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Puzzling Powers: Overlapping Jurisdictions of Indian Tribes and the Federal, State, and Local Governments in Development of Natural Resources in “Indian Country”

Lynn H. Slade, Proceedings of 42nd Annual Rocky Mountain Mineral Law Institute (1996)

The jurisdictional uncertainty complicating minerals development in Indian country is not because there are too few Indian laws. Through treaties, statutes, executive orders, and regulations, the United States has laid down hundreds, even thousands of rules and standards addressing not only specific matters with respect to a single tribe, but also generally applicable standards addressing leasing, permitting, and scores of other subjects regarding Indians generally. But [11-5] Congress and the executive branch have not resolved the central questions governing the allocation of regulatory, taxing, and judicial jurisdiction among the sovereigns competing in Indian country today for those powers.1 Consequently, determining which sovereign will have power over the many facets of natural resource development in and around Indian country2 is one of the most perplexing problems facing the natural resource developer.3

Developers in Indian country often are faced, before deciding how to comply with applicable law, with the dilemma of determining which sovereign's laws apply and to what court system they must resort to determine their duties and rights. A tribe or other Native American government, the federal government, and the state or its local governmental unit may all assert a power, and the Supreme Court's caselaw seldom supplies clear tests to allow the developer to pred