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Accessing Indian Lands For Mineral Development

Colby L. Branch, Natural Resources Development in Indian Country (2005)

Indian reservations in the Western United States are commonly comprised of a haphazard checkerboard of fee, 1 tribal, 2 and allotted lands. 3 This fragmented ownership, together with the fact that Indian trust lands 4 are governed by federal rather than state law, 5 leads naturally to surface access and use problems not normally encountered by mineral developers accustomed to operating outside Indian reservations.

This paper provides a practical summary of surface access and use on trust lands for purposes of mineral development. The several methods by which surface rights can be obtained on trust lands for mineral development are presented, and the scope and limitations of each method are briefly discussed. An exhaustive review of regulatory procedure is not attempted. Issues specific to particular applications, such as the regulation of surface use in conjunction with coal mining, are not discussed.

This paper begins with a very brief history of federal Indian policy and the result of this changing policy on land ownership patterns and regulatory jurisdiction. Access to the worksite across reservation lands is discussed, a point sometimes neglected but which should never be forgotten. The scope of surface rights under a standard mineral lease is addressed. Alternate means of obtaining consensual surface access are presented, including rights-of-way, business