CHAPTER 2 FEDERAL APPROVAL AND OVERSIGHT OF NATURAL RESOURCES LEASES, AGREEMENTS & CONTRACTS ON INDIAN LANDS

• Jurisdiction: United States

Natural Resources Development on Indian Lands
(Mar 2011)
CHAPTER 2
FEDERAL APPROVAL AND OVERSIGHT OF NATURAL RESOURCES LEASES, AGREEMENTS & CONTRACTS ON INDIAN LANDS
Robert E. Hall ^*
Department of the Interior
Office of the Regional Solicitor, SW Region
Albuquerque, New Mexico
Johnna M. Blackhair
Bureau of Indian Affairs, Southwest Region
Albuquerque, New Mexico

ROBERT E. HALL is a relative newcomer to the practice of federal Indian law and to the Department of the Interior, which he joined in 2006. He is currently the Assistant Regional Solicitor in the Southwest Regional Office of the Office of the Solicitor. Before moving to Albuquerque, Rob was a staff attorney in the Division of Indian Affairs, Water & Power Branch, in Washington, D.C. He joined the Office of the Solicitor after serving as a law clerk to the Honorable Emily C. Hewitt, currently Chief Judge of the U.S. Court of Federal Claims, where he worked primarily on tribal trust cases. Rob took up federal Indian law after working for nearly twenty years in Africa and the Caribbean as an institutional expert for the World Bank, UNDP, FAO, and the U.S. Agency for International Development, where he specialized in institutional capacity building and public sector reform in the natural resource, environment, and wildlife sectors. He is a graduate of the University of Arizona, James E. Rogers College of Law, where he served as Managing Editor of the Arizona Journal of International and Comparative Law. He has an undergraduate degree in Political Science from Kansas State University, where he graduated magna cum laude and was inducted into Phi Beta Kappa, and a graduate degree from Binghamton University. He also undertook doctoral studies at Cornell University in International Sociology and Rural Development. He is a member of the State Bar Association of Oregon.

JOHNNA BLACKHAIR is an enrolled member of the Chippewa-Cree Tribe of Rocky Boy, Mt. Currently, Johnna is the Southwest Region Realty Officer for the Bureau of Indian Affairs (BIA) in Albuquerque, NM. She is responsible for the overall planning, organization, staffing, collaboration, execution and coordination of all administration of Real Estate Services and providing training and technical assistance for 9 Agencies serving 14 Pueblos, 2 Self Governed Pueblos, and 7 PL93-638 Contract Tribes in the states of Utah, Colorado, New Mexico and Texas. She was hired by the Southwest Regional Director in August of 2010. Johnna was employed by Pennzoil Refinery in Roosevelt Utah and hired by the Northern Ute Tribe in 1988 as a Legal Assistant to the Tribe's General Counsel. She worked directly for the Tribe's Business Committee coordinating proposals and litigation before she began her government service with BIA, Uintah & Ouray Agency. Her BIA career began in Land Operations, Soil Conservation & Range Management in 1991 to 1994. She accepted a position in as a Realty Specialist for Rights-of-way where she managed 1.2 million surface acres and worked with 39 operators producing oil and natural gas. She was involved in the Uintah Basin Inter-Agency Collaborative Group to support Indian Energy Development. She became the Realty Officer in 2003 as such, managed a total of 4.2 million Indian trust acres comprised of surface & minerals for the Northern Ute Tribe and the Skull Valley Band of Goshute. Johnna is a Contracting Officer and directed a congressionally funded contract for the Tribe's Energy & Minerals Department in 2001 to July 2010. She became involved with the Tri-Ute Tribal Council comprised of the Northern Ute, Southern Ute and Ute Mountain Ute Tribes to improve Real Estate Services and Energy Development. While employed with BIA, she earned her Degree in Business Administration and Information Education, certification as an Indian Land Professional in 2004, and Indian Trust Fiduciary Officer in 2005. In 2007, Johnna accepted a "Detail" to the Western Regional Office in Phoenix, Arizona as the Deputy Trust Director of Indian Services where she was responsible for 14 Agencies and the day-to-day operations and administration of the Bureau's Indian Trust Service programs and its 12,950,000 acres primarily in the states of Arizona, Nevada and Utah. Portions are also in California, Oregon and Idaho. Johnna Blackhair is honored to represent the Bureau of Indian Affairs and participate in this event for the RMMLF & Indian Lands Institute.

I. INTRODUCTION

Current federal statutory and regulatory frameworks governing access to and the development of natural resources on Indian lands are deeply rooted both in concepts of medieval European political theory¹ and pragmatic judicial opinions from this nation's high court. This paper seeks to provide a general understanding of the federal statutes and regulations governing access to and the development of natural resources, and in particular of mineral resources, on Indian lands. A short historical overview provides the background for consideration of the regulatory regimes presently in use.

This simple recounting is meant to underscore three factors that have informed the course of natural resources development on Indian lands. The first factor is recognition early in this country's history, arguably from the outset of Western contact, of the sovereign status of native nations and their authority to control the lands they occupied. This recognition has served to protect Native American ownership of natural resources even while allowing for the large-scale divestment of lands and resources through treaties, cessions, land exchanges, and allotment. Second, natural resources exploration and development has taken place within a regulatory framework that largely encouraged resource exploitation while seeking to protect the interests of the resource owner. The third factor is the changing balance between federal control and tribal authority over access to and use of Indian lands. As will be shown in the review of regulatory regimes, control has shifted practically and legally from the Indian agent to a federal trustee mandated to act in the best interest of Indian tribes, and increasingly toward the Indian mineral owner as lessor, developer and resource entrepreneur.

These three factors - regulatory frameworks that encourage resource development, protection of the rights of the resource owner (including sovereign Indian nations and individual Indian landowners), and the evolving federal understanding of acting "in the best interests of the Indian" - will emerge in different forms as we review the basis for and expression of federal approval and oversight over natural resources agreements on Indian lands. The focus of the

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presentation is on the administration of federal statutes and regulations^** governing Indian mineral resources rather than on the trust relationship between the federal government and tribes and individual Indians.²

II. CONTROLLING ACCESS TO INDIAN LANDS AND RESOURCES

The laws and regulations governing access to and exploitation of minerals on Indian lands are anchored in the early recognition of Indian tribes as sovereign entities capable of entering into treaties with external sovereigns³ and by the assertion of federal supremacy over relations with and matters concerning Indian tribes.⁴ The regulation of trade with Indians was a matter of concern to the Continental Congress, which designated it as a function of central government in the Articles of Confederation.⁵ The primacy of the federal government over treaties with Indian tribes and laws governing commercial relations with tribes was recognized in the United States Constitution.⁶

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A. Restricting Land Sales and Dismemberment of the Indian Land Base: The Trade and Intercourse Acts and the General Allotment Act of 1877

The allure of Indian-held resources, competition for land and trade, encroachment by settlers and attempts to assert state regulatory authority led to continued friction between tribes, assertive state governments, and a fragile central authority. An early initiative to assert central control over two activities that provoked heightened conflict was passage of a series of acts to regulate trade and the sale of lands by Indians.⁷ The first act regulating trade and intercourse with Indians and Indian tribes, enacted July 22, 1790, included provisions for licensing and bonding traders,⁸ prosecuting non-Indians charged with crimes against "friendly Indians" on Indian lands,⁹ and required federal approval of lands sales by individual Indians and tribes.¹⁰ Section 4 of the 1790 act expressly invalidated Indian land sales to individuals or states that were not authorized by the United States.

And be it further enacted, That no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.¹¹

Congress retained the absolute invalidation of such transfers with the passage of the permanent trade and intercourse Act of June 30, 1834.¹² The 1834 Act contained thirty sections addressing in detail the conduct of relations between Indians and non-Indians.¹³ Section 12 of the 1834 Act, codified at 25 U.S.C. § 177, provides as follows:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant

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to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or...