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Agency Roles in Oil and Gas Development on Indian Lands

Stephen L. Simpson, Natural Resources Development in Indian Country (2005)

ndian land is unlike any other land across the United States. This status is a result of laws and legal doctrines dating back to the early existence of the United States (with antecedents even before Independence). The unique status of Indian land also leads to a jurisdictional patchwork unlike any other in this country. This patchwork is especially difficult to understand in the minerals area. This paper is an attempt to lead the reader through the background, current status, and special issues involved in the overlap of Federal, tribal, and, sometimes, even State jurisdiction on Indian land. 2

How did Indian land become different from other land?

From the beginning of this country, Federal law has treated Indian land differently than any other land. Beginning in 1790, Congress enacted a series of laws, under its broad constitutional authority “to regulate commerce . . . with the Indian tribes” 3 that were aimed at controlling trade between Indians and non-Indians and protecting Indian lands from fraudulent purchase or conveyance. 4 One of those laws was the Nonintercourse Act. As currently codified, the Nonintercourse Act provides, in pertinent part:

No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made b