Native American ownership and governance of natural resources
Native American land ownership involves a complex patchwork of titles, restrictions, obligations, statutes, and regulations. Extracting natural resources on Native American lands and distributing the associated revenue is a unique process involving multiple stakeholders.
Today, there are two major types of Native American land:
- Trust land, in which the federal government holds legal title, but the beneficial interest remains with the individual or tribe. Trust lands held on behalf of individuals are known as allotments.
- Fee land purchased by tribes, in which the tribe acquires legal title under specific statutory authority.
In general, most Native American lands are trust land. Approximately 56 million acres of land are held in trust by the United States for various Native American tribes and individuals.
Natural resource ownership
Native American natural resource ownership is fundamentally similar to Native American land ownership. Natural resources on Native American land can be held in trust for a tribe or individual, or owned by them as part of restricted-fee land. Different laws govern mineral development on trust land depending on whether an individual or a tribe holds the beneficial interest. Regardless, a tribe or individual cannot develop their natural resources without the federal government’s approval.
New types of legal agreements for extraction have given greater control to tribes, but federal government approval remains necessary at some point in the process for most tribes. For more detail on the leasing process for individually-owned minerals, see the Act of March 3, 1909, as amended (25 U.S. Code § 396), and the regulations at 25 CFR Part 212. For more detail on the leasing process for tribes, see the Indian Mineral Development Act (25 U.S. Code § 2102) and 25 CFR Part 225, as well as the Indian Mineral Leasing Act of 1938 (25 U.S. Code § 396a) and 25 CFR Part 211.
Laws and regulations
The laws and regulations governing Native American land and the federal government’s relationship to it are grounded in a trust responsibility going back to the 1830s. Since then, however, the policies enacted by Congress have varied considerably.
History of federal obligations
The basis of the regulatory relationship between Native American tribes and the federal government was established in the Commerce Clause of the U.S. Constitution (Article 1, Section 8, Clause 3). This relationship, as it pertains to land use and ownership, was clarified in the 1830s.
In a series of Supreme Court decisions known as the Marshall Trilogy, former Supreme Court Justice John Marshall established several important principles of Native American law.
One was the federal Native American trust responsibility, whereby the government charged itself with “moral obligations of the highest responsibility and trust” toward Native American tribes. In this capacity, the U.S. Government maintains fiduciary responsibility to protect Native American assets and resources and serves as a trustee for Native American lands. Another was the principle that tribes are sovereign, which is inherent to them as the original governing bodies of what is now the United States, and that sovereignty can only be diminished by Congress.
For an overview of the foundational laws, regulations, and court cases governing federal Native American law, read Felix S. Cohen’s Handbook of Federal Indian Law originally published by the Department of the Interior in 1942.
General Allotment Act of 1887 (The Dawes Act)
To understand current ownership of Native American lands, one must begin with the history of allotment on reservations. During the Allotment Era of the late 1800s and early 1900s, the federal government parceled out millions of acres of Native American lands to individual Native Americans in an effort to break up reservations.
While the practice of allotting Native American land to individual Native Americans began in the 18th century, it was not in widespread use until the late 19th century when passage of the General Allotment Act of 1887, also known as the Dawes Act, greatly expanded the practice. This expansion would have devastating consequences for Native Americans.
Under the Dawes Act and other tribe-specific allotment acts, the federal government allotted a specified amount of land, usually 80 or 160 acres, to each tribal member. These allotments were to be held in trust by the United States for the beneficial Native American owner for a specified period of time, usually 25 years, after which the federal government would remove the trust status and issue the allottee fee simple title to the land.
Once out of trust, however, the land became subject to state and local taxation, the costs of which led thousands of acres of Native American land to pass out of Native American hands once the trust status was lifted. Furthermore, non-allotted lands were often declared “surplus land” by the federal government, which opened them to homesteaders, thereby accelerating the loss of Native American land to non-Native Americans.
The policy of allotment dramatically reduced the amount of land owned by tribes. In 1887, tribes held 138 million acres. Just forty-seven years later, in 1934, they owned 48 million acres. To stop the loss of Native American land, the federal government ended the allotment policy in 1934 and extended the trust period indefinitely. Today, allotments are still held in trust by the federal government for the beneficial Native American owner.
In addition to diminishing the total acreage owned, the allotment policy also left behind a checkerboard of land ownership on many reservations, with individual parcels of land sometimes owned by a tribe or tribes, Native American individuals, and non-Native Americans. As the original recipients of allotments died, their land was divided among their descendants, with each receiving only a fractional share of the whole. This division among multiple heirs is known as fractionation.
In many cases, ownership of allotted lands continued to divide over multiple generations so that today, individual parcels sometimes have more than 100 co-owners. Fractionation limits economic development on reservations, including resource extraction, and can divide lease income among co-owners so that individuals receive just a few cents based on their share.
You can learn more about government and tribal efforts to mitigate the effects of fractionation effects in the annual report of the Cobell Land Buy-Back Program for Tribal Nations.
Indian Reorganization Act of 1934
The Allotment Era ended with the Indian Reorganization Act of 1934 (IRA). This act ended the policy of allotment and authorized the Secretary of the Interior to restore remaining (unallotted) surplus lands to tribal ownership. It also incentivized tribes to adopt U.S.-style governments and constitutions. Most federally recognized tribes are organized under the IRA. While the impact of the IRA varied by tribe, it marked a shift towards the promotion of tribal self-government. This change undergirds the modern extractive industries policy for tribes in the United States.
Indian Mineral Leasing Act of 1938
The Indian Mineral Leasing Act of 1938 (IMLA) increased the amount of control tribes have over extraction on their land. Under IMLA, leases for extraction on tribal lands required tribal consent – a fact that remains true today. It also requires the approval of the Secretary of the Interior. However, under IMLA, tribes could not negotiate leases, influence operations once they commenced, cancel leases, or set rates for leases.
Indian Mineral Development Act of 1982
The Indian Mineral Development Act of 1982 (IMDA) increased Native American self-governance concerning extraction. With IMDA, tribes and individuals gained the right to negotiate their own “mineral development agreements” (MDAs) with companies in the extractive industries. These agreements could cover the full range of the extraction process, from exploration to processing, and might contain stipulations as to employment of tribal members or subcontracting to tribally-owned entities. An individual Native American can include their mineral interests in a tribally-negotiated mineral development agreement. The federal government may assist in the negotiations of MDAs when requested by the tribe. The Secretary of the Interior must still approve MDAs as in the best interest of the tribe.
Indian Tribal Energy Development and Self-Determination Act of 2005
The Tribal Energy Development and Self-Determination Act continued the move towards tribal self-determination regarding extraction. The Act enables tribes to enter “tribal energy resource agreements” (TERAs) with the Secretary of the Interior. Entering into this agreement with the Secretary of the Interior grants the tribe a much wider latitude of self-determination. Specifically it enables them to “enter into business agreements and leases for energy resource development and grant rights-of-way for pipelines or electric transmission or distribution lines on tribal land without the Secretary’s review and approval.”
Indian Tribal Energy Development and Self-Determination Act Amendments of 2017
Chairman Hoeven introduced a bill S.245 to amend the Indian Tribal Energy Development and Self Determination Act of 2005, and for other purposes. The bill passed the Senate and the president signed it into law in December 2018.
The bill is composed of two Titles. Title I amends the Indian Tribal Energy Development and Self-Determination Act of 2005 to address grants and technical assistance, loan guarantees, and tribal energy resources agreements (TERAs). Title II "Miscellaneous Amendments," amends several statutory provisions that were enacted in legislation other than the 2005 Act.
Title I: Indian Tribal Energy Development and Self-Determination Act Amendments
- Directs the Department of the Interior (DOI) to provide Native American tribes with technical assistance in planning energy resource development programs
- Allows leases and business agreements that pool a tribe's energy resources with other energy resources
- Streamlines the Bureau of Indian Affairs’ approval process for Tribal Energy Resource Agreements (TERAs)
- Requires the Department of Energy (DOE) to collaborate with the Directors of the National Laboratories in making the full array of DOE technical and scientific resources available for tribal energy activities and projects
Title II: Miscellaneous Amendments
- Amends the Federal Power Act to require the Federal Energy Regulatory Commission to give tribes, in addition to states and municipalities, preference for the receipt of preliminary hydroelectric licenses
- Authorizes tribal biomass demonstration projects under the Tribal Forest Protection Act of 2004 to assist tribes in securing reliable, long-term supplies of woody biomass materials
- Amends the Energy Conservation and Production Act to revise requirements for direct home weatherization grants to tribes
- Authorizes Indian tribes and certified third parties to conduct energy appraisals, in addition to the Secretary of the Interior
- Amends the Long-Term Leasing Act to allow the Navajo Nation to enter into mineral resource leases on their restricted lands without Interior's approval
- Allows the Crow Tribe of Montana to enter into leases of their land held in trust for a term of up to 99 years
- Sets forth provisions for money held by Interior in the trust fund system for the benefit of the Native American tribes and individuals from whose land the funds were generated