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Conventional Leasing of Indian Land For Mineral Development

Mark K. Adams, Indian Land Development - Oil, Gas, Coal and Other Minerals (1976)

I. Federal Statutory and Regulatory Provisions and Procedures.

A. Mineral Leases from Indians to Non-Indians are Generally Invalid Unless Specifically Authorized.

1. Leases of Tribal Lands.

a.Under 25 USC Sec. 177 (1963) Act of June 30, 1834; R. S. Sec. 2116, leases from “any Indian nation or tribe of Indians” are invalid unless “made by treaty or convention entered into pursuant to the Constitution”. The purported lessee under such an invalid lease may have certain rights against third persons, such as trespassers (see, e.g., Oolagah Coal Co. v. McCaleb, 68 Fed. 86 (8th Cir. 1895)), but few, if any, rights with respect to the tribe involved or the United States (see, e.g., Smith v. McCullough, 270 U.S. 456 (1926); Heckman v. United States, 224 U.S. 413 (1912)).

b.Exceptions to 25 USC Sec. 177 exist under

(1)25 USC 477 (1963) (Sec. 17 of Indian Reorganization Act of June 18, 1934; 48 Stat. 988) under which tribes organized under the Act may be authorized by charter to lease reservation land for terms not exceeding ten years.

(2)A number of statutes authorizing mineral leases applicable to all or many Indian tribes and reservations, and

(3)Treaties or statutes applicable only to one or several tribes.

2. Leases of Allotted Lands.

a.Under 25 USC Sec. 348 (1963) (Sec. 5 of General Allotment Act of Feb