CHAPTER 9 FEDERAL APPROVAL OF MINERAL DEVELOPMENT ON INDIAN LANDS
| Jurisdiction | United States |
(May 1999)
FEDERAL APPROVAL OF MINERAL DEVELOPMENT ON INDIAN LANDS
Southwest Region, U.S. Department of the Interior
Albuquerque, New Mexico
ROCKY MOUNTAIN MINERAL LAW FOUNDATION
Special Institute
on
Natural Resources Development & Environmental Regulation
in Indian Country
May 20-21, 1999
I. Introduction; Restrictions against Alienation of Indian Lands
Indian lands1 are inalienable, at least not without an express authorization of the U.S. Congress. This point is essential to understanding the role of the federal government in the development of Indian-owned mineral resources.2
The origins of the principle of inalienability of Indian lands are ancient, but remain a central proposition of modern federal Indian policy.3 It is both historically and legally accurate to say that before the coming of the European colonizers the lands of North America were "owned" by the Indian tribes who inhabited them. This right of ownership was not manifested by a system of deeds or concepts of private property rights, but was reflected in their use and occupancy of the land.
So how did the European sovereigns and the individual colonists secure legal title to the land? A series of U.S. Supreme Court decisions in the early to mid-19th century, drawing from colonial law, recognized as axiomatic that by virtue of
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their superiority and power the sovereigns of England, Spain, and France secured the underlying fee title to the lands they claimed in the Americas, but that this title was subject to the use and occupancy rights of the native tribes. From this legal fiction emerged the proposition that Indian title could not be acquired without both the approval of the European sovereign and the consent of the Indians. Any transaction that lacked one or the other was invalid.4
This proposition of international law was the subject of legislation in the First Congress. Section 4 of the first Trade and Intercourse Act stated that no sale of Indian land shall be valid unless it is made at a public treaty under the authority of the United States.5 Today this statute, known as the Nonintercourse Act, is codified at 25 U.S.C. § 177. It states in pertinent part:
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 to the Constitution.6
It has not been amended since the Trade and Intercourse Act of 1834. In later years the courts stated that a central purpose of the Nonintercourse Act was to protect Indians from the "improvident" disposition of their lands.7 This has been seen as a basis for an enforceable federal responsibility to protect Indian tribes against such transactions.8
It is important to note that the Nonintercourse Act not only prohibits outright conveyances of tribal lands without an authorizing Act of Congress; it also prohibits "leases". The evident original purpose of this prohibition was to give the
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Federal government control over the settlement of Indian lands, with or without the consent of the Indians, as diplomatic relations with tribes were often delicate. Government permits were often required to go into "Indian country".9 It was not until much later that the possibility of an Indian tribe gaining economic benefit from the leasing of its land and resources was even considered. The case of United States v. Cook10 illustrates early perceptions. There federal officials brought a replevin action against one George Cook seeking the return of saw-logs cut by members of the Menominee Tribe in Wisconsin and sold to him. This practice evidently dated back over 30 years, and it was not suggested that Mr. Cook did not pay a fair price for the timber he purchased from tribal members. But the Supreme Court upheld the government's action, stating that the severance of the saw-logs from the land together with its sale to another was inconsistent with Indian use and occupancy of the land. The Supreme Court added that if the trees had been cleared for agricultural purposes, and if the sale of the timber were secondary to the Indians' purpose of cultivating their lands, then it would have been permissible. But the harvest for sale was not. The Nonintercourse Act was not cited in the decision.
Meanwhile, the Seneca Indians had been leasing their lands to non-Indians on the Allegany Reservation in western New York State, ostensibly under the authority of state law. These leases became the Village of Salamanca. When federal agents asserted that the leases were void due to federal restrictions on the alienation of tribal lands, Congress reacted by enacting the first legislative Indian leasing authority in 1875.11 That Act was amended on several occasions, ultimately authorizing leases for 99 years. Expectations about the permanence of this non-Indian community within the reservation were dashed in the 1980s when the Tribe began to attempt to negotiate new leases with shopkeepers and homeowners, albeit at well-below market prices. Congress went a long way to bail out the village residents when it enacted the Seneca Nation Settlement Act of 1990.12
After the end of the Indian Wars Federal policy focused on forced assimilation of Indian people into mainstream American society. A central element of this policy was persuading Indians to abandon their tribal relations which were viewed as evidence
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of primitive behavior.13 The principal tool for this policy was the allotment of tribal lands to individual tribal members pursuant to various statutes and treaties. The most common authority for allotment was the General Allotment Act of 1887.14 The Act authorized the break-up of tribal reservations into allotments of up to 160 acres "to each Indian".15 These allotments were the subject of trust patents which were to
declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and fee of all charge or incumbrance whatsoever....16
When it became apparent that many Indian allottees were losing their lands at tax sales and in dishonorable transactions, the 25-year trust period was often extended by administrative action, which was expressly authorized in the legislation, and in 1934 Section 2 of the Indian Reorganization Act (IRA)17 extended indefinitely the period of restriction on alienation.18
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The General Allotment Act restriction on the alienation of interests in Indian allotted land, still in effect today, is very explicit and very broad:
...And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of time above mentioned, such conveyance or contract shall be absolutely null and void....19
Thus, the restrictions against alienation reflected in international law of the 18th century and then in the Nonintercourse Act also became a linchpin of a Federal policy to protect individual Indians from improvident transactions while they were being persuaded to adopt the mores and economic ambition of non-Indian society.
The special restrictions on allotted lands of members of the Five Civilized Tribes in eastern Oklahoma deserve mention here, both because there has been substantial oil and gas and other development of those allotments, which still number in the thousands, and also because the restrictions are very different from those imposed by the General Allotment Act and other statutory and treaty allotment authorities. These are the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Indian Nations, who were forcibly relocated to the Indian Territory from the southeastern United States in the 1830s. The break-up of these large tribal landholdings was viewed as a necessary step toward Oklahoma statehood in 1907. Pursuant to federal statute tribal members were allotted lands held in fee simple by the Tribes through the issuance of patents from the tribal chiefs20 in the first decade of this century. A complicated statutory scheme imposed restrictions on the alienation of some allotments but not others, depending on whether the allottee was full-blood Indian, an adult or minor, or whether the land was inherited or a homestead or "surplus". These rules kept changing. In 1908 a distinction was even made between half-blood and three-quarter blood Indians.21
In 1947 Congress attempted to clarify an increasingly confusing situation by removing restrictions on all allotments
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which had been acquired or inherited, i.e., essentially all allotments which were not still held in the name of the original allottee; but then, in a proviso to the same section of the statute, imposed the following restriction:
[N]o conveyance, including an oil and gas or mineral lease, of any interest in land acquired before or after the date of this Act by an Indian heir or devisee of one-half or more Indian blood, when such interest in land was restricted in the hands of the person from whom such Indian heir or devisee acquired same, shall be valid unless approved in open court by the county court of the county in Oklahoma in which the land is situated....22
The state court approval procedure for leasing of the lands of half-blood Indian heirs is discussed briefly below.23
Today, as discussed in detail in the next section, there are numerous Congressional...
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