20672 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Parts 700, 740, 746 and 750 

RIN 1029–AC53 

Indian and Federal Lands 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Notice of decision not to adopt 

proposed rule. 

SUMMARY: We, OSM, have decided not 

to adopt a proposed rule that would 

have revised the definition of ‘‘Indian 

lands’’ for purposes of the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA). The proposed rule also 

would have revised both the Federal 

lands program and the Indian lands 

program. 

If adopted as proposed, the definition 

of Indian Lands would have included 

allotted lands located within an 

approved tribal land consolidation area 

but outside the boundaries of a 

reservation. Such allotments would then 

have been subject to OSM’s regulatory 

authority under the Indian Lands 

Program. The only lands approved for 

coal mining that would have been 

brought within the scope of our 

jurisdiction if the proposed rule were 

adopted are 48 Navajo allotments 

overlying leased Federal coal within the 

existing McKinley Mine permit area in 

New Mexico. These allotments are 

currently regulated by the State. 

We conclude that the record before us 

neither adequately supports nor clearly 

precludes a finding of supervision in 

fact or in law. Therefore, we conclude 

that off-reservation Navajo allotted 

lands may be supervised by the Navajo 

Nation and thus may be Indian lands; 

but that any determination as to 

supervision of specific off-reservation 

Navajo allotted lands is more properly 

made on a case-by-case basis. 

In this notice of final action, we are 

setting out our analysis of the applicable 

law and the record before us. We are 

publishing this analysis for two reasons. 

First, we intend this analysis to inform 

the Navajo Nation and the Hopi Tribe 

and the public of the reasons for our 

decision not to adopt the proposed rule. 

Second, we intend this analysis to 

advise the public of how we anticipate 

addressing any pending or future 

actions concerning supervision of 

allotted lands. 

DATES: This decision is effective April 

25, 2007. 

ADDRESSES: The administrative Record 

for this rulemaking is located at the 

Office of Surface Mining Reclamation 

and Enforcement, Administrative 

Record, Room 101, 1951 Constitution 

Avenue, NW., Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Vermell Davis, Office of Surface Mining 

Reclamation and Enforcement, 1951 

Constitution Avenue, NW., Washington, 

DC 20240; Telephone (202) 208–2802. 

E-mail address: gvdavis@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. What Amendments Did We Propose 

Concerning the Definition of Indian 

Lands? What Action Are We Now Taking 

on the Proposed Rule? 

II. How Do We Define Indian Lands Under 

the Existing Rule, and What Lands Do 

We Regulate as Indian Lands Under That 

Definition? 

III. Why Did We Propose the Rule? 

IV. What Would Be the Effect of the Proposed 

Rule? 

V. Why Have We Decided Not To Adopt the 

Proposed Rule? 

VI. What Does the Record Establish 

Concerning the Basis for the Proposed 

Rule? 

VII. What Is the Effect of This Notice? 

VIII. How Will This Issue Be Addressed After 

This Notice? 

I. What Amendments Did We Propose 

Concerning the Definition of Indian 

Lands? What Action Are We Now 

Taking on the Proposed Rule? 

On February 19, 1999 we proposed a 

rule clarifying the definition of Indian 

lands for the purposes of SMCRA, at 30 

CFR 700.5. As discussed in more detail 

below, the proposed rule would have 

amended the existing definition by 

including as Indian lands: 

‘‘All allotments held in trust by the Federal 

government for an individual Indian or 

Indians, the Indian titles to which have not 

been extinguished, including rights-of-way 

running through such allotments, where such 

allotments are located within a tribal land 

consolidation area approved by the Secretary 

or his authorized representative under 25 

U.S.C. 2203.’’ 

In the February 19, 1999 notice of 

proposed rulemaking, we also proposed 

amendments to our Indian lands rules at 

30 CFR part 750, and to our Federal 

lands rules at 30 CFR parts 740 and 746, 

to reflect the proposed change in the 

definition, and to clarify the effect of the 

proposed change. These proposed 

changes are also discussed in more 

detail below. For a full discussion of the 

proposed rule, see 64 FR 8464 (February 

19, 1999). 

We have decided not to adopt any of 

the proposed rules, for the reasons 

discussed below. 

II. How Do We Define Indian Lands 

Under the Existing Rule, and What 

Lands Do We Regulate as Indian Lands 

Under That Definition? 

The term ‘‘Indian lands’’ is defined at 

30 CFR 700.5 as ‘‘all lands, including 

mineral interests, within the exterior 

boundaries of any Federal Indian 

reservation, notwithstanding the 

issuance of any patent, and including 

rights-of-way, and all lands including 

mineral interests held in trust for or 

supervised by an Indian Tribe.’’ 

The regulatory definition is identical 

to the definition of Indian lands in 

SMCRA at 30 U.S.C. 1291(9). Under that 

definition, we have asserted regulatory 

jurisdiction over all lands located 

within the boundaries of Federal Indian 

reservations, and certain lands outside 

reservation boundaries where the 

surface or mineral estate is held in trust 

for or supervised by an Indian tribe. The 

off-reservation lands include those 

portions of the Crow Ceded Strip that 

are within the permit area of 

Westmoreland Resources’ Absaloka 

Mine in Montana where the mineral 

estate (i.e. the coal) is held in trust for 

and beneficially owned by the Crow 

Tribe. We also regulate coal mining on 

certain split-estate lands in the permit 

area of the McKinley Mine in New 

Mexico, on which the Navajo Nation 

(‘‘the Nation’’ or ‘‘the Navajo’’) owns the 

surface estate and the mineral rights are 

privately owned. 

As we noted in the proposed rule, the 

McKinley Mine has a permit area of 

18,692 acres. It is an active coal mining 

operation owned and operated by the 

Pittsburg & Midway (P&M) Coal Mining 

Company. The mine straddles the 

boundary of the Navajo Indian 

Reservation near the Arizona-New 

Mexico border. The portion of the 

permit area that lies within the Navajo 

reservation and on certain adjacent offreservation split-estate Navajo fee lands, 

is regulated by OSM. The remainder of 

the mine, the so-called south area, is 

composed of Federal, private, State, and 

allotted lands and is regulated under a 

permit issued by the New Mexico 

regulatory authority (‘‘the State’’ or 

‘‘New Mexico’’). 

To date, P&M has mined 

approximately 2,905 acres in 45 of the 

48 allotments included within the 

McKinley Mine permit area. Within the 

next two years, P&M plans to mine the 

leased Federal coal on an additional 18 

acres in one of the previously disturbed 

allotments. Beyond this, there is no 

further mining planned within 

allotments at the McKinley Mine. 

We assumed regulatory authority over 

the Navajo fee lands at the McKinley 


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1SMCRA was amended on December 20, 2006, to 

provide for tribal primacy. As amended, SMCRA 

section 710 provides in relevant part as follows: 

‘‘(j)(A)(1) In General.—Notwithstanding any other 

provision of law, an Indian tribe may apply for, and 

obtain the approval of, a tribal program under 

section 503 regulating in whole or in part surface 

coal mining and reclamation operations on 

reservation land under the jurisdiction of the Indian 

tribe using the procedures of section 504(e).’’

Tax Relief and Health Care Act of 2006, Pub. L. 

109–432, Div. C, Title II, Subtitle A. 

Mine subsequent to two 1994 district 

court decisions (Pittsburg & Midway 

Coal Mining Co. v. Babbitt, No. Civ. 90–

730 (D.N.M. Sept. 13, 1994); and New 

Mexico v. Lujan, No. 89–758–M (D.N.M. 

Feb. 14, 1994)). Those decisions upheld 

the Department’s interpretation that 

such lands are Indian lands for purposes 

of SMCRA regulation because the 

Tribe’s ownership of the surface estate 

in fee simple renders the lands 

supervised by the Tribe within the 

meaning of section 701(9) of SMCRA. 

III. Why Did We Propose the Rule? 

The Secretary agreed in a settlement 

agreement to propose a rule clarifying 

the definition of Indian lands at 30 CFR 

700.5. The settlement agreement 

concerned consolidated actions filed by 

the Hopi Tribe and the Navajo Nation, 

Hopi Indian Tribe v. Babbitt, Nos. 89–

2055, 89–2066 (D.D.C. June 20, 1995). 

For purposes of SMCRA and the 

implementing regulations, the Secretary 

agreed to propose including within the 

definition of Indian Lands ‘‘all 

allotments held in trust by the Federal 

Government for an individual Indian or 

Indians, the Indian titles to which have 

not been extinguished, including rightsof-way running through such 

allotments, where such allotments are 

located within a tribal land 

consolidation area approved by the 

Secretary or his authorized 

representative under 25 U.S.C. 2203.’’

For purposes of this discussion, a 

brief history of the background of the 

proposed rule may be helpful. The 

Surface Mining Control and 

Reclamation Act of 1977, Public Law 

95–87, 30 U.S.C. 1201 et seq., (SMCRA 

or the Act) provides statutory authority 

for the development of regulations for 

surface coal mining and reclamation 

operations. Section 710 of SMCRA 

concerns the regulation of surface coal 

mining operations on Indian lands. 

Sections 710(d) and (e) identify the 

applicable SMCRA regulatory 

provisions for surface coal mining 

operations on Indian lands. The 

Secretary of the Interior issued a final 

rule on September 28, 1984, 

implementing the requirements of 

sections 710(d) and (e) of SMCRA (49 

FR 38462). A new subchapter, 

Subchapter E—Indian Lands Program, 

was added to 30 CFR Chapter VII. 

Subchapter E included Part 750—

Requirements for Surface Coal Mining 

and Reclamation Operations on Indian 

Lands, and Part 755—Tribal-Federal 

Intergovernmental Agreements. 

Our regulations at 30 CFR Part 750 

specify the applicable requirements for 

coal exploration and for surface coal 

mining and reclamation operations on 

Indian lands, including permit review 

and permit processing; permit 

applications; performance standards; 

bonding; inspection and enforcement 

(I&E); and various other provisions. 

Section 750.6 designates OSM as the 

SMCRA regulatory authority on Indian 

lands and describes our permitting, 

consultation and I&E responsibilities 

under SMCRA. Section 750.6 also 

specifies the Indian lands 

responsibilities of the Bureau of Land 

Management (BLM), the Bureau of 

Indian Affairs (BIA), and the Minerals 

Management Service (MMS). 

The final Indian lands rule 

promulgated in 1984 was challenged on 

various grounds by certain States (New 

Mexico ex rel. Energy and Minerals 

Dep’t, Mining and Minerals Div’n v. 

United States Dep’t of the Interior, Civ. 

No. 84–3572 (D.D.C.)), and by the 

National Coal Association and 

American Mining Congress (NCA v. 

United States Dep’t of the Interior, Civ. 

No. 84–3586 (D.D.C.)). 

The Department of the Interior settled 

those two challenges by entering into 

separate agreements with the plaintiffs 

in which we agreed to undertake further 

rulemaking actions concerning the 

Indian lands program. The second 

round of Indian lands rulemaking led to 

the issuance of a final rule on May 22, 

1989 (54 FR 22182). The 1989 final rule, 

issued jointly by OSM and BIA, 

amended our regulations at 30 CFR part 

750, as well as BIA’s regulations at 25 

CFR part 200 governing leases of coal on 

Indian lands. 

In the preamble to the 1989 final rule, 

we clarified that we are the exclusive 

SMCRA regulatory authority on Indian 

lands until the United States Congress 

enacts legislation pursuant to section 

710(a) of SMCRA, to allow Indian Tribes 

to assume full regulatory authority over 

surface coal mining operations on 

Indian lands, and the Tribes elect to do 

so.1 We also clarified that, for purposes 

of SMCRA regulatory jurisdiction, we 

considered off-reservation individual 

Indian allotments to be Indian lands 

only if an interest in the surface or 

mineral estate is held in trust for or 

supervised by an Indian Tribe. We did 

not, however, amend the regulatory 

definition of Indian lands at 30 CFR 

700.5. 

The Hopi Tribe and the Navajo Nation 

challenged the 1989 final rule on several 

grounds. The Navajo Nation asserted 

that individual Indian trust allotments 

are Indian lands subject to OSM 

regulation under SMCRA and that the 

Secretary may not lawfully allow or 

delegate to the States any permitting or 

regulatory authority under SMCRA on 

such lands. The Tribes’ challenges were 

subsequently consolidated and, in April 

1995, were settled in an agreement 

between the Department of the Interior 

and the two plaintiff Tribes. The U.S. 

District Court for the District of 

Columbia approved the settlement in 

June 1995. See Hopi Indian Tribe v. 

Babbitt, Nos. 89–2055, 89–2066 (D.D.C. 

June 20, 1995). 

Under the terms of the settlement, the 

Secretary agreed, among other things, to 

propose a rule clarifying the definition 

of Indian lands at 30 CFR 700.5 for 

purposes of SMCRA and the 

implementing regulations. Specifically, 

the Secretary agreed to propose 

including as Indian lands ‘‘all 

allotments held in trust by the Federal 

Government for an individual Indian or 

Indians, the Indian titles to which have 

not been extinguished, including rightsof-way running through such 

allotments, where such allotments are 

located within a tribal land 

consolidation area approved by the 

Secretary or his authorized 

representative under 25 U.S.C. 2203.’’

We proposed the clarified definition 

of Indian lands on February 19, 1999 (64 

FR 8464). We also proposed several 

changes to the Indian lands program at 

30 CFR part 750 to make those 

regulations consistent with the 

proposed change in the definition of 

Indian lands. We further proposed 

various rule changes to the Indian lands 

program and to the Federal lands 

program at 30 CFR parts 740 and 746 to 

specify the applicable regulatory 

requirements for mining operations 

involving the mining of leased Federal 

coal on Indian lands. We anticipated 

that the necessity for such requirements 

would arise for the first time, should we 

ultimately adopt the revised definition 

of Indian lands. 

We held a public hearing on the 

proposed rule in Albuquerque, New 

Mexico on June 8, 1999. The public 

comment period on the proposed rule 

was originally scheduled to close on 

April 20, 1999, but we subsequently 

extended the comment period through 

June 21 after we received several 

requests for an extension. Commenters 

included the Navajo Nation, the State of 

New Mexico, the National Mining 


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Association and Pittsburg & Midway 

Coal Company (McKinley Mine). 

IV. What Would Be the Effect of the 

Proposed Rule? 

A. What Lands Would Be Affected? 

If adopted as proposed, the definition 

of Indian Lands would include allotted 

lands located within an approved tribal 

land consolidation area but outside the 

boundaries of a reservation. Such 

allotments would then be subject to 

OSM’s regulatory authority under the 

Indian Lands Program. The only lands 

approved for coal mining that would be 

brought within the scope of OSM’s 

jurisdiction if the proposed rule were to 

be adopted are 48 Navajo allotments 

overlying leased Federal coal within the 

existing McKinley Mine permit area in 

New Mexico. These allotments are 

currently regulated by the State. The 

McKinley Mine permit area straddles 

the boundary of the Navajo Reservation 

near the Arizona-New Mexico border. 

The portions of the permit area that lie 

within the reservation boundaries and 

on an adjacent parcel of off-reservation 

Navajo fee lands, are collectively 

referred to as the north area and are 

regulated by OSM. The remainder of the 

mine, the so-called south area, is 

composed of Federal, private, State, and 

allotted lands occurring in a complex 

checkerboard pattern, and is regulated 

by the State of New Mexico. The 

allotted lands include all or part of 48 

individual allotments, 45 of which 

contain leased Federal coal and three of 

which contain unleased Federal coal. 

No other coal mines in the U.S. would 

be affected by the proposed rule at this 

time. 

B. How Would the Proposed Rule Affect 

Funding Under SMCRA Title V and 

Title IV, and Responsibility for AML 

Reclamation? 

Effect on Allocation of Title IV 

Funding and Responsibility for AML 

Reclamation: As we explained in the 

proposed rule, we collect AML 

reclamation fees from coal mining 

operations pursuant to Title IV of 

SMCRA and the implementing 

regulations. Historically, fifty percent of 

the fees from coal produced from State 

and private lands within a State, or from 

coal produced from Indian lands, is 

allocated to the respective State or 

Tribal share for use, once appropriated, 

on eligible reclamation projects and 

activities. The Navajo Nation, as well as 

the Crow and Hopi Tribes, have 

approved Title IV programs. However, 

beginning with fees collected during 

fiscal year 2008, States and Indian 

Tribes that have certified the 

completion of all coal-related 

reclamation under section 411(a) of 

SMCRA, as the Navajo Nation has done, 

will receive payments from 

unappropriated funds in the U.S. 

Treasury in lieu of that allocation. 

Noncertified States, such as New 

Mexico, will receive their 50% 

allocation in the form of grants for AML 

reclamation purposes. Tax Relief and 

Health Care Act of 2006, Public Law 

109–432, Div. C, Title II, Subtitle A. 

If allotted lands were designated 

Indian lands as proposed, the resulting 

change in the jurisdictional status of 

Navajo consolidation area allotments 

would mean that the Navajo Nation 

would receive Treasury payments equal 

to 50% of the AML reclamation fees 

generated by coal production on those 

allotments. The change also would 

mean that New Mexico would no longer 

receive 50% of the fees generated by 

coal production on those allotments. 

Effect on Allocation of Title V 

Funding: In the proposed rule, we noted 

that the change in definition of Indian 

lands, if adopted, could also potentially 

reduce the amount of annual funding 

that we provide to the State of New 

Mexico to support the implementation 

of its Title V regulatory program. As we 

explained in the proposed rule, the 

State’s Title V funding formula is based, 

in part, on the total acreage subject to 

State regulatory jurisdiction; thus, the 

proposed change in the Indian lands 

definition could result in a small 

decrease in the State’s annual Title V 

grant since it would immediately reduce 

the amount of land subject to State 

regulation. 

V. Why Have We Decided Not To Adopt 

the Proposed Rule? 

With the publication of the February 

19, 1999, proposed rule, we met our 

obligation under the 1995 settlement 

agreement to propose the change in the 

definition of Indian Lands. As discussed 

above, we then reviewed the rulemaking 

record and decided whether to adopt a 

final rule in consideration of all of the 

information in the record. We further 

considered the extent to which it was 

appropriate to pursue any other 

rulemaking to address the question of 

when allotments are supervised by a 

tribe. Finally, we evaluated further 

actions that are likely on the underlying 

issue. 

A. How Did We Determine What Action 

To Take on the Proposed Rule? 

In determining what action to take in 

this final rulemaking, we were required 

to evaluate the administrative record to 

determine whether the record supports 

a determination that all allotted lands in 

an approved tribal land consolidation 

area are supervised by an Indian tribe. 

Effectively, to adopt the proposed rule, 

we would need to find that the Navajo 

Nation supervises Navajo allotments 

located outside the reservation but 

within the Navajo Land Consolidation 

Area. 

As a first step in our evaluation, we 

determined what is meant by the term 

‘‘supervised by’’ in the SMCRA 

definition. We also extensively 

researched the legal and historical 

background of the definition of Indian 

Lands. As discussed below, we 

concluded that to ‘‘supervise’’ means to 

have the function, right, or authority to 

superintend, regulate, or oversee a 

person or thing. Thus in general, a tribe 

supervises lands if the tribe has the 

function, right, or authority to 

superintend, regulate, or oversee the 

lands or what is done affecting the 

lands. 

We then reviewed the record and 

concluded that the record does not 

support a determination that all allotted 

lands in an approved tribal land 

consolidation area are supervised by an 

Indian tribe. Specifically, the record 

does not demonstrate whether or not the 

Navajo Nation supervises the offreservation Navajo allotted lands in the 

approved Navajo tribal land 

consolidation area. 

B. What Are Our Reasons for Not 

Adopting the Proposed Rule? 

1. Summary 

After reviewing the entire 

administrative record, including all 

comments received on the proposed 

rule, we conclude that, for the reasons 

set out below, the record does not 

support a finding that all allotted lands 

in an approved tribal land consolidation 

area are Indian lands for purposes of 

SMCRA; and that the record also does 

not support a conclusion one way or the 

other as to whether off-reservation 

Navajo allotted lands are supervised by 

the Nation. Further, as discussed below, 

we conclude that (1) this jurisdictional 

issue has arisen only once so far, and is 

unlikely to arise frequently in the 

future. (However, the proposed rule 

would be over-inclusive, because it 

would also apply without further 

analysis to any other similarly situated 

allotments that might occur; and this is 

not appropriate, because case-by-case 

analysis of all relevant facts and law is 

required for any such determination of 

tribal interests.) and (2) this issue is not 

suited to a rulemaking of nationwide 

applicability, but rather should be 

addressed in case-by-case 

determinations. 


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For the above reasons, we conclude 

that the record before us neither 

adequately supports nor clearly 

precludes a finding of supervision in 

fact or in law. Therefore, we conclude 

that off-reservation Navajo allotted 

lands may be supervised by the Navajo 

Nation and thus may be Indian lands; 

but that any determination as to 

supervision of specific off-reservation 

Navajo allotted lands is more properly 

made on a case-by-case basis. Hence, we 

have decided not to adopt the proposed 

rule. 

2. What Is the Meaning of ‘‘Supervised 

by’’? 

Statutory construction is a two-step 

process. In the first step, we ask whether 

the intent of Congress is clear. Chevron 

U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842 

(1984), reh’g denied, 468 U.S. 1227 

(1984) (‘‘Chevron’’). If so, we ‘‘must give 

effect to the unambiguously expressed 

intent of Congress.’’ Id. at 842–43. We 

must ascribe to the statutory words their 

plain and ordinary meaning, absent 

convincing reasons to the contrary. The 

words are the best indicators of 

legislative intent. See, e.g., Save Our 

Cumberland Mountains v. Clark, 725 

F.2d 1422 (D.C. Cir. 1982). See also 

Chevron, 467 U.S. 837, 839. 

In the second step of statutory 

construction, if Congress has not 

‘‘spoken to the precise question at 

issue,’’ our construction of the statute 

must be ‘‘permissible,’’ i.e., ‘‘rational 

and consistent with the statute.’’ See 

Chevron, 467 U.S. at 842, 843. 

a. Is the Statute Ambiguous? 

Summary: SMCRA does not define 

‘‘supervised by,’’ and the legislative 

history of SMCRA is silent as to 

Congress’ intention. However, a statute 

is not ambiguous if the terms used have 

a commonly accepted interpretation. 

After review of all comments on the 

proposed rule, and the materials 

discussed below, we conclude that, in 

general, a tribe supervises lands if the 

tribe has the function, right, or authority 

of superintending, regulating, or 

overseeing those lands. Thus, the Indian 

lands criterion, ‘‘supervised by,’’

addresses whether the tribe has the 

function, right, or authority of 

regulating, superintending, or 

overseeing the lands in question, and 

what is done affecting those lands. 

Although we found many variations in 

the definitions and synonyms ascribed 

to these terms, we believe that the thrust 

of relevant definitions and 

interpretations may be summarized as 

follows: ‘‘supervise’’ or ‘‘supervision’’

means the function, right, or authority 

of superintending, regulating, or 

overseeing a person or thing. We 

conclude that this is the meaning 

intended by Congress. 

No SMCRA Definition or SMCRA 

Legislative History: The term 

‘‘supervised by’’ is neither defined in 

SMCRA nor explained in the legislative 

history of the statute. See Valencia 

Energy Co., 109 IBLA 40 (1989), aff’d, 

New Mexico ex rel. Energy, Minerals & 

Natural Resources Dep’t v. Lujan, No. 

89–758–M, 21 ILR 3113 (D.N.M. 

February 14, 1994) (‘‘Valencia’’). 

Commonly Accepted Interpretation of 

‘‘Supervise’’ or ‘‘Supervision’’: To 

ascertain whether the term has a 

commonly accepted interpretation, and 

therefore is not ambiguous, we reviewed 

definitions and interpretations of the 

word ‘‘supervise’’ given in various 

dictionaries, a thesaurus and relevant 

case law. One widely used dictionary 

says ‘‘supervise’’ means: ‘‘to direct and 

inspect the performance of; 

superintend.’’ (The American Heritage 

Dictionary, Second College Edition 

(1982)). Another dictionary says 

‘‘supervision’’ refers ‘‘to the function of 

watching, guarding, or overseeing.’’

(The American Heritage Dictionary of 

the English Language, Fourth Edition 

(2000)). Similarly, other definitions of 

‘‘supervise include: ‘‘superintend, 

oversee,’’ (Merriam Webster’s Collegiate 

Dictionary, Tenth Edition (1996)); and 

‘‘1. To direct and watch over the work 

and performance of others (synonyms: 

boss, overlook, oversee, superintend). 2. 

To control the course of (an activity).’’

(Roget’s II: The New Thesaurus (1980)). 

In addition, Black’s Law Dictionary 

defines ‘‘supervise’’ as ‘‘to have general 

oversight over, to superintend or to 

inspect.’’ Black’s Law Dictionary (7th 

ed. 1999). 

Case law interpreting the word 

‘‘supervise,’’ gives some similar 

interpretations of the term. For example: 

According to the Century Dictionary, 

* * * the word ‘‘supervise’’ means to 

oversee; have charge of, with authority to 

direct or regulate. * * * New York Life Ins. 

Co. v. Rhodes, 60 S.E. 828, 831, 4 Ga. App. 

25. 

* * * * * 

Common meaning of ‘‘supervise’’ is to 

superintend which means to have charge and 

direction of, to direct course and oversee 

details, to regulate with authority, to manage, 

to have or exercise the charge and oversight 

of, to oversee with power of direction, to take 

care of with authority. NederlandschAmerikaansche-Stoomvaart-Mattschappij; 

Holland-America Line v. Vassallo, Tex. Civ. 

App., 365 S.W. 2d 650, 656 [sic]. 

* * * * * 

The words ‘‘supervise,’’ ‘‘superintend,’’

and ‘‘oversee,’’ in ordinary use and common 

acceptance, have substantially the same 

meaning, which is to have or exercise the 

charge and oversight of. Bacigalupo v. 

Fleming, 102 S.E.2d 321, 325, 199 Va. 827. 

Words and Phrases, ‘‘Supervise’’ (2001). 

Although we found many variations 

in the definitions and synonyms 

ascribed to these terms, we believe that 

the thrust of relevant definitions and 

interpretations may be summarized as 

follows: ‘‘supervise’’ or ‘‘supervision’’

means the function, right, or authority 

of superintending, regulating, or 

overseeing a person or thing. Under the 

first prong of the Chevron test, and after 

review of all comments on the proposed 

rule, and review of the materials 

referenced in this preamble, we 

conclude that this is the meaning 

intended by Congress. Thus, we 

conclude that the statute is 

unambiguous as to the meaning of the 

term ‘‘supervised by.’’

b. What Is Our Alternative 

Interpretation of the Statute, if a Court 

Were To Disagree With Our 

Construction Above? 

Although we conclude that the 

statutory term ‘‘supervised by’’ is, for 

purposes of the proposed rule, 

unambiguous, we recognize that, in 

light of the variations in meaning 

ascribed to the term in different 

contexts, it is possible that a court might 

conclude differently. If a court did so 

hold, then in the absence of clear 

statutory language or express 

Congressional direction, OSM has the 

authority to make a reasonable or 

permissible interpretation of the 

statutory phrase. Congress, when it 

leaves ambiguity in a statute to be 

implemented by an agency, is presumed 

to intend that the ambiguity will be 

resolved by the agency, and intends the 

agency to have the discretion allowed 

by an ambiguity. Chevron, 467 U.S. 837, 

843; Smiley v. Citibank, 517 U.S. 735, 

740–41 (1996). 

If a court were to disagree with our 

construction of the term ‘‘supervised 

by’’ as used in SMCRA § 701.9, as 

unambiguous, and were to rule that, on 

the contrary, the term is ambiguous, the 

term would have to be construed under 

a Chevron Step II analysis. Using that 

alternative analysis we conclude that a 

tribe supervises lands if the tribe has the 

function, right, or authority of 

superintending, regulating, or 

overseeing those lands. Thus, for 

purposes of our review of the record and 

action on the proposed rule, we 

conclude that the Indian lands criterion, 

‘‘supervised by,’’ addresses whether the 

tribe has the right or authority to 

regulate, superintend, or oversee the 

lands in question (or the function of 


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doing so); or whether the tribe has the 

right or authority to regulate, 

superintend, or oversee what is done 

affecting those lands (or the function of 

doing so). 

c. What Is the Relationship of Tribal 

Supervision to the Roles of Other 

Governments on Lands? 

A determination as to tribal 

supervision does not require that we 

compare state or Federal supervision 

versus tribal supervision in order to 

determine whether allotments are 

Indian lands. Rather, we determine 

whether the tribe’s interests or actions 

suffice to constitute supervision for 

purposes of SMCRA. Nothing in the 

SMCRA definition requires that the tribe 

have exclusive supervision or primary 

supervision. Thus, the definition does 

not require that either a state or the 

Federal Government be excluded from 

supervising the land. Similarly, the 

statute does not require that the tribe 

have a greater supervisory interest or 

role than a state or the Federal 

Government does. Further, the 

definition does not require that the 

supervision specifically relate to 

SMCRA or coal mining. This is 

consistent with the fact that OSM is the 

SMCRA regulatory authority on 

designated Indian lands, and that a state 

is typically the SMCRA regulatory 

authority on other lands. Thus, either a 

state or OSM would have the primary 

‘‘supervisory’’ responsibility for 

regulating surface coal mining 

operations and their effects on lands 

under SMCRA. However, the definition 

does require that a tribe supervise the 

lands. In this regard, supervision of 

activities that may significantly affect 

lands (such as building, grazing, and 

other land uses, water pollution, etc.) 

may be evidence of, or an aspect of, 

supervision of the lands. We believe 

that, logically, supervision of actions 

that affect lands is a basic means of 

supervising the affected lands. 

d. Is Our Construction of ‘‘Supervised 

by’’ Consistent With SMCRA Case Law? 

Our construction of ‘‘supervised by’’

and ‘‘supervise’’ is not controverted by 

the decisions in either of the two cases 

concerning the interpretation and 

application of the term under SMCRA. 

Valencia Energy Co., 109 IBLA 40 (May 

26, 1989) (‘‘Valencia’’), aff’d sub nom. 

New Mexico v. Lujan, No. 89–758-M 

(D.N.M. February 14, 1994), 21 I.L.R. 

3113 (June 1994); and Pittsburg & 

Midway Coal Mining Co. v. OSMRE, 115 

IBLA 148 (1990) (‘‘Pittsburg & 

Midway’’), aff’d, The Pittsburg & 

Midway Coal Mining Co. v. Babbitt, No. 

90–730 (D.N.M. September 12, 1994). 

Neither of the two cases has led to a 

decision that defines the term 

specifically and unambiguously. 

Further, neither case has yielded a final 

decision that addresses the applicability 

of the term to allotted lands. 

Valencia addressed our interpretation 

that certain lands, in which a tribe held 

a fee interest in the surface, were 

‘‘Indian lands’’ under SMCRA. One of 

our bases for our interpretation was that 

land owned by the Nation necessarily 

constituted land ‘‘supervised by’’ the 

Nation. We argued to the IBLA that, ‘‘if 

ownership were not supervision, it 

would be impossible for a property 

interest to reach the level of 

supervision.’’ The IBLA agreed. 109 

IBLA 40 (1989). In its appeal to the 

IBLA, Valencia had advanced the 

argument that, ‘‘[s]ince the lands in 

question are not presently within the 

Tribe’s regulatory jurisdiction, * * * it 

is beyond the power of OSMRE to 

include such lands within the definition 

of ‘‘Indian lands.’’ 109 IBLA 51. Further, 

Valencia had argued that, since the 

Navajo Nation had conveyed all its 

rights to the surface for approximately 

50 years, it had no supervisory authority 

over the land until the expiration of the 

lease term. Id. at 52. In rejecting 

Valencia’s arguments, the IBLA 

concluded that, ‘‘where an Indian tribe 

owns either the mineral estate or the 

surface in fee of any land outside of the 

exterior boundaries of an Indian 

Reservation, such land is ‘‘supervised 

by an Indian tribe’’ within the meaning 

of 30 U.S.C. 1201(9) (1982) and is 

properly subject to the Federal Program 

for Indian Lands established in 30 CFR 

Part 750.’’ Id. at 67. The IBLA found 

that, while an OSM analysis ‘‘provided 

more than a sufficient basis upon which 

to find that the Navajo Tribe did 

exercise supervision in fact, we are also 

of the view that supervision in law, i.e., 

mere ownership of the surface fee, was 

sufficient, in and of itself, to compel the 

conclusion that the lands at issue were 

‘Indian lands.’ ’’ 109 IBLA at 65. 

The Valencia holding on ownership 

of either the mineral or surface estate 

was also followed by the IBLA in 

Pittsburg & Midway. Pittsburg & Midway 

concerned a consolidated set of cases, 

related to a permit issued by OSM. The 

permit effectively asserted jurisdiction 

under the SMCRA Indian lands program 

over two categories of lands: Offreservation lands in which the surface 

estate is owned by the Navajo; and any 

allotted lands held by members of the 

Navajo Nation that might be determined 

by OSM to be supervised by the Tribe. 

See Memorandum of the Office of 

Surface Mining Reclamation and 

Enforcement at 9–10 and Attachments A 

and B, and Memorandum of the Office 

of Surface Mining Reclamation and 

Enforcement on the Issue of Jurisdiction 

over Off-Reservation Indian Tribal Split 

Estate Lands at 5 and n. 2, Pittsburg & 

Midway, 115 IBLA 148 [ref. OHA Docket 

No. TU–6–2–PR]. At that time, we did 

not identify any specific off-reservation 

allotted lands as being supervised by the 

Nation. The permittee challenged our 

jurisdiction to issue permits for any offreservation lands within the mine. The 

Navajo Nation intervened in the case, 

and asserted, inter alia, that OSM had 

jurisdiction over all of the mine lands, 

including the off-reservation allotments. 

The permittee argued that ‘‘Indian 

lands’’ does not apply to lands outside 

a reservation where a tribe owns only 

the surface estate, because the SMCRA 

definition requires that the tribe also 

own the mineral estate. The IBLA held 

that we had jurisdiction to issue the 

permit with respect to the offreservation lands in which the Navajo 

held only the surface estate. The IBLA 

also held that our interpretation of the 

definition, as set out in Valencia, was 

reasonable and therefore the definition 

applies to ownership of a split estate. 

The IBLA noted that it is clear that 

supervision is one of the rights 

encompassed in fee simple ownership 

of land, and rejected the permittee’s 

assertion that ‘‘supervision’’ must mean 

unfettered management of land. 115 

IBLA 156. Concerning one of the 

consolidated cases, the IBLA concluded 

that the Administrative Law Judge’s 

decision did not provide a basis for the 

judge’s determination that the offreservation allotted lands in the permit 

area are not supervised by the Tribe. Id. 

at 161. The IBLA held further that the 

question cannot be resolved in the 

absence of a hearing. Therefore, the 

IBLA remanded the case for a hearing 

and decision on the question of whether 

the off-reservation allotted lands were 

‘‘Indian lands’’ because they were ‘‘held 

in trust for or supervised by’’ the Tribe. 

Id. The remanded case on allotted lands 

was subsequently stayed in 1992 

pending the outcome of the district 

court appeal of the case (Pittsburg & 

Midway Coal Mining Co. v. OSM, 

Docket Nos. TU 6–2–PR, TU 7–6–R, TU 

6–60–R, order entered October 16, 1992 

(OHA Hearings Div.). Subsequently, it is 

our understanding that the remanded 

case was informally stayed by 

consensus of the parties pending final 

disposition of the litigation that led to 

the 1995 settlement agreement 

discussed above. Then the case was 

informally stayed pending final action 

on our proposed Indian lands rule 

published on February 19, 1999. The 


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remanded case has now been dismissed 

without prejudice, although OSM stated 

that it did not support the dismissal, 

because this rulemaking was pending 

and dismissal of the case could impede 

resolution of the ‘‘Indian lands’’ status 

issue. Pittsburg & Midway Coal Mining 

Co. v. OSM, OSMRE’s Response to 

Order to Show Cause, Docket Nos. TU 

6–2–PR, TU 7–6–R, TU 6–60–R (OHA 

Departmental Hearings Div.). 

Regardless of whether the term 

‘‘supervised by’’ is construed under 

Chevron Step I or Step II, we conclude 

that, consistent with Valencia, 

supervision of lands may be supervision 

in fact or supervision in law (or a mixed 

question of fact and law). That is, 

supervision may exist either because a 

tribe has the right or authority to 

superintend, regulate, or oversee the 

lands [supervision in law]; or because 

the tribe currently or historically 

superintends, regulates, or oversees the 

lands [supervision in fact]; or both. 

e. Is Our Construction of ‘‘Supervised 

by’’ Consistent With Other Legislative 

History Relevant to Congress’ Intent in 

SMCRA? 

Our interpretation is also consistent 

with the interpretation of the phrase 

‘‘supervised by an Indian tribe’’ in the 

legislative history of another bill 

considered by Congress at the same time 

it considered SMCRA, the Land Use 

Policy Planning and Assistance Act of 

1973 (LUPA). 

In Valencia, in evaluating the 

evidence of Congress’ intent on this 

issue, we noted that LUPA contained a 

definition of ‘‘Indian lands’’ similar to 

that in SMCRA and was drafted at 

approximately the same time as the 

SMCRA definition of ‘‘Indian lands.’’ In 

explaining the scope of the phrase 

‘‘supervised by an Indian tribe’’ in 

LUPA, the Senate Report on the bill 

noted that the phrase ‘‘is intended to 

cover lands which are Indian country 

for all practical purposes but which do 

not enjoy reservation status.’’ S. Rep. 

No. 93–197, at 127 (1973). The 

committee noted that tribal land use 

planning programs would be largely 

meaningless if the tribes could not 

control key reservation tracts that they 

did not own ‘‘or lands outside a 

reservation which they own or for which 

they possessed administrative 

responsibility.’’ Id. (Emphasis added). 

From this, we argued in Valencia that 

lands owned by an Indian tribe are 

‘‘Indian lands’’ under SMCRA section 

701(9). 

Valencia argued that recourse to the 

legislative history of LUPA was 

unwarranted because it involved a 

different piece of legislation, that was 

never enacted, and that was considered 

four years before SMCRA was adopted. 

Valencia also argued that, regardless of 

what may have been contemplated by 

the original drafters of the language, 

their interpretation could not be said to 

be binding on the Congress that adopted 

SMCRA. However, the IBLA rejected all 

of these arguments, noting that: LUPA 

was considered by the same committee 

that was formulating an earlier version 

of SMCRA; the definition of ‘‘Indian 

lands’’ in the bills was identical; and in 

the ensuing 4 years, the SMCRA 

definition of ‘‘Indian lands’’ remained 

the same. The IBLA concluded that ‘‘[i]t 

is simply logical to assume that a single 

legislative committee, reviewing two 

separate pieces of legislation, both 

containing the same verbatim definition, 

intended the same interpretation of that 

definition’’ in both pieces of legislation. 

109 IBLA 50. The IBLA also noted that 

Valencia’s argument would have had 

more force if there had been any 

indication in the legislative history of a 

subsequent change in Congress’

interpretation, but no such change had 

occurred, despite Congress’ continual 

reexamination of the provision until 

passage. 109 IBLA 61 [citing In re: 

Permanent Surface Mining Regulation 

Litigation, 627 F.2d 1346, 1364 (DC Cir. 

1980)]. Noting that the Court of Appeals 

for the District of Columbia had relied 

heavily on the legislative history of 

LUPA in interpreting SMCRA section 

710, the IBLA stated that recourse to the 

legislative history of LUPA to construe 

the phrase ‘‘supervised by an Indian 

tribe’’ in SMCRA section 701(9) was 

proper. 109 IBLA 62. As noted above, 

Valencia was upheld by a district court 

on appeal. 

The legislative history of LUPA using 

the phrase ‘‘lands * * * for which they 

possessed administrative responsibility’’

to refer to lands supervised by a tribe, 

is consistent with our interpretation of 

the term ‘‘supervised by.’’ However, 

even if it were argued that the IBLA 

erred and that the legislative history of 

LUPA does not establish beyond dispute 

Congress’ intent with regard to the 

interpretation of ‘‘supervised by,’’ we 

are not relying solely upon that 

legislative history to establish Congress’

intent with regard to the phrase. Rather, 

as discussed above, we conclude that 

Congress intended the commonly 

understood meaning; namely, 

‘‘supervise’’ or ‘‘supervision’’ means the 

function, right or authority of 

superintending, regulating, or 

overseeing a person or thing. And, as 

discussed above, if a court were to 

conclude that Congress’ intent was not 

clear, we believe that our interpretation 

is reasonable. 

3. Does the Record Demonstrate Navajo 

Nation Supervision of Off-Reservation 

Allotted Lands in the Consolidation 

Area? 

After review of the record before us, 

including all comments, we conclude 

that the record does not demonstrate 

that, in general, all tribes supervise their 

members’ allotted lands. The record 

does not demonstrate any relevant 

interests or functions that all tribes have 

on their tribal members’ allotted lands. 

More specifically, as discussed below, 

the record does not clearly demonstrate 

whether the Navajo Nation supervises 

the Navajo allotted lands outside the 

Navajo reservation, in the approved 

tribal land consolidation area. The 

record does not clearly and indisputably 

establish the extent to which the Nation 

supervises those lands in law because of 

any sovereign or congressionally 

delegated authority on these allotted 

lands relevant to supervision of the 

lands under SMCRA. Likewise, it is not 

clear whether the Nation supervises 

those lands in fact because of any 

actions or programs of the Nation that 

amount to superintending, regulating, or 

overseeing the lands. Thus, the record 

does not establish whether the Nation 

supervises any allotted lands in fact or 

in law. Equally important, for any 

interests that the Nation may assert that 

it has or any actions that the Nation may 

take on allotted lands, the record does 

not clearly demonstrate relevance or 

significance to tribal supervision of 

those lands under SMCRA. In summary, 

the record is inadequate to support a 

determination as to whether any Navajo 

off-reservation allotted lands are 

supervised by the Navajo Nation and are 

thus Indian lands. Therefore, we 

conclude that the record does not 

support the proposed rule. 

a. Why Is Case-by-Case Analysis Needed 

for Evaluation of Tribes’ Authorities 

Over Allotted Lands? 

We could find no consistent rule 

articulated by the courts concerning 

tribal authority over any off-reservation 

lands or land uses, although in general 

the commentators and decisions 

referenced in this notice emphasize the 

need for full discussion of all relevant 

factors, including legal and factual 

parameters concerning a tribe’s 

authority. Tribes’ authorities over 

various types of lands have long been 

the subject of contention and confusion. 


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2For example, decisions hold that tribal 

governments are distinct, independent political 

communities, [Worcester v. Georgia, 31 U.S. (6 Pet.) 

515, 559 (1832)] with inherent attributes of 

sovereignty [United States v. Mazurie, 419 U.S. 544, 

557 (1975)]. The Supreme Court has described 

tribes’ status as: 

‘‘ ‘An anomalous one and of complex character,’ ’’

for despite their partial assimilation into American 

culture, the tribes have retained ‘‘ ‘a semiindependent position * * * not as States, not as 

nations, not as possessed of the full attributes of 

sovereignty, but as a separate people, with the 

power of regulating their internal and social 

relations, and thus far not brought under the laws 

of the Union or of the State within whose limits 

they resided.’ ’’

White Mountain Apache Tribe v. Bracker, 448 

U.S. 136, 142 (1980) [quoting McClanahan v. 

Arizona State Tax Comm’n, 411 U.S. 164, 173 

(1973)]; see also United States v. Kagama, 118 U.S. 

375, 381–82 (1886). 

3For example, one author noted that Indian tribes 

derive powers from three principal sources: 

inherent tribal sovereignty, treaties with the United 

States, and delegation from the United States 

Congress [citing Montana v. United States, 450 U.S. 

544, 563–65 (1981)]. Walter E. Stern, Environmental 

Regulation on Indian Lands: A Business 

Perspective. 7–SPG Nat. Resources & Env’t 20–21 

(1993). However, Stern concluded that, by virtue of 

Indian tribes’ status within the Federal system, their 

inherent sovereign powers are diminished. ‘‘Tribal 

sovereignty is subject to limitation by specific treaty 

provisions, by [Federal] statute, * * * or by 

implication due to the tribes’ dependent status. 

[Babbitt Ford, Inc. v. Navajo Tribe, 710 F.2d 587, 

591 (9th Cir. 1983), cert. denied, 466 U.S. 926 

(1984).]’’ Id. Stern focuses on the fact that ‘‘[t]he 

U.S. Supreme Court emphasizes there is ‘‘a 

significant geographical component to tribal 

sovereignty’’ [White Mountain Apache Tribe v. 

Bracker, 448 U.S. 136 (1980).]’’ and concluded that, 

‘‘[a]bsent a treaty provision or express congressional 

delegation of authority, tribal powers extend only 

to the reservation boundary.’’ Id. The author did 

recognize that some tribes assert jurisdiction over 

non-Indian off-reservation activities, and 

specifically acknowledges that ‘‘the Navajo Tribe 

asserts taxing jurisdiction over the ‘‘Eastern Navajo 

Agency’’ area to the east and south of its 

reservation.’’ However, the author pointed out that 

this assertion was then the subject of litigation, 

citing Pittsburgh [sic] & Midway Coal Mining Co. v. 

Yazzie, 909 F.2d 1387 (10th Cir. 1990). 7–SPG Nat. 

Resources & Env’t 20–21 (1993). 

4 Judith V. Royster and Rory Snow Arrow Fausett, 

Control of The Reservation Environment: Tribal 

Primacy, Federal Delegation, And The Limits of 

State Intrusion. 64 Wash. L. Rev. 581, 593–594 

(1989) (Emphasis added; citations omitted). 

5 In one instance, the Solicitor of the Department 

of the Interior determined that, in general, the 

sovereign powers of the tribe extend over the 

property as well as the person of its members, and 

are not restricted to lands or funds it owns. 

Memorandum Opinion of the Solicitor, Department 

of the Interior, M–27781, Powers of Indian Tribes 

(55 I.D. 14, 44 (1934)); limited on other grounds, 77 

I.D. 49 (1970). However, the opinion emphasized 

that, while some generalizations can be made about 

what tribal powers have been recognized in the 

past, the powers of a particular tribe can only be 

ascertained by considering all legal authorities 

applicable to that tribe: ‘‘My answer * * * then, 

will be general, and subject to correction for 

particular tribes in the light of * * * [any] treaties 

or statutes * * * restricting or enlarging the general 

authority of an Indian tribe.’’ Memorandum 

Opinion, 55 I.D. 17–18. 

6Thus, one author notes that tribal, state, and 

Federal environmental regulatory jurisdiction over 

natural resources development and other business 

activities, both on reservations and on other Indian 

lands, eludes precise definition because of the 

unique attributes of tribal sovereignty and the 

relationships between tribes and states, the Federal 

Government, and private business, as well as the 

lack of clear direction or standards of review from 

the courts. Walter E. Stern, Environmental 

Compliance Considerations For Developers of 

Indian Lands, 28 Land & Water L. Rev. 77, 78 

(1993). The determination as to whether a tribe has 

a particular right, authority, or interest typically 

requires detailed analysis of complex factual and 

legal issues, and each analysis must stand on its 

own merits. Because of Indian tribes’ ‘‘anomalous’’

status as ‘‘not * * * possessed of the full attributes 

of sovereignty,’’ courts struggle constantly with the 

extent to which inherent tribal powers remain, or 

alternatively, have been diminished as a result of 

Indian tribes’ dependent status. Id., 86. 

Some courts’ decisions make general 

statements about tribes’ authorities.2

The Supreme Court has stated that 

tribes’ inherent sovereign powers are 

presumed to be retained unless 

‘‘withdrawn by treaty or statute, or by 

implication as a necessary result of their 

dependent status.’’ United States v. 

Wheeler, 435 U.S. 313, 323 (1978). See 

also Dean B. Suagee, Christopher T. 

Stearns, Indigenous Self-Government, 

Environmental Protection, and the 

Consent of the Governed: A Tribal 

Environmental Review Process, 5 Colo. 

J. Int’l L. & Pol’y 59, 72, n. 48 (1994). 

Some commentators assert that tribes 

typically have little or no authority or 

jurisdiction over off-reservation lands.3

In contrast, other authors note that, in 

general, tribal authority to regulate in 

Indian country ‘‘arises from the inherent 

sovereign powers of the native nations;’’

and assert that 

Any judicial determination of the 

sovereign powers of a native nation begins 

with the doctrine that tribes retain all 

inherent powers of national sovereignty that 

have not been ceded by treaty, excised by 

federal legislation, or divested by the courts 

as inconsistent with the federal government’s 

assertion of superior sovereignty. The 

domestic test for the exercise of native 

governmental powers thus is not whether a 

native nation has a sovereign power, but 

whether the tribe has lost it. The initial 

existence of tribal sovereign powers is 

presumed.4

On several occasions, the Department 

of the Interior has stated its position on 

the question of tribal authority over 

property. However, those positions have 

emphasized that the powers of a 

particular tribe must be based on caseby-case detailed analysis of all legal 

authorities applicable to the tribe.5

All of the evaluations of tribal 

authority that we have reviewed 

emphasize case-by-case detailed 

analysis, because the circumstances of 

each tribe are unique, relative to the 

tribe’s sovereignty, jurisdiction, and 

interests. Those circumstances may be 

quite complex, and all relevant legal 

authorities and all relevant facts must be 

reviewed before a determination can be 

made with regard to a particular tribe, 

particular lands, or particular tribal 

requirements.6

A determination should include both 

generally and specifically applicable 

parameters, because some legislative 

schemes are applicable only to specific 

tribes or groups of tribes. ‘‘Accordingly, 

in addition to general principles of 

federal Indian law, one must consider 

any statutes, treaties, judicial decisions, 

or executive actions that may be 

directed to a particular tribe or to a class 

of tribes.’’ Stern, supra note 2, at 85 & 

n. 85. Further, courts generally inquire 

into all of the facts and circumstances 

behind each assertion of tribal authority. 

Because of Indian tribes’ dependent 

status, the Supreme Court has found 

limitations on tribal authority, which 

depend on the context in which the 

issue arises. Id, at 85–86. 

b. What Is the Relevance of ‘‘Indian 

Country’’ Law? 

As discussed below, it is now settled 

law that off-reservation allotted lands 

are a category of lands included in 

‘‘Indian country.’’ A number of judicial 

decisions address the Indian country 

status of off-reservation lands in which 

Indians have interests, as well as the 

interests of the Federal Government and 

Indian tribes in those lands. We have 

reviewed the decisions concerning 

Indian country status to evaluate 

whether they aid in determining the 

interests of tribes generally in allotted 

lands. We found some useful guidance, 

but could find no cases that clearly 

establish any generally applicable 

conclusions as to any interests that all 

Indian tribes might hold in Indian 

country. Rather, the reverse is true: as 

discussed herein, any determination as 

to the interests of any tribe in lands 

must be made on a case-by-case basis, 

considering all relevant facts and law. 

The proposed rule language 

concerning allotted lands is somewhat 

similar to the language addressing 

allotted lands in the definition of 

‘‘Indian country’’ in 18 U.S.C. 1151. 

That provision states that: 

[T]he term ‘‘Indian country’’ * * * means 

(a) All land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government * * *, (b) all 

dependent Indian communities within the 

borders of the United States * * *, and (c) 

all Indian allotments, the Indian titles to 

which have not been extinguished, including 

rights-of-way running through the same. 

Under this provision, for purposes of 

federal criminal and civil jurisdiction, 


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Indian allotments are Indian country. By 

its terms, the definition relates only to 

federal criminal jurisdiction. It 

establishes the basis for asserting federal 

criminal jurisdiction over ‘‘Indian 

country.’’ However, it has been 

recognized as also generally applicable 

to questions of Federal civil jurisdiction. 

See Alaska v. Native Village of Venetie 

Tribal Gov’t, 522 U.S. 520, 527 (1998) 

(‘‘Venetie’’); and DeCoteau v. District 

County Court for Tenth Judicial Dist., 

420 U.S. 425, 427, n. 2 (1975). 

The U.S. Supreme Court has noted 

that allotments are parcels created out of 

a diminished Indian reservation and 

held in trust by the Federal Government 

for the benefit of individual Indians. 

Venetie, 522 U.S. 529. The court’s 

decision stated that the original 

reservation in Venetie was Indian 

country ‘‘simply because it had been 

validly set apart for the use of the 

Indians as such, under the 

superintendence of the Government’’

[citing United States v. Pelican, 232 U.S. 

442, at 449 (1914)] (emphasis in 

original). The decision then concluded 

that, after the reservation’s 

diminishment, the allotments continued 

to be Indian country, as ‘‘the lands 

remained Indian lands set apart for 

Indians under governmental care; * * * 

we are unable to find ground for the 

conclusion that they became other than 

Indian country through the distribution 

into separate holdings, the Government 

retaining control.’’ Id. Venetie noted 

that the Supreme Court in numerous 

cases has relied on a finding of both a 

Federal set-aside [a setting apart of 

lands for Indians] and Federal 

superintendence in determining that 

Indian lands are Indian country, in 

order to confirm Federal jurisdiction 

over them. 522 U.S. 530. The court 

pointed out that ‘‘[t]he federal set-aside 

requirement ensures that the land in 

question is occupied by an ‘‘Indian 

community.’’ 522 U.S. 531. The second 

requirement, of Federal 

superintendence, ‘‘guarantees that the 

Indian community is sufficiently 

‘‘dependent’’ on the Federal 

Government that the Federal 

Government and the Indians involved, 

rather than the states, are to exercise 

primary jurisdiction over the land in 

question. Id. The court found that the 

lands in question in Venetie were no 

longer superintended by the Federal 

Government. 522 U.S. 533. 

The Tribe had contended that the 

requisite Federal superintendence was 

present because the Federal Government 

provides ‘‘desperately needed health, 

social, welfare, and economic 

programs’’ to the Tribe. The court 

rejected this argument, stating that 

‘‘health, education, and welfare benefits 

are merely forms of general federal aid; 

* * * they are not indicia of active 

Federal control over the Tribe’s land 

sufficient to support a finding of Federal 

superintendence. 522 U.S. 534 

(emphasis added). The court thus drew 

a distinction between providing 

government aid or service to Indians, on 

the one hand, and controlling land 

sufficient to establish superintendence 

of that land, on the other. 

The Supreme Court has analyzed 

what is required for Federal 

‘‘superintendence’’ of allotted lands for 

purposes of 18 U.S.C. 1151. Venetie, 

supra. We believe the logic of the 

Venetie analysis is applicable to 

evaluation of tribal supervision of lands 

under SMCRA 701(9). That is, analysis 

of whether a tribe supervises allotted 

lands under SMCRA should address not 

whether the tribe provides services or 

aid to the allottees, but rather whether 

the tribe supervises the allotted lands in 

question. 

c. Why Is Further Information Needed? 

The record does not clearly or 

persuasively establish whether or how 

any Navajo tribal authorities, rights, or 

functions, singly or cumulatively, 

constitute tribal supervision of Navajo 

allotted lands, in law or in fact, either 

as a result of tribal sovereignty or as a 

result of delegation from Congress. It is 

possible that, taken cumulatively, the 

Nation’s rights, authority, or functions 

on tribal members’ allotted lands may 

properly be deemed supervision of 

those lands in fact or in law, or both. 

Information relevant to analysis of tribal 

supervision in law might include, for 

example: Treaties, executive orders, 

Federal statutes, and Federal and tribal 

case law or tradition relevant to a tribe’s 

interests in or authority over the allotted 

lands; and any other relevant 

requirements and programs of a tribe. 

Further, historical information about the 

allotted lands and tribal activities 

affecting the lands may indicate 

whether a tribe has supervised the 

allotted lands in fact. However, as 

discussed below, the record provides 

relatively little relevant and clearly 

persuasive information concerning 

whether the Navajo Nation supervises 

off-reservation allotted lands. 

The 1995 Navajo Nation Code (NNC) 

does provide that it applies to allotted 

lands. The 1995 NNC provides that: 

The Territorial jurisdiction of the Navajo 

Nation shall extend to Navajo Indian 

Country, defined as all land within the 

exterior boundaries of the Navajo Indian 

Reservation or of the Eastern Navajo Agency, 

all land within the limits of dependent 

Navajo Indian communities, all Navajo 

Indian allotments, and all other land held in 

trust for, owned in fee by, or leased by the 

United States to the Navajo Tribe or any 

Band of Navajo Indians. 

NNC Title 7, 254 (1995). 

However, as discussed below, the 

record does not clearly establish what 

authorities or rights the Nation currently 

asserts in or on allotted lands in the 

consolidation area, what legal support 

there is for those authorities or rights, or 

what actions the Nation takes to 

implement those authorities or rights on 

allotted lands. It is not clear from the 

record before us on the proposed rule 

what questions, if any, there may be 

concerning the authority or rights of the 

Nation over off-reservation allotted 

lands. Equally importantly, it remains 

unclear whether or for what reasons any 

such authorities, rights, or actions 

should be deemed tribal supervision of 

allotted lands. And it is unclear whether 

the Navajo Nation asserts supervision in 

fact, in law, or both, over the allotted 

lands. Some of the programs and 

authorities the Nation asserts or had 

previously asserted it has on allotted 

lands, such as ‘‘treatment as a state’’

under the Safe Drinking Water Act (42 

U.S.C. 300f et seq.), and authority to tax, 

are asserted by other commenters to be 

non-existent, unexercised, or too 

tangential or otherwise irrelevant to the 

issue of supervision of these lands for 

purposes of SMCRA. The record 

includes little or no current 

documentation or discussion of scope, 

purpose, effect, authority for, or 

implementation of these programs, or 

any others. We have found no judicial 

decisions or other authority that clearly 

establish the nature or extent of any 

Navajo Nation authority or rights over 

all Navajo allotments in the 

consolidation area. Thus, the record is 

inadequate to support a determination 

as to what supervision, if any, the 

Nation may have of the off-reservation 

allotted lands. 

4. Is the Proposed Rule Appropriate in 

Scope? Is This Issue Likely To Be Raised 

for Other Allotted Lands in the 

Foreseeable Future? 

We considered whether the specific 

question raised by the proposed rule 

would likely be raised for other lands in 

the future. A combination of unusual 

factors would be needed for this 

particular jurisdictional issue to arise; 

allotments would have to be outside the 

reservation, overlie coal reserves and be 

within a recognized Indian land 

consolidation area. We are not aware of 

any contemplated mining operations 

that would be likely to raise the issue in 

the foreseeable future. 


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7The analysis of one author suggests some tribal 

functions or authorities that may constitute 

supervision of lands. That discussion notes that: 

‘‘[T]wo aspects of tribal sovereign authority 

crucial to mineral development [are] taxation and 

environmental regulation. 

‘‘Other police [regulatory] powers relevant to 

mineral development include the powers to 

regulate health and safety, building standards, 

water use, zoning, and labor.’’

Judith V. Royster, Mineral Development in Indian 

Country: The Evolution of Tribal Control Over 

Mineral Resources, 29 Tulsa L.J. 541, 607 and n. 607 

(1994) (Citations omitted). 

8Supervision in law of allotted lands might be 

demonstrated by factors such as: specific authority 

or rights of the tribe to oversee, regulate, or 

superintend allotted lands that may amount to 

supervision of the lands (for example, whether the 

Navajo Nation has sovereignty over off-reservation 

allotments by virtue of the allotments’ status as real 

property of the allottees); specific Navajo authority 

or rights on allotted lands because the lands are 

Indian country, in light of any Navajo sovereignty 

over its Indian country; tribal authority over 

individual allotments because of delegation from 

Congress, e.g., under 28 U.S.C. 1151. Relevant 

information could include, for example, pertinent 

treaties, Federal statutes and executive orders, 

Federal case law, and tribal law and history or 

tradition, as well as discussion of how and why a 

tribe’s sovereignty over or authority on the lands is 

or is not supervision in law of the lands. 

9Supervision in fact might be demonstrated by 

information about specific ways in which the tribe 

actually functions to oversee, regulate, or 

superintend allotted lands (as contrasted, for 

example, with tribal programs that are primarily 

social services to the allottees). Relevant 

information could address actions a tribe has taken 

or is taking to adopt, administer, or enforce 

programs affecting use of allotted lands. 

Nonetheless, in the future it is 

possible that other tribal land 

consolidation areas could be approved 

that would include allotted lands and 

thus would be covered by the proposed 

rule. Under the proposed rule, those 

allotted lands would be deemed to be 

supervised by the tribe in question. 

However, we have no basis for 

determining at this time whether any 

such allotted lands would be supervised 

by a tribe. Such a determination would 

be particularly inappropriate in view of 

the fact that, as discussed infra, the 

Federal Government makes 

determinations about the authority of a 

particular tribe on particular lands on a 

case-by-case basis, based on 

consideration of all relevant law and 

facts concerning the tribe and lands in 

question. 

5. What Procedural Concerns Does the 

Proposed Rule Raise? 

For determinations in which witness 

expertise or personal knowledge may be 

critical, or in which evidentiary weight 

or credibility may be important, an 

administrative proceeding should afford 

interested persons the opportunity to 

present relevant and probative 

information or testimony and to 

comment or cross-examine as 

appropriate, and thus to address the 

weight and credence to be given to the 

record before the decision maker. For 

several reasons, we believe such 

opportunity may be particularly 

important concerning the issues in the 

proposed rule. The issues and facts in 

this matter are complex and 

contentious, and the accuracy and 

adequacy of a number of commenters’

contentions has been called into 

question. The proposed rule would 

result in a change in regulatory primacy 

over Navajo allotted lands under 

SMCRA, and any such change might 

affect the responsibilities, funding, and 

costs of interested persons, including 

the State, the Navajo Nation, and the 

McKinley mine operator. Further, there 

is a paucity of relevant and dispositive 

documentation in the record before us. 

We anticipate that case-by-case 

determinations will provide all 

interested persons with ample notice 

and opportunity to participate, and thus 

will allow development of a more 

complete record and a more informed 

decision. 

6. Is National Rulemaking Appropriate 

on This Matter? 

Does this issue warrant a change in 

nationwide regulations? We do not 

think it does, for the reasons discussed 

above, and for the following reasons. 

Ordinarily, questions requiring national 

rulemaking involve issues that arise 

with some frequency and are of 

importance in multiple areas of the 

country. We know of only one instance 

where this issue has arisen—at the 

McKinley Mine in New Mexico. In the 

years that we have sought to address 

this issue, including the many months 

that it took to prepare the proposed rule 

and the more than eight years since the 

proposed rule was published, we have 

yet to learn of another instance where 

this jurisdictional issue is relevant. We 

do not believe that creating nationally 

applicable regulations to resolve a local 

and infrequently arising question is an 

appropriate use of the Federal 

regulatory process. 

C. How Did We Evaluate the Record in 

Deciding What Action To Take on the 

Proposed Rule? 

We reviewed the record before us to 

determine what relevant information 

has been provided. We considered both 

the relevance and significance under 

SMCRA of any alleged supervisory 

function, right, or authority.7 For any 

asserted tribal supervisory function, 

right, or authority concerning allotted 

lands, we evaluated whether the record 

demonstrated that the Nation actually 

possesses the function, right, or 

authority (supervision in law),8 and if 

so, whether the record demonstrated 

that the Nation actually exercises the 

function, right, or authority over the 

Navajo allotted lands (supervision in 

fact).9 Further, we evaluated whether 

the record demonstrates, either 

individually or cumulatively, 

supervision of the allotted lands or 

activities affecting the allotted lands. 

Our review addressed the following 

factors, as well as any other relevant 

information in the record: 

Established Tribal Authority Under 

Federal Law: Are the lands in question 

presumed or deemed as a matter of 

federal law or treaty to be subject to the 

tribe’s sovereignty? For example, does 

the tribe have specific recognized 

authority over the allotted lands because 

of their status as Indian country? Or has 

the Federal Government delegated to the 

tribe or recognized in the tribe specific 

authority over the lands? Has the 

Federal Government delegated to the 

tribe authority over the lands by 

necessary implication? If so, does the 

record establish the nature or extent of 

the tribe’s sovereignty or authority (as 

distinguished from Federal sovereignty) 

over these lands? And if so, have any 

significant and relevant aspects of tribal 

sovereignty or authority over these 

lands been ceded by treaty, removed by 

Federal statute, or otherwise divested or 

limited? Does the tribe exercise any 

such authority? 

Land Use Regulation: Does the tribe 

have authority over land use on the 

allotted lands? Specifically, does the 

tribe have zoning or land use planning 

authority? Does the tribe have authority 

over building on the lands? Does the 

tribe have documented authority over 

grazing on allotted lands? Has the tribe 

adopted a building code, a land use 

plan, or zoning for the lands, or 

otherwise taken action to regulate use of 

the lands? Does the tribe supervise, or 

has the tribe historically supervised 

grazing on the allotted lands? 

Taxation: What taxation authority or 

jurisdiction does the tribe have on the 

lands? For example, does the tribe have 

the authority to tax these lands or 

activities affecting these lands, or 

materials or profits from the lands? 

Environmental Regulation: What 

environmental regulatory authority does 

the tribe have over or affecting the 

lands? For example, what authority if 

any, does the tribe have to regulate 

water use, water quality, or health and 

safety on the lands? What 

environmental regulatory requirements, 

if any, does the tribe actually apply on 

these lands? 


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10OSM recognizes that some authors make broad 

and general assertions. For example: 

‘‘In Indian country, Natives enjoy inherent 

sovereignty, i.e., the right of self-government and 

self-determination. Specifically, in Indian country, 

a tribal government has the following powers: to 

enact and impose taxes; to adopt and enforce its 

own internal tribal laws; * * * to issue marriage 

licenses; to buy and sell real property; to regulate 

land use; [and] to provide essential and nonessential governmental services. * * * [Stephen C. 

Pevar, The Rights of Indians and Tribes 16 (1992); 

Felix Cohen, Handbook of Federal Indian Law 246–

57 (Rennard Strickland & Charles F. Wilkinson eds., 

1982)]. Also in Indian country, * * * tribal 

governments enjoy the same sovereign immunity 

possessed by Federal and state governments. [See 

Pevar, supra, at 309 (citing Oklahoma Tax Comm’n 

v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 

505, 508 (1991); Santa Clara Pueblo v. Martinez, 

436 U.S. 49, 58 (1978))]. They can be sued only if 

they consent or if they engage in acts beyond the 

scope of their authority. [See id.]’’

Marilyn J. Ward Ford, Indian Country and 

Inherent Tribal Authority: Will They Survive 

ANCSA? 14 Alaska L. Rev. 443 (1997). 

Public Works Authority: Does the tribe 

have relevant public works authority 

over the lands? Has the tribe done, 

authorized, or funded any relevant 

public works projects on the lands? 

Other: Does the tribe have other 

functions, rights, or authorities on the 

allotted lands that establish 

‘‘supervision’’ of the lands for purposes 

of SMCRA? For example, does the tribe 

have a sovereign interest in or 

congressionally delegated authority over 

the postmining uses of those lands? Or 

does the tribe have a sovereign interest 

in the potential effects of surface coal 

mining operations on the lands in 

question because of any potential effects 

on the health, safety, and welfare of 

tribal members, or on the economy of 

the tribe? 

VI. What Does the Record Establish 

Concerning the Basis for the Proposed 

Rule? 

In addition to our review of relevant 

materials, discussed above, the record 

includes numerous materials submitted 

by commenters, including both 

documentary submittals and other 

comments on the proposed rule. Our 

evaluation of these materials follows. 

A. What Does the Record Establish 

Concerning Congress’ Intent Regarding 

the Indian Lands Status of Indian 

Country? 

The Navajo Nation asserts that 

SMCRA and its legislative history 

indicate that ‘‘lands held in trust for or 

supervised by’’ a tribe were intended by 

Congress to include Indian country. The 

Nation asserts that legislative history 

shows Congress’ intent to prohibit state 

regulation of allotments. 

New Mexico argues that Congress 

knew how to provide for Indian lands 

status over ‘‘Indian Country’’ if that is 

what Congress intended, but that they 

chose not to. The State asserts that it 

would be inappropriate to supply by 

rulemaking what Congress deliberately 

did not do itself. The State also asserts 

that nothing in the legislative history or 

the definition of ‘‘Indian lands’’

supports a conclusion that Congress 

intended allotments to be Indian lands. 

NMA contends that Congress did not 

use the term ‘‘Indian country,’’ which 

had been defined in LUPA, because it 

did not intend the terms to be 

synonymous. 

As noted earlier in this preamble, we 

have found no legislative history of 

SMCRA that clearly sets out Congress’

intent on this issue. However, we 

believe the relevant LUPA legislative 

history (discussed above), considered 

with the analysis in Venetie of Indian 

country law under 18 U.S.C. 1151 

(discussed above), suggest that allotted 

lands’ status as Indian country may 

mean that a tribe has interests in those 

lands relevant to a case-by-case 

determination on tribal supervision of 

lands (for example, see the discussion of 

tribal authority to tax Indian country 

lands in Pittsburg & Midway v. 

Watchman, 52 F.3d 1531 (10th Cir, 

1995) (‘‘Watchman’’), summarized 

infra).10 As discussed above, we have 

found widespread variability among 

legal commentators and court decisions 

as to what interests and authority tribes 

may have or typically have in Indian 

country or on allotments. Therefore, a 

determination of tribal interests and 

authority necessarily must be made on 

a case-by-case basis looking at all 

identified relevant factors. 

We are not persuaded by the 

arguments of New Mexico and NMA 

concerning the relevance of the 

legislative history of LUPA in 

interpreting SMCRA’s Indian lands 

provisions. As discussed in Valencia, 

and in this preamble, SMCRA, the 

legislative history of SMCRA, and LUPA 

are consistent with a determination that 

allotted lands may be Indian lands, but 

do not compel a conclusion as to 

whether any specific allotted lands are 

in fact supervised by a tribe and 

therefore are Indian lands. Similarly, in 

light of our discussion of the LUPA 

legislative history, we do not find 

helpful the contention that Congress did 

not intend ‘‘Indian country’’ and 

‘‘Indian lands’’ to be synonymous. 

Neither the proposed rule nor our 

decision not to adopt the proposed rule 

relies on a conclusion that the terms are 

synonymous. 

B. What Is the Legal Authority for the 

Proposed Rule? 

1. What Is the Statutory Authority for 

the Proposed Rule? 

P&M asserts that we do not have the 

statutory authority to adopt the 

proposed rule because the SMCRA 

definition of Indian lands does not 

include Indian allotment lands and 

urges that the proposed rule should be 

withdrawn on that ground. 

We are not persuaded by this 

comment. We have the authority to 

interpret and apply by rule the 

applicable provisions of SMCRA 

concerning this issue. This authority is 

derived from a variety of SMCRA 

provisions, including sections 102(b) 

and (m), 201(c)(1), (2), and (13), 701(11), 

and 710(h). 

2. What Are the Effects of the Judicial 

and Administrative Cases Cited by 

Commenters Concerning the Proposed 

Rule? 

None of the judicial or administrative 

cases cited by commenters establishes 

whether or not the Navajo Nation 

supervises the allotted lands in 

question. 

The Navajo Nation asserts that the 

courts and the IBLA have determined 

that allotted lands are Indian lands for 

purposes of SMCRA. Specifically, the 

Nation refers to the language in 

Montana v. Clark equating ‘‘Indian 

lands’’ with ‘‘all lands in which the 

Indians have an interest’’ (749 F.2d 740, 

752 (DC Cir. 1984), cert. denied, 474 

U.S. 919 (1985)), and the Valencia and 

P&M decisions, which referred to this 

Montana language. The Nation 

concludes that under the reasoning of 

these three decisions, all trust 

allotments are clearly ‘‘Indian lands’’

because they are lands in which Indians 

have an interest. The Nation also refers 

to the IBLA discussion in Valencia of 

the legislative history of LUPA, which 

the Nation asserts was a related bill. 

That legislative history defined the 

phrase ‘‘all lands held in trust [for] or 

supervised by any Indian Tribe’’ as, 

inter alia, ‘‘lands which are Indian 

country for all practical purposes but 

which do not enjoy reservation status,’’

and ‘‘lands outside a reservation which 

[the Indian tribes] own or for which 

they possessed administrative 

responsibility.’’ S. Rep. No. 197, 93d 

Cong., 1st Sess. 127 (1973), quoted in 

Valencia Energy Co., 109 IBLA at 50. 

The Nation also argues that numerous 

cases concerning ‘‘Indian country’’

establish that allotments are Indian 

country, that Indian country defines the 

tribe’s territorial jurisdiction, and that 

Indian country, including allotments, 


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11Section 3504 was added by the Energy Policy 

Act of 1992 to Title 25 U.S.C., Indians, in a new 

Chapter on Indian Energy Resources. Section 3504 

authorized grants to tribes for development and 

implementation of tribal programs for development 

of energy resources, in general. Section 3504 

authorized grants from 1994 to 1997, as well as 

technical assistance and training from the 

Department of the Interior and the Department of 

Energy. Pub. L. No. 102–486, § 2604, 106 Stat. 2776, 

3114 (1992). 

defines the area of exclusive tribal and 

Federal authority. The cited cases 

include: Oklahoma Tax Comm’n. v. Sac 

& Fox Nation, 508 U.S. 114 (1993); 

California v. Cabazon Band of Mission 

Indians, 480 U.S. 202, 207 n.5 (1987); 

DeCoteau v. District County Court for 

Tenth Judicial Dist., 420 U.S. 425, 427 

n.2 and 445–446 (1975); and 

McClanahan v. Arizona State Tax 

Comm’n, 411 U.S. 164, 169 and n.4 

(1973). 

We do not agree that the courts have 

determined that allotted lands are 

Indian lands under SMCRA. Further, 

the record does not establish that LUPA 

was related to SMCRA. Rather, as the 

Valencia decision indicates, LUPA was 

considered at the same time, by the 

same congressional committee, and 

used the same terminology (see 

preceding discussions of LUPA 

legislative history). However, the 

definition used by Congress in 1973 for 

LUPA is consistent with our conclusion 

that allotted lands, as Indian country, 

may be supervised by a tribe for two 

related reasons. First, allotted lands are 

Indian country and under Venetie and 

Watchman the Nation has some degree 

of authority over Indian country, 

including allotments. Second, although 

it is not clear on the record before us 

what relevant authority the Nation does 

have on allotted lands, a tribe with 

authority over allotted lands may have 

some function, right, or authority to 

superintend, regulate, or oversee the 

lands. Some of the cases cited by the 

Nation do not concern the territorial 

jurisdiction of the Nation, but rather the 

jurisdiction of another tribe. Other cases 

cited by the Nation do not address the 

authority held by all tribes in Indian 

country, but rather the authority of the 

Federal Government in Indian country. 

The Navajo Nation asserts that the 

Energy Policy Act of 1992 (EPACT) 

confirms Congress’s understanding that 

allotments are ‘‘Indian lands’’ under 

SMCRA because Title XXVI of EPACT 

authorizes grants to tribes to develop, 

administer, and enforce ‘‘tribal laws and 

regulations governing the development 

of energy resources on Indian 

reservations’’ [citing 25 U.S.C. 3504(a)]. 

The Nation notes that, for purposes of 

this provision, the definition of ‘‘Indian 

reservation’’ on which tribes may 

regulate, specifically includes offreservation, or ‘‘public domain,’’ Indian 

allotments. 25 U.S.C. 3501(2). The 

Navajo Nation also asserts that EPAct 

and SMCRA should be read 

harmoniously. 

We do not agree that the Energy 

Policy Act confirms Congress’

understanding that allotments are 

‘‘Indian lands’’ under SMCRA. 

Although the authorizing provisions 

and definition cited by the Nation are 

found in legislation that also amends 

SMCRA, as noted above the provisions 

themselves do not concern SMCRA, but 

rather 25 U.S.C. 3504.11 Therefore, we 

see no compelling argument why these 

provisions of EPACT and SMCRA 

should be read harmoniously, 

particularly since they were enacted 15 

years apart, and to achieve different 

purposes. In fact, the very definition the 

Nation cites defeats the Nation’s 

argument because ‘‘reservation’’ clearly 

does not mean the same thing under 

SMCRA that it is defined to mean under 

EPACT. As the Nation’s comment 

recognizes, the definition of ‘‘Indian 

reservation’’ in EPACT includes offreservation allotments. By contrast, the 

SMCRA definition of ‘‘Indian lands’’

includes lands within Federal Indian 

reservations and lands held in trust for 

or supervised by an Indian tribe. Thus, 

SMCRA recognizes that off-reservation 

Indian lands (including any allotments 

that qualify) are not deemed reservation 

lands for purposes of SMCRA. 

The State notes that a 1987 decision 

in The Pittsburg and Midway Coal 

Mining Co. v. OSM specifically quoted 

a Senate Report that stated that ‘‘[t]he 

conference report limits the definition 

[of Indian lands] to lands within the 

external boundaries of a Federal Indian 

reservation and to all other lands, 

including mineral interests, held in trust 

by the Federal Government for any 

tribe.’’ The Pittsburg and Midway Coal 

Mining Co. v. OSM, at 11, No. TU 6–2–

PR, United States Dept. of the Interior, 

Office of Hearings and Appeals (1987) 

(‘‘1987 Pittsburg ALJ decision’’) [citing 

Senate Report No. 94–101 at 85–86 

(1975)]. The State further notes that the 

ALJ in that case concluded that OSM 

arguably exceeded its statutory 

authority when its 1984 Indian lands 

rules purported to regulate as ‘‘Indian 

lands’’ those off-reservation lands held 

in trust for or supervised by individual 

Indians. 1987 Pittsburg ALJ Decision at 

11 [citing 49 F. R. 38463 (September 

28,1984)]. The State points out that the 

ALJ concluded that OSM’s subsequent 

change of position on this issue had 

comported with the statutory definition 

of Indian lands and the legislative 

history of SMCRA. 1987 Pittsburg ALJ 

Decision at 12. 

This comment by the State is 

inapposite for several reasons and, 

therefore, we do not find it persuasive. 

First, this ALJ decision on this issue was 

overturned by the Interior Board of Land 

Appeals (IBLA) on appeal and 

remanded for a hearing and decision on 

the merits. The Pittsburg and Midway 

Coal Mining Co. v. OSM, and Navajo 

Tribe of Indians, 115 IBLA 148, 160 

(1990). Second, the cited ALJ decision 

language addressed OSM’s earlier 

regulatory language that would have 

treated as Indian lands all lands held in 

trust for or supervised by individual 

Indians. The 1999 proposed Indian 

lands rule, and this decision not to 

adopt the proposed rule, would not 

have this effect. Rather, the proposed 

rule and this decision address whether, 

under SMCRA, we deem specific 

categories of allotted lands to be 

supervised by a tribe. The IBLA 

emphasized in its 1990 decision 

overturning the ALJ’s opinion that 

allotted lands may be regarded as 

‘‘Indian lands’’ if they are held in trust 

for or supervised by an Indian tribe. 

The State asserts that the proposed 

rule does not accurately reflect the 

decision in Valencia. The State alleges 

that the proposed rule relies on 

Valencia for the proposition that 

‘‘Indian lands’’ under SMCRA include 

‘‘Indian country.’’ The State asserts that 

Valencia actually found that the 

definition of ‘‘Indian country’’ was not 

relevant to its inquiry in that matter, 

and quotes a passage from Valencia: 

Thus, the fact that the land may not be 

‘Indian country’ for the purposes of state 

criminal jurisdiction is simply irrelevant to 

the question of whether these lands are 

properly deemed ‘Indian lands’ for the 

purposes of SMCRA. 

Valencia, 109 IBLA at 67 (1989). 

We do not agree. Valencia does not 

conclude that the definition of ‘‘Indian 

country’’ is irrelevant to whether lands 

that are Indian country are ‘‘Indian 

lands’’ under SMCRA. This comment by 

the State misreads the language of the 

proposed rulemaking, and, in quoting a 

brief portion of Valencia out of context, 

mischaracterizes that decision. Further, 

as discussed below, the proposed 

rulemaking did not rely on Valencia for 

the proposition that Indian lands under 

SMCRA include Indian country. Rather, 

the proposed rulemaking identified 

several possible bases for determining 

that allotted lands are ‘‘Indian lands,’’

but did not say that we relied on any of 

those possible bases. 

The 1999 proposed rule discussion 

suggested that one of the possible bases 


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12The IBLA rejected both this argument and the 

underlying assumption that a parcel subject to a 

state’s general regulatory or police powers before 

SMCRA’s enactment, must also be subject to the 

state’s regulatory authority under SMCRA. 109 

IBLA 66. The IBLA rejected the argument because 

SMCRA itself is an assertion of Federal authority 

under the Commerce Clause to regulate all surface 

coal mining activities in states, and SMCRA allows 

state primacy only on non-Indian and non-Federal 

lands—thereby establishing the jurisdictional status 

quo for SMCRA purposes. Id. The IBLA noted that 

state inability to regulate Indian lands under 

SMCRA does not affect exercise of state jurisdiction 

under other authority. 109 IBLA 67. 

13See, e.g., 18 Moore’s Federal Practice 

§ 131.13[2], 134.01 (3d ed. 2004); and Wright, Miller 

& Cooper, Federal Practice and Procedure: 

Jurisdiction § 4443 (2d ed. 2002). 

would be a two-part determination: first, 

that Congress intended the reference to 

lands ‘‘supervised by’’ an Indian tribe in 

the SMCRA definition of ‘‘Indian lands’’

to include lands encompassed by the 

term ‘‘Indian country;’’ and second, a 

determination that allotted lands are 

Indian country. The proposed rule 

discussion noted that OSM had taken 

the position that Congress intended the 

phrase ‘‘lands * * * supervised by’’ an 

Indian tribe to include lands 

encompassed by ‘‘Indian country’’

[citing Valencia, 109 IBLA 59 (1989)]. 

The proposed rule referred to our 

Valencia brief discussing the LUPA 

legislative history of the phrase 

‘‘supervised by an Indian tribe.’’ That 

legislative history says Congress 

intended the phrase to cover ‘‘lands 

which are Indian Country for all 

practical purposes but which do not 

enjoy reservation status.’’ S. Rep. 93–

197, 127 (1973). In our Valencia brief 

we asserted that Congress must have 

intended the same terms (‘‘supervised 

by’’) and the almost identical definitions 

of ‘‘Indian lands’’ to have the same 

interpretation, as discussed in the LUPA 

legislative history. The proposed rule 

points out that the IBLA affirmed our 

analysis at 109 IBLA 60; and that the 

IBLA’s decision was upheld on appeal. 

Valencia does not support the State’s 

comment that the ‘‘Indian country’’

definition is irrelevant to an Indian 

lands determination. Rather, the 

statement referred to by the State occurs 

in the IBLA’s analysis of an altogether 

different issue. The IBLA was 

discussing the argument by the State 

and the mine operator that assertion of 

OSM jurisdiction over tribal fee lands 

would conflict with Congress’ intent to 

avoid altering the jurisdictional status 

quo.12 The IBLA determined that tribal 

fee land must be ‘‘Indian land’’ under 

SMCRA and that the fact that tribal fee 

land may not be ‘‘Indian country’’ for 

purposes of state criminal jurisdiction is 

irrelevant to whether the lands are 

‘‘Indian lands’’ under SMCRA. Id. Thus, 

in effect the IBLA held that if lands 

meet the SMCRA definition they will be 

deemed ‘‘Indian lands’’ for purposes of 

SMCRA, even if they have been found 

not to meet the definition of ‘‘Indian 

country’’ for other purposes. 

The State also argues that the 

settlement agreement reached in Mescal 

v. United States of America underscored 

the State’s conclusion that allotments 

are not supervised by a tribe [citing 

Mescal v. United States of America, No. 

Civ. 83–1408 (D.N.M.)]. The State 

asserts that the settlement establishes 

that allottees own the beneficial title to 

minerals underlying their allotments. 

The State asserts that Mescal supports 

its position that allotments are owned 

by individual Indians and the United 

States Government, not by the Tribe, 

and are not tribal land. 

We find these arguments inapposite 

and unpersuasive for several reasons. 

First, and most importantly, tribal title 

to lands is not required in all cases 

under the SMCRA definition of ‘‘Indian 

lands.’’ Rather, tribal supervision is the 

relevant prerequisite; and in some cases 

allottee ownership might be 

concomitant with tribal supervision of 

the lands. Second, the settlement 

agreement did not confer on allottees 

present title to the coal underlying the 

allotments. Rather, the Federal 

Government continued to hold title to 

the coal until the end of existing coal 

leases, but BLM records would give 

constructive notice of allottees’

beneficial title to the minerals. The 

agreement provides for transfer of 

mineral title to the allottees at a later 

date, upon the expiration of existing 

Federal coal leases. Thus, the agreement 

did not change vested record title in the 

leased Mescal lands. Third, settlement 

agreements and consent decrees, by 

their very nature, have no precedential 

effect. Rather, they are binding between 

the parties to the agreement concerning 

the matters addressed in the 

agreement.13

The State also refers to another line of 

cases that it contends established the 

State’s regulatory authority over 

allotments, and allowed the State’s 

regulatory authority over all of South 

McKinley mine to remain in place: New 

Mexico v. United States, Civ. No. 84–

3572 (D.D.C. 1984) and the 1987 

settlement agreement with the Navajo 

Nation in New Mexico v. Navajo Tribe 

of Indians, No. Civ. 87–1108. The State 

asserts that it and Pittsburg and Midway 

‘‘have, for over a decade, relied on that 

state of affairs, have stabilized 

regulation of South mine, and have 

adapted to the regulatory scheme in 

place.’’ The State asserts that to require 

changes in regulation and bond release 

standards would be unfair, unwise, and 

contrary to law. Similarly, the National 

Mining Association (NMA) asserts that 

the proposed rule is inconsistent with 

the settlement agreement reached 

between OSM and NMA’s predecessor 

organizations (the National Coal 

Association and the American Mining 

Congress) in companion litigation, NCA 

v. United States Dep’t of the Interior, 

Civ. No. 84–3586 (D.D.C.). 

We do not agree. Neither our 

commitments in the settlement 

agreements nor our 1989 clarifying 

rulemaking excluded Navajo allotted 

lands from consideration as to whether 

the tribe supervised them, or from the 

definition of Indian lands. Thus, the 

settlements could not preserve the 

State’s regulatory authority over 

allotments, if those allotments are found 

to be Indian lands, because, as 

discussed above, SMCRA does not 

authorize state regulatory jurisdiction 

over Indian lands. The litigation was 

started by the State’s challenge to our 

assertion of exclusive regulatory 

authority over Indian lands under the 

1984 Indian lands regulations. The 

preamble to those regulations included 

‘‘inadvertent and unintentional’’

language that, in relevant part, asserted 

that we would ‘‘continue to regulate as 

Indian lands allotted lands, and all 

lands where either the surface or 

minerals are held in trust for or 

supervised by an Indian tribe or 

individual Indians.’’ 49 FR 38463 (1984) 

(emphasis added). The Navajo Nation 

intervened as of right in that litigation 

and filed a counterclaim requesting a 

declaratory judgment that certain lands 

in New Mexico are ‘‘Indian lands.’’

Subsequently the National Coal 

Association and the American Mining 

Congress also intervened. The parties 

other than the Nation reached 

settlement. The State agreed that it 

would not contest the position of the 

Secretary of the Interior ‘‘that he is the 

exclusive regulatory authority with 

respect to surface coal mining 

operations on Indian lands within the 

State.’’ We agreed to issue a statement 

concerning the preamble to the final 

Indian lands rule clarifying that the 

‘‘Secretary does not consider individual 

Indian allotted lands outside the 

exterior boundaries of the Indian 

reservation to be included in the 

definition of ‘Indian lands.’ ’’ The trial 

court ordered the plaintiffs’ actions 

dismissed; but the counterclaim of the 

Tribe was unaffected. New Mexico v. 

United States Dep’t of the Interior, No. 

84–3572 (D.D.C. August 6, 1985), aff’d. 

New Mexico ex rel. Energy and Minerals 


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14As discussed below, we anticipate that, in any 

case-by-case determination, the Nation may provide 

information about any programs that constitute 

supervision in fact or in law of the allotted lands; 

i.e., overseeing, regulating, or superintending the 

allotted lands or activities affecting the lands (as 

contrasted, for example, to programs that constitute 

general social services to allottees). In such a 

proceeding, the Nation may also request 

administrative notice of relevant materials, as 

appropriate. 

Dep’t v. United States Dep’t of the 

Interior, 820 F.2d 441 (DC Cir. 1987). In 

1988, the Department published a 

proposed rule correcting its statement in 

the 1984 Indian lands rule preamble. In 

1989, the Department published a final 

rule stating that, ‘‘for purposes of 

surface coal mining regulatory 

jurisdiction, off-reservation allotted 

lands are include [sic] in the SMCRA 

definition of Indian lands only if an 

interest in the surface or mineral estate 

is held in trust for or supervised by an 

Indian tribe.’’ 54 FR 22184 (May 22, 

1989). 

As the IBLA has pointed out, all that 

the settlement [and the Department’s 

1989 final rule clarifying its policy] on 

the Indian lands status of allotted lands 

decided was that lands cannot be 

considered Indian lands simply because 

they are allotted to individual Indians, 

as had been asserted in the 1984 Indian 

lands preamble. Pittsburg & Midway 

Coal Mining Co. v. OSM, 115 IBLA 148, 

161 (1990), aff’d Pittsburg & Midway 

Coal Mining Co. v. Babbitt, Civ. 90–730 

(D.N.M. 1994). 

Likewise, the settlement agreement 

between the Navajo Nation and the State 

(which could not bind OSM in any case) 

did not purport to address the Indian 

lands status of off-reservation allotted 

lands. The State filed a motion to 

dismiss the Tribe’s counterclaim on the 

1984 rule for lack of jurisdiction, 

arguing that, under SMCRA section 520, 

the claim must be brought only in the 

judicial district in which ‘‘the surface 

coal mining operation complained of is 

located.’’ In November, 1985, the 

district court dismissed the Tribe’s 

counterclaim. On appeal, the DC circuit 

vacated the district court’s order 

denying the Tribe’s counterclaim and 

instructed the district court to transfer 

the counterclaim to the United States 

District Court for the District of New 

Mexico. New Mexico ex rel. Energy and 

Minerals Dep’t v. United States Dep’t of 

the Interior, 820 F.2d 441 (D.C. Cir. 

1987). The transferred litigation was 

settled and approved by consent decree. 

New Mexico ex rel. Energy, Minerals 

and Natural Resources Dep’t v. Navajo 

Tribe, No. Civ. 87–1108 (D.N.M. 1992). 

The settlement agreed that specified 

reservation and tribal trust lands are 

‘‘Indian lands,’’ and that other lands 

may constitute ‘‘Indian lands.’’ The 

Tribe and the State did not waive their 

respective positions as to the ‘‘Indian 

lands’’ status under SMCRA of any 

lands not listed in the settlement. In 

summary, neither settlement agreement 

established State regulatory authority 

under SMCRA over allotments, and 

neither agreement could preserve State 

regulatory authority over allotments 

found to be Indian lands; and neither 

the State nor Pittsburg & Midway could 

reasonably rely on the settlements to 

preclude our proper evaluation of the 

Indian lands status of allotted lands. 

C. What Does the Record Establish as to 

Supervision by a Tribe of Individual 

Indian Trust Allotments in Approved 

Tribal Land Consolidation Areas? 

Neither the comments, nor the other 

documentation in the record, separately 

or cumulatively, clearly confirms 

whether any Nation programs or 

authorities amount to supervision of 

specific allotted lands or of all allotted 

lands in the consolidation area. As 

discussed below, we decline to take 

administrative notice of materials not 

submitted. In any case-by-case 

determination, commenters may 

provide information as to whether any 

programs of the Navajo Nation 

constitute supervision of the allotted 

lands. 

The Navajo Nation asserts that the 

Nation does in fact supervise allotted 

lands within the Navajo consolidation 

area. The Nation asserts that Navajo 

supervision over Navajo trust allotments 

is conclusively presumed, and clear. 

However, the Nation cites to no 

authority for this specific presumption. 

The Nation lists certain Navajo Nation 

ordinances and other provisions that it 

maintains the Nation applies and 

implements on allotted lands. For 

example, the Nation asserts that, 

pursuant to the Navajo Nation Code 

(‘‘NNC’’), the Nation applies to 

allotments its laws regarding the 

following: Agriculture and livestock, 

protection of the environment, 

regulation of commerce and trade, 

community development, courts and 

procedures, domestic relations, 

education, elections, fiscal matters, 

health and welfare, motor vehicle code, 

labor, land, law and order, mines and 

minerals, parks and monuments, 

professions and occupations, public 

utilities and communications, water, 

conservation, wildlife, and taxation. The 

Navajo Nation requests that we take 

administrative notice of the Navajo 

Nation Code and its laws. 

The Nation asserts that, in Pittsburg & 

Midway Coal Mining Co. v. Saunders, 

No. Civ. 86–1442 M (D.N.M. 1988), rev’d 

on other grounds, 909 F.2d 1387 (11th 

Cir.), cert. denied, 498 U.S. 1012 (1990), 

decision after remand, 52 F.3d 1531 

(10th Cir 1995), the district court 

examined a 1.9 million acre area that 

includes all of the P&M South McKinley 

Mine as well as several thousand Navajo 

trust allotments and found that the 

Nation provides to Navajos in that area 

a variety of services, including 

community services, health, education, 

and water resources; and that the Nation 

provides law enforcement and hears the 

vast majority of civil and criminal 

disputes in the Tribal Court. The Nation 

references the Nation’s criminal 

jurisdiction over allotted lands, through 

the Navajo Tribal Court of Indian 

Offences; and provides copies of 

affidavits submitted in Saunders, 

concerning Navajo governmental 

authority and activity on allotted lands 

in such matters as demographics, land 

consolidation, education services, social 

services, health services, police services, 

cultural resources protection and 

ethnography, and (for the McKinley 

Mine permit area) land status and social 

services. The Nation also submitted a 

copy of a 1984 memorandum from a 

Department of the Interior 

Administrative Law Judge (ALJ) in a 

probate proceeding involving certain 

Navajo allotments. The memorandum 

discusses the applicability of the 

escheat provision of the Indian Land 

Consolidation Act (the Act was 

subsequently held unconstitutional). 

That memorandum found that the Tribe 

‘‘exercises civil governmental powers 

over the [allotted] lands’’ [in the Eastern 

Navajo Agency] involved in the 

proceeding. 

We conclude that neither the Nation’s 

comments, nor the affidavits, nor the 

1984 ALJ memorandum, separately or 

cumulatively, clearly confirms any 

Nation programs or authorities as 

demonstrating supervision of specific 

allotted lands or of all allotted lands in 

the consolidation area. And, for the 

reasons outlined below, we decline to 

take administrative notice of the other 

materials referenced by the Navajo 

Nation.14 In the cited Pittsburg & 

Midway decision, the issue before the 

court was whether the P&M South 

McKinley mine is on the Navajo 

Reservation or in Indian country, so that 

the court was required to abstain from 

exercising jurisdiction over P&M’s 

challenge to the Navajo Nation’s tax on 

P&M’s coal mining activities. Thus, only 

the status of the McKinley mine lands 

was at issue. The decision stated that 

the Tribe provided services in the area 

to allottees, including community 

development, child development, social 

services, health, education, youth 


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development, and water resources, and 

law enforcement. The decision 

discusses the role of the Nation in 

Navajos’ lives in the area. However, the 

decision does not discuss how or why 

any tribal authority, program, or service 

concerns allotted lands in particular, or 

amounts to supervision of those allotted 

lands. Further, the decision does not 

discuss any programs or services in 

such detail as to support a conclusion 

as to whether they amount to 

supervision of the allotted lands. 

The affidavits submitted by the 

Nation concern primarily the provision 

of various types of social services, and 

tribal acquisition of title, as well as the 

importance of off-reservation cultural 

resources to the Nation. The 1986 

Elwood affidavit asserts that, at the time 

of the affidavit, the Nation regulated 

grazing on lands in the 1908 extension 

of the Navajo Nation in New Mexico, 

including BLM and BIA lands, tribal 

trust lands, tribal fee lands, and allotted 

lands, pursuant to a cooperative 

agreement. We believe the affidavit 

refers to a February 8, 1965 

memorandum of understanding (MOU) 

among the Navajo Nation, BIA, and 

BLM concerning grazing administration 

of the Eastern Navajo Agency 

Administration Area. That MOU 

subsequently has been extended by 

amendment, most recently in January, 

2003. The affidavit does not specifically 

assert that the Nation has independent 

authority to regulate grazing on allotted 

lands, outside of any authority 

delegated by BIA or BLM under the 

cooperative agreement. The Elwood 

affidavit does assert that the 

predominant use of lands within Navajo 

Indian country is for grazing by Navajo 

livestock. We have reviewed the 

January, 2003 extension of the February 

8, 1965 MOU. The MOU specifies that 

there are three groups of Indian grazing 

communities, designated by District, in 

the Eastern Navajo Agency. However, 

Section III.E. of the January, 2003 

extension specifically provides that, 

‘‘Individual Indian trust patent 

allotments and Navajo ranches shall not 

come under the administrative 

jurisdiction of the cooperative 

agreement as approved.’’ Thus, the 

memorandum of understanding does 

not apply to Indian allotted lands. 

However, the holders of an allotment 

may voluntarily authorize regulation of 

grazing by BIA. Within the Eastern 

Navajo Agency, there are roughly 4,500 

allotments. These allotments comprise 

the majority of the Navajo allotments 

within the approved tribal land 

consolidation area. Of those allotments, 

the necessary authorization for 

regulation by BIA has been given for 

roughly 1000 allotments. For those 

allotments for which BIA is authorized 

to regulate grazing, BIA issues grazing 

permits. However, we have found no 

information in the administrative record 

confirming that the Navajo Nation 

regulates grazing on allotted lands. 

The 1984 ALJ memorandum discusses 

whether, for purposes of the applicable 

statutory criterion, those trust or 

restricted lands at issue were subjected 

to the Navajo Nation’s jurisdiction. It 

states that ‘‘the Tribe asserts general 

subject matter jurisdiction’’ in the 

Eastern Navajo Agency, but specifically 

confirms only that ‘‘the Tribe, BIA, and 

IHS [Indian Health Service] provide law 

enforcement, health, education, and 

social services’’ in the Eastern Navajo 

Agency. Thus, the categories of 

programs confirmed are apparently 

services to individual Navajo; and the 

memorandum does not differentiate 

between the roles of the Nation and 

those of BIA and IHS. 

New Mexico’s comments concerning 

the Nation’s assertions about 

supervision of grazing, state status 

under SDWA, and power to tax, are 

discussed below. New Mexico asserts 

that the other functions and authorities 

which the Nation maintains it has on 

allotted lands concern very limited and 

general supervision. The State did not 

list those functions and authorities. The 

State asserts that those references are 

unpersuasive where Congress has not 

specifically applied SMCRA to mining 

on allotments. 

As discussed above, we conclude that 

the record before us is not adequate to 

support a conclusion as to whether the 

Nation’s functions and authorities 

constitute supervision of the relevant 

allotted lands. Further, we conclude 

that this issue may be properly 

addressed in case-by-case 

determinations. Any such determination 

can address whether the Nation 

supervises particular allotted lands in 

view of any specific relevant Tribal 

programs or authorities. 

Both New Mexico and NMA comment 

in effect that the Nation does not 

supervise allotted lands if the Nation’s 

alleged supervisory functions or roles 

do not pertain to SMCRA or surface coal 

mining operations. New Mexico asserts 

that references in the proposed rule to 

incidental supervision on topics that 

have nothing to do with mining do not 

establish supervision over mining. NMA 

maintains that the authority to tax bears 

little relationship to supervision of 

lands within the context of SMCRA. 

We do not agree. We believe these 

comments mistake the issue. The 

definition of ‘‘Indian lands’’ does not 

require that a tribe’s supervision must 

directly pertain specifically to SMCRA 

program implementation or to surface 

coal mining operations. Rather, the 

definition simply requires that a tribe 

supervise the lands, as discussed above. 

And, as discussed above and in 

Valencia, supervision may exist as a 

matter of fact or as a matter of law; and 

jurisdiction or control over mining is 

not required. Thus Valencia found that, 

because the Nation owned the surface in 

fee, the Nation supervised the lands at 

issue in that case as a matter of law, 

even though the Nation had leased the 

coal rights. 109 IBLA 66. Further, 

Valencia emphasizes the Tribe’s 

continuing interest in the postmining 

condition and use of lands as relevant 

to evaluation of tribal supervision under 

SMCRA. Id. We do not agree that 

authority to tax lands or what is done 

on or produced from lands necessarily 

bears little relationship to supervision of 

lands. Rather, taxation of land or 

activities on land, or of materials 

harvested from land, may be an aspect 

of supervision of the lands. For 

example, such taxation may be 

authorized because of a government’s 

authority over the lands; and may be a 

means of regulating or controlling what 

is done on the lands, or a source of 

funding for such regulation. 

Regarding specific categories of 

alleged Tribal supervision, we received 

the following comments: 

The Navajo Nation asserts that it 

supervises grazing on allotted lands 

outside the reservation. New Mexico 

asserts that the reference to grazing is 

not compelling because the allotments 

are not being grazed, but rather are 

being mined. NMA asserts that the 

Nation is not supervising grazing on 

allotted lands outside the reservation. 

The record does not demonstrate 

whether any allotted lands outside the 

reservation are grazing lands. Further, 

the record does not demonstrate 

whether or when those lands have been 

grazed. Likewise, the record is unclear 

as to whether the Navajo Nation has 

authority to supervise grazing on offreservation allotted lands, or does 

supervise any grazing on such lands. 

And finally, the record does not 

conclusively demonstrate whether the 

Nation has an interest in or authority 

over the pre-mining and post-mining 

use of the allotted lands, and thus has 

authority to supervise such grazing as a 

matter of law, whether or not it 

supervises grazing as a matter of fact. A 

case-by-case determination may address 

all of these questions. 

The Navajo Nation asserts that they 

have ‘‘state’’ status for purposes of 

implementing the Safe Drinking Water 


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15Watchman was a supplemental opinion related 

to Pittsburg & Midway Coal Mining Co. v. Yazzie, 

909 F.2d 1387 (10th Cir. 1990) (see note 3, supra.), 

cert. denied, Navajo Tax Com. v. Pittsburg & 

Midway Coal Mining Co., 498 U.S. 1012 (1990). 

Act (SDWA) on off-reservation allotted 

lands. However, they cite no authority 

for this proposition. New Mexico asserts 

that, for off-reservation lands, the 

Navajo Nation is not treated as a state 

under the SDWA, having withdrawn its 

request for treatment as a state outside 

its reservation. In support of this 

contention, the State cites a letter dated 

August 9, 1991 from H. Seraydarian, 

USEPA Region IX, to New Mexico 

Governor King. However, our records 

indicate the State did not attach a copy 

of that letter. 

We find that the record contains no 

dispositive documentation or authority 

as to whether the Navajo Nation has 

‘‘state’’ status for purposes of 

implementing the SDWA on allotted 

lands. In any case-by-case 

determination, interested persons may 

provide documentation to support any 

relevant assertions on this topic. 

NMA asserts that the Navajo Nation’s 

authority to regulate under the SDWA 

could not have been contemplated by 

Congress during its consideration of 

SMCRA because the Navajo Nation’s 

treatment as a state did not occur until 

after 1986. We find this assertion 

unpersuasive. SMCRA does not require 

that only supervision of lands under 

statutes that existed as of the date of 

enactment of SMCRA may be 

considered; and nothing in SMCRA or 

its legislative history supports such a 

conclusion. If Congress had intended 

such a result, it could have inserted 

specific language to that effect in 

SMCRA. 

Citing 56 FR 64876 (December 12, 

1991), NMA asserts that the Navajo 

Nation does not have ‘‘state’’ status 

under the Clean Water Act on offreservation allotted lands; only on 

reservation lands. NMA also asserts 

that, to make a fair determination of 

regulatory authority on off-reservation 

allotted lands, we must look at all types 

of regulatory authority over the lands, 

and consider the entities that exercise 

the authority, rather than the few 

unrepresentative examples of authority 

given in the proposed rule preamble. 

For the following reasons, we find these 

comments not helpful. The referenced 

1991 USEPA rulemaking concerns 

interpretation of a particular Federal 

statute not at issue in this rulemaking. 

We have found no relevance of the 1991 

USEPA rulemaking to this rulemaking, 

and no relevance to this rulemaking has 

been asserted by commenters. A 

reference to an unrelated statute under 

which a tribe does not supervise lands 

is not germane. Further, we do not agree 

that we must inventory all possible 

authorities under which any entity 

might possibly regulate or otherwise 

supervise allotted lands, in order to 

make a determination as to whether a 

tribe supervises those lands. It is 

doubtful whether such an inventory is 

possible. But in any case, nothing in 

SMCRA compels or authorizes a 

comprehensive determination of the 

nature, extent, or focus of all such 

authority over allotted lands. And even 

if such an inventory were feasible, it 

would serve no purpose: as noted above, 

SMCRA does not require that a tribe 

exercise more authority or supervision 

of lands than does a state or the Federal 

Government; nor does SMCRA require 

exclusive tribal supervision. SMCRA 

requires only that a tribe supervise the 

lands. 

Citing Pittsburg & Midway Coal 

Mining Co. v. Watchman, 52 F.3d 1531 

(10th Cir. 1995) (‘‘Watchman’’),15 the 

Navajo Nation asserts that the Tenth 

Circuit has confirmed the Nation’s 

authority to tax mining on trust 

allotments. The Nation characterizes 

this authority as the potentially most 

intrusive type of regulatory 

jurisdiction—‘‘the power to tax involves 

the power to destroy.’’ New Mexico 

asserts that the Navajo Nation does not 

tax allotted lands. 

We conclude that Watchman does not 

unequivocally establish whether the 

Nation has the authority to impose a 

business tax on coal mining of all 

relevant allotted lands. However, 

because this decision provides 

potentially relevant or instructive 

discussion of a number of issues, we 

have evaluated it in some detail. In 

Watchman, Pittsburg & Midway Mining 

Co. (‘‘P&M’’) sought an injunction and 

declaratory judgment that the Navajo 

Nation lacked jurisdiction to impose a 

tax on P&M’s mining activities on the 

off-reservation portion of McKinley 

mine, the ‘‘South McKinley Mine.’’ The 

Navajo Nation asserted that the Federal 

court should abstain based on the tribal 

abstention doctrine, and allow the 

Navajo tribal court to hear the issue 

first. Among other arguments, the 

Nation argued that the South McKinley 

mine area is Indian country within the 

meaning of 18 U.S.C. 1151. In relevant 

part, that provision reads as follows: 

18 U.S.C. 1151. Indian country 

defined 

Except as otherwise provided in sections 

1154 and 1156 of this title, the term ‘‘Indian 

country’’, as used in this chapter, means (a) 

all land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government, notwithstanding 

the issuance of any patent, and, including 

rights-of-way running through the 

reservation, (b) all dependent Indian 

communities within the borders of the 

United States whether within the original or 

subsequently acquired territory thereof, and 

whether within or without the limits of a 

state, and (c) all Indian allotments, the Indian 

titles to which have not been extinguished, 

including rights-of-way running through the 

same. 

The district court refused to dismiss 

P&M’s complaint for failure to exhaust 

tribal remedies, holding that the area 

was not Indian country. The appellate 

court reversed that holding, and 

remanded for further findings by the 

district court, concerning whether the 

entire South McKinley Mine permit area 

is a dependent Indian community (and 

therefore, Indian country). The appellate 

court noted that P&M challenged the 

Navajo Nation’s taxing authority, which 

was a basic attribute of its sovereignty. 

52 F.3d 1531, 1538. The appellate court 

concluded that: 

The power to tax is an essential attribute 

of Indian sovereignty because it is a 

necessary instrument of self-government and 

territorial management. * * * It derives from 

the Tribe’s general authority, as sovereign, to 

control economic activity within its 

jurisdiction, and to defray the cost of 

providing governmental services by requiring 

contributions from persons or enterprises 

engaged in economic activities within that 

jurisdiction.* * * [T]he power to tax is a 

sufficiently essential aspect of sovereignty to 

require P&M to initiate its jurisdictional 

challenge in Navajo tribal court. 

* * * * * 

P&M’s lawsuit presents a direct challenge 

to the Navajo Nation’s jurisdiction and 

involves the interpretation of Navajo 

law.* * * A myriad of legal and factual 

sources must be consulted to resolve the 

complicated and intertwined issues 

implicated in cases like this one. 

The existence and extent of a tribal court’s 

jurisdiction will require a careful 

examination of tribal sovereignty, the extent 

to which that sovereignty has been altered, 

divested, or diminished, as well as a detailed 

study of relevant statutes, Executive Branch 

policy as embodied in treaties and elsewhere, 

and administrative or judicial decisions. 

Resolution of these issues also requires close 

examination of the historical and present-day 

status of the area in question. 

Id. (Citations omitted; emphasis added). 

The appellate decision notes P&M’s 

arguments that the tribal abstention 

doctrine should not apply because the 

attempt to tax is patently violative of 

express jurisdictional prohibitions, and 

that the Tribe has no authority to 

regulate non-Indian activities on nonIndian lands. The court did not 

elaborate on these arguments, and 

disagreed: 


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16 In effect, it appears that the court may be saying 

if tribal abstention did not apply and if the issue 

before us were taxing jurisdiction over allotted 

lands, and if we were the trial court, this would be 

our holding on the Nation’s taxing jurisdiction over 

allotted lands. 

P&M is correct that the Navajo Nation as 

a dependent sovereign lacks the inherent 

authority of a full-fledged sovereign. * * * 

Nonetheless, * * * [t]he question is not 

whether the Navajo Nation possesses 

inherent authority as a sovereign to tax P&M, 

but whether 18 U.S.C. 1151 is a 

Congressional delegation of this authority 

throughout Indian country. 

52 F.3d 1531, 1540 (emphasis added). 

The Court continued: 

We hold § 1151 represents an express 

Congressional delegation of civil authority 

over Indian country to the tribes. As a result, 

the Navajo Nation has authority to tax any 

mining activities taking place in Indian 

country without violating any express 

jurisdictional prohibitions. 

52 F.3d 1531, 1541 (Citations omitted; 

emphasis added). The Court did not 

elaborate as to what civil authority over 

Indian country Congress had delegated 

to tribes. Nonetheless, the court 

concluded that it was not clear whether 

the area within the South McKinley 

Mine that was not allotted lands is 

Indian country. The court also 

concluded that, if the South McKinley 

non-allotted lands are not Indian 

country, then the allotted lands within 

the mine did not sufficiently implicate 

Indian sovereignty or other important 

interests of the Nation, and thus tribal 

abstention is not required. 52 F.3d 1531, 

1542. In a footnote, the court 

specifically alluded to the authority of 

the Navajo Nation to tax on allotted 

lands. The court noted that 

Of course, if the entire mine was located 

on Navajo trust allotments, there would be no 

question about the doctrine’s 

applicability.* * * [W]e believe the Navajo 

Nation has the authority to apply its Business 

Activities Tax to the source gains from the 

47% portion of the South McKinley Mine 

that lies within the individual Navajo trust 

allotments. 

52 F.3d 1531, 1542 n.11. However, the 

court also recognized that the Nation’s 

authority over allotted lands was not at 

issue in the case. Therefore, this 

footnote appears to be dictum. In fact, 

it may be doubly dictum, because the 

basic holding of the case was that the 

issue of jurisdiction or authority to 

impose the tax should be decided in the 

first instance by the tribal court.16 Thus, 

it does not appear that the decision 

holds what the Nation asserts it holds. 

We expect that, in any case-by-case 

determination, interested persons may 

provide information on whether the 

Nation has relevant authority to tax on 

off-reservation allotted lands. That 

information may address whether the 

circuit court’s statement in Watchman 

that the Nation has the authority is 

binding precedent or is dictum; if it is 

dictum, whether it should be given 

weight as persuasive; and whether a 

tribal court has ruled on the issue. 

Interested persons might also address 

whether the Watchman jurisdictional 

challenge was pursued in Tribal court. 

None of the other cases on tribal 

authority to tax allotted lands cited by 

the Nation concerning the authorities of 

other tribes establishes that all tribes 

have taxing authority on all members’

allotted lands. Likewise, none of those 

cases establishes that the Navajo Nation 

has taxation authority over all Navajo 

allotted lands. 

P&M maintains that whether the 

Navajo Nation supervises off-reservation 

Indian allotments under SMCRA is a 

mixed question of fact and law. P&M 

asserts that dictionaries ‘‘consistently 

define the word ‘supervise’ to mean; ‘to 

have general oversight over, to 

superintend or to inspect’ ’’; and ‘‘define 

superintend to mean; ‘to have charge 

and direction of; to direct the course of 

and oversee the details; to regulate with 

authority; to manage; to oversee with 

the power of direction; to take care of 

with authority.’ ’’ P&M asserts that 

therefore it is clear that supervision 

requires the power of direction or 

authority to control or manage. P&M 

cites no specific authority for these 

assertions. 

New Mexico asserts that supervision 

does not equate to jurisdiction. The 

comment offered an example of a 

definition for each of the two terms, 

noting that jurisdiction ‘‘is the authority 

by which courts and judicial officers 

take cognizance of and decide cases;’’

and that supervision connotes an 

element of management. New Mexico 

also effectively asserts that ‘‘Indian 

country’’ is a jurisdictional term and 

does not equate to supervision. 

As we discuss above, we agree that 

supervision may be supervision in law 

or supervision in fact, or both. However, 

we are not persuaded by the comment 

asserting that supervision is not the 

same as jurisdiction. A review of 

reference works indicates that the 

distinction between ‘‘supervision’’ and 

‘‘jurisdiction’’ is not always clear, and 

that they are sometimes used to mean 

the same thing. For example, Black’s 

Law Dictionary defines the two terms as 

follows: 

‘‘[S]upervision’’: The act of managing, 

directing or overseeing persons or projects. 

(‘‘direct’’: * * * 3. To guide (something or 

someone); to govern.) 

Black’s Law Dictionary (7th ed. 1999). 

‘‘Jurisdiction’’: 1. A government’s general 

power to exercise authority over all persons 

and things within its territory * * * 3. A 

geographic area within which political or 

judicial authority may be exercised. 

Id. 

Burton’s Legal Thesaurus gives as 

synonyms for ‘‘supervision’’: 

Administration, care, charge, command, 

control, direction, government, gubernation, 

guidance, inspection, jurisdiction, 

management, oversight, procuratio, 

proctorage, regulation, steerage, stewardship, 

superintendence, surveillance. 

William C. Burton, Legal Thesaurus 

(1980). 

Burton gives as synonyms for 

‘‘jurisdiction’’: 

Authority, authority to hear and decide a 

case, capacity to decide the matter in issue, 

capacity to hear the controversy, command, 

control, decision-making power over the 

case, domain, domination, dominion, extent 

of authority, grasp, jurisdictio, legal 

authority, legal power, legal power to decide 

a case, legal right, power, province, purview, 

range, reach, realm, reign, sovereignty, 

sphere, superintendence, supervision, 

territorial range of authority, territory. 

Id. 

Another legal reference book, Words 

and Phrases, includes the following 

discussions of the meaning of 

‘‘jurisdiction’’: 

Jurisdiction is controlling authority; the 

right of making and enforcing laws or 

regulations; the capacity of determining rules 

of action or use, and exacting penalties; the 

function or capacity of judging or governing 

in general; the inherent power of decision or 

control. People v. Pierce, 41 N.Y.S. 858, 860, 

18 Misc. 83. 

* * * * * 

The word ‘‘jurisdiction’’ in its technical 

sense is not synonymous with ‘‘authority’’

although it is sometimes employed in that 

sense. In re Perez, 1 So.2d 537, 540, 197 La. 

334. 

* * * * * 

The term ‘‘jurisdiction’’ imports authority 

to expound or apply laws. Max Ams, Inc. v. 

Barker, 170 S.W.2d 45, 48, 293 Ky. 698. 

* * * * * 

The term ‘‘jurisdiction’’ originally included 

only right to hear and determine concerning 

subject matter in particular case, but is now 

frequently used as meaning authority to do 

particular thing or exercise a power in a 

particular manner. Fortenbury v. Superior 

Court in and for Los Angeles County, 106 

P.2d 411, 412, 16 Cal.2d 405. 

* * * * * 

The word ‘‘jurisdiction’’ is frequently used 

as meaning authority to do the particular 

thing done * * * Evans v. Superior Court in 

and for the City of San Francisco, 96 P.2d 

107, 116. 

Words and Phrases, ‘‘Jurisdiction’’

(2001). 


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These references indicate that the two 

words are not necessarily synonymous, 

but that they may be used as synonyms 

and both words can mean command, 

control, or superintendence. 

‘‘Jurisdiction’’ may be said to typically 

refer to a government’s general power to 

exercise authority over persons and 

things within its territory. As discussed 

above, ‘‘supervision’’ may be said to 

typically refer to regulating, overseeing, 

or superintending persons or things. 

As discussed above, in Valencia 

Energy Co., the IBLA rejected an 

argument that jurisdiction was a 

prerequisite for supervision. The 

operator had argued the Nation lacked 

jurisdiction over lands outside the 

boundaries of the reservation, and thus 

that those lands could not constitute 

lands ‘‘supervised by an Indian tribe’’

for the purposes of SMCRA. Further, the 

operator argued that the Nation lacked 

supervisory authority over the land, 

arguing that the Nation had conveyed 

all of its rights to the surface in a lease 

for approximately 50 years. The IBLA 

concluded that OSM’s analysis was 

sufficient to support a finding of 

supervision in fact; and also that 

ownership of the surface estate was 

sufficient to compel a conclusion of 

‘‘supervision’’ as a matter of law under 

SMCRA (despite the lease under which 

the Nation had granted full use of the 

surface for mining purposes). 

However, there is nothing inherent in 

any of the definitions of ‘‘jurisdiction’’

and ‘‘supervision’’ that precludes 

jurisdiction from being either an aspect 

of supervision or a basis for supervision. 

Thus, for example, jurisdiction may be 

a prerequisite for regulation, and may be 

a concomitant of sovereignty, and if a 

tribe has regulatory authority over lands 

or has sovereignty over lands, then it is 

certainly possible that the tribe may 

supervise those lands. In summary, we 

conclude that the comment attempting 

to distinguish between the terms 

‘‘supervision’’ and ‘‘jurisdiction’’ is not 

particularly helpful, and our review of 

references and definitions indicates that 

they do not compel the conclusion 

advocated by the comment. 

P&M notes that the Navajo Nation is 

the only Indian tribe in the approved 

Navajo Land Consolidation Area, and 

asserts that, therefore, a valid 

rulemaking will require a specific 

finding by the Secretary that the 

allotment lands subject to the proposed 

rule are supervised by the Navajo 

Nation. However, P&M asserts that 

neither the Navajo Nation nor OSM has 

offered or is able to offer any facts to 

support this critical finding. P&M urges 

that it is clear that the Navajo Nation 

has no power of direction or authority. 

P&M asserts that numerous Federal 

courts, including the United States 

Supreme Court, have held that 

‘‘[l]ands allotted to be held in trust for the 

sole use and benefit of the allottee or his 

heirs are during the trust period under the 

exclusive jurisdiction and control of 

Congress for all governmental purposes 

relating to the guardianship and protection of 

the Indians.’’ And; ‘‘[t]rust allotments to 

individual Indians remain under exclusive 

jurisdiction and control of Congress during 

the trust period for all purposes relating to 

guardianship and protection of Indians.’’

P&M cites annotations to 18 U.S.C.A. 

Section 1151, n.14 as authority for these 

statements. P&M asserts that thus it is 

clear that ‘‘Congress, through it’s agent, 

The [sic] Bureau of Indian Affairs, 

supervises the allotment lands within 

the Tribal Consolidation Area.’’

We agree that the intent of the 

proposed rule is to determine whether 

off-reservation Navajo allotted lands 

within the approved Navajo land 

consolidation area are supervised by the 

Navajo Nation and thus are Indian lands 

under the SMCRA definition of ‘‘Indian 

lands.’’ However, as discussed above, 

we conclude that the record does not 

support a determination as to 

supervision of those allotted lands, and 

that such a determination is 

appropriately made on a case-by-case 

basis. Further, the cases quoted in the 

annotations to 18 U.S.C.A. 1151, n. 14, 

concerning the Federal Government’s 

exclusive jurisdiction and control over 

allotted lands ‘‘for all governmental 

purposes relating to the guardianship 

and protection of the Indians’’ do not 

clearly preclude a tribe from regulating 

allotted lands and their use for other 

purposes. Indeed, the cases addressing 

the Indian country status of allotted 

lands specifically and consistently 

characterize allotted lands as a category 

of Indian country, and state that Indian 

country (not excluding allotted lands) is 

subject to the primary jurisdiction of the 

Federal Government and the Indians. 

See Venetie, 522 U.S. 531, and the cases 

cited therein. We are also mindful of the 

holding in Watchman that 18 U.S.C. 

1151 was an express Congressional 

delegation of civil authority over Indian 

country to the tribes, and the statement 

in Watchman that the Navajo Nation has 

authority to tax any mining activities 

taking place in Indian country without 

violating any express jurisdictional 

prohibitions. 52 F.3d 1541. The court 

noted that the Navajo trust allotments 

are Indian country by definition under 

18 U.S.C. 1151(c). 52 F.3d 1535. (The 

decision also specifically noted that this 

statute had been amended by Congress 

to conform to a Supreme Court decision 

that determined that trust allotments are 

subject to Federal jurisdiction. 52 F.3d 

1541.) And, as discussed above, the 

decision referred in a footnote to the 

court’s understanding that the Navajo 

Nation has the authority to apply its tax 

to the coal produced on the 47% of the 

South McKinley mine lying within the 

Navajo trust allotments. 52 F.3d 

1531,1542 n.11. Thus, these decisions 

do not support the commenter’s 

assertion that the Nation has no 

authority on allotted lands. 

P&M asserts that the Navajo Nation 

does not have title to the allotted lands 

or have any other legal interest in them; 

that there are no laws or regulations that 

grant to the Navajo Nation supervisory 

authority over allotted lands; and that 

the Nation cannot establish any 

significant or substantial or real control 

over the allotted lands within the tribal 

consolidation area. P&M also proposes 

that OSM should address the following 

issues when determining whether the 

Navajo Nation supervises off-reservation 

allotments: The existence of Nation 

contractual rights or other authority, or 

activities, that establish that the Nation 

has overseen or exercised authority over 

those lands; and the extent to which 

individual allottees consider their lands 

‘‘supervised’’ by the Nation. 

Because we have decided not to adopt 

the proposed rule and anticipate that 

the question of tribal supervision will be 

properly addressed in case-by-case 

determinations, those determinations 

may address relevant information 

addressing P&M’s concerns. Thus, in 

any such determinations concerning 

Navajo Nation supervision of allotted 

lands interested persons may submit for 

consideration all relevant information 

concerning matters such as title to the 

lands; applicable statutes, regulations, 

treaties, and executive orders; and all 

other information concerning Navajo 

supervision. We anticipate that relevant 

information would include evidence 

related to whether the Nation has the 

right or authority of overseeing, or acts 

to oversee the lands; and to whether the 

Nation has the right or authority to 

regulate or superintend what is done 

affecting those lands, or does in fact 

regulate or superintend what is done 

affecting the lands. To the extent the 

types of information referenced by P&M 

are submitted and are relevant to these 

matters, they may be addressed in any 

further case-by-case proceedings. 


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17See Charles Koch, Administrative Law & 

Practice § 5.55(1) at 204 (2d ed. 1997). 

Administrative notice is generally used to allow a 

decision maker to take notice of commonly 

acknowledged facts. In addition to commonly 

known facts, an administrative agency can take 

notice of technical or scientific facts that are within 

the agency’s area of expertise. See McLeod v. 

Immigration & Naturalization Serv., 802 F.2d 89, 93 

n.4 (3rd Cir. 1986) [citing NLRB v. Seven-Up 

Bottling Co., 344 U.S. 344 (1953)]. 

18 In hearings before the Department of the 

Interior Office of Hearings and Appeals (OHA), 43 

CFR 4.24 allows administrative notice ‘‘of the 

public records of the Department of the Interior and 

of any matter of which the courts may take judicial 

notice.’’ In hearings subject to the Administrative 

Procedure Act, 5 U.S.C. 556(e) (the ‘‘APA’’), 

‘‘[w]hen an agency decision rests on official notice 

of a material fact not appearing in the evidence in 

the record, a party is entitled, on timely request, to 

an opportunity to show the contrary.’’ This 

Continued 

D. What Procedural Questions Does the 

Record Raise About the Proposed 

Rulemaking? 

1. Is a Formal Adjudication Required on 

the Issue Presented in the Proposed 

Rule? 

P&M asserts that the question of tribal 

supervision of allotted lands should not 

be decided by an informal rulemaking 

process, but rather by formal 

adjudication, in order to allow 

interested parties the opportunity to 

fully develop evidence and fully 

address the facts and circumstances 

related to the Nation’s contention that it 

supervises allotted lands. 

As noted above, we believe the parties 

to the settlement and MOU 

contemplated that the rulemaking was 

to address the Indian lands status of the 

off-reservation allotted lands in the 

Navajo land consolidation area. 

However, as discussed infra, the record 

is not clear as to a number of the 

relevant facts. As to the relevant factors 

addressed by the commenters, some 

comments allege that the Nation does 

have the relevant right or authority, or 

functional role, and some allege that 

they do not; but generally there is little 

or no evidence or other support in the 

record for either set of allegations. A 

more complete record is needed to 

establish whether or not the Nation 

supervises the allotted lands in 

question. 

Whether the Nation supervises 

allotted lands in the Navajo land 

consolidation area, so that those lands 

would be deemed Indian lands under 

SMCRA, may be properly addressed in 

a proceeding in which all interested 

persons may provide relevant 

information and address the 

significance and weight to be attached 

to that evidence. However, we do not 

believe that a formal quasi-judicial 

administrative hearing would be 

required for such a determination in all 

cases. Less formal procedures may 

develop an appropriate record. For 

example, the procedures for SMCRA 

permitting decisions may assure an 

adequate record, since those procedures 

ensure all interested persons ample 

opportunity to participate in the 

permitting process. For example, the 

Indian lands status of certain offreservation allotted lands, which are 

within the permit area of the south 

McKinley mine, had been the subject of 

the P&M case. Pittsburg & Midway Coal 

Mining Co. v. OSM, Docket No. TU 6–

2–R, Dismissed without prejudice, 

February 2, 2007 (OHA Departmental 

Hearings Div.). We believe that the 

record in such a case could be 

developed to fully address the Indian 

lands status issues. 

2. Are We Taking Administrative Notice 

of Materials as Requested by 

Commenters? 

As discussed in more detail below, 

the Navajo Nation refers to documents 

that it believes are relevant to this 

rulemaking, and requests that we take 

administrative notice of the materials. 

Some of those documents were 

submitted in evidence in proceedings 

that occurred more than a decade ago. 

Because of the age of the materials, and 

because the Nation has indicated the 

materials are voluminous, we believe it 

is not in the interest of fairness to take 

administrative notice of those materials 

without full notice and opportunity for 

all interested persons to review, 

evaluate, and comment on them. We 

believe that all interested persons and 

the decision maker should have ample 

opportunity to address the weight and 

relevance to be attributed to these 

materials, particularly to the extent that 

they would be submitted to establish 

supervision in law or in fact. 

The Navajo Nation requests that we 

take administrative notice of the Navajo 

Nation Code (‘‘NNC’’) and its laws 

which the Nation maintains 

demonstrate the Nation’s supervision of 

allotted lands. Further, the Navajo 

Nation asserts that it submitted 

extensive proof of its active supervision 

of the trust allotments, including an 

unrebutted factual showing of tribal 

jurisdiction over the allotments, in two 

cases: New Mexico, ex. rel. Energy and 

Minerals Dep’t, Mining & Minerals Div. 

v. United States Dep’t of the Interior, 

No. Civ. 84–3572 (D.D.C. 1985), aff’d in 

part and rev’d in part, 820 F.2d 441 

(D.C. Cir. 1987), settlement approved 

after remand and transfer, No. Civ. 87–

1108 JB, 19 Indian L. Rep. 3119 (D.N.M. 

1992) (‘‘New Mexico v. DOI’’); and 

Pittsburg & Midway Coal Mining Co. v. 

OSMRE and Navajo Tribe, IBLA No. 

87–577. The Nation asks that we take 

notice of and include in the 

administrative record the exhibits filed 

by the Navajo Nation in New Mexico v. 

DOI, and the administrative record filed 

and discovery completed in Navajo 

Nation v. Babbitt, No. Civ. 89–2066 

(D.D.C.) [citing United States v. 

American Tel. & Tel. Co., 83 F.R.D. 323, 

333–34 (D.D.C. 1979)]. 

In the interest of administrative 

fairness we will not take administrative 

notice of the Navajo Nation’s exhibits in 

the referenced Federal court litigation, 

and will not take administrative notice 

of the NNC. The Navajo Nation is 

requesting administrative notice of these 

materials as probative of supervision—

the central issue in this rulemaking. In 

any case-by-case determination the 

Navajo Nation may offer these materials 

in evidence and their merits may be 

addressed as appropriate by interested 

persons. These materials are not 

otherwise readily available to interested 

persons. The exhibits of which the 

Nation requests that we take 

administrative notice were apparently 

filed with the respective Federal district 

courts between 10 and 20 years ago. The 

files of such old closed Federal cases are 

typically routinely archived by the 

courts and may even have been 

routinely destroyed by the archives 

because of the age of the records. 

Further, given the age of these materials, 

it is unclear whether they would 

accurately reflect current law and 

current conditions. (And, because of the 

age of these records, even if they still 

exist and could be retrieved by the 

courts, it does not appear reasonable to 

expect interested persons to timely 

request and review them.) We located 

and reviewed a copy of the NNC, dated 

1995, in the Department of the Interior 

Natural Resources Library. That copy 

was obtained by the Library in 1999. We 

have no information as to what, if any, 

changes may have been made to the 

NNC since either 1995 or 1999. Further, 

the copies of affidavits or declarations 

actually submitted by the Nation 

primarily concern social services to 

allottees, rather than supervision of 

allotted lands, and thus appear to be of 

limited relevance. 

Administrative notice (or ‘‘official 

notice’’) is an administrative law device 

that is used to enter information into the 

record that has not been proved through 

hearing methods.17 Effectively, the 

decision maker may consider some 

commonly understood information as if 

it had been documented, submitted in 

evidence, and proved (although it has 

not actually been).18


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rulemaking is not directly subject to these 

procedural requirements, because it is not based on 

a hearing before an OHA board, nor does it involve 

a hearing subject to the cited provision of the APA. 

Nonetheless, the OHA procedures and the APA 

provisions were adopted because they ensure basic 

procedural fairness in agency decision making. 

Thus, these provisions provide useful guidance as 

to what may be generally regarded as procedures to 

ensure fundamental fairness in agency decision 

making. 

With regard to the Navajo Nation’s 

previous exhibits, in determining 

whether administrative notice should be 

taken, agencies have distinguished 

between ‘‘adjudicatory’’ facts and 

‘‘legislative’’ facts. Adjudicatory facts 

pertain to the immediate parties, 

whereas legislative facts are general and 

do not concern the immediate parties. 

See 3 Kenneth Davis, Administrative 

Law Treatise § 10.6 at 150 (1984). In 

practice, the admission of adjudicatory 

facts depends upon whether the facts 

are central to the controversy. If they 

are, they usually have to be proved, but 

if they are not, they may be officially 

noticed. See Koch, supra, at 207. 

Agencies more typically notice 

legislative facts if the parties are given 

notice of their use and are given an 

opportunity for rebuttal. See Koch, 

supra, at 206. The use of adjudicatory 

facts is more restricted. Under the 

Federal Rules of Evidence (which 

govern judicial notice but also provide 

useful guidance in this case, in light of 

43 CFR 4.24, supra), adjudicatory facts 

that are ‘‘not subject to reasonable 

dispute’’ may be noticed, but all other 

adjudicatory facts must be proved. We 

believe that the Nation’s exhibits from 

previous proceedings would be 

intended to establish whether the 

Navajo supervise the allotted lands (and 

as discussed below, in this case might 

be considered both adjudicatory facts 

and legislative facts). The nature of the 

proposed rule amply demonstrates that 

the issues of whether the Navajo Nation 

supervises these off-reservation allotted 

lands, and, more generally, what 

interests and roles the Navajo Nation 

has on these lands, are subject to 

reasonable dispute. These are issues 

central to the proposed rule, and are 

disputed by commenters. Therefore, we 

conclude that it would not be fair or 

appropriate to take administrative 

notice as requested by the Nation. 

With regard to the NNC, arguably 

‘‘any information useful in deciding the 

adjudication may be noticed as long as 

no unfairness is created.’’ Koch, supra, 

at 205. However, it is not clear whether 

the version of the code available to us 

at the location of the administrative 

record is current and complete. Further, 

the record before us does not clearly 

establish whether and in what way the 

code is implemented on allotted lands, 

or what the Nation’s authority is to 

implement the code on off-reservation 

allotted lands, in light of any other law 

that may be applicable. Thus, there is an 

argument that, concerning the issues in 

this rulemaking, the terms and 

applicability of the NNC are both 

‘‘adjudicatory’’ and ‘‘legislative’’ facts. 

In any case, we conclude that to take 

notice of these materials without further 

opportunity for examination and 

comment by all interested persons 

would be of questionable fairness and 

value. 

In summary, the Nation and all other 

interested persons may submit all 

relevant and probative materials in any 

case-by-case determination. All such 

materials may then be examined and 

addressed by all interested persons as to 

their relevance and the weight to be 

given them concerning the ‘‘Indian 

lands’’ status of specific Navajo offreservation allotted lands. 

E. What Administrative, Operational, 

and Environmental Issues Did 

Commenters Raise Concerning the 

Proposed Rule? 

The proposed change in the definition 

of Indian lands, if adopted, would have 

shifted SMCRA regulation from the 

State to OSM for all allotted lands 

located within the Navajo land 

consolidation area in New Mexico. 

Under the proposed rule change we 

would have assumed SMCRA 

jurisdiction on the 48 allotments 

included within the mine’s so-called 

south area. 

As we noted earlier, the McKinley 

Mine permit area straddles the 

boundary of the Navajo Reservation near 

the Arizona-New Mexico border. The 

portion of the permit that lies within the 

reservation boundaries and on an 

adjacent parcel of off-reservation Navajo 

fee lands is collectively referred to as 

the north area and is regulated by us. 

The remainder of the mine, the so-called 

south area, is composed of Federal, 

private, State, and allotted lands 

occurring in a complex checkerboard 

pattern and is regulated by the State of 

New Mexico. 

State and industry commenters were 

very concerned that the proposed 

change in the definition of Indian lands 

would greatly increase the area subject 

to dual regulation at the McKinley Mine 

and thus further complicate regulation 

at the mine. One commenter maintained 

that the rule change would create a 

potential disincentive to continued 

mining at McKinley Mine and to future 

mining in other checkerboard areas of 

New Mexico. The same commenter 

asserted that the increase in dual 

regulation would be complex, 

burdensome, expensive, impractical and 

time-consuming and would undermine 

SMCRA’s intent of ensuring efficient 

regulation and reclamation of coal 

mining operations. The commenter also 

cited specific issues of concern 

stemming from differences in State and 

OSM regulations and differing 

interpretations of rules. 

Another commenter noted that certain 

difficulties associated with our 

assumption of jurisdiction in 1986 on 

the tribal fee lands at the McKinley 

south mine were illustrative of the types 

of problems that would arise from our 

adoption of the proposed rule change. 

The commenter cited numerous issues 

anticipated for any transfer of 

jurisdiction. 

State and industry commenters also 

commented extensively on the 

bureaucratic inefficiencies and the 

additional administrative expenses for 

regulators and mine operators that they 

believe would result from the proposed 

rule change due to differences in State 

and OSM regulations and differing 

interpretations of regulatory 

requirements. They also expressed 

concern about the frequency of 

consultation that would be required, 

and about the confusion and delays they 

expected as the operator moves from 

section to section. In addition, they 

asserted that the proposed change in the 

definition of Indian lands would have 

serious adverse economic and financial 

consequences at the local, State, and 

Federal levels, including increased 

regulatory workloads and costs, 

potential loss of future mining and 

mining jobs, and lost royalty and tax 

revenue from State lands. 

Although commenters’ concerns 

about the effects of a complex regulatory 

scheme may reflect business and fiscal 

concerns, the complex land ownership 

patterns at the McKinley south mine, or 

elsewhere in the consolidation area in 

New Mexico, are not relevant to a 

determination of whether any or all of 

the allotted lands in the consolidation 

area are Indian lands. Further, we 

believe that determinations of the 

Indian lands status of consolidation area 

allotments are properly based solely 

upon application of the SMCRA 

standard. That standard requires 

consideration of relevant information 

concerning the nature and extent of the 

tribe’s supervisory authority over the 

allotted lands. Any operational or 

administrative concerns about a 

determination could be addressed 

through coordination between OSM and 

the State on a site-specific basis. 


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F. What Other Questions Does the 

Record Raise About the Proposed 

Rulemaking? 

1. Must Any Ambiguities Be Construed 

in Favor of Tribal Interests? 

The Navajo Nation asserts that the 

Indian lands provisions of SMCRA are 

intended to benefit Indian tribes under 

the Federal trust responsibilities. The 

Nation asserts, in effect, that, if there is 

any ambiguity as to whether the Navajo 

interest in and authority over allotted 

lands amounts to supervision, 

applicable rules of statutory 

construction require that any 

ambiguities in the SMCRA Indian lands 

provisions should be construed in favor 

of tribal interests. The Nation cites 

Bryan v. Itasca County, 426 U.S. 373, 

392–93 (1976); Montana v. Blackfeet 

Tribe of Indians, 471 U.S. 759, 766 

(1985); Jicarilla Apache Tribe v. Andrus, 

687 F.2d 1324, 1332 (10th Cir. 1982); 

and Star L. R. Co. v. Lujan, 737 F. Supp. 

103, 109 (D.D.C. 1990), aff’d, 925 F.2d 

490, 18 Indian L. Rep. 2027 (DC Cir. 

1991). The Nation asserts that these 

rules of statutory construction have a 

special corollary with respect to 

whether trust allotments are ‘Indian 

lands’ under exclusive tribal and 

Federal authority; and that any 

ambiguities in Federal legislation 

‘‘should be resolved in favor of limiting 

state jurisdiction.’’ The Nation quotes 

State v. Ortiz, 105 N.M. 308, 311, 731 

P.2d 1352, 1355 (Ct. App. 1986): 

The Supreme Court has implicitly 

recognized that stricter standards apply to 

federal agencies when administering Indian 

programs. * * * When the Secretary is acting 

in his fiduciary role rather than solely as a 

regulator and is faced with a decision of 

which there is more than one ‘‘reasonable’’

choice as that term is used in administrative 

law, he must choose the alternative that is in 

the best interest of the Indian Tribe. 

The Nation cites: Jicarilla Apache 

Tribe v. Supron Energy Corp., 728 F.2d 

1555, 1567 (10th Cir. 1984), dissenting 

opinion adopted as modified on reh’g, 

782 F.2d 855 (10th Cir. 1986) (en banc), 

modified on other grounds, 793 F.2d 

1171 (10th Cir. 1986), cert. denied 479 

U.S. 970 (1986). 

Thus, the Nation argues that 

ambiguities in the definition of ‘‘Indian 

lands’’ must be resolved in favor of the 

Navajo Nation because if the allotments 

are not Indian lands they may be 

regulated by the states, ‘‘contrary to the 

cornerstone of the special tribal/federal 

relationship.’’ The Nation cites New 

Mexico ex rel Energy and Minerals 

Dep’t, Mining & Minerals Div. v. United 

States Dep’t of Interior, 820 F.2d 441, 

445 (DC Cir. 1987), settlement approved 

after remand and transfer, No. Civ. 87–

1108 JB, 19 Indian L. Rep. 3119 (D.N.M. 

1992); and Washington Dep’t of Ecology 

v. United States EPA, 752 F.2d 1465, 

1470 (9th Cir. 1985). The Navajo Nation 

notes that the latter case stated that the 

trust responsibility ‘‘arose largely from 

the federal role as a guarantor of Indian 

rights against state encroachment.’’

We believe that, under SMCRA, we 

act solely as a regulator, and that the 

canon of construction referenced by the 

Nation does not apply to our 

interpretation of SMCRA’s Indian lands 

provisions and implementing rules for 

purposes of implementing our 

regulatory responsibilities. Section 

102(a) of the Act states that ‘‘it is the 

purpose of this Act to establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ The Federal program for 

Indian lands is a component of this 

nationwide regulatory program, 

intended to ensure ‘‘that all mining 

operations on Indian lands are 

conducted in accordance with 

permanent program standards until 

tribes are given the authority to seek and 

obtain primacy.’’ 49 FR 38464 

(September 28, 1984). The preamble to 

the final rulemaking adopting the Indian 

lands permanent program requirements 

discusses in some detail how 

responsibilities for Indian trust asset 

management and for tribal consultation 

remain with MMS, BLM, and BIA under 

their separate statutory authorities; and 

emphasizes that OSM is responsible for 

establishing a nationwide regulatory 

program for surface coal mining 

operations, of which the Indian lands 

program is one part, until tribes are 

authorized to assume primacy. 49 FR 

38467–38469. The preamble makes clear 

that, when implementing the SMCRA 

Indian lands program, we are solely 

implementing the nationwide regulatory 

program. The authority and fiduciary 

responsibility to administer Indian trust 

assets were not affected by SMCRA or 

the Indian lands rule; they remain with 

MMS, BLM, and BIA, under their 

respective authorities. As a result, we do 

not understand the canon of 

construction articulated in Ortiz to 

apply by its terms to our 

implementation of SMCRA’s Indian 

lands regulatory provisions. 

However, we would reach the same 

conclusion on the proposed rule even if 

the canon set out in Ortiz did apply to 

our action on this matter. We are 

mindful that the nature and extent of 

the trust responsibilities of Federal 

agencies have been described in many 

different ways in court decisions. Some 

cases arguably take a very expansive 

view of Federal agency trust 

responsibilities. See, e.g., HRI v. United 

States EPA and Navajo Nation, 198 F. 

3d 1224, 1245–1247. Nonetheless, 

regardless of the applicability of any 

special canons of statutory construction, 

the record before us in this rulemaking 

is inadequate to support a determination 

as to whether the Navajo Nation 

supervises the off-reservation allotted 

lands within the approved Navajo land 

consolidation area. 

2. Can a Tribe Supervise Lands Over 

Which a State Has Authority? 

The comments of the Navajo Nation 

include extensive arguments concerning 

their position that states do not have 

general regulatory authority or 

governmental authority over Indian 

country, including allotted lands. 

We conclude that these comments are 

not germane to the proposed rule 

because they do not address whether the 

Nation supervises allotted lands, in law 

or in fact. Rather, these comments relate 

to states’ authority in Indian country 

and to Congress’ views on states’ ability 

or authority to regulate in Indian 

country. The proposed rule did not 

purport to analyze or define the nature 

or extent of the State’s general authority 

or jurisdiction over off-reservation 

allotted lands. We have no authority to 

make such a determination. The 

SMCRA definition of ‘‘Indian lands’’

does not require that off-reservation 

lands will be considered Indian lands 

only if they are subject to no state 

regulation or authority of any kind. The 

proposed rule concerns only whether 

tribes supervise certain allotted lands, 

as a matter of law or as a matter of fact, 

and thus whether such lands are Indian 

lands for purposes of SMCRA. Thus, if 

a state has some authority on or interest 

in the lands this does not preclude 

properly considering the lands to be 

‘‘Indian lands’’ for purposes of SMCRA. 

Because these comments about State 

authority or jurisdiction do not address 

the Nation’s supervision of allotted 

lands the comments do not address the 

merits of the proposed rule and are not 

helpful. 

The comments assume that state 

regulation of allotted lands under 

SMCRA is a dilution of the Federal trust 

responsibility because allowing state 

regulation delegates a trust 

responsibility to the state. We do not 

agree. If the Nation does not supervise 

the off-reservation allotted lands, then 

those lands are not Indian lands under 

SMCRA. Thus, if the allotted lands were 

found not to be supervised by the 

Nation, allowing state regulation would 

not delegate a fiduciary trust 

management responsibility to the state. 

However, if the Nation is found to 


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20692 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

supervise the lands in question, those 

lands are Indian lands and are subject 

to the Federal Indian lands regulatory 

program. 

The Navajo Nation maintains that 30 

U.S.C. 1300(h) confirms that all Indian 

trust allotments must be considered 

‘‘Indian lands’’ because it states 

‘‘nothing in this Act shall change the 

existing jurisdictional status of Indian 

lands.’’ The Nation refers to the final 

conference committee report on 

SMCRA, which stated that this proviso 

was intended to preserve the existing 

jurisdictional status of off-reservation 

trust lands. H.R. Rep. No. 493, 95th 

Cong., 1st Sess. 114 (1977). The Navajo 

Nation asserts that, with respect to the 

off-reservation trust allotments at issue, 

it is clear that states could exercise no 

legitimate regulatory function in 1977 

when SMCRA was enacted. The Nation 

asserts that in 1977 reclamation of 

surface coal mines on all Indian lands 

was covered by a comprehensive and 

exclusive (of states) Federal regulatory 

regime. The Nation references 25 CFR 

Part 177, Subpart B (1977), and General 

Accounting Office Administration of 

Regulations for Surface Exploration, 

Mining, and Reclamation of Public and 

Indian Lands 5–6 (1972). The Nation 

asserts that in 1977 state laws regulating 

or controlling the use or development of 

any trust land, including all offreservation trust allotments, could not 

apply on allotments: 

Without specific authorization of the 

Secretary of the Interior, none of the laws, 

* * * or other regulations of any State or 

political subdivision thereof limiting, zoning, 

or otherwise governing, regulating, or 

controlling the use or development of any 

real * * * property * * * shall be applicable 

to any such property leased from or held or 

used under agreement with and belonging to 

any Indian * * * that is held in trust by the 

United States. * * * 

25 CFR 1.4(a) (1977). 

For several reasons we do not find 

these comments helpful. First, whether 

or not a state regulates allotted lands 

under other law the SMCRA definition 

of ‘‘Indian lands’’ still applies. See 

Valencia, which, as discussed above, 

concluded that SMCRA establishes the 

jurisdictional status quo for SMCRA 

purposes, although it does not affect the 

jurisdictional status quo for other 

purposes. 109 IBLA 66. Second, this 

comment is not germane to the 

proposed rule because it does not 

address the question of whether the 

Nation supervises off-reservation 

allotted lands, in law or in fact. Like the 

preceding comments, this comment 

asserts that the states had no legitimate 

jurisdiction or authority on allotted 

lands in 1977 and thus can have none 

now under SMCRA. Such assertions do 

not address whether a tribe supervises 

allotted lands for SMCRA purposes. 

The Navajo Nation also asserts that 

the Department of the Interior had 

recognized by 1977 that Indian tribes 

had retained general regulatory 

authority over the trust allotments of 

their members. The Nation cites a 

memorandum opinion of the Solicitor, 

Department of the Interior: Application 

of Local Building Codes to Indian Trust 

Property, II Op. Sol. 2052 (1972) 

[available at 4 Indian L. Rep. 0–7 

(1977)]. 

As discussed above, case law 

indicates that determinations of tribal 

authority or rights must be made on a 

case-by-case basis. The cited Solicitor’s 

Opinion addresses, inter alia, the 

authority of a particular tribe in 

Washington State to regulate the use of 

tribal trust and individual allotted lands 

in that State. The opinion concludes 

that in that instance the tribe has the 

inherent authority to regulate the use of 

both tribal and individually held trust 

land. The opinion is not germane to this 

rulemaking because it does not concern 

supervision by the Nation of offreservation allotted lands and the 

authority of each tribe must be 

examined based on the facts and law 

concerning that tribe. 

3. Is the Proposed Rule Consistent With 

Past OSM Actions? 

The Navajo Nation maintains that in 

the 1989 rule OSM justified its 

clarification of the status of these 

allotments in ‘‘wholly contradictory 

ways.’’ Specifically, the Nation noted 

that we stated on the one hand that: 

It is more appropriate that this jurisdictional 

issue [of off-reservation allotments] be 

addressed by rulemaking * * * rather than 

by quasi-judicial proceedings in which only 

parties and intervenors have standing. 

1989 AR 3–4. On the other, the Nation 

asserts that we ‘‘confessed’’ that: 

A dispositive policy concerning the 

concept of tribal supervision of individual 

trust allotments * * * would have to 

encompass a highly complex set of potential 

issues and fact patterns, and is beyond the 

scope and purpose of this rulemaking. As 

stated earlier in this preamble, OSMRE will 

make such determinations on a case-by-case 

basis if and when the need arises. 

1989 AR 5. 

We agree that the quoted language 

could have been more precisely 

phrased; however, these materials are 

quoted out of context. We believe that 

careful examination of the 1989 rule 

preamble language indicates that we 

intended to say that whether offreservation allotted lands in general 

may be ‘‘Indian lands’’ (because they 

may be ‘‘supervised by a tribe’’ for 

purposes of SMCRA) is properly 

addressed in a rulemaking; but whether 

specific off-reservation allotted lands 

are actually supervised by a particular 

tribe is best addressed on a case-by-case 

basis because of the potentially complex 

issues, law, and facts. We believe that 

this position is reasonable and 

continues to be valid. 

NMA argues or implies that the 

proposed rule would conflict with a 

1985 settlement that we entered with 

NMA, and would conflict with the 

intent of Congress. 

Our interpretation of the 1985 

settlement has not changed. See 

discussion supra of 54 FR 22182 (May 

22, 1984). Neither the proposed rule nor 

this decision not to adopt the proposed 

rule is intended to change our 

interpretation of the 1985 settlement. As 

discussed above, we do not agree that 

the proposed rule or our decision not to 

adopt the proposed rule conflicts with 

the intent of Congress. 

VII. What Is the Effect of This Notice? 

We reach no conclusions on the 

Indian lands status under SMCRA of 

Navajo allotments in New Mexico. We 

intend this notice to provide guidance 

for any pending or subsequent action 

concerning the Indian lands status of 

allotted lands, but in any such action we 

will consider arguments or information 

concerning the merits or applicability of 

this approach. We intend this notice to 

aid interested persons in determining 

what information may be relevant in 

such action. Further, we intend to 

advise interested persons of the 

interpretation of existing law that we 

anticipate implementing in any such 

action. See, e.g., Christensen v. Harris 

County, 529 U.S. 576 (2000); Stinson v. 

United States, 508 U.S. 36 (1993); 

Williams v. United States, 503 U.S. 193 

(1992); Pacific Gas & Electric Co. v. FPC, 

506 F.2d 33 (D.C. Cir. 1974). 

VIII. How Will This Issue Be Addressed 

After This Notice? 

A. Will This Issue Be Addressed by 

Case-by-Case Determinations? 

Existing procedures allow for case-bycase determinations of the Indian lands 

status of specific allotted lands in any 

actions in which that status might arise. 

We anticipate that any such 

determinations would most likely arise 

in permitting decisions that involve 

allotted lands. 

As discussed above, a case that had 

been pending before the Office of 

Hearings and Appeals concerning the 

Indian lands status of allotted lands 


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Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20693 

within the permit area of the South 

McKinley mine was the only permitting 

action where SMCRA jurisdiction over 

allotments has been raised. That case 

had been stayed pending final action on 

this rulemaking and had been continued 

since 1992. Pittsburg & Midway Coal 

Mining Co. v. OSM (OHA Docket No. 

TU–6–2–PR). The parties contemplated 

that final action on this rulemaking 

might obviate the need for further action 

in that case. However, as discussed 

above, that case has been dismissed 

without prejudice. If a similar case is 

filed or that case is re-instated, all 

parties would have ample opportunity 

to submit and evaluate relevant 

evidence, cross-examine witnesses, and 

submit arguments. Judicial review 

would be available. 

B. Will We Propose Amendments of Our 

Rules To Set Out Specific Procedures for 

Case-by-Case Determinations on This 

Issue? 

We considered the option of 

developing a process for making caseby-case determinations of whether 

particular allotted lands are supervised 

by a tribe in lieu of developing a 

national rule that would govern all 

instances. However, there are many 

different possible procedural contexts in 

which this issue might be raised. 

Devising amendments to all the 

procedural rules under which this issue 

might be raised, in order to specify how 

such a determination would be 

addressed, would not be appropriate in 

light of the low probability that any 

particular procedure might be used for 

such a determination in the foreseeable 

future. 

Dated: April 5, 2007. 

C. Stephen Allred, 

Assistant Secretary, Land and Minerals 

Management. 

[FR Doc. E7–7647 Filed 4–24–07; 8:45 am] 

BILLING CODE 4310–05–P 


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