CHAPTER 9 LEGAL AND PRACTICAL ASPECTS OF LEASE ACQUISITION AND DEVELOPMENT OF INDIAN LANDS

• Jurisdiction: United States

Western Coal Development
(Mar 1973)
CHAPTER 9
LEGAL AND PRACTICAL ASPECTS OF LEASE ACQUISITION AND DEVELOPMENT OF INDIAN LANDS
William A. Gershuny
Associate Solicitor Division of Indian Lands Office of the Solicitor Department of the Interior

Mineral leasing of public lands is, to many, a prospect to be avoided if other comparable ore bodies can be acquired and developed. Complex procedural regulations, leasing concepts out of tune with the current economic picture and the multiple layering of review and approval responsibility within a given government bureau—in short, "Washington-style" bureaucracy— turns away all but the most hardy or needy developer.

Add to this leasing puzzle a third entity—the governing council of an Indian Tribe—and the unique trust status of the lands— and total frustration sets in. Language barriers, tribal leaders often inexperienced in the business world, and the absence of consultants or attorneys to represent the Indian land owner complete this dismal picture.

Nevertheless, much of our Western coal underlies Indian land and this Nation's current need for fossil fuels demands that the gap be bridged. This paper will review the nature of Indian title, the Interior Department's leasing procedures and some practical approaches to the acquisition of coal prospecting permits and awareness of the unique lands. With an understanding and awareness of the unique character of the parties and their lands, lease acquisition of Indian lands becomes a task of manageable proportions.

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INDIAN LAND TITLE

To one first approaching the acquisition of a mineral lease of Indian land, it is essential to bear in mind the distinction between public land and Indian land. As one authority on mineral leasing has expressed it,

Indian land is not the public domain. The public domain is that large body of residual unappropriated land originally acquired by conquest and purchased from other sovereignties administered by the United States for the general public.

It was by treaties, congressional action, Executive orders and statute that Indian land was appropriated from the public domain. The United States has a trustee's role in its use. Laws and regulations for leasing public domain are inapplicable to Indian land.¹

Indian lands fall into two broad, general categories— tribal and allotted land. Tribal land can be defined as land or any interest therein held by the United States in trust for a tribe or land or any interest therein that is held by a tribe, subject to Federal restrictions against alienation or encumbrance. Allotted land can be defined as land or any interest therein held in trust by the United States for the benefit of an individual Indian or land or any interest therein held by an individual Indian subject to Federal restrictions against alienation or encumbrance.

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Allotted lands were originally acquired under either the General Allotment Act or one of the many acts...