TRIBAL LAND

Under the regulations established for Tribal Energy Resource Agreements

(TERAs), "Tribal land" means any land or interests in land owned by a
tribe or tribes, title to which is held in trust by the United States, or is
subject to a restriction against alienation under the laws of the United
States. For the purposes of TERAs, tribal land includes land taken into trust
or subject to restrictions on alienation under the laws of the United States
after the effective date of the TERA. (25 CFR 224.30)
The statute and regulations concerning leasing of Indian land for public,
religious, educational, recreational, residential, or business purposes
(which would include most renewable energy projects) apply to trust or
restricted land, defined in the regulations as "any tract, or interest therein,
that the United States holds in trust status for the benefit of a tribe or
individual Indian" and "land the title to which is held by an individual
Indian or a tribe and which can only be alienated or encumbered by the
owner with the approval of the Secretary because of limitations contained
in the conveyance instrument pursuant to federal law", respectively. (25
U.S.C. 415; 25 C.F.R. 162.101) For BIAmineral and mining regulations the
term "Indian lands" means any lands or interest in lands owned by any
individual Indian or Alaska Native, Indian tribe, band, nation, pueblo,
community, rancheria, colony or other group, the title to which is held in
trust by the United States or is subject to a restriction against alienation
imposed by the United States (see 25 CFR Parts 211, 212, and 225).
Forrights-of-way, the regulations define tribal land as "land or any
interest therein, title to which is held by the United States in trust for a
tribe, or title to which is held by any tribe subject to Federal restrictions
against alienation or encumbrance, and includes such land reserved for
Indian Bureau administrative purposes. The term also includes lands held
by the United States in trust for an Indian corporation chartered under
section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477)." and
Individually owned land as "land or any interest therein held in trust by
the United States for the benefit of individual Indians and land or any
interest therein held by individual Indians subject to Federal restrictions
against alienation or encumbrance." (25 C.F.R. 169.1) Under the statute
that establishes Department of the Interior jurisdiction for granting
approval for some other contracts and agreements with Indian tribes,
"Indian lands" means lands the title to which is held by the United States
in trust for an Indian tribe or lands the title to which is held by an Indian
tribe subject to a restriction by the United States against alienation. (25
U.S.C. 81)

Reference to "Indian country" is sometimes used for other federal

regulations. "Indian country" means (a) all land within the limits of any
Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and, including rights-of-way
running through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without the
limits of a state, and (c) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through the
same. (18 United States Code [U.S.C.] 1151) While Section 1151 is a
criminal law statute, its definition of Indian country applies in the civil
context as well [Cohen's Handbook of Federal Indian Law, 3.04 (2007)].
For certain environmental regulations, the term "Federal Indian
reservation" is used and means all land within the limits of any Indian
reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation. (33 U.S. C. 1377(h)).
However, even in the case of a statutory or regulatory definition there
have been interpretation issues. For instance, for the EPA definition of
Federal Indian reservation, the EPA has had to interpret the law in light of
Supreme Court case law, including Oklahoma Tax Comm'n v. Citizen Band
Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991) that a
"reservation," also includes trust lands that have been validly set apart for
a tribe's use even though the land has not been formally designated as a
reservation (59 Fed.Reg. at 43960; 56 Fed.Reg. at 64881). In applying this
precedent to the term "reservation," the Agency recognizes two
categories of lands: Pueblos and tribal trust lands. The EPA must consider
on a case-by-case basis whether other types of lands may be considered
"reservations" under federal Indian law even though they may not be
formally designated as such.
Tribally owned lands are of three kinds:

Trust land - The federal government holds legal title but the
beneficial interest remains with the tribe

Restricted fee land - The tribe holds legal title but with legal
restrictions against alienation or encumbrance

Fee land purchased by tribes - The tribe acquires legal title under
specific statutory authority. Fee land owned by a tribe outside the

boundaries of a reservation is not subject to legal restrictions

against
alienation
or
encumbrance, absent
any special
circumstances. The law is not clear whether such restrictions apply
to fee land within the boundaries of a reservation.
Under the statute establishing the Indian Energy Resource Program, the
term "Indian land" means
A. Any land located within the boundaries of an Indian reservation,
pueblo or Rancheria;
B. Any land not located within the boundaries of an Indian reservation,
pueblo or Rancheria, the title to which is held
i.

In trust by the United States for benefit of an Indian tribe or an

individual Indian;

ii.

By an Indian tribe or an individual Indian, subject to restriction

against alienation under laws of the United States; or

iii.

By a dependent Indian community; and

C. Land that is owned by an Indian tribe and was conveyed by the

United States to a Native Corporation pursuant to the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 et seq.) or that was conveyed
by the United States to a Native Corporation in exchange for such
land.