Native American Lands | Ownership and Governance (2024)

Native American land ownership is complex. It involves a patchwork of titles, restrictions, obligations, statutes, and regulations. Natural resources are extracted on Native American lands. The associated revenue from extraction is then disbursed. This is a unique process and involves many stakeholders.

Land ownership

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.

Natural resource ownership

Native American natural resource ownership is like 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. The laws differ based 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. 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 )
• 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 )
• The regulations at 25 CFR Part 225
• The Indian Mineral Leasing Act of 1938 (25 U.S. Code § 396a )
• The regulations at 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. This trust responsibility goes back to the 1830s. Since then, the policies enacted by Congress have varied.

History of federal obligations

The U.S. Constitution's Commerce Clause established the regulatory relationship between Native American tribes and the federal government. (See Article 1, Section 8, Clause 3.) This relationship, as it pertains to land use and ownership, was clarified in the 1830s.

Justice John Marshall established several important principles of Native American law. His series of Supreme Court decisions are known as the Marshall Trilogy. One of his decisions was the federal Native American trust responsibility. Here, the government charged itself with "

" toward Native American tribes. The government maintains fiduciary responsibility to protect Native American assets and resources. It serves as a trustee for Native American lands. Another decision was the principle that tribes are sovereign. This sovereignty can only be diminished by Congress.

The

provides an overview of the foundational laws, regulations, and court cases that govern federal Native American law. The Department of the Interior published this handbook 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. The passage of the General Allotment Act of 1887, also known as the Dawes Act, greatly expanded the practice. This expansion had 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, 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. These costs led to 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. This accelerated the loss of Native American land to non-Native Americans.

The policy of allotment reduced the amount of land owned by tribes. In 1887, tribes held 138 million acres. 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. 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. Each descendent receives 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. Today, individual parcels sometimes have more than 100 co-owners. Fractionation

. It 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 in the

.

Indian Reorganization Act of 1934

The Allotment Era ended with the Indian Reorganization Act of 1934 (IRA). This act ended the policy of allotment. It also 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 supports 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. This remains true today. It also requires the approval of the Secretary of the Interior. Yet, under IMLA, tribes could not negotiate leases, influence operations, 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 on extraction. Tribes and individuals gained the right to negotiate their own “mineral development agreements” (MDAs) with companies. These agreements could cover the full range of the extraction process. MDAs include terms on the employment of tribal members or subcontracting to entities owned by tribes. An individual Native American can include their mineral interests in a tribally-negotiated MDA. When requested by a tribe, the federal government may assist in the negotiations of MDAs. 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 Indian Tribal Energy Development and Self-Determination Act provides more flexibility to tribes. This grants tribes greater autonomy to manage their energy resources.

A tribe can do the following with the Secretary’s review and approval:

• Enter into “tribal energy resource agreements” (TERAs) with the Secretary of the Interior.
• Enter into business agreements and leases for energy resources development.
• Grant rights-of-way for pipelines, electric transmission, or distribution lines on tribal land.

Indian Tribal Energy Development and Self-Determination Act Amendments of 2017

The bill is composed of two Titles. Title I amends the Act to address grants and technical assistance, loan guarantees, and TERAs. Title II 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. This helps Native Americans 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 TERAs.
• Requires the Department of Energy to collaborate with the Directors of the National Laboratories. This ensures technical and scientific resources are available for tribal energy activities and projects.

Title II: Miscellaneous Amendments

• Amends the Federal Power Act. This requires 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. This assists tribes in securing reliable, long-term supplies of woody biomass materials.
• Amends the Energy Conservation and Production Act. This includes revised requirements for direct home weatherization grants to tribes.
• Authorizes Indian tribes and certified third parties to conduct energy appraisals. This is in addition to the Secretary of the Interior.
• Amends the Long-Term Leasing Act. This allows the Navajo Nation to enter into mineral resource leases on their restricted lands without DOI'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 DOI in the trust fund system for the benefit of the Native American tribes and individuals from whose land the funds were generated.