Appellate Case: 12-5078 Document: 01018950828 Date Filed: … · 2013-09-17 · inheritance and transfers, since distributions first began under the 1906 Act, of approximately 1700

ORAL ARGUMENT REQUESTED

No. 12-5078

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM S. FLETCHER and CHARLES A. PRATT,

Plaintiffs-Appellants, v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; KEN SALAZAR, in his official capacity as

Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and LARRY ECHO HAWK, in his official capacity as Assistant Secretary of the

Interior – Indian Affairs, Defendants-Appellees

On Appeal from the U.S. District Court for the Northern District of

Oklahoma, Case No. 02-CV-427-GKF-PJC (Hon. Gregory K. Frizzell)

ANSWERING BRIEF OF THE UNITED STATES

IGNACIA S. MORENO Assistant Attorney General ALAN WOODCOCK Office of the Solicitor U.S. Department of the Interior Tulsa, Oklahoma

JOSEPH H. KIM JOHN L. SMELTZER KATHERINE W. HAZARD Attorneys U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 514-2110

Appellate Case: 12-5078 Document: 01018950828 Date Filed: 11/14/2012 Page: 1

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TABLE OF CONTENTS Page

STATEMENT REGARDING PRIOR OR RELATED CASES .................. 1 JURISDICTION ......................................................................................... 1 ISSUES PRESENTED ............................................................................... 2 STATEMENT OF THE CASE ................................................................... 2 A. Nature of the Case ................................................................... 2 B. Statutory and Regulatory Framework .................................... 4 1. The 1906 Act as amended ............................................... 4 2. 25 U.S.C. 162a and 4011 ................................................ 9 3. Federal Rule of Civil Procedure 12(b)(6) and 12(e) ..... 11 STATEMENT OF FACTS ........................................................................ 11 A. The original complaint and prior appeal .............................. 13 B. Proceedings on Remand ......................................................... 15 1. District Court’s Order of March 31, 2009 ..................... 16

2. Hearing of September 10, 2009, regarding the Second Amended Complaint ..................................................... 17

3. Plaintiffs’ Third Amended Complaint at issue in this

appeal ............................................................................ 18 4. Hearing of December 10, 2010, on the Third Amended

Complaint ...................................................................... 22


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5. Opinion and Order of March 31, 2011, granting an Individual Defendant’s Motion to Dismiss .................. 23

6. Orders denying certification of defendant class and

dismissing claims against the Individual Defendants ..................................................................... 26

C. The District Court’s Opinion and Order granting the BIA’s

motion to dismiss ................................................................... 26 SUMMARY OF ARGUMENT .................................................................. 30 ARGUMENT ............................................................................................. 33 I. STANDARD OF REVIEW ............................................................. 33 II. PLAINTIFFS FAILED TO STATE A CLAIM FOR AN ACCOUNTING ............................................................................ 35

III. PLAINTIFFS FAILED TO STATE A CLAIM FOR IMPROPER

DISBURSEMENT OF ROYALTY PAYMENTS AND DISMISSAL

THEREFORE WAS WARRANTED UNDER FEDERAL RULE OF CIVIL

PROCEDURE 12(B)(6) ................................................................ 42 IV. DISMISSAL OF THE CLAIM REGARDING IMPROPER

DISBURSEMENTS WAS ALSO WARRANTED UNDER RULE 12(E) ............................................................................... 45

CONCLUSION ......................................................................................... 47 STATEMENT REGARDING ORAL ARGUMENT ................................. 48 CERTIFICATE OF COMPLIANCE ........................................................ 48 CERTIFICATE REGARDING ELECTRONIC SUBMISSION .............. 47 CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES Cases: Akers v. Hodel,

871 F.2d 924 (10th Cir. 1989) ......................................................... 40

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................. 33, 34, 44

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................. 33, 34, 44

Colorado Farm Bureau v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) ....................................................... 45

Crisler v. Sedgwick County, 2012 WL 3090842 (10th Cir. 2012) ................................................. 35

Emerson v. Thiel Coll., 296 F.3d 184 (3d Cir.2002) .............................................................. 35

Fletcher v. United States, 160 Fed. Appx. 792 (10th Cir. 2005) ........................................... 5, 14

McCurdy v. United States, 246 U.S. 263 (1918) ........................................................................... 4

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ........................................................................... 42 Old Time Enters., Inc. v. Int'l Coffee Corp.,

862 F.2d 1213 (5th Cir. 1989) ......................................................... 35

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010) ......................................................... 4

Osage Nation v. United States, 57 Fed. Cl. 392 (2003)...................................................................... 30


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Osage Tribe of Indians v. United States, Nos. 99-550L and 00-169L (Ct. Fed. Cl.) ................................. 29 Ridge at Red Hawk v. Schneider,

493 F.3d 1174 (10th Cir. 2007) ................................................. 33, 44

Rosenfield v. HSBC Bank, USA, 681 F.3d 1172 (10th Cir. 2012) ....................................................... 33

Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) ........................................... 33, 34, 44

United States v. Jicarilla Apache Nation,

131 S. Ct. 2313 (2011) ..................................................................... 29

Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993) ........................................................... 35

STATUTES: 25 U.S.C. 162a ............................................................. 1-3, 9, 20, 21, 30, 35 25 U.S.C. 162a(a) ...................................................................................... 10 25 U.S.C. 162a(b) ...................................................................................... 10 25 U.S.C. 162a(c) ...................................................................................... 10 25 U.S.C. 162a(d) ................................................................................ 10, 36 25 U.S.C. 164 ............................................................................................ 40 Act of 1906, Osage Allotment Act,

34 Stat. 539 (June 28, 1906) ........................................... 1, 4, 5, 6, 28

Act of April 18, 1912, Pub. L. No 62-125 § 8, 37 Stat. 36 (1912) ......................................... 7

Act of April 12, 1924, Pub. L. No. 68-79, 43 Stat. 94 (1924) ................................................ 8


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Act of June 24, 1938, 52 Stat. 1037 ..................................................................................... 9

Act of October 21, 1978, Pub. L. No. 95-469 § 8, 92 Stat. 1660 (1978) .......................... 5, 8, 40

Act of June 5, 1982,

ch. 310, 17 Stat. 228 .......................................................................... 4 Administrative Procedure Act

5 U.S.C. 702 ........................................................................... 1, 14, 15 5 U.S.C. 704 ..................................................................................... 45 5 U.S.C. 706 ....................................................................................... 1

Indian Trust Fund Management Reform Act of 1994

25 U.S.C. 4011 ............................ 1-3, 9, 10, 11, 20, 21, 29, 30, 35, 37 25 U.S.C. 4044 ........................................................................... 31, 41

Osage Tribe of Indians Technical Corrections Act of 1984,

Pub. L. No. 98-605 § 2(h), 98 Stat. 3163 (Oc.t. 30, 1984) ............ 5, 9 Reaffirmation of Certain Rights of the Osage Tribe,

Pub. L. No. 108-431, 118 Stat. 2609 (2004) .................................... 14 28 U.S.C. 1291 ............................................................................................ 2 28 U.S.C. 1331 ............................................................................................ 1 28 U.S.C. 1343 ............................................................................................ 1 28 U.S.C. 1346 ............................................................................................ 1 28 U.S.C. 1361 ............................................................................................ 1 28 U.S.C. 1362 ............................................................................................ 1 28 U.S.C. 2401 .......................................................................................... 16


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RULES and REGULATIONS: Fed. R. App. P. 4(a)(1)(B) ........................................................................... 2 Fed. R. Civ. P. 12(b)(6) ............................................. 3, 11, 23, 30-34, 42-45 Fed. R. Civ. P. 12(d) .................................................................................. 23 Fed. R. Civ. P. 12(e) ............................................ 2, 3, 11, 28, 30, 34, 45, 46 Fed. R. Civ. P. 19(b) .................................................................................. 13 Fed. R. Civ. P. 23 ...................................................................................... 18 OTHER AUTHORITIES: http://www.osagetribe.com/minerals/, as of November 2, 2012 .............. 37 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1376 at 336 (3d ed. 2004) ..................................................... 46


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STATEMENT REGARDING PRIOR OR RELATED CASES

This case has previously been on appeal, Fletcher v. United States,

160 Fed. Appx. 792 (10th Cir. 2005) (unpublished).


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JURISDICTION

Plaintiffs William Fletcher and Charles Pratt allege that they are

Osage Indians and descendants of individuals listed on the final roll of

the Osage Tribe of Indians (now known as the Osage Nation). Their

Third Amended Complaint, which is at issue in this appeal, sought to

invoke the district court’s jurisdiction pursuant to 28 U.S.C. 1331, 1343,

1346, 1361, and 1362 for claims against the United States, the

Department of the Interior, the Secretary of the Interior (“Secretary”),

the Bureau of Indian Affairs (“BIA”), and the Assistant Secretary of the

Interior for Indian Affairs (collectively, the “BIA” or “Federal

Defendants”). The complaint alleged that the claims arise under 5

U.S.C. 702 and 706, Amendment V of the U.S. Constitution, Section 4 of

the Osage Allotment Act, 34 Stat. 539 (June 28, 1906) (“the 1906 Act”),

and 25 U.S.C. 162a and 4011.

On March 31, 2012, the district court entered an opinion and

order and a final judgment granting the BIA’s motion to dismiss. App.

1245-59.1 On April 10, 2012, the district court entered an amended

1 Record citations are to the appendix (“App.”) filed by Plaintiffs-Appellants and supplemental appendix (“Supp. App.”) filed by the BIA. A statutory addendum is attached to this brief.


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opinion and order, nunc pro tunc, to correct a citation in its earlier

opinion and order. App. 1260-73. Plaintiffs timely filed a notice of

appeal on April 27, 2012, within 60 days of entry of the final judgment.

See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to

28 U.S.C. 1291.

ISSUES PRESENTED

I. Whether the district court properly dismissed, for failure to state a claim upon which relief can be granted, Plaintiffs’ claims alleging a failure to perform an “accounting” under 25 U.S.C. 162a and 25 U.S.C. 4011 because neither provision requires the BIA to provide to these individual headright holders a title search of all other headright royalty recipients back to the early 1900s.

II. Whether the district court properly dismissed the claim alleging the possibility of improper distributions of royalty payments to non-Osage Indians, for failure to state a claim upon which relief can be granted, because Plaintiffs’ complaint failed to identify any improper disbursement to any person or entity and, as a matter of law, some non-Osage Indians can receive royalty payments.

III. Whether, alternatively, the district court properly dismissed the claim alleging the possibility of improper distributions of royalty payments to non-Osage Indians, pursuant to Federal Rule of Civil Procedure 12(e), because Plaintiffs repeatedly failed to comply with the court orders to identify with specificity the challenged final agency action.

STATEMENT OF THE CASE

A. Nature of the Case

In this case, two members of the Osage Nation who allege that

they are headright owners have brought, in a complaint amended three


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times, numerous challenges under the Administrative Procedure Act

(“APA”) and the U.S. Constitution relating to Osage tribal governance

and Osage headright royalties. At this stage, Plaintiffs are no longer

pursuing their Fifth Amendment claim for deprivation of property or

any claims relating to the governance of the Osage Nation. This appeal

involves solely two claims by Mr. Fletcher and Mr. Pratt. First,

Plaintiffs seek an “accounting” under 25 U.S.C. 162a and 4011 of

headright royalties received by other individuals and entities. Plaintiffs

allege that these two statutory provisions require the BIA to trace

inheritance and transfers, since distributions first began under the

1906 Act, of approximately 1700 other headright royalty recipients,

although the complaint does not specifically identify even one such

headright recipient. Second, Plaintiffs allege, without challenging any

distribution on any specific date or to any named person or entity, that

the BIA has improperly distributed mineral royalty payments to

persons or entities who are not entitled to receive them. The district

court dismissed the first claim for failure to state a claim upon which

relief can be granted, pursuant to Rule 12(b)(6). It dismissed the second

claim for failure to state a claim and, alternatively, under Rule 12(e),


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for failing to comply with the court’s repeated directives to identify in

the complaint the specific agency action(s) or inaction(s) challenged.

B. Statutory and Regulatory Framework

1. The 1906 Act as amended.

In 1872, Congress established a reservation for the Osage Tribe of

Indians. Act of June 5, 1872, ch. 310, 17 Stat. 228; see McCurdy v.

United States, 246 U.S. 263, 265 (1918); Osage Nation v. Irby, 597 F.3d

1117 (10th Cir. 2010). In or about 1896, oil and gas were discovered on

the reservation, which turned out to be rich with deposits of oil, natural

gas, coal, and other minerals. McCurdy, 246 U.S. at 265.

In 1906, Congress enacted the Osage Allotment Act. It required

the Secretary to finalize a roll of members of the Tribe born on or before

July 1, 1907. Act of June 28, 1906, ch. 3572, § 1, 34 Stat. 539, 539-40

(1906) (“1906 Act”); McCurdy, 246 U.S. at 265. The 1906 Act provided

for the allotment of the surface estate of the reservation to members of

the Tribe on the final roll; but severed the mineral estate, referred to as

the Osage Mineral Estate, from the surface estate and placed it in trust

for the Tribe. 1906 Act §§ 2(7), 3, 34 Stat. at 542, 543-44; Irby, 597 F.3d

at 1120, 1125.


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As the Court explained in a previous appeal in this action, “[e]ach

individual on the final roll received an interest in the tribal mineral

estate.” Fletcher v. United States, 160 Fed. Appx. 792, 793 (10th Cir.

2005) (“Fletcher I”) (unpublished). The right to receive royalty

payments from the Osage Mineral Estate is known as a “headright.”

See, e.g., Act of October 21, 1978, Pub. L. No. 95-469, § 8, 92 Stat. 1660,

1663 (1978) (“1978 Amendments”) (defining “headright” as “[a]ny

individual right to share in the Osage mineral estate,” including those

rights “owned by a person not of Indian blood”); Osage Tribe of Indians

Technical Corrections Act of 1984, Pub. L. No. 98-605, § 2(h), 98 Stat.

3163, 3165-66 (Oct. 30, 1984) (“1984 Amendments”) (defining

“headright” as “any right of any person to share in any royalties, rents,

sales, or bonuses arising from the Osage mineral estate”).

The 1906 Act provided that “the oil, gas, coal, or other minerals”

were reserved to the Osage Tribe, and that the Osage Tribe, with the

approval of the Secretary of the Interior, could lease the minerals. It

also provided that the Osage Mineral Estate would be managed by a

tribal council. 1906 Act § 3, 34 Stat. at 543-44; Fletcher I, 160 Fed.

Appx. at 793.


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The 1906 Act further provided that “the royalty received from oil,

gas, coal, and other mineral leases upon the lands for which selection

and division are herein provided” – and other moneys received from

various sales of lands and from grazing lands –

shall be placed in the Treasury of the United States to the credit of the members of the Osage tribe of Indians as other moneys of said tribe are to be deposited under the provisions of this Act, and the same shall be distributed to the individual members of said Osage tribe according to the roll provided for herein, in the manner and at the same time that payments are made of interest on other moneys held in trust for the Osages by the United States.

1906 Act § 4(2), 34 Stat. at 544. Section 4(1) of the Act provided that

the various “other moneys” due to the Osage Tribe, referred to in

Section 4(2), “shall be segregated as soon after January first, nineteen

hundred and seven, as is practicable and placed to the credit of the

individual members of the said Osage tribe on a basis of a pro rata

division among the members of said tribe” as shown on the final roll, or

to their heirs, with interest to be paid quarterly. 1906 Act § 4(1), 34

Stat. at 544.

Section 6 of the 1906 Act provided that “the lands, moneys and

mineral interests, herein provided for, of any deceased member of the

Osage tribe shall descend to his or her legal heirs, according to the laws


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of the Territory of Oklahoma,” or (absent such legal heirs) to the mother

and father equally. 1906 Act § 6, 34 Stat. at 545.

There have been numerous amendments to the 1906 Act.

Congress has addressed inheritance of headrights in many of those

amendments, often differentiating between inheritance and devise

provisions applicable based on the person’s status as “an Indian by

blood,” quantum of Indian blood, membership in the Osage Tribe, or not

Indian by blood. For example, in 1912, Congress specified that “any

adult member of the Osage Tribe of Indians not mentally incompetent

may dispose of any or all of his estate, real, personal, or mixed,

including trust funds, from which restrictions as to alienation have not

been removed, by will, in accordance with the laws of the State of

Oklahoma: Provided, That no such will shall be admitted to probate or

have any validity unless approved before or after the death of the

testator by the Secretary of the Interior.” Act of April 18, 1912, Publ. L.

No. 62-125, § 8, 37 Stat. 86, 88 (1912). The Act of April 12, 1924,

provided that “any right to or interest in the lands, money, or mineral

interests, as provided in the Act of Congress approved June 28, 1906 * *

*, and in Acts amendatory thereof and supplemental thereto, vested in,


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determined, or adjudged to be the right or property of any person not an

Indian by blood, may with the approval of the Secretary of the Interior

and not otherwise be sold, assigned, and transferred under such rules

and regulations as the Secretary of the Interior may prescribe.” Pub. L.

No. 68-79, 43 Stat. 94 (1924); App. 440 (Complaint).

In 1978, Congress extended the tribal trust “in perpetuity” and

severely limited succession to non-Osage Indians of headrights. See §§

2(a), 5(c), 7, 1978 Amendments, 92 Stat. at 1660, 1662, 1663. Thus, as

Congress further specified in the 1984 Amendments, “[n]o person who is

not an Osage Indian may, on or after October 21, 1978, receive any

interest in any headright, other than a life estate.” See 1984

Amendments, § 2(e), 98 Stat. at 3164-65.

The 1978 Amendments provided that “[a]ny individual right to

share in the Osage mineral estate (commonly referred to as a

‘headright’) owned by a person not of Indian blood may not, without the

approval of the Secretary of the Interior, be sold, assigned, or

transferred. Sale of any such interest shall be subject to the right of the

Osage Tribe to purchase it within forty-five days at the highest

legitimate price offered the owner thereof.” 1978 Amendments, § 8(a),


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92 Stat. at 1663. The 1984 Amendments expanded the right of

purchase to include individual Osage Indians, as well as the Osage

Tribe, and expanded application of the right of purchase to include any

transfer (not just a “sale”) by a non-Indian of any headright interest.

1984 Amendments, § 2(f), 98 Stat. at 3165.

In addition, the 1978 Amendments retained the requirement in

the 1912 Act that the will of any Osage Indian shall not be admitted to

probate or have any validity unless approved after the death of the

testator by the Secretary – and provides for a hearing, and notice of a

hearing, on the validity of the will, and sets forth procedures for

obtaining review in federal court of a contest of a probate of a will

approved by the Secretary. 1978 Amendments, § 5(a), 92 Stat. at 1661-

62.

2. 25 U.S.C. 162a and 4011.

The Act of June 24, 1938, 52 Stat. 1037, codified at 25 U.S.C.

162a, authorizes the Secretary to withdraw from the United States

Treasury and deposit in banks funds of any Indian tribe held in trust by

the United States, including “funds of the Osage Tribe of Indians, and

the individual members thereof, only with respect to the deposit of such


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funds in banks.” 25 U.S.C. 162a(a). Section 162a(b) addresses

collections from irrigation projects and Section 162a(c) addresses

investment of trust funds in public debt obligations.

Section 162a(d) states that the Secretary’s proper discharge

of the trust responsibilities of the United States shall include (but are

not limited to) the following:

(1) Providing adequate systems for accounting for and reporting trust fund balances. (2) Providing adequate controls over receipts and disbursements. (3) Providing periodic, timely reconciliations to assure the accuracy of accounts. (4) Determining accurate cash balances. (5) Preparing and supplying account holders with periodic statements of their account performance and with balances of their account which shall be available on a daily basis. (6) Establishing consistent, written policies and procedures for trust fund management and accounting. (7) Providing adequate staffing, supervision, and training for trust fund management and accounting. (8) Appropriately managing the natural resources located within the boundaries of Indian reservations and trust lands.

25 U.S.C. 162a(d).

The Indian Trust Fund Management Reform Act of 1994, 25

U.S.C. 4011 et seq., provides that the Secretary “shall account for the

daily and annual balance of all funds held in trust by the United States


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for the benefit of an Indian tribe or an individual Indian which are

deposited or invested pursuant to the Act of June 24, 1938 (25 U.S.C.

162a).” 25 U.S.C. 4011(a). It further requires periodic statements of

performance with respect to funds “deposited or invested pursuant to

the Act of June 24, 1938” (25 U.S.C. 4011(b)); and provides for an

“annual audit on a fiscal year basis of all funds held in trust by the

United States for the benefit of an Indian tribe or an individual Indian

which are deposited or invested pursuant to the Act of June 24, 1938

(25 U.S.C. 162a).” 25 U.S.C. 4011(c).

3. Federal Rule of Civil Procedure 12(b)(6) and 12(e)

Federal Rule of Civil Procedure 12(b)(6) provides for defense to a

claim, by motion, “for failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(e) provides that a party may

move for a more definite statement of a pleading “which is so vague or

ambiguous that the party cannot reasonably prepare a response,” and

that the court may strike a pleading if its order requiring a more

definite statement is not obeyed. Fed. R. Civ. P. 12(e).

STATEMENT OF FACTS

Plaintiffs – two individuals who identify themselves as

“descendants of individuals who were listed on the rolls of the Osage


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Tribe, and are Osage Indians” (App. 448, Compl. ¶ 34) – filed this

lawsuit in May 2002. Plaintiffs have amended their complaint three

times. The original complaint was filed on May 21, 2002, the First

Amended Complaint on April 4, 2006, the Second Amended Complaint

on June 12, 2009, and the Third Amended Complaint – at issue in this

appeal – on May 6, 2010. Various claims raised in the complaints have

been dismissed or decided against Plaintiffs by the district court and

are not before this Court.

This case was originally filed in 2002, but it has not progressed

past the complaint stage. The lengthy preliminary stage is due in large

measure to lack of specificity and confusion regarding (1) who the

plaintiffs are in this case (although plaintiffs sought to bring this case

as a class action, that request was ultimately denied), (2) what their

claims are, and (3) who therefore needs to be included as defendants.

The procedural history is described at considerable length below in an

effort to provide the court a road map through the relevant aspects of

the more than 1000 docket entries in ten years of proceedings in the

district court. But, while the procedural history is complex, the legal


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issues in this appeal merely involve the appropriateness of dismissal

under Rule 12(b) and (e).

A. The original complaint and prior appeal.

Plaintiffs’ original complaint asserted four causes of action: (1) a

claim that the BIA violated their rights to political association and

participation in the Osage government; (2) a claim that the BIA

breached its trust responsibilities by (a) eliminating Plaintiffs’ right to

participate or vote in Osage tribal elections and (b) allowing mineral

royalties to be alienated to persons and entities not of Osage blood; (3) a

Fifth Amendment takings claim; and (4) a claim that the federal

regulations regarding the Osage Tribe violated their right to participate

in their government and the BIA’s trust responsibilities. The district

court granted the BIA’s motion to dismiss the complaint for failure to

join the principal governing body of the Osage Tribe, the Osage Tribal

Council, which it concluded was an indispensable party under Federal

Rule of Civil Procedure 19(b).

On appeal, Plaintiffs did not challenge the district court’s

dismissal of those parts of their claims that concerned participation in

the tribal government. Fletcher v. United States, 160 Fed. Appx. 792,


14

794 (10th Cir. 2005) (“Fletcher I”). On December 4, 2004, after the

district court had dismissed the complaint, Congress passed the

Reaffirmation of Certain Rights of the Osage Tribe, Public Law 108-

431, 118 Stat. 2609 (2004). That Act granted the Osage Tribe the right

to determine membership in the Tribe. §1(b)(1), 118 Stat. at 2609.

Thus, in the prior appeal, Plaintiffs challenged only the district court’s

dismissal of their breach of trust and Fifth Amendment takings claims.

This Court first determined that Plaintiffs’ Fifth Amendment and

breach of trust claims did not seek money damages but, rather, sought

only prospective relief. The Court noted that, at oral argument,

Plaintiffs’ counsel explained that his clients “did not seek the payment

of royalties that had been withheld in the past . . . [but] sought an

order directing the defendants to comply with the requirements of the

1906 act from the date of the filing of the complaint….” Fletcher I, 160

Fed. Appx. at 797. Accordingly, this Court concluded that those two

claims therefore were not barred by 5 U.S.C. 702, which provides for an

action in a court of the United States “seeking relief other than money

damages.” Id. Next, this Court declined to apply Rule 19 to the “breach

of trust and takings claims without the benefit of the district court’s


15

analysis,” and remanded “the case to the district court to undertake the

Rule 19 analysis in the first instance.” Id. The Court vacated the

district court’s order of dismissal and remanded for further proceedings.

B. Proceedings on Remand

On remand, Plaintiffs filed a First Amended Complaint, which

was styled as a putative class action, and in which they asserted three

causes of action: (1) breach of federal trust responsibilities for

improper distribution of trust assets to persons who are not Osage by

blood, or their lawful heirs; (2) deprivation of property in violation of the

Fifth Amendment; and (3) failure to provide an accounting of royalty

payments distributed from the Osage Mineral Estate. Plaintiffs sought

an accounting or royalty payments distributed from the Osage Mineral

Estate, an order declaring that the 1906 Act had been violated by

distributing royalty payments to persons who are not Osage by blood, a

reformation of the plaintiffs’ and putative class members’ trust funds

relating to the royalty payments found to be due and owing to them,

and an order compelling the BIA to prospectively distribute trust

property only to Osage Indians. App. 311. The BIA moved to dismiss

for: failure to join the Osage Tribe and owners of Osage headrights


16

whom Plaintiffs sought to strip of their interest in headrights; failure to

identify a specific final agency action or inaction that is the subject of

review under the APA; and failure to demonstrate that the action is

brought within the six-year statute of limitations established by 28

U.S.C. 2401.

1. District Court’s Order of March 31, 2009

In its order of March 31, 2009, the district court granted in part

and denied in part the BIA’s motion to dismiss. The court noted that

Plaintiffs were seeking to strip the right to receive a quarterly

distribution of Osage trust income from approximately 25% of headright

holders, who are non-Osage, and held that the non-Osage headright

holders are required parties. Accordingly, the court granted Plaintiffs’

request for leave to file a Second Amended Complaint adding all non-

Osage headright holders as defendants. App. 314, 317-18.

The court held that the Osage Tribe was not a required party

under Rule 19(a) because the claims alleged that the breach occurred

upon distribution of the funds, not while the funds were in the Osage

Nation tribal trust fund. App. 317-18.


17

The district court agreed with the BIA that it was impossible to

discern the specific agency actions and/or inactions that Plaintiffs were

challenging, and directed Plaintiffs “to identify with specificity the

challenged agency action, actions, or inactions in their Second Amended

Complaint.” App. 318-19. The court further explained that it could not

determine whether the claims had been filed within the applicable

statute of limitations until “such time as plaintiffs specifically identify

the agency actions or inactions they challenge.” App. 319.

2. Hearing of September 10, 2009, regarding the Second Amended Complaint

In the Second Amended Complaint, Plaintiffs added

approximately 1,700 additional defendant non-Osage headright holders

to the lawsuit. App. 1262. At the status hearing held September 10,

2009, the district court directed Plaintiffs to file yet another amended

complaint because Plaintiffs had again failed to specify the agency

action or inaction being challenged. App. 335, 346, 367. As the district

court noted, it is unclear what Plaintiffs are claiming and whether they

are claiming, for example, that a devise of headrights effectuated prior

to 1978 could be affected by this lawsuit. App. 335. Counsel for the

BIA similarly noted that it was unclear in the Second Amended


18

Complaint, as it had been in the original complaint and the First

Amended Complaint, whether Plaintiffs were challenging the BIA’s

interpretation of the 1906 Act, the 1978 Amendments, the recognition of

transfers at all points in time between 1906 and the present, each and

every quarterly payment to each and every person, or exactly what

agency action is at issue. App. 346-47. As the court further stated, “it

would help everyone if we had a better idea of what the specific agency

actions being challenged are” and, to that end, he directed Plaintiffs to

file a Third Amended Complaint. App. 367.

3. Plaintiffs’ Third Amended Complaint at issue in this appeal

Plaintiffs filed the Third Amended Complaint on May 6, 2010.

Plaintiffs sought to bring the action as a class action, pursuant to Fed.

R. Civ. P. 23, on behalf of “all Osage Indians who lawfully receive

distributions of trust property from the Osage Mineral Estate.” App.

456, Compl. ¶ 68. Plaintiffs’ Complaint states that originally there

were 2,229 Osage Indians but that their interests have become

fractionated, and that Plaintiffs believe there are more than 5,000

putative class members at this time. Id. at ¶ 69.


19

Plaintiffs’ first claim alleged that they “have been deprived of

Section 4 Royalty Payments as a result of the Federal Defendants’

distribution of such trust assets to persons who are not Osage Indians.”

See App. 448, Compl. ¶ 34. Plaintiffs alleged that the BIA breached its

trust responsibilities and acted in violation of Section 4 of the 1906 Act

“by improperly distributing Section 4 Royalty Payments to persons who

are not Osage Indians (or their lawful heirs).” App. 451, Compl. ¶ 44;

see also App. 452, Compl. ¶ 53 (BIA breached its trust obligations by

“improperly distributing trust assets comprised of the Section 4 Royalty

payments” to individuals who are not Osage Indians); App. 453, Compl.

¶ 57 (Plaintiffs have been denied “the right to fully participate in

distributions from the Osage Mineral Estate because the Federal

Defendants have allowed Section 4 Royalty Payments to be distributed

to the Individual Defendants who are not otherwise entitled to receive

Section 4 Royalty Payments from the Osage Mineral Estate”).2

2 Paragraph 37 of the Third Amended Complaint identifies the “Individual Defendants” as individuals described in Exhibit A to the Second Amended Complaint. See App. 448, Compl. ¶ 37. Exhibit A to the Second Amended Complaint lists 1744 individuals and entities as Individual Defendants who Plaintiffs believe are “not entitled pursuant to Federal Law to receive a SECTION 4 ROYALTY PAYMENT.” Supp. App. 1-2 (Dkt 97, Exh. A at 1, 245).


20

In the second claim, Plaintiffs alleged that the BIA’s failure to

properly manage the trust assets and failure to account and audit their

actions constitutes a deprivation of property in violation of the Fifth

Amendment of the U.S. Constitution. App. 453, Compl. ¶ 58.

In the third claim, Plaintiffs alleged that they “are entitled to an

accounting for the Federal Defendants’ receipt, handling and

distribution of funds segregated from the Osage Mineral Estate and

paid under section 4 of the 1906 Act.” App. 448, Compl. ¶ 34. Plaintiffs

alleged that Federal Defendants have failed to take actions, including

an accounting and audit, required by federal statutes, including 25

U.S.C. 162a and 4011, and that this claim for failure to act is timely

brought pursuant to the APA. App. 454, Compl. ¶ 60; see also App. 452,

Compl. ¶48 (“Defendants’ failure to account includes, but is not limited

to, failure to account concerning distribution of Section 4 Royalty

Payments to individuals who are not Osage Indians (or heirs).”); App.

452-53, Compl. ¶54 (alleging that Federal Defendants are required by

federal law to account to Plaintiffs for the management of assets

managed and to audit their actions, citing 25 U.S.C. 162a and 4011),

and have breached this obligation by failing to account for all funds held


21

in trust); App. 456, Compl. ¶ 67 (refusal of Federal Defendants to

account to Plaintiffs for all funds resulting from the Osage Mineral

Trust is in direction violation of federal laws, including but not limited

to 25 U.S.C. 162a and 4011). The complaint further states: “Upon

information and belief, Plaintiffs allege that Federal Defendants have

not paid the proper amounts of funds under section 4 of the 1906 Act to

the proper persons.” App. 456, Compl. ¶ 67.

Plaintiffs sought to bring the action as a class action “on behalf of

all Osage Indians who lawfully receive distributions of trust property

from the Osage Mineral Estate.” App. 456, Compl. ¶ 68. Plaintiffs

further asserted that the “wrongful distribution of royalties to the

Individual Defendants diminishes on a dollar-for-dollar basis the trust

property that should otherwise have been available for distribution only

to the Plaintiffs and class members qua Osage Indians.” App. 457,

Compl. ¶ 71 (emphasis in original).

As relief, Plaintiffs sought: (1) an order compelling the BIA to

provide to Plaintiffs “an accounting and audit of the Section 4 Royalty

Payments distributed from the Osage Mineral Estate showing the

amounts actually paid to each person and the basis for such payment;”


22

(2) an order requiring that such an accounting and audit determine

whether funds from the Osage Mineral Estate have been distributed

only to Osage Indians and their heirs; (3) a “reformation” of the “trust

funds” found to be due and owing to the Plaintiffs and class members

“after an accounting and audit has been completed which shows that

the Federal Defendants[] failed to abide by the requirements of federal

statutes relating to the distribution of Osage Mineral Estate Royalties

only to Osage Indians and their lawful heirs”; (4) an order compelling

the BIA “to prospectively distribute Section 4 Royalty Payments only to

Osage Indians and their heirs”; (5) an order directing the BIA “to

prospectively permit the payment of Section 4 Royalty funds only in the

manner prescribed by law; (6) an order directing the BIA to pay

Plaintiffs’ attorney costs and fees; and (7) such other relief as the court

deems necessary and equitable. App. 458-59.

4. Hearing of December 10, 2010, on the Third Amended Complaint

On December 10, 2010, the district court held a motions hearing

in which it denied without prejudice the Plaintiffs’ motion to certify a

class of plaintiffs (Dkt 984) and Plaintiffs’ motion to amend the class

definition (Dkt 1030). See App. 291-92 (Dkt 1082). As the court


23

explained at the hearing, Plaintiffs’ motion to certify the class of

plaintiffs must be denied because there is no named plaintiff who would

represent the Osage Tribal members who do not have headrights. App.

536.

5. Opinion and Order of March 31, 2011, granting an Individual Defendant’s Motion to Dismiss

In an opinion and order filed March 31, 2011 (Dkt. 1122), the

court granted the motion to dismiss filed by defendant Ben Benedum,

pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure of the

Third Amended Complaint to state a claim upon which relief could be

granted. App. 587-96. As the court noted, Benedum is one of

approximately 1700 individuals named as defendants in the Third

Amended Complaint. App. 587.

The court noted that Benedum had relied in part on materials

outside the pleadings. But, in considering the motion, the court

excluded all matters outside the pleadings, pursuant to Fed. R. Civ. P.

12(d). It therefore did not treat the motion as one for summary

judgment under Rule 56. App. 590.

Benedum argued that he should be dismissed because non-Indians

who own a beneficial interest in a headright may legally receive


24

quarterly payments from the Osage Mineral Estate and Plaintiffs have

failed to allege sufficient facts to state a claim that he is not legally

entitled to receive those quarterly payments. App. 591. Plaintiffs had

argued that a non-Indian, such as Benedum, “cannot ‘hold legal or

equitable title to an Indian trust asset while such asset remains in trust

for the benefit of the Osage Tribe.’ (Plaintiffs’ Response Brief, p.7)

(emphasis in original).” App. 591; see also App. 594 (stating that

Plaintiffs frame the issue as “whether a non-Indian such as Benedum

can hold legal or equitable title to an Indian trust asset while such asset

remains in trust for the benefit of the Osage Tribe”).

As the court explained, “Congress has always permitted some non-

Indians to own headrights.” App. 591. Plaintiffs therefore are

mistaken as a matter of law when they contend that a non-Indian

cannot hold legal or equitable title. See App. 591-94 (tracing the rights

of non-Indians to own and inherit headrights from the 1906 Act through

various statutory amendments and federal and state case law). As the

court noted, “Congress explicitly acknowledged in the 1924 Act that

non-Indians could own headrights.” App. 594. Therefore, as a matter of

law, there are circumstances under which a non-Indian “such as


25

Benedum can hold legal or equitable title to a headright despite the

Osage mineral estate having been placed in trust for the tribe.” App.

594; see also App. 597 (Order of April 5, 2011, describing holding in

Order of March 31, 2011).

The court further stated that Plaintiffs made no specific factual

allegations against Benedum to show that his receipt of funds is illegal.

App. 595. The court held that, because Plaintiffs did not plead factual

allegations sufficient to raise a right to relief above the speculative

level, they have failed to state a claim. Id. As the court further

explained, “Plaintiffs have merely alleged a speculative claim – that

perhaps, after an accounting has been completed, plaintiffs will be able

to show that Benedum is not entitled to his headright interest.” Id.

Accordingly, the district court granted Benedum’s motion to dismiss for

failure to state a claim. App. 595-96. The court further noted that, “due

to the highly individualized nature of the hundreds of proceedings

necessary to determine whether the individual non-Osage headright

owners’ right to receive headright payments should be terminated (as

plaintiffs request), the court will need to revisit the joinder issue soon.”

App. 595-96.


26

6. Orders denying certification of defendant class and dismissing claims against the Individual Defendants

In a separate order, also issued March 31, 2011, the district court

denied a motion (Dkt 914) to certify a class of defendants. See Supp.

App. 3 (Dkt 1123); App. 598. On May 12, 2011, the court held a hearing

on motions to dismiss filed by other Individual Defendants and motions

to vacate the order requiring their joinder. App. 658-85. On May 16,

2011, the district court issued an order dismissing without prejudice all

remaining Individual Defendants (approximately 1700) for failure to

state a claim upon which relief can be granted. App. 686.

C. The District Court’s Opinion and Order granting the BIA’s motion to dismiss

On March 31, 2012, the court entered an opinion and order (App.

1246-59), and judgment (App. 1245), granting the BIA’s motion to

dismiss (Dkt 1126). The court amended the opinion and order on April

10, 2012, nunc pro tunc, to correct a citation of case authority in a

footnote. App. 1260 n.1. As the district court noted, each of Plaintiffs’

three claims contain two central elements: (1) a claim that the Federal

Defendants have improperly paid royalties to non-Osage persons and

entities; and (2) a claim that the Federal Defendants have failed to

provide a required accounting and audit. App. 1266.


27

As to the first claim, the district court restated its rejection of

Plaintiffs’ overarching legal argument that the 1906 Act (as amended)

does not permit a non-Osage person or entity the right to receive

quarterly income payments from the Osage Mineral Estate. App. 1267.

The court further held that “Plaintiffs have failed to plead any specific

facts supporting their allegation that any specific headright was

transferred illegally. The claims as alleged are merely speculative.”

App. 1267. Accordingly, it dismissed without prejudice Plaintiffs’

allegations against the BIA for improper distribution to non-Osage

headright holders for failure to state a claim upon which relief can be

granted. App. 1267.

The district court ruled in the alternative, that the portions of

Plaintiffs’ complaint alleging administrative action not in accordance

with law in connection with distribution of royalty payments to non-

Indians must be dismissed pursuant to Federal Rule of Civil Procedure

12(e). App. 1267-68, 1273. As the district court stated, “the plaintiffs

have failed to sufficiently specify any challenged agency actions or

inactions, despite having been given repeated opportunities to do so.”

App. 1268. The court stated that “Plaintiffs’ allegations of agency


28

actions and inactions, made ‘[u]pon information and belief’ are general,

speculative, and unspecific” and, as such, “fail to provide a sufficient

focus for judicial review.” App. 1268. “Insofar as the Court ordered a

more definite statement on two previous occasions and plaintiffs have

failed to do so sufficiently, the plaintiffs’ Third Claim for Relief (but for

the claim that the Federal Defendants have failed to provide accounting

and audits required by law) is stricken pursuant to Rule 12(e).” App.

1268.

Regarding Plaintiffs’ claim for an accounting, the district court

held that the BIA has a trust obligation to headright holders because

the 1906 Act as amended requires the BIA to hold the mineral reserves

in trust for members of the Osage Tribe, hold mineral royalties in trust

for members of the Osage Tribe, and make headright payments “‘in the

manner and at the same time that payments are made of interest on

other moneys held in trust for the Osages by the United States.’” App.

1268-69 (quoting 1906 Act, § 4, 34 Stat. at 544). But, the court further

noted that the United States “‘assumes Indian trust responsibilities

only to the extent it expressly accepts those responsibilities by statute.’”


29

App. 1270 (quoting United States v. Jicarilla Apache Nation, 131 S. Ct.

2313, 2325 (2011)).

The court further held, however, that the statutes identified by

Plaintiffs – 25 U.S.C. 162a, 25 U.S.C. 4011, and Section 4 of the 1906

Act – do not impose an obligation on the BIA to provide to the two

Plaintiffs in this case an accounting of the royalty distributions from the

Osage Mineral Trust made to other headright holders. App. 1271-73.

As the court noted, “allegations pertaining to alleged mismanagement

of deposits in the Osage Mineral Estate have been resolved between the

Osage Nation and the federal government in the Federal Court of

Claims.” App. 1271.3 As the court further explained: “Plaintiffs do not

allege [that] the headright payment amounts have ever been

miscalculated (as opposed to their claims that the headrights have

passed to improper individuals). Unlike the trust account held for the

Osage tribe, there is no underlying trust account” to examine –

headright holders are simply paid a percentage of the funds from the

tribal trust account at the end of each quarter. App. 1272 & n. 10

3 The resolution referred to by the district court is a Settlement Agreement dated October 14, 2011, in Osage Tribe of Indians v. United States, Nos. 99-550L and 00-169L (Ct. Fed. Cl.), discussed infra at 37-41.


30

(citing the Court of Federal Claims decision in Osage Nation v. United

States, 57 Fed. Cl. 392, 395 (2003)).

Accordingly, the district court dismissed without prejudice

Plaintiffs’ claims relating to improper distributions to non-Osage

headright holders pursuant to Rule 12(b)(6) and, in the alternative, it

dismissed Plaintiffs’ Third Claim for Relief regarding agency action or

inaction (except pertaining to an accounting or audit) pursuant to Rule

12(e). App. 1273. The district court dismissed Plaintiffs’ claims for an

accounting and audit on the merits, pursuant to Rule 12(b)(6). Id.

The judgment ordered that the action be dismissed on the merits,

Plaintiffs recover nothing, and the Federal Defendants recover costs

from Plaintiffs. App. 1245.

SUMMARY OF ARGUMENT

Neither of the statutory provisions identified in Plaintiffs’

complaint – 25 U.S.C. 162a or 25 U.S.C. 4011 – require the BIA to

perform a title search of headrights held by approximately 1700

headright royalty recipients. That is what Plaintiffs’ complaint seeks

and what Plaintiffs have argued – in hearings before the district court

regarding certification of a class of plaintiffs, certification of a class of


31

defendants, and various motions – is required. These statutory

provisions require statements of account balances, interest earned, and

other specific accountings, which the United States provides to the

Osage Nation. But, contrary to Plaintiffs’ contentions, the statutory

provisions do not impose on the BIA a duty to perform for these two

headright holders title searches of headright interests held by others,

much less a search dating back many decades (examining probates and

other transfers and devises).

In their opening brief, Plaintiffs also argue that the BIA must

provide an “accounting” to them pursuant to 25 U.S.C. 4044. That

statutory provision was not identified in the complaint and therefore

cannot properly serve as the basis for reviving the complaint. In any

event, Section 4044 does not impose on the BIA a duty to conduct the

extensive search into probates and other transfers and devises that

Plaintiffs allege it must. The district court properly dismissed these

claims for a comprehensive title search under Rule 12(b)(6) for failure to

state a claim upon which relief can be granted.

Plaintiffs’ claim of alleged improper action or inaction by the

agency regarding disbursements of royalty payments likewise was


32

properly dismissed under Rule 12(b)(6) and 12(e). Despite repeated

court directives for Plaintiffs to identify with specificity any

disbursement that they believe was unlawful, Plaintiffs failed to do so.

The district court correctly held, and Plaintiffs concede, that royalty

payments may lawfully be paid to some non-Osage Indian headright

holders. Throughout this lawsuit, Plaintiffs have vaguely asserted that

it is possible that some disbursement of royalty payments might have

been unlawful. Such vague assertions do not state a claim for unlawful

disbursement upon which relief can be granted. Nor does it provide the

requisite specificity to allow the BIA or the court to evaluate what

defenses or procedural steps might apply or be required, such as the

statute of limitations or impleading of a defendant to prevent

deprivation of a property right without joinder.

As the district court correctly determined below, the claims must

be sufficiently focused for the court and other parties to know what is

being challenged and who might stand to lose. Plaintiffs here have

failed to provide the requisite specificity to survive a motion to dismiss.


33

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews de novo a district court’s decision to grant a Rule

12(b)(6) motion for failure to state a claim. Rosenfield v. HSBC Bank,

USA, 681 F.3d 1172, 1178 (10th Cir. 2012). The Court “must accept as

true ‘all well-pleaded factual allegations in a complaint and view these

allegations in the light most favorable to the plaintiff.’” Id. (quoting

Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). To

survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, “plausibly suggesting (not just consistent

with)” a showing of entitlement to relief. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-

78 (2009). A plaintiff must “‘nudge his claims across the line from

conceivable to plausible’” in order to survive a motion to dismiss.

Smith, 561 F.3d at 1098 (quoting Twombly). The “mere metaphysical

possibility that some plaintiff could prove some set of facts in support of

the pleaded claims is insufficient; the complaint must give the court

reason to believe that this plaintiff has a reasonable likelihood of

mustering factual support for these claims.” Ridge at Red Hawk v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original);


34

Smith, 561 F.3d at 1098 (quoting same). When considering a motion to

dismiss under Rule 12(b)(6), a court may consider the facts alleged in

the complaint, any documents attached to or incorporated in the

complaint, so long as the parties do not dispute the documents’

authenticity, and matters of which the Court may take judicial notice.

Smith, 561 at 1098.

In reviewing de novo the dismissal of a complaint, the Court

generally must accept as true all material allegations in the complaint.

But it need not accept as true, or construe in a manner that favors

plaintiff, facts that run counter to facts of which the Court can take

judicial notice or legal conclusions. Iqbal, 556 U.S. at 677-79; Twombly,

550 U.S. at 555 (assertion that something is unlawful is a legal

conclusion not entitled to assumption of truth). Determining whether a

complaint states a plausible claim for relief is “a context-specific task

that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

This Court reviews for an abuse of discretion a district court’s

dismissal of a claim under Federal Rule of Civil Procedure 12(e) for

failure to obey an order to provide a more definite statement in a


35

pleading. See, e.g., Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d

Cir.2002); Old Time Enters., Inc. v. Int’l Coffee Corp., 862 F.2d 1213,

1220 (5th Cir. 1989); Crisler v. Sedgwick County, 2012 WL 3090842 (10th

Cir. 2012) (unpublished).

This Court is “free to affirm a district court’s decision on any

grounds for which there is a record sufficient to support conclusions of

law.” See Western Shoshone Business Council v. Babbitt, 1 F.3d 1052,

1054 (10th Cir. 1993).

II. PLAINTIFFS FAILED TO STATE A CLAIM FOR AN ACCOUNTING

The district court properly dismissed Plaintiffs’ claim for an

accounting. Plaintiffs allege that the BIA violated 25 U.S.C. 162a and

4011 by failing to perform an “accounting.” Thus, Plaintiffs allege a

failure to act under the APA. The court accepted as true that the

Plaintiffs are members of the Osage Nation who are headright holders.

But they are not seeking an accounting of their own headright royalty

payments – or of the trust fund from which those payments are

disbursed. They are seeking an accounting of headright payments

disbursed to, and received by, others. See, e.g., App. 451 ¶ 46 (“Federal

Defendants have paid monies out of the Osage tribal trust account to


36

various parties, including the Individual Defendants listed herein, but

have failed to provide any accounting to Plaintiffs with regard to the

fidelity of such payments to the requirements of federal law”).

The statutes cited in Plaintiffs’ complaint do not provide individual

members of a tribe the right to an accounting of the disbursements paid

to others. As the district court correctly noted, 25 U.S.C. 162a(a)

addresses the “deposit” of funds in banks. App. 1271. Section 162a(a)

does not establish a duty to perform an accounting of disbursements.

Section 162a(d) likewise does not provide an individual tribal

member a right to receive an accounting of disbursements to others. It

provides, in relevant part, that the “Secretary’s proper discharge of the

trust responsibilities of the United States shall include (but are not

limited to) the following: * * * (5) Preparing and supplying account

holders with periodic statements of their account performance and with

balances of their account which shall be available on a daily basis.” 25

U.S.C. 162a(d) (emphasis added). Plaintiffs are not seeking information

regarding the balance or performance of their own headright shares.

Thus, the complaint fails to state a claim upon which relief can be

granted under 25 U.S.C. 162a.


37

Similarly, the complaint fails to state a claim upon which relief can

be granted under 25 U.S.C. 4011. Section 4011 provides for an

accounting, quarterly statements of performance, and an annual audit

of funds held in trust for an Indian tribe or individual Indian. 25 U.S.C.

4011. The BIA provides that accounting and audit to the Osage Nation.

The Osage Nation has agreed that the accountings and audits specified

in the Settlement Agreement – which includes periodic statements at

least quarterly – fulfill the Secretary of Interior’s obligations under 25

U.S.C. 4011.4 Section 4011 does not require the BIA to provide

4 In the Settlement Agreement entered into on October 14, 2011, in

Osage Tribe of Indians v. United States, Nos. 99-550L and 00-169L (Ct. Fed. Cl.), the Osage Tribe agreed that “the United States’ provision of a Periodic Statement on at least a quarterly basis fulfills the Secretary of the Interior’s obligation pursuant to 25 U.S.C. § 4011(b)” and that Interior’s annual audit of all funds held in trust for the Tribe, and posting of the audit information on a public website maintained by the Office of the Special Trustee, satisfies the requirements of 25 U.S.C. 4011(c). See Final Osage Trust Case Settlement Agreement at 14-15 ¶¶ 8c, 8d (http://www.osagetribe.com/minerals/, as of November 2, 2012). The Settlement Agreement also assures the Osage Tribe access to all accounting data in the Trust Fund Accounting System for the Osage Tribal Trust Account and the Other Osage Accounts and access to relevant records in the Office of the Special Trustee. Id. at 15 ¶¶ 8e, 8f.


38

Plaintiffs with the separate “accounting” they seek.5

5 Indeed, it is questionable whether, even if not dismissed for failure

to state a claim, Plaintiffs could pursue the claim for an accounting. The Settlement Agreement waives on behalf of the Osage Nation and any Headright Holders any and all claims for any damages and equitable or specific relief based on harms or violations occurring on or before September 30, 2011, including “all claims regarding the United States’ obligation to provide a historical accounting.” Settlement Agreement at 10-11 ¶ 7a(i)(2). The terms of the Settlement Agreement are binding on Headright Holders. In the Settelement Agreement, the Osage Tribe, acting through the Osage Minerals Council, had “authority to act for, and protect the interests of, and to bind Headright Holders with respect to matters relating to the Osage Mineral Estate, including the initiation, prosecution and settlement of claims relating to the Osage Mineral Estate.” Id. at 1, ¶ 1d. The Osage Tribe created the Osage Trust Team to manage and direct litigation relating to the Osage Mineral Estate and the Osage Tribal Trust Account (id. at 2) and the Osage Trust Team and United States consulted with Osage Headright Holders and confirmed their support for the Settlement Agreement (id. at 2-3).

As part of the Agreement, the Osage Tribe on behalf of itself and the Headright Holders, hereby waives and releases, and covenants not to sue on, any and all claims and/or liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected, regardless of legal theory, for any damages, equitable or specific relief, that are based on harms or violations occurring on or before September 30, 2011, and that relate to the Osage Tribe’s monetary or non-monetary trust assets or resources that have been or could have been asserted by the Osage Tribe on behalf of itself and/or the Headright Holders on or before September 30, 2011, including but not limited to the following:…

Id. at 10. The claims listed include: “claims regarding the United States’ obligation to provide a historical accounting or reconciliation of


39

None of the statutory provisions require (or even authorize) the

kind of “accounting” that Plaintiffs seek. At root, Plaintiffs seek to

impose on the BIA the burden of conducting a title search of

approximately 1700 other headright holders to determine when and

how the interests passed to them, not an accounting of the trust assets

or disbursements. But the statutory provisions on which Plaintiffs rely

do not provide for a title search.

This does not mean that there is no legal mechanism for a party to

obtain judicial review of transfers or devises of headrights. The 1906

Act as amended provides a mechanism for contesting the Secretary’s

the Osage Tribe Trust Account and the Other Osage Accounts or the United States’ fulfillment of such obligation” (id. at 10, ¶7a(i)(2)); any claim that “the United States failed to report or to provide information about the United States’ actions or decisions relating to, or to prepare an accounting of the Osage Mineral Estate” (id. at 11, ¶3i); any claim that “the United States failed to deposit monies into the Osage Tribal Trust Account and/or Other Osage Accounts or disburse monies from the Osage Tribal Trust Account and/or Other Osage Accounts in a proper and timely manner” (id. at 12, ¶4d) and that “the United States failed to report or provide information about the United States’ actions or decisions relating to the Osage Tribal Trust Account and/or Other Osage Accounts” (id. at 12, ¶4f). In light of the procedural posture of this case, where the BIA had moved to dismiss but had not filed an answer to the complaint, the issue was not developed below.


40

approval of headright transfers and inheritance. For example, the 1978

Amendments retained the requirement of the 1912 Amendments that

the will of any Osage Indian shall not have validity unless approved by

the Secretary, and provide for obtaining review in federal court of a

contest of a probate. 1978 Amendments, § 5(a), 92 Stat. at 1662; Akers

v. Hodel, 871 F.2d 924, 926 & n.1 (10th Cir. 1989); see also supra at 7-8.

The 1978 and 1984 Amendments provide that any headright owned by a

person not of Indian blood may not, without the approval of the

Secretary of the Interior, be sold, assigned, or transferred and that the

sale of any such headright interest is subject to the right of either

individual Osages or the Osage Tribe to purchase it. 1978

Amendments, § 8(a), 92 Stat. at 1663; 1984 Amendments, § 2(f), 98

Stat. at 3165. Such approvals by the Secretary are subject to judicial

review under the APA.

Furthermore, the United States has agreed to identify all funds

that are “unclaimed” within the meaning of 25 U.S.C. 164 derived from

the Osage Tribal Trust Account, and to “promptly restore to the Osage

Tribal Trust Account any unclaimed funds so identified that are eligible

for restoration.” See Settlement Agreement at 22 ¶ 9(d). In addition,


41

the United States has agreed to transmit to non-Osage Headright

Holders a notice of the Osage Tribe’s interest in having headrights

transferred to the Tribe. Id. at 23 ¶ 9(e).

Plaintiffs (Br. 9) also cite 25 U.S.C. 4044 as a basis for an

accounting. But, as the district court correctly held, “[b]ecause this

alleged violation was not pleaded, the court does not consider it.” App.

1271 n.9. The complaint neither identifies this statutory provision nor

includes any facts relating to an alleged failure by BIA to comply with

its provisions. In addition, as the district court further noted (id.), 25

U.S.C. 4044 imposes reporting requirements regarding “tribal trust

fund” accounts, not individual trust accounts; and the reporting is owed

to Congress. Thus, for many reasons, reliance on this provision does not

require reversal of the district court’s grant of the BIA’s motion to

dismiss for failure to state a claim.

In sum, Plaintiffs’ complaint did not allege any error in their own

line of inheritance; did not identify any specific known instance of an

improper holding of title; and did not identify the date from which they

sought title searches. The complaint includes no information regarding

Plaintiffs’ own inheritance chain, or that of any other person or entity,


42

that alleges with the requisite specificity any error in headright

ownership. Plaintiffs seek to impose on the BIA the burden of

performing title searches for approximately 1700 headright holders,

evidently back to approximately 1908, irrespective of the statute of

limitations periods applicable to probate, other transfers, or the

Secretary’s approval of any such actions.

But a claim such as this, challenging agency inaction and seeking to

compel agency action under the APA, can only be maintained where the

“agency failed to take a discrete agency action that it is required to

take.” Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 64

(2004) (emphasis in original). The statutory provisions on which

Plaintiffs rely do not impose on the BIA a requirement to perform

headright title searches. The district court properly dismissed those

claims under Rule 12(b)(6).

III. PLAINTIFFS FAILED TO STATE A CLAIM FOR IMPROPER

DISBURSEMENTS OF ROYALTY PAYMENTS AND DISMISSAL

THEREFORE WAS WARRANTED UNDER FEDERAL RULE OF CIVIL

PROCEDURE 12(B)(6).

The district court properly dismissed Plaintiffs’ claims alleging

improper disbursement by the BIA of royalty payments. The complaint

failed to plead any specific facts supporting Plaintiffs’ allegation that


43

any headright is held illegally. App. 1267. As alleged, the claims are

merely speculative. In their opening brief (Br. 34-35), Plaintiffs ask this

Court to look outside the complaint in evaluating whether the

allegations were sufficiently specific to survive a motion to dismiss

under Rule 12(b)(6). But the complaint must be evaluated on its face.

Notably, Plaintiffs identify no factual allegations in the complaint

that provide the requisite specificity. Instead, Plaintiffs concede (Br.

36) that their claims cannot be more specific than the general

allegations included in their complaint at ¶ 65 (App. 455), which does

not identify any allegedly unlawful headright holding or transfer.

Indeed, Plaintiffs appear to concede that the claims of allegedly

unlawful disbursements will not be ripe until the BIA has done an

accounting. Br. 36. Under Plaintiffs’ reasoning, these claims should be

dismissed for lack of jurisdiction because they are not ripe for review.

Significantly, however, Plaintiffs continue to disregard the

pleading requirements identified by the Supreme Court and this Court.

A complaint must contain sufficient factual matter, accepted as true,

“plausibly suggesting (not just consistent with)” a showing of

entitlement to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,


44

557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). As this Court

has explained, the “mere metaphysical possibility that some plaintiff

could prove some set of facts in support of the pleaded claims is

insufficient; the complaint must give the court reason to believe that

this plaintiff has a reasonable likelihood of mustering factual support

for these claims.” Ridge at Red Hawk, 493 F.3d at 1177; Smith, 561

F.3d at 1098 (quoting same).

This complaint fails those standards. It merely asserts that

Plaintiffs might possibly be affected by something unlawful that might

have occurred or might be occurring, but does not identify what or when

there has been any alleged unlawful action or inaction. Plaintiffs assert

that they are “not aware, in this case, of every instance where the

United States failed to comply with its duties to distribute Section 4

Royalty Payments in compliance with the law.” Br. 36-37. But that is

not the infirmity with the complaint. The problem is that the complaint

does not identify any specific instance in which Plaintiffs allege that

royalty payments have been unlawfully distributed. On that basis, the

district court correctly held that this claim lacks the requisite specificity

to survive a motion to dismiss under Rule 12(b)(6).


45

In addition, the district court also correctly held that the

complaint fails to identify any final agency action that is subject to

judicial review under Section 704. For an APA action, such as this,

Plaintiffs “have the burden of identifying specific federal conduct and

explaining how it is ‘final agency action’” subject to judicial review.

Colorado Farm Bureau v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th

Cir. 2000). Plaintiffs failed to do so. On this basis, as well, the district

court properly dismissed the claims under Rule 12(b)(6).

IV. DISMISSAL OF THE CLAIM REGARDING IMPROPER

DISBURSEMENTS WAS ALSO WARRANTED UNDER RULE 12(E)

On similar grounds, the court also appropriately dismissed the

claims under Rule 12(e). Rule 12(e) states that a “party may move for a

more definite statement of a pleading to which a responsive pleading is

allowed but which is so vague or ambiguous that the party cannot

reasonably prepare a response.” Fed. R. Civ. P. 12(e). Rule 12(e)

further provides that if the “court orders a more definite statement and

the order is not obeyed * * * the court may strike the pleading or issue

any other appropriate order.” Id.

Despite repeated requests from the district court – including its

requirement that Plaintiffs file a Second Amended Complaint and,


46

then, a Third Amended Complaint, to define the challenged agency

action or inaction with sufficient specificity that the government and

the court could consider issues such as the statute of limitations and

other defenses – Plaintiffs failed to include in the complaint any specific

allegations of improper agency action or inaction. See, e.g., 5C Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1376

at 336 (3d ed. 2004) (noting propriety of granting a Rule 12(e) motion

when clarifying the date may provide grounds for a dispositive motion).

The district court did not abuse its discretion in dismissing, pursuant to

Rule 12(e), the claims regarding alleged improper distributions.


47

CONCLUSION

For the foregoing reasons, the district court’s order dismissing

Plaintiffs’ claims should be affirmed.

Respectfully submitted, /s/ Katherine W. Hazard

IGNACIA S. MORENO

Assistant Attorney General Environment & Natural Resources

Division ALAN WOODCOCK Office of the Solicitor U.S. Department of the Interior Tulsa, Oklahoma

JOSEPH H. KIM JOHN L. SMELTZER KATHERINE W. HAZARD Attorneys U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 514-2110 (ph) (202) 353-1873 (fax) [email protected]

November 2012 #90-2-4-10781


48

STATEMENT REGARDING ORAL ARGUMENT Appellants have requested oral argument. The Federal Appellees

favor having oral argument if the Court believes that oral argument

might be helpful in resolving the issues in this appeal.

CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

This brief complies with the type-volume limitation set forth in

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it

contains 9716 words (as counted by the word-processing software used

to prepare the brief).

/s/ Katherine W. Hazard KATHERINE W. HAZARD Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, DC 20044 (202) 514-2110 [email protected]


49

CERTIFICATION REGARDING ELECTRONIC SUBMISSION

Pursuant to the Court’s March 18, 2009, General Order on Electronic Filing, I certify that:

1. no privacy redactions were required to be made to this document;

2. the electronically-submitted version of this brief is an exact copy

of the hard copy document being submitted to the Court; and

3. the electronic submission was scanned for viruses with Microsoft

Forefront Client Security, Client Version 1.139.936.0, last updated

October 29, 2012, and, according to the program is free of viruses.

s/ Katherine W. Hazard KATHERINE W. HAZARD Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, DC 20044 (202) 514-2110 [email protected]


INDEX TO ADDENDUM

Statutes

Osage Allotment Act (“1906 Act”), Pub. L. No. 59-321, 34 Stat. 539 (1906) ............................................ 1 Act of April 18, 1912, Pub. L. No. 62-125, 37 Stat. 86 (1912) .............................................. 8

Act of April 12, 1924, Pub. L. No. 68-79, 43 Stat. 94 (1924) .............................................. 11 Act of October 21, 1978 (“1978 Amendments”), Pub. L. No. 95-496, 92 Stat. 1660 (1978) ........................................ 12 Osage Tribe of Indians Technical Corrections Act of 1984 (“1984 Amendments”), Pub. L. No. 98-605, 98 Stat. 3163 (1984) ........................................ 17 25 U.S.C. 162a .......................................................................................... 23 25 U.S.C. 4011 .......................................................................................... 26 25 U.S.C. 4044 .......................................................................................... 28 Rules

Fed. R. Civ. P. 12 ...................................................................................... 29


FIFTY-NINTH CONGRESS. SESS. I. Cns. 3569-3572. 1906.

CHAP. 3569.-An Act To amend section twenty-eight hundred and forty-fourof the Revised Statutes of the United States, and to provide for an authentication ofinvoices of merchandise shipped to the United States from the Philippine Islands.

539

June 28, 1906.1H. -. 19756.]

[Public, No. 318,]

Be it enacted by the Senate and lbouse qf Representative8 of the UnitedStates of Awericat i (onfIrss a8s mt , d, That section numbered Invoices..fR.-S. sec. 2944,1,. :51,

twenty-eight hundred and forty-four of the Revised Statutes of the a...ee.United Sttes is hereby amended by adding thereto the following:

Provided, That the authentication may be made by the collector or a hniies ndeputy collector of customs in the case of merchandise shipped to theUnited States from the Philippine Islands."

Approved, June 28, 1906.

CHAP. 3570.-An Act To authorize the Monongahela Connecting Railroad Com-pany to construct a bridge across the Monongahela River in the State of Pennsylvania.

June 28, 1906.[H. R. 19850.

-FFTIblie. N. R19.I

Be it enacted by t/e Senate and Ilouse o4 Representative8 of the UnitedStates of Amcrlca In C(gres assembled, That the Monongahela Con- MonongahelaMonongahela

necting Railroad Company, a corporation organized under the laws of n tingRailroa,the State of Pennsylvania, its successors and assigns, be, and they are pany may bri,

hereby, authorized to construct, maintain, and operate a bridge and Pittsbnrg, Pa.approaches thereto across the Monongahela River at Pittsbrg, froma point on the north shore between Hazlewood avenue and the Glen-wood highway bridge to a point on the south shore in the township ofBaldwin or the township of Lower Saint Clair, in Allegheny County,in the State of Pennsylvania, in accordance with the l)rovisions of the A ate, p. 84.Act entitled "Al Act to regulate the construction of bridges overnavigable waters," approved March twenty third, nineteen hundredand six.

SEc. 2. That the right to alter, amend, or repeal this Act is hereby Amendment.

expressly reserved.Approved, June 28, 1906.

CHAP. 3571.-An Act To authorize the board of supervisors of Sunflower County,Mississippi, to construct a bridge across Sunflower River.

River.Con-

dCom-dge, at

June 28, 1906.[H. R. 19854.1

[Pulhlic. Kr,590I1Be It enacted by the Senate and louse of Representaties oft/c United ..

States of Anierica in Congress assembled, That the board of super- Sunflower River,Sunflower County,visors of Sunflower County, Mississippi, be, and they are hereby, an -3iss., may bridge, at

thorized to construct, maintain, and operate a bridge and approaches Lehrton.

thereto across the Sunflower River at Lehrton, in Sunflower County,in the State of Mississippi, in accordance with the provisions of the Ae, p. 84.

Act entitled 'An Act to regulate the construction of bridges overnavigable waters," approved -March twenty-third, nineteen hundredand six.

SEc. 2. That the right to alter, amend, or repeal this Act is hereby Amendment.expressly reserved.

Approved, June 28, 1906.

CHAP. 3572.-An Act For the division of the lands and funds of the Osage Indiansin Oklahoma Territory, and for other purposes.

June 28, 1906.[H. R. 15333.]

[Public. No. 321.1

Be it enacted by tle Senate and House of Representatives of the United IStates of America in Congress assembled, That the roll of the Osage Osage Indians,Okla.tribe of Indians, as shown by the records of the United States in the Division of tribaloffice of the United States Indian agent at the Osage Agency. Okla- land, etc.

Tribal roll.

.... 1

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Add. 01


540 FIFTY-NINTH CONGRESS. SEss. 1. CH. 35i 2. i906.

homa Territory, as it existed on the first day of January, nineteenhundred and six, and all children born between January first, nine-teen hundred and six, and July first, nineteen hundred and seven, topersons whose names are on said roll on January first, nineteen hun-dred and six, and all children whose names are not now on said roll,but who were born to members of the tribe whose names were on thesaid roll on January first, nineteen hundred and six, including thechildren of members of the tribe who have, or have had, white hus-bands, is hereby declared to be the roll of said tribe and to constitute the

Proviso.Fraudulent enroll- legal membership thereof: Prodded, That the principal chief of thent. Osages shall, within three months from and after the approval of this

Act, file with the Secretary of the Interior a list of the names which thetribe claims were placed upon the roll by fraud, but no name shall beincluded in said list of any person or his descendants that was placedon said roll prior to the ihirty-first day of December, eighteen hun-dred and eighty-one, the date of the adoption of the Osage constitu-tion, and the Secretary of the Interior, as early as practicable, shallcarefully investigate such cases and shall determine which of said per-sons, if any, are entitled to enrollment; but the tribe must affirmatively

Restriction, show what names have been placed upon said roll by fraud; but wherethe rights of persons to enrollment to the Osage roll have been inves-tigated by the Interior Department and it has been determined by theSecretary of the Interior that such persons were entitled to enroll-ment, their naues shall not be stricken from the roll for fraud exceptupon newly discovered evidence; and the Secretary of the Interiorshall have authority to place on the Osage roll the names of all personsfound by him, after investigation, to be so entitled, whose applica-

Revision of roll. tions were pending on the date of the approval of this Act: and thesaid Secretary of the Interior is hereby authorized to strike from thesaid roll the names of persons or their descendants which he finds wereplaced thereon by or through fraud, and the said roll as above pro-vided, after the revision and approval of the Secretary of the Interior,as herein provided, shall constitute the approved roll of said tribe;

Decision of Seere- and the action of the Secretary of the Interior in the revision of theLary final. roll as herein provided shall be final, and the provisions of the Act of

Congress of August fifteenth, eighteen hundred and ninety-four,Twenty-eighth Statutes at, Large, page three hundred and five, grant-ing persons of Indian blood who have been denied allotments the rightto appeal to the courts, are hereby repealed as far as the same relateto the (sage Indians; and the tribal lands and tribal funds of saidtribe shall be equally divided among the members of said tribe ashereinafter provided.

Division of lai.&. SEC. 2. That all lands belonging to the Osage tribe of Indians inOklahoma Territory, except as herein provided, shall be dividedamong the members of said tribe, giving to each his or her fair sharethereof in acres, as follows:

First selection. First. Each member of said tribe, as shown by the roll of member-ship made up as herein provided, shall be permtted to select one hun-

Filing notic. dred and sixty acres of land as a first selection; and the adult membersshall select their first selections and file notice of the same with the

United States Indian agent for the Osages within three months afterRatificati. the approval of this Act: Jtrodd d, That all selections of lands here-

tofore made by any member of said tribe, against which no contest ispending, be. and the same are hereby, ratified and confirmed as one of

Failure to select, the selections of such imbcr. And'if any adult menber fails, refuses,or is unable to inake such selection within said time, then it shall bethe duty of the United States Indian agent for the Osages to makesuch selection for such member or members, subject to the approval of

First selections for the Secretary of the Interior. That all said first selections for minorsi ...... shall be made by the United States Indian agent for the Osages, sub-

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Add. 02


FIFTY-NINTH CONGRESS. SESS. 1. CH. 3572. 1906.

ject to the approval of the Secretary of the Interior: Proo';ded, That Parents may select.said first selections for minors having parents ma be made Lv saidparents, and the word "minor" or "minors" used in this Act slhall beheld to mean those who are under twenty-one years of age: And pro- Time of selection.

i'nhdf,,rtheir, That all children horn to meibers of said tribe betweenJanuary first, nineteen hundred and six, and the first day of January,nineteen hundred and seven, shall have their selections made for themwithin six months after approval of this Act, or within six monthsafter their respective births. That all children born to members ofsaid tribe on and after the first day of January, nineteen hundred andseven, and before the first day of "July, nineteen hundred and seven,shall have their selections Made for them on or before the last day ofJuly, nineteen hundred and seven, the proof of birth of such childrento be made to the United States Indian agent for the Osages.

Second. That in making his or her first selection of land, as herein Prior rights pro-

provided for, a member shall not be permitted to select land already teeted.selected by. or in possession of, another member of said tribe as a irstselection, unless such other member is in possession of nore land thanhe and his family are entitled to for first selections under this Act; andin such cases the member in possession and having houses, orchards,barns, or plowed land thereon shall have the prior right to make thefirst selection: 1 nh!d, That where lnembers of the tribe are in })os- Doisoo.• t Disposal of imaprove-

sess ion of more land than they are entitled to for first selections merts. if

herein, said members shall have sixty days after the approval of thisAct to dispose of the improvements on said lands to other members ofthe tribe.

Third. After each ineniber has selected his or her first selection as Second selection.herein provided, he or she shall be permitted to make a second selec-tion of one hundred and sixty acres of land in the manner herein pro-vided for the first selection.

Fourth. After each inembher has selected his or her second selection Third selection.

of one hundred and sixty acres of land as herein provided, he or sheshall be permitted to make a third selection of one hundred and sixtyacres of land in the manner herein provided for the first and secondselections: lo'tded, That, all selections herein provided for shall con- Pioform to the existing public surveys in tracts of not less than forty Sur,,e>acres, or a legal subdivision of a less amount, designated a " lot." Hme.ea ds in-Each member of said tribe shall le permitted to designate which ofhis three selections shall be a homestead, and his certificate of allot-ment and deed shall designate the same as a homestead, and the same eshall be inalienable and nontaxable until otherwise provided by Act ofCongress. The other two selections of each membei, together with his Surpius lands. d

share of the remaining lands allotted to the member, shall be knownas surphls l'tnd, and shall be inalienable for twenty-five years, exceptas hereinafter provided.

Fifth. After each member has selected his or her first, second, and Disposal of remain

third selections of one hundred and sixty acres of land, as herein pro- inglan.itvided, the remaining lands of said tribe li Oklahoma Territory, exceptas herein provided, shall be divided as equally as practicable amongsaid members by a commission to be appointed to supervise the selec-tion and division of said Osage lands.

Sixth. The selection and division of lands herein provided for shall comissio.be made under the supervision of, or by, a commission consisting ofone member of the Osage tribe, to be selected by the Osage council,and two persons to be selected by the Commissioner of Indian Affairs Isubject to the approval of the Secretary of the Interior; and said com- Dnties.mission shall settle all controversies between members of the triberelative to said selections of land: and the schedules of said selections eand division of lands herein provided for shall be subject to the approvalof the Secretary of the Interior. The surveys, salaries of said con- Expenses.

541

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542 FIFTY-NINTH CONGRESS. SESS. I. Cn. 3572. 1906.

mission, and all other proper expenses necessary in making the selec-tions and division of land as herein provided shall be paid by theSecretary of the Interior, out of any Osage funds derived from thesale of town lots, -royalties from oil, gas, or other minerals, or rentsfrom grazing land.

Authority to sell se- Seventh. That the Secretary of the Interior, in his discretion, at theleed lands. request and upon the petition of any adult member of the tribe, may

issue to such member a certificate of competency, authorizing him tosell and convey any of the lands deeded him by reason of this Act,

Homesteads ex- except his homestead, which shall remain inalienable and nontaxablecepted. for a period of twenty-five years, or during the life of the homestead

allottee, if upon investigation, consideration, and examination of therequest he shall find any such member fully competent and capable oftransacting his or her own business and caring for his or her own indi-

Provisos. vidual affairs: Povided, That upon the issuance of such certificate of ATaxation, etc. competency the lands of such member (except his or her homestead) t

shall become subject to taxation, and such member, except as hereinprovided, shall have the right to manage, control, and dispose of his for her lands the same as any citizen of the United States: J rmode, nThat the surplus lands shall be nontaxable for the period of three years hfrom the approval of this Act, except where certificates of compe- titency are issued or in case of the death of the allottee, unless otherwise c

Saleof oil,etc.,lands drovjided by Congress: Adptd d fiutltcr, That nothing herein shallprohibited. prvie by Congress:-,- . -

authorize the sale of the oil, gas, coal, or other minerals covered by rt

said lands, said minerals being reserved to the use of the tribe for a 0period of twenty -five years, and the royalty to be paid to said tribe as

ndividual owner- hereinafter provided: :In 1mnocidedf't u-, That the oil, gas, coal, andhip after Z years, other minerals upon said allotted lands shall become the property of

the individual owner of said land at the expiration of said twenty-fiveyears, unless otherwise provided for by Act of Congress.

SistersofSaintFran- Eighth. There shall be reserved from selection and division, as 0ois.

Land donated to. herein provided, one hundred and sixty acres on which tie Saint LouisSchool, near Pawhuska, is located, and the one hundred and sixty acreson which the Saint John's School, on Hominy Creek, Osage IndianReservation, is located, said tracts to conform to the public surveys;and said tracts of land are hereby set aside and donated to the order ofthe Sisters of Saint Francis; and said tracts shall be con-eved to saidorder, the Sisters of Saint Francis, as early as practicable, by deed. e

LandHreserednar There shall also be reserved from selection and division forty- acres ofGay Horse. land near Gray Horse, to be designated by the Secretary of the Inte- a

rior, on which are located the dwelling houses of John N. Florer,Walter 0. Florer, and John L. Bird; and said John N. Florer shall be aallowed to purchase said forty acres at the appraised value placed ethereon by the Osage Allotting Commission, the proceeds of the saleto be placed to the credit of the Indians and to be distributed like other ofunds herein provided for.

Lad reserved or Ninth. There shall be reserved from selection and division, as hereindwelling purposes.

provided, the northeast quarter df section three, township twenty-five, arange nine east, of the Indian meridian, and one hundred and sixty Racres to conform to the public survey at the town of Gray Horse,including the Government doctor's building, other valuable buildings,and the cemetery, and the one hundred and sixty acres to conform tothe public survey, adjoining or near the town site of Hominy; said tllands or tracts are hereby set aside for the use and benefit of the OsageIndians. exclusively, for dwelling purposes, for a period of twenty-fiveyears from and after the first day of January, nineteen hundred and

Palviof seven: Provide, That said land may, in the discretion of the OsageSale of1 reserved

lands. tribe, be sold under such rules and regulations as the Secretary of theInterior may prescribe; and the proceeds of the same under such saleshall be apportioned and placed to the credit of the individual members kof the tribe according to the roll herein provided for. o



FIFTY-NINTH CONGRESS. SESS. I. CH. 3572. 1906. 543

Tenth. The Osage Boarding School reserve of eighty-seven and Osage Boarding

five-tenth acres, and the reservoir reserve of seventeen and three- school reserve, etc.

tenths acres, and the agent's residence reserve, together with all thebuildings located on said reservations in the town site of Pawhuska,as shown by the official plat of the same, are hereby reserved fromselection and division as herein provided: and the same may be sold Saleof.in the discretion of the Osage tribe, under such rules and regulationsas the Secretary of the Interior may provide: and the proceeds of Proceeds.

such sale shall be apportioned and placed to the credit of the individualmembers of said tribe according to the roll herein provided for.

Eleventh. That the United States Indian agent's office building, the Sale of Government

Osage council building, and all other buildings which are for the buildings, etc.

occupancy and use of Government employees, in the town of Paw-huska, together with the lots on which the said buildings are situated,shall be sold to the highest bidder as early as practicable, under suchrules and regulations as the Secretary of the Interior may prescribe;and with the proceeds he shall erect other suitable buildings for the Erection of new

uses mentioned, on such sites as he may select, the remaining proceeds, buildings.

if any, to be placed to the credit of the individual members of theOsage tribe of Indians: Provided, That the house known as the chief's . reservedhouse, together with the lot or lots on which said house is located, and from sale.

the house known as the United States interpreter's house, in Pawhnska,Oklahoma Territory, together with the lot or lots on which said housesare located, shall be reserved from sale to the highest bidder and shallbe sold to the principal chief of the Osages and the United Statesinterpreter for the Osages, respectively, at the appraised value of thesame, said apprais.ement to be made by the Osage town-site commis-sion, subject to the approval of the Secretary of the Interior.

Twelfth. That the cemetery reserve of twenty acres in the town site Cemetera reserve

of Pawhuska, as shown by the official plat thereof, is hereby set aside donated toPawhuska.

and donated to the town of Pawhuska for the purposes of sepulture,on condition that if said cemetery reserve of twenty acres, or any part Reversion.

thereof, is used for purposes other than that of sepulture, the whole ofsaid cemetery reserve of twenty acres shall revert to the use and benefitof the individual members of the Oqagd tribe, according to the rollherein provided, or to their heirs; and said tract shall be conveyed tothe said town of Pawbuska by deed, and said deed shall recite and setout in full the conditions under which the above donation and convey-ance are made.

That the provisions of an Act entitled "An Act making appropria- ogn town-sitetions for the current and contingent expenses of the Indian Depart- Present law not af-

ment and for fulfilling treaty stipulations with various Indian tribes feced.for the fiscal year ending June thirtieth, nineteen hundred and six,and for other purposes," approved March third, nineteen hundredand five, relating to the Osage Reservation, pages one thousand and Vol.SSpp. 1061,1062.

sixty-one and one thousand and sixty-two, volume thirty-three, UnitedStates Statutes at Large, be, and the same are hereby, continued infull force and effect.

Oil and mineralSEC. 3. That the oil, gas, coal, or other minerals covered by the lands.

lands for the selection and division of which provision is herein -made Leases.are hereby reserved to the Osage tribe for a period of twenty-fiveyears from and after the eighth day of April, nineteen hundred andsix; and leases for all oil, gas, and other minerals, covered by selectionsand division of land herein provided for, may be made by the Osagetribe of Indians through its tribal council, and with the approval ofthe Secretary of the Interior, and under such rules and regulations ashe may prescribe: Pro 'ided, That the royalties to be paid to the Osage rovisos.tribe under any mineral lease so made' shall be detelrmined by the oralties.

President of the United States: And provided furthet, That no mining Prospecting re-

of or prospecting for any of said mineral or minerals shall be per- sicted.

initted on the homestead selections herein provided for without the

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544 FIFTY-NINTH CONGRESS. SESS. I. CH. 3572. 1906.

written consent of the Secretary of the Interior: Provided, /iowe'er ,Existing contract , That nothing herein contained sfiall be construed as affecting any valid

etc., not affected. existing lease or contract.Trust fund. SEC. 4. That all funds, belonging to the Osage tribe, and all moneys

due, and all moneys that may become due, or may hereafter be foundto be due the said Osage tribe of Indians. shall be held in trust by theUnited States for the period of twenty-five years from and after thefirst day of January, nineteen hundred and seven, except as hereinprovided:

Segregation of First. That all the funds of the Osage tribe of Indians, and all thefunds. moneys now due or that may hereafter be found to be due to the said

Osage tribe of Indians, and all moneys that may be received from thesale of their lands in Kansas under existing laws, and all moneys foundto be due to said Osage tribe of Indians on claims against the UnitedStates, after all proper expenses are paid, shall be segregated as soon

Pro rata division, after January first, nineteen hundred and seven, as is practicable andplaced to the credit of the individual members of the said Osage tribeon a basis of a pro rata division among the members of said tribe, asshown by the authorized roll of membership as herein provided for, orto their heirs as hereinafter provided, said credit to draw interest as

Interest payments. now authorized by law; -and the interest that may accrue thereon shallbe paid quarterly to the members entitled thereto, except in the caseof minors, in which case the interest shall be paid quarterly to the

Prois s. parents until said minor arrives at the age of twenty-one years:mone o mineres Provided, That if the Commissioner of Indian Affairs beconies satis-

fied that the said interest of any minor is being mistied or squanderedPayments he may withhold the payment of such interest: And pow'dcdftlur,

dians. to gu'r- That said interest of minors whose parents are deceased shall be paidto their legal guardians, as above provided.

Deposit of funds tocredit of Indians. Second. That the royalty received from oil, gas, coal, and other

mineral leases upon the lands for which selection and division are hereinprovided, and all moneys received from the sale of town lots, togetherwith the buildings thereon, and all moneys received from the sale ofthe three reservations of one hundred and sixty acres each heretoforereserved for dwelling purpoges, and all moneys received from grazinglands, shall be placed in the Treasury of the Lnited States to the creditof the members of the Osage tribe of Indians as other moneys of said

Distribution of. tribe are to be deposited under the provisions of this Act, and the sameshall be distributed to the individual members of said Osage tribeaccording to the roll provided for herein, in the manner and at the sametime that payments are made of interest on other moneys held in trustfor the Osages by the United States, except as herein provided.

Royalies reserved Third. There shall be set aside froni the royalties received froni oilfor sctool purposes. and gas not to exceed fifty thousand dollars per annum for ten years

from the first day of January, nineteen hundred and seven, for the stip-port of the Osage Boarding School and for other schools on the OsageIndian Reservation conducted or to be established and conducted forthe education of Osage children.

For agency pur- Fourth. There shall be set aside and reserved from the royaltiesposes. received from oil, gas, coal, or other mineral leases, and moneys received

from the sale of town lots, and rents from grazing lands not to exceedthirty thousand dollars per annum for agency purposes and an emer-gency fund for the Osage tribe, which shall be paid out from time totime, upon the requisition of the Osagetribal council, with the approvalof the Secretary of the Interior.

Terminationof trust SEC. 5. That at the expiration of the period of twenty-five yearsfund. from and after the first day of January, nineteen hundred and seven,

the lands, mineral interests, and moneys, herein provided for and heldin trust by th6 United States shall be the absolute property of theindividual members of the Osage tribe, according to the roll hereinprovided for, or their heirs, as herein provided, and deeds to said lands

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FIFTY-NINTH CONGRESS. SEss. I. CH. 3572. 1906. 1 545

shall be issued to said members, or to their heirs, as herein provided,and said moneys shall be distributed to said members, or to their heirs.as herein provided, and said members shall have full control of saidlands, moneys, and mineral interests, except a.s hereinbefore provided.

SEc. 6. That the lands, moneys, and mineral interests, herein pro- Right of inherit-

vided for. of any deceased lnember of the Osage tribe shall descend to ance.

his or her le-al heirs, according to the laws of the Territory of Okla-homa, or of the State in which said reservation may be hiereinafterincorporated, except where the decedent leaves no issue, nor husband Exception.

nor wife, in which case said lands, moneys, and mineral interests mustgo to the mother and father equally.

SaC. 7. That the lands herein provided for are set aside for the sole Leases for farming

use and benefit of the individual members of the tribe entitled thereto, purposes.

or to their heirs, as herein provided, and said members, or their heirs,shall have the right to use and to lease said lands for farming, grazing,or any other purpose not otherwise specifically provided for herein,and said members shall have full control of the same, including theproceeds thereof: Provded, That parents of minor members of the Provisos.

Parents to controltribe shall have the control and use of said minors' lands, together with minors' lands.the proceeds of the same, until said minors arrive at their majority:And prorbded frter, That all leases given on said lands for thle Approval of leases.benefit of the individual members of the tribe entitled thereto, or fortheir heirs, shall be subject only to the approval of the Secretary ofthe Interior.

SEC. 8. That all deeds to said Osage lands or any part thereof shall Deeds.

be executed by the principal chief for the Osages, but no such deedsshall be valid until approved by the Secretary of the Interior.

SEC. 9. That there shall be' a biennial election of officers for the Tribal ofcers.Osage tribe as follows: A principal chief, an assistant principal chief, Elections, etc.

and eight members of the Osage tribal council, to succeed the officerselected in the year nineteen hundred and six, said officers to be electedat a general election to be held in the town of Pawhuska, OklahomaTerritorv, on the first Monday in June; and the first election for saidofficers shall be held on the first Monday in June, nineteen hundredand eight. in the manner to be prescribed by the Commissioner ofIndian Affairs, and said officers shall be elected for a period of twoyears, commencing on the first day of July following said election, andin case of a vacancv in the office of principal chief, by death, resigna-tion, or otherwise, the assistant principal chief shall succeed to saidoffice, and all vacancies in the Osage tribal council shall be filled in amanner to be prescribed by the Osage tribal council, and the Secretaryof the Interior is hereby authorized to remove from the council anymember or members thereof for good cause, to be by him determined.

SEc. 10. That public highways or roads, two rods in width, being Public highways.

one rod on each side of all section lines, in the Osage Indian Reserva-tion, may be established without any compensation therefor.

SEc. 11. That all lands taken or condemned by any railroad cor_ Lands for railroadM_ purposes,

pany in the Osage Reservation, in pursuance of any Act of Congress Vol. 32, p. 47.or regulation of the Department of the Interior, for rights of way,station grounds, side tracks, stock pens and cattle yards, water stations,terminal facilities, and any other railroad purpose, shall be, and arehereby, reserved from selection and allotment and confirmed in suchrailroad companies for their use and benefit in the construction

h Proiso.operation. and maintenance of their railroads: Provided, That sucg IResriotion.railroad companies shall not take or acquire hereby any right or titleto any oil, gas, or other mineral in any of said lands.

Sac. 12. That all things necessary to carry into effect the provisions Enforcement-of this Act not otherwise herein specifically provided for shall be doneunder the authority and direction of the Secretary of the Interior.

Approved, ,June 28, 1906.VOL XXXIV. PT 1-35

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SIXTY-SECOND CONGRESS. SEss. I. CHs. 81-83. 1912.

rll, 112. CHAP. 81.-An Act Authorizing the Secretary of War to donate to the city of___. R. _] Jackson, Mississippi, carriage and cannon or fieldpieces.

[Public, No. 123.]Be it enacted by the Senate and House of Representatives of the United

Obsolete ordnance. StatesDonated toJackson, , of Ameria -in Congress assembled, That the Secretary of War

Miss., for p a.i, be, and he is hereby, authorized and directed to donate to the cityof Jackson, in the State of Mississippi, the carriage for one three-inchwrought-iron gun and two bronze cannon or fieldpieces, with theircarriages, not needed for present service, which are now and have beenfor a number of years mounted on either side of the ConfederateMonument in one of the parks, called Confederate Veteran Park, insaid city of Jackson, in the State of Mississippi.

Approved, April 18. 1912.

Aril 18. 1f2. CHAP. 82.-An Act Authorizing the construction of a bridge across the Willamette, i .] River at or near Newberg, Oregon.

Be it enacted by the Senate and House of Representatives of the UnitedW iametteiver. States of America in Congress assembled, That the consent of Congress

counties may bridge, be, and it is hereby, given to the construction and maintenance of aVol. 84, p. 84. bridge and approaches thereto over the'Willamette River at a point

suitable to the interests of navigation, in accordance with the provi-sions of the Act entitled "An Act to regulate the construction ofbridges over navigable waters," approved March twenty-third, nine-teen hundred and six. Such bridge may be constructed and main-tained by the county of Yamhill, in the State of Oregon, by thecounty of Marion, in said State, or by said counties of Yambill andMarion acting jointly.

Amendment SEC. 2. That the right to alter, amend, or repeal this Act is herebyexpressly reserved.

Approved, April 18, 1912.

April 18, 1912. CHAP. 83.-An Act Supplementary to and amendatory of the Act entitled "An[9.2.) Act for the division of the lands and funds of the Osage Nation of Indians in Okla-

[Public, No. 125.1 homa," approved June twenty-eighth, nineteen hundred and six, and for otherpurposes.

Be it enacted by the Senate and House of Representatives of the UnitedOsageIndiansOkla. States of America in Congress assembled, That until the inherited landsPtuyient of taxes

on inherited lands, of the deceased members of the Osage Tribe of Indians shall be par-Vol. 34, p. 539. titioned or sold the Secretary of the Interior be, and he hereby is,

authorized to pay the taxes on said land out of any money due andpayable to the heirs from the segregated decedent's furlds in. theTreasury of the United States.

rxtdinge of sur- SEC. 2. That the Secretary of the Interior be, and he hereby is,plus allotments, authorized, where the same would be to the best interests of Osage

allottees, and the same is submitted to the Osage council for recom-mendation and approved by it, to permit the exchange of surplusallotments, or any portions thereof, of Osage allottees under suchrules and regulations as he may prescribe and upon such terms ashe shall approve. The Secretary shall have authority to do any andall things necessary to make these exchanges effective.

Propbrtyof deceased SEc. 3. That the property of deceased and of orphan minor, insane,or incompetent allot- ic pt tt of thease Tr h inompetencytees, su.bject to coun- or other ificompetent allottees of the Osage Tribe, such incompetencyty courts. being determined by the laws of the State of Oklahoma, which are

hereby extended for such purpose to the allottees'of said tribe, shall,in probate matters, be subject to the jurisdiction of the county courtsof the State of Oklahoma, but a copy of all papers filed in the countycourt shall be served on the superintendent of the Osage Agency at

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SIXTY-SECOND CONGRESS. Snss. II. CH. 83. 1912. 87the time of filing, and said superintendent is authorized, whenever theinterests of the allottee require, to appear in the county court for theprotection of the interests of tlie allottee. The superintendent of the su riasOsage Agency or the Secretary of the Interior, whenever he deems the et.same necessary, may investigate the conduct of executors, adminis-trators, and guardians or other persons having in charge the estateof any deceased allottee or of minors or persons incompetent underthe laws of Oklahoma, and whenever he shall be of opinion that theestate is in any manner being dissipated or wasted or is being per-mitted to deteriorate in value by reason of the negligence, careless-ness, or incompetency of the guardian or other person in charge ofthe estate, the superintendent of the Osage Agency or the Secretaryof the Interior or-his representative shall have power, and it shall behis duty, to report said matter to the county court and take the untycous.necessary steps to have such case fully investigated, and also to prose-cute-any remedy, either civil or criminal, as the exigencies of the caseand the preservation and protection of the interests of the allottee orhis estate may require, the costs and expenses of the civil proceedingsto be a charge upon the estate of the allottee or upon the executor,administrator, guardian, or other person in charge of the estate ofthe allottee and his surety, as the county court shall determine.Every bond of the executor, administrator, guardian, or other personin charge of the estate of any Osage allottee shall be subject to theprovisions of this section and shall contain therein a reference hereto:Presided, That no guardian shall be appointed for a minor whose Grdias.

parents are living, unless the estate of said miner is being wasted ormisused by such parents: Provided further, That no land shall be Approval of sales.sold or alienated under the provisions of this section without the

approval of the Secretary of the Interior.S.c. 4. That nothing herein shall be construed as in any way e i5'r ls j:~nan way_ eral rights un-

changing the rights of the Osage Tribe in oil, gas, coal, and other changea.minerals as fixed in the Osage Act of June twenty-eighth, nineteen Vol. 34. p. 543.

hundred and six, or in any ipanner be construed to change or amendthe provisions of said Act in regard to oil, gas, coal, or other minerals.

SEC. 5. That the Secretary of the Interior, in his discretion, hereby Paymentofindv..-

is authorized, under rules and regulations to be prescribed b him 'I .funds to llottees.

and upon application therefor, to pay to Ose allottees, includithe blind, insane, crippled, aged, or helpless, all or part of the fundsin the Treasury of the United States to their individual credit: Pro- Rsion

vided, That he shall be first satisfied of the competency of the allotteeor that the release of said individual trust funds would be to themanifest best interests and welfare of the allottee: Provided further, JiosS of funds ofThat no trust funds of a minor or a person above mentioned who is tents.

incompetent shall be released and paid over except to a guardian ofsuch person duly appointed by the proper court and after the filingby such guardian and approval by the court of a sufficient bond con-ditioned to faithfully administer the funds released and the availsthereof.

SFc. 6. That from and after the approval of this act the lands of "aonoflandsofdeceased Osage allottees, unless the heirs agree to partition the same, eceased allottees.

may be partitioned or sold upon p roper order &f any court of 'compe-tent jurisdiction in accordance with the laws of the State of Oklahoma:Provided, That no partition or sale of the restricted lands of a deceased .Osage allottee shall be valid until approved by the Secretary of the C ona.

Interior. Where some of the heirs are minors, the said court shallappoint a guardian ad litem for said minors in the matter of saidpartition, and lartition of said land shall be valid when approved by

the court and te Secretary of the Interior. When the hers of suchdeceased allottees have certificates of competency or are not membersof the tribe, the restrictions on alienation are hereby removed. If

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88 SIXTY-SECOND CONGRESS. SEss. I. CH. 83.. 1912.

some of the heirs are competent and others have not certificates ofcompetency, the proceeds of such part of the sale as the competentheirs shall be entitled to shall be paid to them without the interven-tion of an administrator. The shares due minor heirs, including suchminor Indian heirs as may not be tribal members and those Indianheirs not havin- certificates of competency, shall be paid into theTreasury of the tJnited States and placed to the credit of the Indiansupon the same conditions as attach to segregated shares of the Osagenational fund, or with the approval of the Secretary of the Interior

Disposition of Pro- paid to the duly appointed guardian. The same disposition as hereinprovided for with reference to the proceeds of inherited lands sold shallbe made of the money in the Treasury of the United States to thecredit of deceased Osage allottees.

Restrictin n n- SEC. 7. That the lands allotted to members of the Osage tribe shallnot in any manner whatsoever be encumbered, taken, or sold to secureor satisfy any debt or obligation contracted or incurred prior to theissuance of a certificate of competency, or removal of restrictions onalienation; nor shall the lands or funds of Osage tribal members besubject to any claim against the same arising prior to grant of a cer-

Not subject to prior tificate of competency. That no lands or moneys inherited fromdebts. Osage allottees shall be subject to or be taken or sold to secure the

payment of any indebtedness incurred by such heir prior to the timePTotso0ex such lands and moneys are turned over to such heirs: Provided,Funeral pen however, That inherited moneys shall be liable for funeral expenses

and expenses of last illness of deceased Osage allottees, to be paidupon order of the county court of Osage Colinty, State of Oklahoma:

Taxes. Provided further, That nothing herein shall be construed so as toexempt any such property from liability for taxes.

Disposal of all prop- SEC. 8. That any adult member of the Osage Tribe of Indians noterty by will. mentally incompetent may dispose of any or all of his estate, real,

personal, or mixed, including trust funds, from which restrictions asto alienation have not been removed, by will, in accordance with the

Prsoiso. r laws of the State of Oklahoma. Provided, That no such will shall beApproval reu admitted to probate or have any validity unless approved before or

after the death of the testator by the Secretary of the Interior."Competent' de- SEC. 9. The word "competent," as used in this Act, shall mean a

fined. person to whom a certificate has been issued authorizing alienationof all the lands comprising his allotment, except his homestead.

Osage agency. SEC. 10. That section four, paragraph four, of the Osage allotmentVol 4,p 544.amend- Act, approved June twenty-eighth, nineteen hundred and six, be, and

bed.ried aVo.the same hereby is, amended to read as follows:

Funds reserved for "Fourth There shall be set aside and reserved from the royaltiesagency and er-ge.ie. s. received from oil, gas, or other tribal mineral nghts or other tribal

funds, however arising, not to exceed forty thousand dollars perannum for agency purposes and as an emergency fund, which

money shall be paid out from time to time upon the requisition ofthe Osage tribal councl with the a~pproval of the Secretary of theoso.. .Interior: Provided, That the provisin in the Act entitled 'An Act

su~bject tlitofmaking appropriations for the current and contingent expenses of thegnr law,0.th Indian Den artment and for fulfilling treaty stinulations with Variousy Indian tribes for the fiscal year ending June thirtieth, eighteen hun-

dred and ninety-eight, and for other purposes,' approved Juneseventh, eighteen hundred and ninety-seven (Thirtieth Statutes atLarge, page ninety), limiting the amount of money to be expendedfor salaries of regular employees at any one agency shall not hereafterapply O the Osage Agency."

subjitent laWS SEe. 1. That all Acts or parts of Acts inconsistent herewith be,l.0.. go ndand the same hereby are, repealed.


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SIXTY-EIGHTH CONGRESS. Smss. I. CHs. 94-96. 1924.

4W12,1924. CHAP. 94.-An Act To authorize the allotment of certain lands within[ .c o. the Fort Yuma Indian Reservation, California, and for other purposes.[Pffabli, No. 78.1

Fr Be it enacted by the Senate and House of Representatives of theRFror, alIn.di United States of America in Congress assembled, That the Secretary

Withdrawals for of the Interior be, and he hereby is, authorized in his discretion totown site and schoolarmonctad. vacate in whole or in part the withdrawal of lands for town-site

purposes known as the town site of Powell on the Fort Yuma IndianVol.85,p.77. Reservation, California, made pursuant to the Act of April 30, 1908vol. 3, p. W7. (Thirty-fifth Statutes at Large, page 77), and the withdrawal for

loneptIndiana Indian school farm purposes made pursuant to the Act of August 1,otvacAtalands. 1914 (Thirty-eighth Statutes at Large, pages 582--587), all areas so

vacated being hereby made available for allotment in severalty tinderexisting laws to any Indians entitled to allotment on said reservationwho have not heretofore received an allotment.

aside for scthol be. The Secretary of the Interior is hereby further authorized to setaside and reserve for Indian school farm purposes any other landswithin said reservation which have not heretofore been otherwisedisposed of.


Agri 1, 1924.[. R. 4M. . CHAP. 95.-An Act Amending an Act entitled "An Act for the division

[Public, No. 79.1 of the lands and funds of the Osage Indians In Oklahoma, ard for other pur-poses," approved June 28, 1906, and Acts amendatory thereof and supple-mental thereto.

Osage Indian lands,etc., In Oklahoma.Bale, etc., authorized

of rights in, of ersosnot of Indian blood.Vol. 84, p. 539.

Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled, That any rightto or interest in the lands, money, or mineral interests, as providedin the Act of Congress approved June 28, 1906 (Thirty-fourthStatutes at Large page 539), entitled "An Act for the division ofthe lands and funds of the Osage Indians in Oklahoma, and forother purposes," and in Acts amendatory thereof and supplementalthereto, vested in, determined, pr adjudged to be the right orproperty of any person not an Indian by blood, may with theapproval of the Secretary of the Interior and not otherwise be sold,assigned, and transferred under such rules and regulations as theSecretary of the Interior may prescribe.


ADM12, 104.. R. 6724.1 CHAP. 96.-An Act Granting the consent of Congress to the counties of[Publics No.80.] Sibley and Scott, Minnesota, to construct a bridge across the Minnesota

River.

Minnesota River. Be it enacted by the Senate and House of Representatives of theSibley and Scott United States of America in Congress assembled That the consent

Cod e, Miu., of Congress is hereby granted to the counties ol Sibley and Scottbridge, at Blakely. o~Jn es ~ iSbe

of the State of Minnesota and their successors and assigns, to con-struct, maintain, and operate a bridge and approaches thereto acrossthe Minnesota River at a point suitable to the interests of navigation,at or near Blakely, Minnesota, more particularly described as insection 8, township numbered 113 north of range 25 west of thefifth principal meridian in the counties of Sibley and Scott, in the

Construction. State of Minnesota, in accordance with the provisions of an Actvol. K4Pp.84. entitled "An Act to regulate the construction of bridges over

navigable waters" approved March 23, 1906.Amendment. SEc. 2. That the right to alter, amend, or repeal this- Act is hereby

expressly reserved.Approved, April 12, 1924.



PUBLIC LAW 95-496-OCT. 21, 1978

Public Law 95-49695th Congress

An ActOct. 21, 1978 To amend certain laws relating to the Osage Tribe of Oklahoma, and for other

[S. 1081] purposes.

Indians.Osage Tribe,Okla.Tribalgovernment,elections andappointments.

Repeal.25 USC 331 note.Competencycertificaterevocation,application.25 USC 331 note.

Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled, That section 9 ofthe Act of June 28, 1906 (34 Stat. 539, 545), as amended, is furtheramended to read as follows: "There shall be a quadrennial election ofthe officers of the Osage Tribe as follows: A principal chief, an assist-ant principal chief, and eight members of the Osage Tribal Councilshall be elected to succeed the officers elected in the year 1974 at a gen-eral election to be held in the town of Pawhuska,'Oklahoma, on thefirst Mondav in June 1978 and on the first Monday in June of eachfourth year'thereafter, in a manner to be prescribed by the Secretaryof the Interior, and said officers shall be elected for a period of fouryears commencing on the first day of July following the election. Incase of a vacancy in the office of principal chief or other officer bydeath, resignation, or otherwise, the vacancy shall be filled in a mannerto be prescribed by the Osage Tribal Council. In the event of a commondisaster and a quorum of five of the Osage Tribal Council does notsurvive, the Secretary shall appoint a principal chief and/or the num-ber of councilmen necessary to complete a total of eight, to serve untilthe next quadrennial election. The Secretary is hereby authorized toremove from the council any member or members for good cause, to beby him determined, after the party involved has had due notice andopportunity to appear and defend himself. The tribal government soconstituted shall continue in full force and effect until January 1, 1984,and thereafter until otherwise provided by Act of Congress.".

SEc. 2. (a) The first paragraph of section 3 of the Act of June 24,1938 (52 Stat. 1034, 1035), as amended, extending the mineral estatereserved to the Osage Tribe by the Act of June 26, 1906 (34 Stat. 539),is further amended by striking the phrase "until the eighth day ofApril 1983, and thereafter until otherwise provided by Act of Con-gress" and substituting, in lieu thereof, the phrase "in perpetuity".

(b) The second paragraph of section 3 of the Act of June 24, 1938(52 Stat. 1034, 1035), as amended, is amended by striking the phrase"unless otherwise provided by Act of Congress" and inserting, in lieuthereof, the phrase "and thereafter until otherwise provided byCongress".

(c) The fourth paragraph of section 3 of the Act of June 24, 1938(52 Stat. 1034. 1036) is amended by striking the phrase "January 1,1984" and inserting, in lieu thereof, the phrase "January 1, 1984 andthereafter until otherwise provided by Congress".

SEc. 3. (a) The Act of February 5, 1948 (62 Stat. 18) is herebyrepealed.

(b) Any Osage Indian having received a certificate of competencyunder paragraph 7 of section 2 of the Act of June 28, 1906 (34 Stat.539, 542) ; section 3 of the Act of March 2, 1929 (45 Stat. 1478, 1480) ;or the Act of February 5, 1948 (62 Stat. 18), may make application tothe Secretary of the Interior to revoke such certificate and the Secre-tary shall revoke such certificate: Provided, That revocation of any

92 STAT. 1660

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PUBLIC LAW 95-496-OCT. 21, 1978

certificate shall not affect the legality of any transactions heretoforemade by reason of the issuance of any such certificate. Restrictionsagainst alienation of lands heretofore removed are not reimposed.

(c) Sections 3 and 4 of the Act of February 27, 1925 (43 Stat. 10081010-11) ; and section 4 of the Act of March 2, 1929 (45 Stat. 1478,1480) ; and sections 1 and 3 of the Act of June 24, 1938 (52 Stat. 1034)are hereby amended by striking, wherever they occur, the phrases "ofone-half or more Indian blood", "of more than one-half Indian blood","of one-half or more Osage Indian blood", and "or who is one-half ormore Osage Indian blood".SEc. 4. In order to conserve natural resources and provide for the Oil and gas

greatest ultimate recovery of oil and gas underlying the Osage mineral lease unitization,estate, the Secretary of the Interior is authorized to establish rules and rules.regulations under which oil and gas leases producing from a common 25 USC 331 note.

source of supply may be unitized.Suc. 5. (a) Section 8 of the Act of April 18, 1912 (37 Stat. 86, 88), Mineral interest

is hereby amended to read as follows: "Any person of Osage Indian and estate,blood, eighteen years of age or older, may dispose of his Osage head- disposition.

right or mineral interest and the remainder of his estate (real, person,and mixed, including trust funds) from which restrictions againstalienation have not been removed by will executed in accordance withthe laws of the State of Oklahoma: Provided, That the will of anyOsage Indian shall not be admitted to probate or have any validityunless approved after the death of the testator by the Secretary of theInterior. The Secretary shall conduct a hearing as to the validity of Notice andsuch will at the Osage Indian Agency in Pawhuska, Oklahoma. Notice hearing.

of such hearing shall be given by publication at least ten days beforethe hearing in a newspaper of general circulation in Osage County,Oklahoma, and by mailing notice of such hearing to the last knownaddress of all known heirs, legatees, and devisees. The cost of publi-cation shall be borne by the estate. The rules of evidence of the State ofOklahoma shall govern the admissibility of evidence at such hearing.All evidence relative to the validity of the will of an Osage Indian shallbe submitted to the Secretary within one hundred and twenty daysafter the date of the petition for approval of such will is filed with theSecretary, unless for good cause shown the Secretary extends the time:Provided, That such time shall not be extended beyond six monthsfrom the date of the first hearing. For purposes of determining the Subpenas.

validity of any will, the Secretary is hereby -ranted the same subpenapower as is vested in the courts. All costs of obtaining witnesses andevidence before the Secretary shall be borne by the party producingsuch witnesses or evidence, subject to such costs being taxed to theestate in the event that the District Court of the State of Oklahomahaving jurisdiction should determine such costs beneficial to the wholeestate. Notwithstanding any appeal from the decision of the Secretary, Appeal.approval of such will by the Secretary shall entitle it to be admitted toprobate without further evidence as to its validity or, upon disapprovalthereof, the heirs may immediately petition for letters of administra-tion in the district court. No appeal from the order of the Secretaryapproving or disapproving any will shall stay the issuance of letterstestamentary or of administration: Provided, That such letters shallnot confer power to sell any restricted assets by virtue of any provisionin such will, pay or satisfy legacies, or distribute property of thedecedent to the heirs or beneficiaries until the final determination of

92 STAT. 1661



PUBLIC LAW 95-496-OCT. 21, 1978

the appeal, but all other action taken by the district court pending saidappeal shall be valid and binding. No court except a Federal court shallhave jurisdiction to hear a contest of a probate of a will that has beenapproved by the Secretary. Such appeals shall be on the record madebefore the Secretary and his decisions shall be. binding and shall not bereversed unless the same is against the clear weight. of the evidence orerroneous in law.".

Probate. (b) Section 3 of the Act of April 18, 1912 (37 Stat. 86), is herebyamended to read as follows: "That the property of deceased and oforphan minor, insane, or other incompetent Osage Indians, suchincompetency being determined by the laws of the State of Oklahomawhich are hereby extended for such purpose to all Osage Indians,shall, in probate matters, be subject to the District Court of Oklahomahaving jurisdiction. A copy of all papers filed in the district courtshall be served on the Superintendent of the Osage Agency at thetime of filing, and said Superintendent is authorized. whenever theprotection of the interest of the Osage Indian requires, to appear in

Estate handling, the district court. The Superintendent of the Osage Agency or theinvestigation and Secretary of the Interior, whenever he deems the same necessary, mayprosecution, investigate the conduct of executors, administrators, guardians, or

other persons having charge of the estate of any minor, incompetent,or deceased Osage Indian. Whenever he shall be of the opinion thatthe estate is in any manner being dissipated, wasted, or permitted todeteriorate in value by reason of the negligence, carelessness, orincompetency of the executor, administrator, guardian, or other per-son in charge of the estate, the Superintendent of the Osage Agencyor the Secretary is authorized, and it shall be his duty, to report saidmatter to the district court, take the necessary steps to have such casefully investigated, and prosecute any remedy, either civil or criminal,as the exigencies of the case may require. The costs and expenses ofany civil proceedings shall be a charge upon the estate of the OsageIndian or upon the executor, administrator, guardian, or other personin charge of the estate of the Osage Indian and his surety, as the dis-trict court shall determine. Every bond of the executor, administra-tor, guardian, or other person in charge of the estate of any OsageIndian shall be subject to the provisions of this section and shall

Limitations. contain therein a reference hereto: Provided, That no guardian shallbe appointed for a minor whose parents are living unless the estate ofsaid minor is being wasted or misused by such parents: Provided.further, That no land shall be sold or alienated under the provisionsof this section without approval of the Secretary.".

Inheritance. (7) Section 7 of the Act of February 27, 1925 (43 Stat. 1008, 1011),25 USC 331 note. as amended, is hereby further amended to read as follows: "Hereafter

none but heirs of Indian blood and children legally adopted by a courtof competent jurisdiction and parents, Indian or non-Indian, shallinherit from Osage Indians any right, title, or interest to anyrestricted land, moneys, or Osage headright or mineral interest.".

25 USC 331 note. (d) Notwithstanding the provisions of subsections (a), (b), and(c) of this section, disposition of any Osage headright or mineralinterest shall be subject to the provisions of section 7 of this Act.

Inter vivos SEc. 6. (a) With the approval of the Secretary of the Interior, anytrust. person of Osage Indian blood, eighteen years of age or older, may25 USC 331 note. establish an inter vivos trust coverng his headright or mineral interest

except as provided in section 8 hereof; surplus funds; invested surplus

92 STAT. 1662



PUBLIC LAW 95-496-OCT. 21, 1978

funds: segregated trust funds; and allotted or inherited land, namingthe Secretary of the Interior as trustee. An Osage Indian having acertificate of competency may designate a banking or trust institutionas trustee. Said trust shall be revocable and shall make provision forthe payment of funeral expenses, expenses of last illness, debts, and anallowance to members of the family dependent on the settlor.

(b) Property placed in trust as provided by this section shall besubject to the same restrictions against alienation that presently applyto lands and property of members of the Osage Tribe, and the execu-tion of such instrument shall not in any way affect the tax-exemptstatus of said property.

SEC. 7. After passage of this Act, a person not of Osage Indian blood,except a child legally adopted by an Osage Indian in any court of com-petent jurisdiction and the lineal descendants of such adopted child,subject to the stipulation that such adopted child or his lineal descend-ants cannot alienate his Osage headright or mineral interest and thedevolution thereof is limited to intestacy, will, or inter vivos trust thesame as if he were of Osage Indian blood, is prohibited from receivingmore than a life estate in an Osage headright interest owned by anOsage Indian, such adopted child or his lineal descendants, whethersuch interest is received by will, inter vivos trust, or Oklahoma law ofintestate succession. Upon the death of such recipient, the Osage head-right or mineral interest shall vest in the remaindermen thereof whoare of Osage Indian blood, adopted children, and/or lineal descendentsof such adopted children designated by the will or inter vivos trust ofthe deceased Osage Indian, his adopted child, or the lineal descendantsof such adopted child. If such instrument does not designate remain-dermen thereof who are of Osage Indian blood, adopted children, and/or lineal descendants of such adopted children, or if the deceased diedintestate, the Osage headright or mineral interest shall vest in his heirspursuant to the Oklahoma law of intestate succession, subject to theabove limitations. On the death of the non-Osage beneficiary or heir,except in the case of adopted children or lineal descendants of suchadopted children, such Osage headright or mineral interest shall vestin the Osage Tribe and the Tribe shall pay the estate of the non-Osagebeneficiary or heir the market value of such Osage headright or min-eral interest. Payments under this section shall be made from Osagetribal mineral funds authorized to be expended by section 8 (b) hereof.

SEC. 8. (a) Any individual right to share in the Osage mineral estate(commonly referred to as "headright") owned by a person not ofIndian blood may not, without the approval of the Secretary of theInterior, be sold, assigned, or transferred. Sale of any such interestshall be subject to the right of the Osage Tribe to purchase it withinforty-five days at the highest legitimate price offered the owner thereof.

(b) Prior to the time and tribal mineral income is segregated fordistribution to individual headright owners, the Secretary of theInterior, at the request of the Osage Tribal Council, may direct theuse of any such income for the purchase of Osage headright interestsoffered for sale to the Osage Tribe pursuant to this section or vested inthe Osage Tribe pursuant to section 7 of this Act.

Headright ormineral interest,alienationlimitations.25 USC 331 note.

25 USC 331 note.

92 STAT. 1663



PUBLIC LAW 95-496-OCT. 21, 1978

Determination. SEC. 9. Under such regulations as the Secretary of the Interior may25 USC 331 note. prescribe, the heirs and legatees of any deceased owner of an Osage

headright or mineral interest, real estate on which restrictions againstalienation have not been removed, and funds on deposit at the OsageAgency may be determined by the Secretary if such aggregate interestsdo not exceed $10,000: Provided, That no court of competent jurisdic-tion has undertaken the probate of the deceased's estate and a requestfor such administrative determination has been made to the Secretaryby one or more of the heirs or legatees.

Approved October 21, 1978.

LEGISLATIVE HISTORY:

HOUSE REPORT No. 95-1459, accompanying H.R. 11894 (Comm. on Interior andInsular Affairs).

SENATE REPORT No. 95-1157 (Select Comm. on Indian Affairs).CONGRESSIONAL RECORD, Vol. 124 (1978):

Sept. 8, considered and passed Senate.Oct. 3, H.R. 11894 considered and passed House; passage vacated, and S. 1081,

amended, passed in lieu.Oct. 7, Senate concurred in House amendments.

92 STAT. 1664



PUBLIC LAW 98-605-OCT. 30, 1984

Public Law 98-60598th Congress

To make certain technical corrections in various Acts relating to the Osage Tribe ofIndians of Oklahoma.

Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled,

SHORT TITLE

SECTION 1. This Act may be cited as the "Osage Tribe of IndiansTechnical Corrections Act of 1984".

AMENDMENTS TO THE OSAGE INDIAN ACT OF 1978

SEC. 2. (a) Section 2(a) of the Act approved October 21, 1978, andentitled "An Act to amend certain laws relating to the Osage Tribeof Oklahoma, and for other purposes." (92 Stat. 1660) is amended bystriking out "June 26, 1906' and inserting in lieu thereof "June 28,1906".(b) Section 5(7) of such Act is amended by striking out "(7)" and

inserting in lieu thereof "(c)".(c) Section 5(d) of such Act is amended to read as follows:"(dx1) Notwithstanding any provision of-

"(A) section 3 or 8 of the Osage Indians Act of 1912 (asamended by subsections (b) and (a), respectively), or

"(B) section 7 of the Osage Indians Act of 1925 (as amended bysubsection (c)),

any sale or transfer or any disposition by any other means of anyheadright shall be subject to section 7 of this Act.

"(2) Notwithstanding section 6(a) of this Act or section 8 of theOsage Indians Act of 1912, no Osage Indian may-

"(A) provide for the transfer of any interest of such person inany headright-

"(i) by will to any person which is not an individual, or"(ii) by the establishment of an inter vivos trust for the

benefit of any person which is not an individual; or"(B) provide, whether by the terms of a will, the terms of a

testamentary trust established by a will, or by the terms of aninstrument establishing an inter vivos trust, that any interestin any headright-

"(i) which such Osage Indian had (at the time of death ofsuch person or at the time any such inter vivos trust wasestablished), and

"(ii) in which any individual was granted a life estate bysuch Osage Indian,

may be transferred to or held for the benefit of any individualwho is not an Osage Indian upon the death of the individualwho held such life estate.".

(d) Section 6(b) of such Act is amended by striking out "membersof the Osage Tribe," and inserting in lieu thereof "Osage Indians,".

Oct. 30, 1984[H.R. 6303]

Osage Tribe ofIndiansTechnicalCorrections Actof 1984.

25 USC 331 note.

25 USC 331 note.

92 Stat. 1662,1661.

Post, p. 3167.

Post, p. 3164.

25 USC 331 note.92 Stat. 1661.

25 USC 331 note.

An Act

98 STAT. 3163

HeinOnline -- 98 Stat. 3163 1984

Add. 17


PUBLIC LAW 98-605-OCT. 30, 1984

25 USC 331 note. (e) Section 7 of such Act is amended to read as follows:

"RULES GOVERNING DEVOLUTION OF INTERESTS IN OSAGE HEADRIGHTS

Prohibition. "SEC. 7. (a) GENERAL RuLE.-No person who is not an OsageIndian may, on or after October 21, 1978, receive any interest in anyheadright, other than a life estate in accordance with subsection (b),whether such interest would be received by such person (but for thissubsection) under a will, a testamentary or inter vivos trust, or theOklahoma laws of intestate succession.

"(b) EXCEPTION FOR LIFE EsTATES.-Notwithstanding subsection (a)Ante, p. 3163. and subject to section 5(d)(2), an individual who is not an Osage

Indian may receive a life estate in any headright held by a testator,settlor, or decedent who is or was an Osage Indian under a will, orunder a testamentary trust established by a will, of such testator, aninter vivos trust established by such settlor, or the Oklahoma lawsof intestate succession relating to the administration of the estate ofsuch decedent.

"(c) SPECIAL RULES GOVERNING INTERESTS IN OSAGE HEADRIGHTUPON DEATH OF INDIVIDUAL WHO HELD LIFE ESTATE IN SUCHHEADRIGHT.-

"(1) DESIGNATED OSAGE REMAINDERMEN.-Upon the death ofany individual who is not an Osage Indian and who held a lifeestate in any headright of a testator or settlor described insubsection (b), all remaining interests in such headright shallvest in any remaindermen who-

"(A) are designated in the will of the testator or theinstrument establishing the trust of the settlor to receivesuch remainder interest, and

"(B) are Osage Indians.Prohibition. "(2) No DESIGNATED OSAGE EEMAINDERMEN.-Upon the death

of any individual who is not an Osage Indian and who held a lifeestate in any headright of a testator, settlor, or decedent de-scribed in subsection (b) who-

"(A) did not designate any remainderman who is anOsage Indian to receive any remaining interest in suchheadright in the will of such testator or instrument of suchsettlor, or

"(B) died intestate,all remaining interests in such headright shall vest in any heirs,as determined under the Oklahoma laws of intestate succession,of such testator, settlor, or decedent who are Osage Indians.

Prohibition. "(3) No HEIR WHO IS AN OSAGE INDIAN.-Upon the death of anyindividual who is not an Osage Indian and who held a life estatein any headright of an Osage testator, settlor, or decedentdescribed in subsection (b) who-

"(A) designated no remainderman who is an Osage Indianfor any remaining interest in such headright, and

"(B) had no heir under the Oklahoma laws of intestatesuccession who is an Osage Indian and is living at the timeof death of the individual who held such life estate,

all remaining interests in such headright shall vest in the OsageTribe of Indians.

"(d) LIABILITY OF TRIBE IN CASE OF REMAINDERMAN OR HEIR WHOis NOT AN OSAGE INDIAN.-In any case in which-

98 STAT. 3164


Add. 18


PUBLIC LAW 98-605-OCT. 30, 1984

"(1) any remainder interest of a testator, settlor, or decedentdescribed in subsection (b) vests in the Osage Tribe of Indiansunder subsection (c)(3), and

"(2) an individual who is not an Osage Indian and who, but forthis section, would have received any portion of such remaininginterest in the headright by virtue of-

"(A) having been designated under the will of such testa-tor, or the instrument of such settlor which established anysuch trust, to receive such remainder interest, or

"(B) being the heir of such decedent under the Oklahomalaws of intestate succession,

the tribe shall pay any such individual the fair market value of theportion of the interest in such headright such individual would havereceived but for this section.".

() Section 8(a) of such Act is amended to read as follows:"SEC. 8. (a)(1) No headright owned by any person who is not of

Indian blood may be sold, assigned, or transferred without theapproval of the Secretary. Any sale of any interest in such headright(and any other transfer which divests such person of any right, title,or interest in such headright) shall be subject to the following rightsof purchase:

"(1) First right of purchase by the heirs in the first degree ofthe first Osage Indian to have acquired such headright under anallotment who are living and are Osage Indians, or, if they allbe deceased, all heirs in the second through the fourth degree ofsuch first Osage Indian who are living and are Osage Indians.

"(2) Second right of purchase by any other Osage Indian forthe benefit of any Osage Indian in his or her individualcapacity.

"(3) Third right of purchase by the Osage Tribal Council onbehalf of the Osage Tribe of Indians.

No owner of any headright shall be required, by reason of thissubsection, to sell such headright for less than its fair market valueor to delay any such sale more than 90 days from the date by whichnotice of intention to sell (or otherwise transfer) such headright hasbeen received by each person with respect to whom a right ofpurchase has been established under this subsection.".

(g) Section 8(b) of such Act is amended to read as follows:"(b) Notwithstanding the paragraph designated 'First' of section 4

of the Osage Tribe Allotment Act or any other provision of law, anyincome from the Osage mineral estate may be used for the purchaseof any headright offered for sale to the Osage Tribal Council pursu-ant to subsection (a) or vested in the Osage Tribe pursuant to section7 if, prior to the time that any income from the Osage mineral estateis segregated for distribution to holders of headrights, the OsageTribal Council requests the Secretary to authorize such use of suchfunds and the Secretary approves such request.".

(h) Such Act is amended by adding at the end thereof the follow-ing new sections:

"SEc. 10. Except where any provision of this Act explicitly pro-vides otherwise, wherever the term 'Osage Indian' is used in thisAct, such term shall be construed so as to include any child who hasbeen adopted by an Osage Indian (pursuant to the decision of anycourt of competent jurisdiction) and any lineal descendant of suchchild.

"SEC. 11. For purposes of this Act-

25 USC 331 note.Prohibition.

25 USC 331 note.

34 Stat. 544.

Ante, p. 3164.

Children andyouth.25 USC 331 note.

25 USC 331 note.

98 STAT. 3165


Add. 19


PUBLIC LAW 98-605-OCT. 30, 1984

"(1) the term 'Osage mineral estate' means any right, title, orinterest in any oil, gas, coal, or other mineral held by theUnited States in trust for the benefit of the Osage Indian Tribe

34 Stat. 543. under section 3 of the Osage Tribe Allotment Act;"(2) the term 'headright' means any right of any person to

share in any royalties, rents, sales, or bonuses arising from theOsage mineral estate;

"(3) the term 'Secretary' means the Secretary of the Interior;"(4) the term 'person' has the meaning given to such term in

section 1 of title 1, United States Code;"(5) the term 'Osage Tribe Allotment Act' means the Act

approved June 28, 1906, and entitled 'An Act For the division ofthe lands and funds of the Osage Indians in Oklahoma Terri-tory, and for other purposes.' (34 Stat. 539);

"(6) the term 'Osage Indians Act of 1912' means the Actapproved April 18, 1912, and entitled 'An Act Supplementary toand amendatory of the Act entitled "An Act for the division ofthe lands and funds of the Osage Nation of Indians in Okla-homa," approved June twenty-eighth, nineteen hundred andsix, and for other purposes.' (37 Stat. 86); and

"(7) the term 'Osage Indians Act of 1925' means the Actapproved February 27, 1925, and entitled 'An Act To amend theAct of Congress of March 3, 1921, entitled "An Act to amendsection 3 of the Act of Congress of June 28, 1906, entitled 'AnAct of Congress for the division of the lands and funds of theOsage Indians in Oklahoma, and for other purposes.'" '(43 Stat.1008).".

AMENDMENTS TO THE OSAGE INDIANS ACT OF 1912

SEC. 3. (a) Section 3 of the Act approved April 18, 1912, andentitled "An Act Supplementary to and amendatory of the Actentitled 'An Act for the division of the lands and funds of the OsageNation of Indians in Oklahoma,' approved June twenty-eighth, nine-

92 Stat. 1662. teen hundred and six, and for other purposes." (37 Stat. 86) isamended by striking out "That the" and inserting in lieu thereof thefollowing:

"SEc. 3. Except as provided in sections 5(d) and 7 of the Actapproved October 21, 1978, and entitled 'An Act to amend certainlaws relating to the Osage Tribe of Oklahoma, and for other pur-

Ante, pp. 3163, poses.' (92 Stat. 1660), the".3164. (b) Section 8 of such Act is amended-92 Stat. 1661. (1) in the first sentence-

(A) by striking out "Any" and inserting in lieu thereofthe following:

"SE c. 8. Except as provided in sections 5(d) and 7 of the Actapproved October 21, 1978, and entitled 'An Act to amend certainlaws relating to the Osage Tribe of Oklahoma, and for other pur-poses.', any",

(B) by striking out "(real, person, and mixed," and insert-ing in lieu thereof "(real, personal, and mixed,",

(C) by inserting a comma after "removed",(D) by striking out "will executed" and inserting in lieu

thereof "the terms of a will, or the terms of a testamentarytrust created by a will, executed", and

(E) by striking out "State of Oklahoma:" and inserting inlieu thereof "State of Oklahoma, except that an Osage

98 STAT. 3166


Add. 20


PUBLIC LAW 98-605-OCT. 30, 1984

Indian under guardianship or conservatorship shall beexempt from the requirement that the will of such Indianshall be subscribed and acknowledged in the presence of adistrict judge:";

(2) by striking out the third sentence and inserting in lieuthereof the following new sentence: "Notice of such hearingshall be given at least 10 days before the hearing by publicationin a newspaper of general circulation in Osage County, Okla-homa, and by mailing to all known heirs, legatees, and deviseesat their last known addresses.";

(3) in the sixth sentence by striking out "of" where it appearsafter "date";

(4) by inserting after the eighth sentence the following newsentence: "In the case of any action in probate contesting thewill of any Osage Indian, the Secretary of the Interior mayapprove any settlement relating to such action with respect toany property under the jurisdiction of the Secretary.";

(5) in the last sentence by striking out "Such appeals" andinserting in lieu thereof "Any such appeal shall be filed in acourt of the United States with jurisdiction over such appealbefore the end of the 30-day period beginning on the date of thedecision of the Secretary and"; and

(6) by adding at the end thereof the following new sentences:"In the case of any property or interest in property (includingany headright) which was held by any Osage Indian decedent atthe time of death of such Indian and is subject to any restrictionagainst alienation, or which was held by the United States intrust for the benefit of any Osage Indian decedent, and which isproperty, or an interest in property, included in a testamentarytrust created by a will of such decedent-

"(1) only the Secretary of the Interior may be appointed as, ormay serve as, trustee with respect to any share of such trustproperty relating to a beneficiary of such trust who is an Indianwith respect to whom-

"(A) a certificate of competency has never been issued, or"(B) a certificate of competency has been revoked by the

Secretary of the Interior;"(2) only a bank or trust institution may be appointed as, or

may serve as, the trustee with respect to any share of such trustproperty relating to any beneficiary other than an Indian de-scribed in subparagraph (A) or (B) of paragraph (1); and

"(3) the inclusion of such property, or interest in property, insuch testamentary trust shall not affect-

"(A) the application, to such property, of any law and ruleof law which applies to property of Osage Indians or theOsage Tribe of Indians, including any restrictions againstalienation of lands or other property, or

"(B) the tax-exempt status of such property.".

AMENDMENTS TO THE OSAGE INDIANS ACT OF 1925

SEc. 4. Section 7 of the Act approved February 27, 1925, andentitled "An Act to amend the Act of Congress of March 3, 1921,entitled 'An Act to amend section 3 of the Act of Congress of June28, 1906, entitled "An Act of Congress for the division of the landsand funds of the Osage Indians in Oklahoma, and for other pur-poses."' " (43 Stat. 1008) is amended- 25 USC 331 note.

98 STAT. 3167


Add. 21


PUBLIC LAW 98-605-OCT. 30, 1984

Ante, pp. 3163,3164.

Children andyouth.

(1) by striking out "Hereafter" and inserting in lieu thereofthe following:

"SEc. 7. Except as provided in sections 5(d) and 7 of the Actapproved October 21, 1978, and entitled 'An Act to amend certainlaws relating to the Osage Tribe of Oklahoma, and for other pur-poses.', on or after October 21, 1978,";

(2) by inserting after "inherit" the following: ", in accordancewith the laws of the State of Oklahoma relating to intestatesuccession"; and

(3) by adding at the end the following new sentence: "Noadopted child of any Osage Indian who is not an Osage Indianshall be eligible to inherit, as the collateral heir (within themeaning of the laws of the State of Oklahoma relating tointestate succession) of any Osage Indian decedent, any prop-erty or interest in property held in trust by the Secretary of theInterior for the benefit of such decedent.".

AMENDMENTS TO THE ACT PROVIDING FOR THE DISTRIBUTION OFJUDGMENT FUNDS OF THE OSAGE TRIBE OF INDIANS

SEC. 5. Section 1(b) of the Act approved October 27, 1972, andentitled "An Act to provide for the disposition of judgment fundsof the Osage Tribe of Indians of Oklahoma." (86 Stat. 1295)

25 USC 883. is amended-(1) by striking out "or other socioeconomic programs", and(2) by striking out "programs to be administered" and insert-

ing in lieu thereof "program to be administered".

Approved October 30, 1984.

LEGISLATIVE HISTORY-H.R. 6303:

HOUSE REPORT No. 98-1115 (Comm. on Interior and Insular Affairs).CONGRESSIONAL RECORD, Vol. 130 (1984):

Oct. 2, considered and passed House.Oct. 9, considered and passed Senate.

98 STAT. 3168



§ 162a. Deposit of tribal funds in banks; bond or collateral..., 25 USCA § 162a

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedTitle 25. Indians

Chapter 4. Performance by United States of Obligations to IndiansSubchapter III. Deposit, Care, and Investment of Indian Moneys

25 U.S.C.A. § 162a

§ 162a. Deposit of tribal funds in banks; bond or collateral security;investments; collections from irrigation projects; affirmative action required

Currentness

(a) Deposit of tribal trust funds in banks

The Secretary of the Interior is hereby authorized in his discretion, and under such rules and regulations as he may prescribe, towithdraw from the United States Treasury and to deposit in banks to be selected by him the common or community funds of anyIndian tribe which are, or may hereafter be, held in trust by the United States and on which the United States is not obligated bylaw to pay interest at higher rates than can be procured from the banks. The said Secretary is also authorized, under such rulesand regulations as he may prescribe, to withdraw from the United States Treasury and to deposit in banks to be selected by himthe funds held in trust by the United States for the benefit of individual Indians: Provided, That no individual Indian money shallbe deposited in any bank until the bank shall have agreed to pay interest thereon at a reasonable rate, subject, however, to theregulations of the Board of Governors of the Federal Reserve System in the case of member banks, and of the Board of Directorsof the Federal Deposit Insurance Corporation in the case of insured nonmember banks, except that the payment of interest maybe waived in the discretion of the Secretary of the Interior on any deposit which is payable on demand: Provided further, Thatno tribal or individual Indian money shall be deposited in any bank until the bank shall have furnished an acceptable bond orpledged collateral security therefor in the form of any public-debt obligations of the United States and any bonds, notes, or otherobligations which are unconditionally guaranteed as to both interest and principal by the United States, except that no such bondor collateral shall be required to be furnished by any such bank which is entitled to the benefits of section 12B of the FederalReserve Act, with respect to any deposits of such tribal or individual funds to the extent that such deposits are insured undersuch section: Provided, however, That nothing contained in this section, or in section 12B of the Federal Reserve Act, shalloperate to deprive any Indian having unrestricted funds on deposit in any such bank of the full protection afforded by section12B of the Federal Reserve Act, irrespective of any interest such Indian may have in any restricted Indian funds on deposit in thesame bank to the credit of a disbursing agent of the United States. For the purpose of this section and said Act, said unrestrictedfunds shall constitute a separate and distinct basis for an insurance claim: Provided further, That the Secretary of the Interior, ifhe deems it advisable and for the best interest of the Indians, may invest the trust funds of any tribe or individual Indian in anypublic-debt obligations of the United States and in any bonds, notes, or other obligations which are unconditionally guaranteedas to both interest and principal by the United States: And provided further, That the foregoing shall apply to the funds of theOsage Tribe of Indians, and the individual members thereof, only with respect to the deposit of such funds in banks.

(b) Investment of collections from irrigation projects and power operations on irrigation projects

The Secretary of the Interior is authorized to invest any operation and maintenance collections from Indian irrigation projectsand revenue collections from power operations on Indian irrigation projects in--

(1) any public-debt obligations of the United States;

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(2) any bonds, notes, or other obligations which are unconditionally guaranteed as to both principal and interest by the UnitedStates; or

(3) any obligations which are lawful investments for trust funds under the authority or control of the United States.

The Secretary of the Interior is authorized to use earning 1 from investments under this subsection to pay operation andmaintenance expenses of the project involved.

(c) Investment of tribal trust funds in public debt obligations

(1) Notwithstanding subsection (a) of this section, the Secretary of the Interior, at the request of any Indian tribe, in the caseof trust funds of such tribe, or any individual Indian, in the case of trust funds of such individual, is authorized to invest suchfunds, or any part thereof, in guaranteed or public debt obligations of the United States or in a mutual fund, otherwise knownas an open-ended diversified investment management company if--

(A) the portfolio of such mutual fund consists entirely of public-debt obligations of the United States, or bonds, notes, or otherobligations which are unconditionally guaranteed as to both interest and principal by the United States, or a combinationthereof;

(B) the trust funds to be invested exceed $50,000;

(C) the mutual fund is registered by the Securities and Exchange Commission; and

(D) the Secretary is satisfied with respect to the security and protection provided by the mutual fund against loss of theprincipal of such trust funds.

(2) The Secretary, as a condition to complying with a request pursuant to paragraph (1) of this subsection, is authorized torequire such tribe or individual Indian, as the case may be, to enter into an agreement with the Secretary for the purpose ofrelieving the United States of any liability in connection with the interest, or amount thereof, payable in connection with suchtrust funds so invested during the period of that investment.

(3) Investments pursuant to paragraph (1) of this subsection shall be deemed to be the same as cash or a bank deposit forpurposes of section 955 of this title.

(d) Trust responsibilities of Secretary of the Interior

The Secretary's proper discharge of the trust responsibilities of the United States shall include (but are not limited to) thefollowing:

(1) Providing adequate systems for accounting for and reporting trust fund balances.

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(2) Providing adequate controls over receipts and disbursements.

(3) Providing periodic, timely reconciliations to assure the accuracy of accounts.

(4) Determining accurate cash balances.

(5) Preparing and supplying account holders with periodic statements of their account performance and with balances of theiraccount which shall be available on a daily basis.

(6) Establishing consistent, written policies and procedures for trust fund management and accounting.

(7) Providing adequate staffing, supervision, and training for trust fund management and accounting.

(8) Appropriately managing the natural resources located within the boundaries of Indian reservations and trust lands.

Credits(June 24, 1938, c. 648, § 1, 52 Stat. 1037; Nov. 4, 1983, Pub.L. 98-146, Title I, 97 Stat. 929; Nov. 29, 1990, Pub.L. 101-644,Title III, § 302, 104 Stat. 4667; Oct. 25, 1994, Pub.L. 103-412, Title I, §§ 101, 103(b), (c), 108 Stat. 4240, 4241.)

Notes of Decisions (32)

Footnotes1 So in original. Probably should be “earnings”.

25 U.S.C.A. § 162a, 25 USCA § 162aCurrent through P.L. 112-195 (excluding P.L. 112-140 and 112-141) approved 10-5-12

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§ 4011. Responsibility of Secretary to account for the daily and..., 25 USCA § 4011



Chapter 42. American Indian Trust Fund Management ReformSubchapter I. Recognition of Trust Responsibility

25 U.S.C.A. § 4011

§ 4011. Responsibility of Secretary to account for the daily and annual balances of Indian trust funds

Currentness

(a) Requirement to account

The Secretary shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of anIndian tribe or an individual Indian which are deposited or invested pursuant to section 162a of this title.

(b) Periodic statement of performance

Not later than 20 business days after the close of a calendar quarter, the Secretary shall provide a statement of performance toeach Indian tribe and individual with respect to whom funds are deposited or invested pursuant to section 162a of this title. Thestatement, for the period concerned, shall identify--

(1) the source, type, and status of the funds;

(2) the beginning balance;

(3) the gains and losses;

(4) receipts and disbursements; and

(5) the ending balance.

(c) Annual audit

The Secretary shall cause to be conducted an annual audit on a fiscal year basis of all funds held in trust by the United Statesfor the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to section 162a of this title,and shall include a letter relating to the audit in the first statement of performance provided under subsection (b) of this sectionafter the completion of the audit.

Credits(Pub.L. 103-412, Title I, § 102, Oct. 25, 1994, 108 Stat. 4240.)

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§ 4011. Responsibility of Secretary to account for the daily and..., 25 USCA § 4011



25 U.S.C.A. § 4011, 25 USCA § 4011Current through P.L. 112-195 (excluding P.L. 112-140 and 112-141) approved 10-5-12


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§ 4044. Reconciliation report, 25 USCA § 4044



Chapter 42. American Indian Trust Fund Management ReformSubchapter III. Special Trustee for American Indians

25 U.S.C.A. § 4044

§ 4044. Reconciliation report

Currentness

The Secretary shall transmit to the Committee on Natural Resources of the House of Representatives and the Committee onIndian Affairs of the Senate, by May 31, 1996, a report identifying for each tribal trust fund account for which the Secretaryis responsible a balance reconciled as of September 30, 1995. In carrying out this section, the Secretary shall consult with theSpecial Trustee. The report shall include--

(1) a description of the Secretary's methodology in reconciling trust fund accounts;

(2) attestations by each account holder that--

(A) the Secretary has provided the account holder with as full and complete accounting as possible of the account holder'sfunds to the earliest possible date, and that the account holder accepts the balance as reconciled by the Secretary; or

(B) the account holder disputes the balance of the account holder's account as reconciled by the Secretary and statementexplaining why the account holder disputes the Secretary's reconciled balance; and

(3) a statement by the Secretary with regard to each account balance disputed by the account holder outlining efforts theSecretary will undertake to resolve the dispute.

Credits(Pub.L. 103-412, Title III, § 304, Oct. 25, 1994, 108 Stat. 4248.)


25 U.S.C.A. § 4044, 25 USCA § 4044Current through P.L. 112-195 (excluding P.L. 112-140 and 112-141) approved 10-5-12


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Rule 12. Defenses and Objections: When and How Presented;..., FRCP Rule 12


United States Code AnnotatedFederal Rules of Civil Procedure for the United States District Courts (Refs & Annos)

Title III. Pleadings and Motions

Federal Rules of Civil Procedure Rule 12

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgmenton the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Currentness

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleadingis as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading thatstates the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the orderspecifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a UnitedStates agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint,counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in anindividual capacity for an act or omission occurring in connection with duties performed on the United States' behalf mustserve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or serviceon the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

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(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days afterthe more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleadingif one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets outa claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. Nodefense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed--but early enough not to delay trial--a party maymove for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside thepleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsivepleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion mustbe made before filing a responsive pleading and must point out the defects complained of and the details desired. If the courtorders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the courtsets, the court may strike the pleading or issue any other appropriate order.

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(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent,or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days afterbeing served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rulemust not make another motion under this rule raising a defense or objection that was available to the party but omitted fromits earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b),or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

(B) by a motion under Rule 12(c); or

(C) at trial.

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(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the courtmust dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)--whether made in a pleading or bymotion--and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

Credits(Amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; February 28, 1966, effectiveJuly 1, 1966; March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993; April 17, 2000, effectiveDecember 1, 2000; April 30, 2007, effective December 1, 2007; March 26, 2009, effective December 1, 2009.)

Editors' Notes

ADVISORY COMMITTEE NOTES1937 Adoption

Note to Subdivision (a). 1. Compare [former] Equity Rules 12 (Issue of Subpoena--Time for Answer) and 31 (Reply--WhenRequired--When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) §§ 9107, 9158; N.Y.C. P.A. (1937) § 263; N.Y.R.C.P. (1937)Rules 109-111.

2. U.S.C., Title 28, § 763 (now § 547) (Petition in action against United States; service; appearance by district attorney) providesthat the United States as a defendant shall have 60 days within which to answer or otherwise defend. This and other statuteswhich provide 60 days for the United States or an officer or agency thereof to answer or otherwise defend are continued bythis rule. In so far as any statutes not excepted in rule 81 provide a different time for a defendant to defend, such statutesare modified. See U.S.C., Title 28, [former] § 45 (District courts; practice and procedure in certain cases under the interstatecommerce laws) (30 days).

3. Compare the last sentence of [former] Equity Rule 29 (Defenses--How Presented) and N.Y.C.P.A. (1937) § 283. See Rule15(a) for time within which to plead to an amended pleading.

Note to Subdivisions (b) and (d). 1. See generally [former] Equity Rules 29 (Defenses--How Presented), 33 (TestingSufficiency of Defense), 43 (Defect of Parties--Resisting Objection), and 44 (Defect of Parties--Tardy Objection); N.Y.C.P.A.(1937) §§ 277-280; N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the Judicature Act (The Annual Practice, 1937)O. 25, r.r. 1-4; Clark, Code Pleading, 1928, pp. 371-381.

2. For provisions authorizing defenses to be made in the answer or reply see English Rules Under the Judicature Act, (TheAnnual Practice, 1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) §§ 378, 379. Compare Equity Rule 29 (Defenses--HowPresented); U.S.C.A., Title 28, [former] § 45 (District Courts; practice and procedure in certain cases under the interstatecommerce laws). U.S.C., Title 28, [former] § 45, substantially continued by this rule, provides: “No replication need be filedto the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense mustbe taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at anytime before answer is filed.” Compare Calif.Code Civ.Proc., (Deering, 1937) § 433; 4 Nev.Comp.Laws (Hillyer, 1929) § 8600.For provisions that the defendant may demur and answer at the same time, see Calif.Code Civ.Proc. (Deering, 1937) § 431;4 Nev.Comp.Laws (Hillyer, 1929) § 8598.

3. [Former] Equity Rule 29 (Defenses--How Presented) abolished demurrers and provided that defenses in point of law arisingon the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law

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CERTIFICATE OF SERVICE

On November 14, 2012, the foregoing Answering Brief of the

United States was electronically filed with the Court’s CM/ECF System,

which will serve notice of such filing on counsel registered to receive

ECF service. I further certify that two paper copies of the foregoing

were served on each of the following individuals who are not registered

to receive electronic service:

Jason Bjorn Aamodt Aamodt Law Firm 1723 South Boston Avenue Tulsa, OK 74119 e-mail: [email protected] Amanda Sue Proctor Sneed Lang Herrold 1700 Williams Center Tower I One West Third Street Tulsa, OK 74103-3522 e-mail: [email protected]

/s/ Katherine W. Hazard KATHERINE W. HAZARD Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, DC 20044 (202) 514-2110 [email protected]


Documents

Appellate Case: 12-5078 Document: 01018950828 Date Filed: … · 2013-09-17 · inheritance and transfers, since distributions first began under the 1906 Act, of approximately 1700