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Acquiring Rights of Access and Surface Uses on Indian Lands

Daniel H. Israel, Rights of Access and Surface Use (1984)

This paper will consider ways in which surface access, including rights-of-way, prospecting permits, leases, and other enforceable rights for the use of Indian surface lands may be obtained. In its analysis the paper will focus on the ways in which the rights to Indian surface lands may be acquired in the context of mineral development activities and also where surface lands are required for a broad array of non-mineral commercial endeavors.

The paper will first consider the unique nature of the federal restrictions on the creation, use, and disposition of Indian lands as a background to the current statutory alternatives which Congress has created to obtain rights of access and other surface uses. Second, the paper will consider the nature of federal authority over the Indian reservations including rights of access. Third, the paper will consider the alternative congressional schemes which are currently available for companies to obtain access, rights-of-way, prospecting permits, and surface rights on Indian lands either associated with mineral development or wholly independent of mineral development. Fourth and finally, the paper will consider the ever broadening scope of tribal authority over all aspects of reservation affairs and the necessity for anyone seeking the use of reservation lands to take into account the expanding role of tribal governments when negotiat