osage Tribe to determine its own form of government PUBNUM= STAT.2609(3) ELECTIONS AND REFERENDA.-At the request of the Osage Tribe, the Secretary of the Interior shall assist the Osage Tribe with conducting elections and referenda to implement this section. Approved December 3, LEGISLATIVE HISTORY-H.R. 2912: HOUSE REPORTS: No (Comm. on Resources). SENATE REPORTS: No (Comm. on Indian Affairs). CONGRESSIONAL RECORD, Vol. 150 (2004): ATTACHMENT 7 VV2stlav1Ne.xr 20'11 Thomson Reuters. No claim to original U.S. Government Works.

95 REAFFIRMATION OF CERTAIN RIGHTS OF THE OSAGE..., PL , December... Appellate Case: Document: Date Filed: 10/14/2011 Page: 57 June 1, considered and passed House. Nov. 19, considered and passed Senate. End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. 'vvestlaf!nnexf 2011 Thomson Reuters. No claim to original U.S. Government Works. 2

96 Appellate Case: Document: Date Filed: 10/14/2011 Page: 58 lndlan TRIBAL GOVERNMENTS 4e07[l][d] [d)-osage Nation [i]-tribal Govern~ent The Osage Act of 1906, as amended, includes several provisions affecting the tribal government It specifies the officers of the Osage Tribe and the requirements for elections of t."'1e Osage Tribal Council. 836 It further empowers the Secretary of the Interior to remove council members or officers for cause, B37 and severely restricts tribal council control over tribal funds. 838 Nonetheless, the tribal council constituted under the 1906 A_ct exercises general governmental authority,b39 and the 1978 amendment specifies that "the tnoal government so constituted shall continue in full force and effect... until otherwise provided by Act of Congress." a4o The 1906 Act defined the "legal membership" of the Osage Tribe as those persons on the Osage roll as of January 1, 1906 and all children born to such persons by July 1, It provided that tribal funds ''shall be equally divided among the members" of the tribe as specified, 8 42 although subsequent amendments permitted heirs and devisees of original "members" to share in tribal income.b4 3 Ba5 Act of June , 1, 4. 9%34 StaL 539; Act of Mar. 2, 1929, 5, 7, 45 StaL 1478; Pub. L No , 71 Stat. 471 (1957); Pub. L. No , 1, 92 StnL 1660 {1978), as amended by Pub. L. No , 98 Stat (1984) (technical corrections). The Oklahoma Indian Welfare Act does not apply to the Osage Reservation; see 25 U.S.C Act of June 28, 1906, 9, 34 Stat 539, as amended by Act of Mar. 2, 1929, 7, 45 Stat. 1478; Pub. L. No , 92 Stat (1978), as amended by Pub. L. No , 98 Stnt (1984) (technical corrections); see also generally 25 C.F.R. pt. 90. B37 Act of June 28, 1906, 9, 34 Stat B The Act requires that most tribal funds be distributed per capita to headright owners and provides that Congress controls the amounts retained for tribal purposes. Act of June 28, 1906, 4, 34 Stat. 539; Act of Mar. 2, 1929, 1, 45 StaL In addition, the Osage Tribal Council hns no control over a $1 million tribal fund established under a 1972 federal law. 25 U.S.C d. The. Act commits udministtntion. of this fund to the Secret~ry. who has established an Osage Education Committee to manage il See 25 C.F.R. pl Logan v. Andrus, 640 F.2d 269, 270 (loth Cir. 1981) (nol.hing in Act "limited the authority of the officers therein named to minerai administration or any other specific function"). 840 Pub. L No , 1, 92 Stat (1978). us amended by Pub. L. No , 98 Stat (1984) (technical corrections). 841 For many years after 1906, the tenn "'members" of the Osage Tribe meant only persons on the 1906 Act roll. After passage of the 1929 Act, lhe tenn came to include unenrolled Osages who succeeded to trusl or restricted property. See Act of Mar. 2, 1~29, 5, 45 Stat The tenn is now used to include all persons of Osage ancestry on the Bureau of Indian Affairs records. 842 Act of June 28, 1906, 1, 4, 34 Stat. 539; see also Act of Mar. 2, 1929, 1, 45 StaL Act of Mar. 2, i929, 4, 45 Siat. 1478; Pub. L. No , 5-6, 9, 92 St.ut (1978), as amended by Pub. L. No , 98 Stat {1984) (technical corrections). 309 ATTACHMENT 8