CHAPTER 5 ASSESSMENT OF CURRENT FEDERAL INDIAN LAW AND POLICY

• Jurisdiction: United States

Natural Resources Development on Indian Lands
(Mar 2011)
CHAPTER 5
ASSESSMENT OF CURRENT FEDERAL INDIAN LAW AND POLICY
Christopher Clark Deschene
Window Rock, Arizona
Donald (Del) Laverdure
Department of the Interior
Washington D.C.

CHRISTOPHER CLARK DESCHENE, State Representative, Window Rock, Arizona

DONALD (DEL) LAVERDURE, Deputy Assistant Secretary for Indian Affairs, Department of the Interior, Washington D.C. (invited)

March 3, 2011, Albuquerque, NM

Law Offices of Schaff & Clark-Deschene, LLC

749 Deer Trail Road

Boulder, CO 80302

(480) 544-7381

clarkdeschene@gmail.com

Energy Development in Indian Country

▪ The BIA reports that there is approximately 56 million acres of land held in trust for individual Indian and tribal communities.¹

▪ Of the 56 million acres, the BIA reports that approximately 17 million acres have some energy potential with 1.81 million acres currently developed.²

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Outline

▪ History of Federal Indian Laws

▪ Effects to Indian Country Development

▪ Energy Policy Acts: 2005 - 2011

Federal Land Policies

▪ 1823 John Marshall's Discovery Doctrine

▪ 1849 Department of Interior Created

▪ 1862 Pacific Rail Road Act

▪ 1862 Homesteading Acts

▪ 1871 Congress Ends Treaty Making

▪ 1872 Mining Act

▪ 1877 Desert Land Act

▪ 1887 General Allotment Act

▪ 1902 Reclamation Act

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Non-Consent Models

▪ 1901 Congress granted states ROWs through Indian lands for public highways. 25 U.S.C. 311. Railroads, Highways, Telecommunications, Oil and Gas Pipelines, Electric Power and Communications, Hydroelectric Dams and Transmission all have separate statues.

▪ 1920 Mineral Leasing Act (authorizes and governs leasing of public lands for developing deposits of coal, phosphates, petroleum, natural gas and other hydrocarbons)

▪ State, County, Federal interests can hide facilities Roads established under 25 U.S.C. 311 can be interpreted by law of the state, allowing piggybacking of rights, See U.S. v. Oklahoma Gas & Elec. Co., 318 U.S. 206 (1943) and US v. Mountain States Telephone and Telegraph Co. 434 F. Supp. 625 (USDC MT 1977).

Standard Leasing Models

▪ 1934 Taylor Grazing Act

▪ 1934 Indian Reorganization Act

▪ 25 U.S.C. § 177 (Sec. 17)-Federal Law Corp.

▪ 1938 Indian Mineral Leasing Act

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1938 Indian Mineral Leasing Act

25 U.S.C. §§ 396(a) -(g)(1938)

▪ Requires Tribal Consent & Secretarial Approval

▪ Term: Lease Held by Production

▪ Competitive Bidding and Bonus Consideration

▪ Standard DOI Lease Form

▪ Limited Tribal Ability to Control Mining Process or Rescind Leases

▪ Surety Bond Required for Lease Compliance

▪ Serious Inadequacies in Royalty Management Collection Practices

▪ Lack of Enforcement

Federal Oversight & Control

▪ 1948 Indian Right of Way Act, 25 U.S.C. §§ 323 -28

25 C.F.R. Part 169 - Tribal Consent and Fair Market Valuation

25 C.F.R. Part 84 - Encumbrances to Tribal Land

▪ 1955 Long Term Leasing Act, 25 U.S.C. § 415.

▪ No federal authority exists to condemn tribal trust land unless federal authority of general applicability approves a federal action and clearly overrides an applicable treaty. See Nebraska Public Power District v. 100.95 Acres, 719 F.2d 956 (8th Cir. 1983); Tribal trust lands may not be condemned by a state for public purposes. See US v. 10.69 Acres of Land, 425 F.2d 317 (9th Cir. 1970).

▪ No Adverse Possession See US v. S.Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976).

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Federal Oversight & Control

▪ 1958

▪ 25 U.S.C. § 81 (stating that "[n]o agreement or contract with an Indian tribe that encumbers Indian lands for a period of seven or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary).

▪ 1959

▪ Public Law 280, 28 U.S.C. § 1360 (giving state courts civil adjudicatory...