CHAPTER 12 NATIVE AMERICAN JURISDICTION AND PERMITTING
| Jurisdiction | United States |
(Jan 1995)
NATIVE AMERICAN JURISDICTION AND PERMITTING
Crowley, Haughey, Hanson, Toole & Dietrich
Billings, Montana
TABLE OF CONTENTS
1. INTRODUCTION
II. LAND STATUS WITHIN RESERVATIONS
III. UNDERLYING LEGAL PRINCIPLES IMPACTING RIGHTS-OF-WAY ACROSS INDIAN LANDS
A. The Sovereign Status of Indian Tribes
B. The "Trust Doctrine"
C. Restraints on Alienation of Indian Lands
D. Self-Determination of Indian Tribes
E. Inapplicability of State Law Concepts
IV. STATUTORY AUTHORITY FOR OIL AND NATURAL GAS PIPELINE RIGHTS-OF-WAY ACROSS INDIAN LANDS
A. The Act of March 11, 1904
B. The Act of February 5, 1948
V. THE REGULATORY SCHEME
VI. CONDEMNATION
A. Tribal Land
B. Allotted Lands
C. Possible Application of the Natural Gas Act
VII. OTHER FEDERAL ACTS APPLICABLE TO THE CONSTRUCTION PIPELINES ACROSS INDIAN LANDS
A. American Indian Religious Freedom Act
B. Archaeological Resources Protection Act
C. Historic and Archaeological Data Preservation Act
D. National Historic Preservation Act
E. Native American Graves Protection and Repatriation Act
F. National Environmental Policy Act
G. Clean Water Act
H. Clean Air Act
VIII. THE TRIBAL ROLE
A. Compensation
B. Placement of Lines
C. Burial of Pipelines
D. Transportation Rights
E. Term Limitations
F. Surface Damages
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IX. SPECIAL CONSIDERATIONS
A. Sovereign Immunity
(a) Tribal Sovereign Immunity
(b) Immunity of Tribal Officials
B. Taxation
C. Tribal Employment Laws
D. Tribal Zoning, Health and Environmental Laws
E. Tribal Laws Affecting Assignments
F. Dispute Resolution
(a) Utilization and Exhaustion of Tribal Courts
(b) Arbitration
(c) Choice of Laws and Venue Provisions
G. Knowledge of Laws/Post-Agreement Changes
H. Absence of Constitutional Protection
I. Application of Worker's Compensation Laws
X. CONCLUSION
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I. INTRODUCTION.
There are, scattered across more than 25 states1 throughout the United States, nearly 300 different Indian reservations.2 Some, like the Navajo Reservation, occupy millions of acres of land, while some "reservations" may occupy only an acre or two. Collectively, roughly 52.2 million acres of land in the Continental United States is owned in trust by the United States for Indian tribes (hereinafter generally referred to as "tribal land") or for individual Indians (hereinafter generally referred to as "allotted lands").3 Of this total, approximately 44.2 million acres is tribal land.4
This combined 52.2 million acres of tribal and allotted land is approximately equivalent to an area the size of the state of Kansas.5 While various reservations are located in isolated regions of the country, many reservations are located within major transportation corridors. Although firm figures were not available, it appears that something in excess of 4,500 miles of major gas transmission lines lie within Indian reservations in the western United States. In addition, it appears that in the Rocky Mountain region alone, nearly 1,000 miles of major oil pipelines are located within Indian reservations.
In addition to the above, there are significant deposits of oil and natural gas which lie within the boundaries of a number of Indian reservations. In 1993, approximately 189 million MCF of gas and 15 million barrels of oil were produced from leases covering allotted and tribal lands.6 These figures represent roughly 1% of the total gas produced within the United States in 1993, and approximately 6/10th of 1% of the total of all oil produced within the United States.7
As these facts and figures indicate, rights-of-way across Indian lands are, and will continue to be an important part of the integrated systems which transport this nation's energy resources from their point of production to their point of final use. The nature of rights-of-way across Indian lands, and the manner in which they are acquired are unique,8 and often times one is left with the impression that the acquisition of rights-of-way across Indian lands is
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a mysterious process, embarked upon by only a few "brave souls." While this paper could not, and does not attempt to address every issue or concern which might arise in the course of negotiating for, or in the operation of, an oil or natural gas pipeline right-of-way across Indian lands, it is hoped that this paper will remove some of the mystic which seems to surround rights-of-way crossing Indian lands, and perhaps this paper will cause an increase in the number of those "brave souls" acquiring and operating rights-of-way across such lands.
II. LAND STATUS WITHIN RESERVATIONS
The status of land ownership within Indian reservations varies significantly, depending on the particular Acts of Congress applicable to the reservation under review, and the allotment history of the reservation. While most reservations, as originally established, covered vast land areas, with the land within such areas being set apart for the absolute or undisturbed use of the particular tribe involved, rarely did these reservations remain unaffected by subsequent Acts of Congress which not only reduced the size of the reservation, but also altered the land ownership patterns.
Many reservations were created at a time when the policy of Congress was to place tribes within certain defined areas where the individual tribal members were to remain, in order to preserve peace between these Indians and non-Indian settlers.9 After the establishment of many of these reservations, the attitude of Congress changed to one which sought the eventual assimilation of individual Indians into the mainstream of American society, while gradually ending the need for Indian reservations and Indian tribes.10 To accomplish this, lands within reservations were often allotted to individual tribal members, with surplus lands then being opened to homestead by non-Indians.11
As a result of this historic backdrop, a checkerboard land ownership pattern exists on many reservations in the western United States. Non-Indian parties may own extensive portions of a reservation in the western United States. In addition, various reservation land may be owned by the state wherein the reservation is located as a result of various State Enabling Acts.12 While significant portions of land were returned to the beneficial ownership of Indian tribes following the passage of the Indian Reorganization Act of 1934,13 certain tracts of land remain owned by the United States for its own account.14 Tribes have, in recent years, undertaken land acquisition programs, and some lands remain owned by the acquiring tribe in fee status. Finally, individual Indians may also own property in fee status, although
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most individually owned Indian land is owned by the United States in trust for individual Indians.
The checkerboard nature of land ownership within Indian reservations raises several issues which may potentially impact parties seeking to obtain rights-of-way across Indian reservations. To better understand these issues and their significance, it is helpful for a party obtaining a right-of-way across Indian lands to have at least some rudimentary understanding of the unique nature and history of tribal and allotted lands.
The ownership of tribal land is unique in the American property law context.15 Tribal land is considered to be equitably owned by the particular tribe for all members of the tribe.16 No tribal member has any inheritable right to any particular tract of tribal land, nor can any tribal member force the partition of tribal lands.17 Rather, tribal lands comprise what has been termed as the "essential base of tribal culture, development and society."18
The General Allotment Act of 1887,19 (commonly referred to as the Dawes Act) established common procedures for the selection of allotments of tribal lands by or for individual Indians.20 The General Allotment Act authorized the allotment of reservations in those instances where it was determined that reservation lands could be utilized in a beneficial manner by individual Indians.21 When this determination was made, the applicable allotment act or acts would provide for the allocation or "allotment" of a set number of acres of reservation property to each individual Indian qualified under the terms of the appropriate allotment act to receive an allotment.22
The intent of the General Allotment Act was both the assimilation of individual Indians into modern American society, and the termination of tribal land ownership. This termination of tribal land ownership was considered critical since such ownership was viewed by many as a detriment to the economic and social development of individual Indians.23 The General Allotment Act provided that the United States would hold an individual allottee's land in trust, by means of a "trust patent". The trust patent evidenced the selection of the lands described in
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the trust patent, but the United States continued to hold legal title to the lands for the trust period, which typically was set at 25 years. This system was intended to vest individual Indians with an ownership interest in the selected land while retaining in the United States the power to review, and approve or disapprove, transactions which could result in the Indian owner being divested of such property.24 During this 25-year period, the allottee could not sell or mortgage the lands comprising the allotment,25 and the lands remained free from taxation.26 It was thought by Congress that this 25-year period would provide the Indian allottee sufficient time to adjust to his new role in society, and allow the allottee to gain sufficient sophistication to deal with and effectively manage his or her individual property.27
The General Allotment Act had no application to the lands occupied by the Cherokees, Creeks, Choctaws, Chickasaws and...
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