CASE STUDIES IN INDIGENOUS MINERAL DEVELOPMENT
| Jurisdiction | Derecho Internacional |
CASE STUDIES IN INDIGENOUS MINERAL DEVELOPMENT
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MATTHEW J. MCKEOWN2 is the Regional Solicitor, Rocky Mountain Region, for the U.S. Department of the Interior, Office of the Solicitor, in Lakewood, Colorado. In this capacity, Matt oversees the legal work for every Interior Department agency within his region. Prior to taking his current position, Matt was Associate Solicitor for Mineral Resources, Associate Solicitor for Land and Water, and Deputy Solicitor. Matt also served as Principal Deputy Attorney General for the Justice Department's Environment and Natural Resources Division. Before commencing federal service, Matt spent seven years as a Deputy Attorney General for the State of Idaho. Matt received his law degree from the University of Oregon and his bachelor's degree in English (with a Film and Communications focus) from McGill University in Montreal.
Long before Europeans arrived in America, tens of millions of indigenous peoples inhabited North America as self-governing societies and independent, political powers.3 The drafters of the Articles of Confederation recognized tribes as sovereign nations with legal rights, akin to states and foreign nations, and subject to congressional plenary power.4 The United States Constitution protects this unique status of federally-recognized tribal nations.5 In the wake of newly acquired independence from Great Britain, the United States sought to obtain Indian lands while Indian tribes looked to maintain their inherent sovereignty.6 Out of these completing interests grew tribal self-determination and federal trust responsibility that largely inform Federal Indian law and are at the apex of mineral development of tribal land today.
This paper will discuss the unique status of tribal nations within the framework of self-determination and federal trust responsibility. This paper will proceed in four parts. Part I will provide an overview of the unique relationship between tribal nations and the United States government. Part II will assess United States federal regulation of mineral resource extraction
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and its growing support of tribal self-determination. Part III evaluates internal tribal opposition to mineral development and self-regulation. Lastly, Part IV provides exemplary case studies of quintessential issues resulting from mineral development on tribal land.
I. Overview: Tribal Self-Determination in American Law & Mineral Development
A. Trust responsibility
Tribal nations have a unique history and position within the United States legal hierarchy.7 The United States government recognized the sovereignty of tribal nations since American independence.8 Yet, this sovereignty was and remains distinct from independence from federal power.9 Federal power over native nations is "plenary and exclusive," deriving from the United States Constitution.10 Courts have upheld "plenary power" to establish the parameters of the government-to-government relationship with tribes, including the power to recognize and terminate tribal relations with the United States and limit tribal authority without tribal consent.11 Plenary power is general federal authority over Indian affairs.12 This includes congressional power to impose federal regulations onto tribal life and, ultimately, fully control the tribal exercise of sovereign powers.13
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Arguably most relevant to mineral development is that plenary power includes the power to manage tribal and individual property the federal government holds in trust for tribal nations, to take new land into trust for tribes, and add to or create new reservations.14 Tribal nations' unique legal status arises from inherent sovereignty which the United States recognizes, subject to federal plenary power giving rise to federal trust duty.15
The Supreme Court first recognized the existence of an Indian-federal trust relationship in cases interpreting Indian treaties.16 Between 1787 and 1871, the United States entered into nearly 400 treaties with tribes.17 Generally, the treaty arrangement consisted of the United States government obtaining the land it wanted from the tribe, and in return, the United States set aside other reservation lands for the tribes and guaranteed that the federal government would respect the sovereignty of the tribes, protect the tribes, and provide for the well-being of the tribes.18 The result of these treaties was the United States held the fee title of Indian property in trust for the tribes in exchange for fulfilling its fiduciary duty owed to the tribe.19 There are three primary components to the United States' fiduciary duty under the Indian-federal trust doctrine: the United States has a responsibility to protect Indian trust lands and Indian rights to use those lands; the United States government has a duty to protect tribal sovereignty and rights of self-
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governance; and the United States government has a duty to provide basic social, medical, and educational services for tribal members.20
Between 1887 and 1934, the federal government took more than 90 million acres from tribes, nearly two-thirds of all reservation lands, without compensation, and sold it to settlers.21 Today, most tribal land is held in trust by the federal government for the benefit of the tribe.22 In fulfilling its trust obligation, Congress places most tribal trust land and other property under the control of Secretary of the Interior.23
B. Rise of self-determination, mineral development, environmental regulation
Historically, federal policy under the trust doctrine left tribes very little decision-making authority or rights over trust property.24 Federal Indian policy began to take a marked shift beginning in the 1930s.25 In 1934 Congress passed the Indian Reorganization Act "to halt and reverse the abrupt decline in the economic, cultural, governmental, and social well-being of Indian tribes caused by the disastrous federal policy of 'allotment' and sale of reservation lands."26 The Indian Reorganization Act decreased federal control of American Indian affairs
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and promoted tribal self-determination, granting each Indian tribe "the right to organize for its common welfare, and . . . adopt an appropriate constitution and bylaws[.]"27
Following the passage of the Indian Reorganization Act of 1934, Congress implemented, through legislation and policy, further federal support for tribal self-determination and mineral development on tribal trust land.28 Shortly after the enactment of the Indian Reorganization Act, Congress passed the Indian Mineral Leasing Act of 1938, which provides tribal nations the ability to negotiate with third parties to extract discovered mineral resources in exchange for a set royalty percentage and attempts to maximize financial returns.29 Notably, in 1970, President Nixon set a new direction for Indian policy aimed at promoting Indian self-determination.30 In 1975, Congress passed the Indian Self-Determination and Educational Assistance Act which allowed tribes to take over certain responsibilities from the federal government arising out of the Indian-federal trust doctrine.31 This gave rise to tribal collective action. Thirty-nine Indian tribes joined together to form the Council for Energy Resource Tribes (CERT) to collectively manage their energy resources.32 CERT proved itself revolutionary in broadening the scope of tribal self-
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determination in the context of mineral development.33 With the support of CERT, tribes gained additional rights in 1982 under the Indian Mineral Development Act (IMDA) which allows tribes to negotiate mineral development agreements of all types, not just leases.34 Most recently, tribes obtained additional decision-making authority to enter into energy-related agreements and leases and grant rights-of-way for pipelines, electric transmission, and distribution lines without the review and approval of the Secretary of the Interior.35
The rise in federal law promoting tribal self-determination over mineral development on tribal lands was due, in part, to the need for and desire to extract abundant mineral resources from tribal land, all of which was held in trust by the United States.36 Among the 565 federally recognized tribes, 337 reside in the lower 48 states, on reservations covering nearly 56 million acres (or about 2.3 percent of the country's total land base). Of this land, the U.S. Department of the Interior (DOI) estimates that there are "15 million acres of potential energy and mineral resources" in addition to the 2.1 million acres already being tapped for its resource wealth.37 Based on a number of reports, Indian lands contain about 30 percent of the coal found west of the Mississippi River, up to 50 percent of potential uranium reserves, and as much as 20 percent of known natural gas and oil reserves.38
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Pursuant to the aforementioned authorities facilitating extraction of mineral resources, following WWII from 1955 through 1975, a major effort ensued to develop mineral resources on tribal lands in the American Southwest.39 Southwestern cities had exhausted their own local resources and political leaders organized a concerted campaign to develop Indian land, minerals, and water.40 This resulted in the "Big Buildup," the extraction of mineral resources and development of major coal mines and counterpart power plants on tribal land to create the modern Southwest.41
II. Surface Mining Control and Reclamation Act & Tribal Primacy
In parallel to the Big Buildup was the rise of modern federal environmental law and policy.42 With the post-WWII rapid rise of mineral development and large-scale strip mining of Indian lands for coal came serious environmental problems.43 In 1970, President Nixon signed the National Environmental Policy Act into law and created the...
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