Indian and Federal Lands, 20672-20693 [E7-7647]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 79 (Wednesday, April 25, 2007)]
[Proposed Rules]
[Pages 20672-20693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7647]



[[Page 20671]]

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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 700, 740, 746 and 750



Indian and Federal Lands; Proposed Rule

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

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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.

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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 off-reservation 
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

[[Page 20673]]

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 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.''
    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.
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    \1\ SMCRA 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.
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    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 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.''
    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 off-reservation 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.

[[Page 20675]]

    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. Nederlandsch-Amerikaansche-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 Sec.  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

[[Page 20676]]

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: Off-
reservation 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 off-reservation 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 off-reservation 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 off-
reservation 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

[[Page 20677]]

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.

[[Page 20678]]

Some courts' decisions make general statements about tribes' 
authorities.\2\
---------------------------------------------------------------------------

    \2\ For 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 semi-independent 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).
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------

    \3\ For 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).

    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\
---------------------------------------------------------------------------

    \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).

    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 case-by-case detailed analysis of all legal 
authorities applicable to the tribe.\5\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \6\ Thus, 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.
---------------------------------------------------------------------------

    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,

[[Page 20679]]

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.

[[Page 20680]]

    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