Final Regulations Implementing the Indian Mineral Development Act
| Publication year | 1994 |
| Pages | 2119 |
| Citation | Vol. 23 No. 9 Pg. 2119 |
1994, September, Pg. 2119. Final Regulations Implementing the Indian Mineral Development Act
On March 30, 1994, the Bureau of Indian Affairs ("BIA") of the Department of the Interior ("DOI") published final regulations implementing the Indian Mineral Development Act ("IMDA").(fn1) The final regulations were published in 59 Fed. Reg. 14,960 (1994), and will appear at 25 C.F.R. Part 225. They are intended to foster the development of Indian-owned minerals by providing guidance in negotiating, drafting and obtaining approval for minerals agreements under the IMDA.
As a result of the historical "trust" relationship that exists between Indian tribes and the United States,(fn2) most Indian lands are subject to restraints on alienation imposed by the federal government. Most land belonging to Indian tribes, as well as much of the land belonging to individual Indians, cannot be sold or leased without the approval of the Secretary of the DOI ("Secretary").(fn3)
Congressional regulation and restraints on alienation of Indian lands began with the Act of July 22, 1790, otherwise known as the Indian Nonintercourse Act.(fn4) As the United States expanded, a broad national policy to open the West for settlement by non-Indians grew as well, and the protectionism expressed in the Indian Nonintercourse Act gave way to the hunger for open land expressed in the Dawes Act of 1887, otherwise known as the Indian General Allotment Act.(fn5)
Under the allotment policy articulated in the General Allotment Act and other specific acts promulgated in the late 1800s and early 1900s, lands formerly held in communal ownership by various Indian tribes were parcelled out in severalty to Indian families to promote assimilation. Surplus lands left over after each eligible Indian had received an allotment were then opened to non-Indians for purchase or homesteading.(fn6)
Similar to tribally owned lands under the Nonintercourse Act, individual Indian allotments under the General Allotment Act were subject to federally imposed restrictions against alienation. Indian allotments were conveyed to the United States in trust for the Indian allottee or beneficiary for a period of twenty-five years, unless such period was extended by Presidential decision. During this trust period, conveyance of the allotted land or contracts concerning the land were prohibited.
At the end of the trust period, the Indian allottee would receive an unrestricted, fee simple patent to the allotment, although many individual allotments remain in trust status with the concomitant restraints on alienation to this day. Similar to the abatement of the restraints on alienation of tribally owned lands, the absolute prohibition on alienation of allotted parcels under the Dawes Act was later modified by various statutes permitting sale or lease of such lands with U.S. governmental approval.(fn7)
The allotment policy ended with the Indian Reorganization Act of 1934 ("IRA").(fn8) The IRA mandated that henceforth no reservation lands would be allotted in severally.(fn9) The IRA also extended the existing periods of trust and corresponding restrictions on alienation of Indian lands until otherwise directed by Congress.(fn10) Thus, most tribally owned lands and individually owned Indian allotments remain subject to restraints on alienation and require U.S. governmental approval prior to leasing for oil and gas development.
Today, oil and gas resources on Indian lands are developed or leased under three primary acts. These acts apply to tribally owned lands and allotted lands that remain subject to restraints on alienation. Leases and agreements entered into under the auspices of these acts are subject to final approval by the Secretary.
Allotted lands that remain subject to restrictions against alienation or are still held in trust by the federal government are authorized to be leased for oil and gas development by the Act of March 3, 1909 ("1909 Act").(fn11) Regulations promulgated under the 1909 Act include 25
C.F.R. Part 212 (Leasing of Allotted Lands for Mining).
Tribally owned lands were authorized for oil and gas leasing under the Act of May 11, 1938 ("1938 Act"), otherwise known as the...
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