Tribal and Indian Land

Definitions of common terminology related to tribal and Indian land ownership.

The application of laws and regulations to energy development activities may depend on where the activity takes place. It is important to determine the status of all impacted land ownership before applying Federal, Tribal and State laws and regulations.

Individually owned lands are of two kinds:

Trust land - The federal government holds legal title but the beneficial interest remains with the Individual Indian
Restricted fee land - An individual Indian holds legal title but with legal restrictions against alienation or encumbrance

Tribally owned lands are of three kinds:

Trust land - The federal government holds legal title but the beneficial interest remains with the tribe
Restricted fee land - The tribe holds legal title but with legal restrictions against alienation or encumbrance
Fee land purchased by tribes - The tribe acquires legal title under specific statutory authority. Fee land owned by a tribe outside the boundaries of a reservation is not subject to legal restrictions against alienation or encumbrance, absent any special circumstances. The law is not clear whether such restrictions apply to fee land within the boundaries of a reservation.

Under the statute establishing the Indian Energy Resource Program, the term "Indian land" means –

Any land located within the boundaries of an Indian reservation, pueblo or Rancheria;
Any land not located within the boundaries of an Indian reservation, pueblo or Rancheria, the title to which is held –
1. In trust by the United States for benefit of an Indian tribe or an individual Indian;
2. By an Indian tribe or an individual Indian, subject to restriction against alienation under laws of the United States; or
3. By a dependent Indian community; and
Land that is owned by an Indian tribe and was conveyed by the United States to a Native Corporation pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) or that was conveyed by the United States to a Native Corporation in exchange for such land.

(25 U.S.C. 3501)

Under the regulations established for Tribal Energy Resource Agreements (TERAs), "Tribal land" means any land or interests in land owned by a tribe or tribes, title to which is held in trust by the United States, or is subject to a restriction against alienation under the laws of the United States. For the purposes of TERAs, tribal land includes land taken into trust or subject to restrictions on alienation under the laws of the United States after the effective date of the TERA. (25 CFR 224.30)

The statute and regulations concerning leasing of Indian land for public, religious, educational, recreational, residential, or business purposes (which would include most renewable energy projects) apply to trust or restricted land, defined in the regulations as "any tract, or interest therein, that the United States holds in trust status for the benefit of a tribe or individual Indian" and "land the title to which is held by an individual Indian or a tribe and which can only be alienated or encumbered by the owner with the approval of the Secretary because of limitations contained in the conveyance instrument pursuant to federal law", respectively. (25 U.S.C. 415; 25 C.F.R. 162.101) For BIA mineral and mining regulations the term "Indian lands" means any lands or interest in lands owned by any individual Indian or Alaska Native, Indian tribe, band, nation, pueblo, community, rancheria, colony or other group, the title to which is held in trust by the United States or is subject to a restriction against alienation imposed by the United States (see 25 CFR Parts 211, 212, and 225). For rights-of-way, the regulations define tribal land as "land or any interest therein, title to which is held by the United States in trust for a tribe, or title to which is held by any tribe subject to Federal restrictions against alienation or encumbrance, and includes such land reserved for Indian Bureau administrative purposes. The term also includes lands held by the United States in trust for an Indian corporation chartered under section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477)." and Individually owned land as "land or any interest therein held in trust by the United States for the benefit of individual Indians and land or any interest therein held by individual Indians subject to Federal restrictions against alienation or encumbrance." (25 C.F.R. 169.1) Under the statute that establishes Department of the Interior jurisdiction for granting approval for some other contracts and agreements with Indian tribes, "Indian lands" means lands the title to which is held by the United States in trust for an Indian tribe or lands the title to which is held by an Indian tribe subject to a restriction by the United States against alienation. (25 U.S.C. 81)

Reference to "Indian country" is sometimes used for other federal regulations. "Indian country" means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. (18 United States Code [U.S.C.] 1151) While Section 1151 is a criminal law statute, its definition of Indian country applies in the civil context as well [Cohen's Handbook of Federal Indian Law, § 3.04 (2007)].

For certain environmental regulations, the term "Federal Indian reservation" is used and means all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. (33 U.S. C. 1377(h)).

However, even in the case of a statutory or regulatory definition there have been interpretation issues. For instance, for the EPA definition of Federal Indian reservation, the EPA has had to interpret the law in light of Supreme Court case law, including Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991) that a "reservation," also includes trust lands that have been validly set apart for a tribe's use even though the land has not been formally designated as a reservation (59 Fed.Reg. at 43960; 56 Fed.Reg. at 64881). In applying this precedent to the term "reservation," the Agency recognizes two categories of lands: Pueblos and tribal trust lands. The EPA must consider on a case-by-case basis whether other types of lands may be considered "reservations" under federal Indian law even though they may not be formally designated as such.