Rights to Native American Land and Natural Resources
Land has held deep significance for Native American communities. The federal government holds 56 million acres of land in trust for Native American tribes and individuals. (Tracts of land held in trust for individuals are called allotments.) This means that the government holds title to the land, but the Native American tribe or individual holds the beneficial interest. Some smaller tracts of Native American land consist of fee land, which is land bought by a tribe under statutory authority. The tribe holds title to this land.
Natural resources on trust land are held in trust for the Native American tribe or individual who benefits from the land. Meanwhile, natural resources on fee land are directly owned by the tribe. The rules for developing natural resources on trust land vary depending on whether a tribe or an individual benefits from them. Generally, either a tribe or an individual must get approval from the federal government before developing their natural resources. Restrictions on tribal authority over natural resources have loosened over time, though.
Origin of Trust Lands
The concept of land held in trust for Native Americans by the federal government originated from Supreme Court decisions in the early 19th century. Chief Justice John Marshall wrote that the federal government held a fiduciary responsibility to protect Native American resources and served as a trustee for Native American lands.
Allotment of Land Ownership
During the late 19th century, the federal government sought to dismantle Native American reservations by distributing tribal lands among individual Native Americans. This allotment policy reached its climax with the Dawes Act of 1887. Each member of a tribe received a certain amount of land under this law and related federal laws. For a limited initial term, the federal government held the land in trust for the Native American individual to whom it was assigned. Then, the Native American beneficiary would receive title to the land.
After the land transitioned out of trust status to direct Native American ownership, the burdens of state and local taxes forced many Native American owners to sell the land to non-Native Americans. At the same time, the federal government allowed non-Native American homesteaders to settle on non-allotted tribal lands, known as "surplus land." As a result of these trends, roughly two-thirds of Native American land at the time of the Dawes Act had passed out of Native American hands by the 1930s. The federal government then halted the allotment policy and decided to hold allotments in trust for Native American beneficiaries indefinitely.
Fractionation and Resulting Problems
When Native Americans who received land through the allotment process died, their interest in land was often divided equally among their descendants. This fractionation process repeated in generation after generation, leaving many parcels of tribal land splintered into tiny ownership shares, although the parcels were not divided. Fractionation inhibits economic development and limits the value of leases for each co-owner.
With the Indian Reorganization Act of 1934, Congress directed the Secretary of the Interior to restore any remaining non-allotted lands to tribes. This federal law also signaled support for tribal self-government and laid the foundation for greater tribal authority over extraction on their land.
Mineral Leasing and Development on Native American Lands
Four years after the IRA, the Indian Mineral Leasing Act made any leases for extraction on Native American lands subject to tribal consent and the approval of the Secretary of the Interior. However, tribes did not have the authority to negotiate their own leases, determine rates for leases, or terminate leases. Thus, their mineral rights remained heavily restricted.
Congress enhanced tribal authority with the Indian Mineral Development Act of 1982. This federal law allows tribes to negotiate mineral development agreements. Tribes can require companies extracting natural resources from their land to hire tribal members or use tribal subcontractors. The Secretary of the Interior must review mineral development agreements and will approve them if they are in the best interests of the tribe. These agreements control each step in the extraction process. Individual Native Americans with natural resources on their land can include their interests in an agreement negotiated by their tribe.
Tribal Energy Resource Agreements
Under the Tribal Energy Development and Self-Determination Act of 2005, Native American tribes can create tribal energy resource agreements with the Secretary of the Interior. These allow a tribe to set up agreements and leases for the development of energy resources on their land without getting approval from the Secretary of the Interior. Tribes also can negotiate right-of-way agreements for pipelines and electricity lines on their land without approval from the Secretary. Amendments to this law in 2018 further extended tribal authority.