The natural-gas, oil, coal, and uranium reserves that lie under Indian lands represent some of the most valuable resources many tribes possess. When tribally owned lands are considered together with lands owned by individual tribal members, thirty-four Indian tribes, known collectively as the "energy tribes," can be said to possess approximately 30 percent of the coal found west of the Mississippi River, 50 percent of potential uranium reserves, and 20 percent of known natural-gas and oil reserves.
This wealth, however, has been a mixed blessing for the tribes. In the past, they rarely had meaningful control over the development of their resources, and the history of Indian mineral development is replete with stories of unfair leases extracted or coerced from unknowledgeable Indians. Many tribes have received far less income than their minerals are worth, and have seen their land bases dangerously polluted and the health of their members jeopardized. In the present day, tribes are faced with the legacy of this past. Yet today the energy tribes are in a better position than ever before to take control over mineral development decisions.
As has been the case with other Indian resources such as land, timber, and water, Indian minerals have frequently attracted outsiders. From the moment reservation boundaries were established, Indians were victims of trespass and of efforts to remove lands that contained valuable coal and oil deposits from reservation status. Tribal leaders have long fought simply to establish ownership of their lands and to survey their resources. The lack of knowledge about Indian resources has made it difficult for tribal governments and their federal "guardians" to protect Indian interests.
The first serious assault on tribal mineral resources followed the discovery of oil in the Oklahoma Territory in 1882. In 1891, the federal government began to allow the leasing of Indian lands for mining purposes, and the rich Osage, Creek, and Cherokee gas and oil fields became a significant new source of lease income for these tribes. However, this leasing and an increased interest in Indian oil followed on the heels of the General Allotment Act of 1887, and many Indians lost control of their assets. Unfamiliar with Anglo-European concepts of property and business, they were subject to outright fraud and theft, as well as federal mismanagement. By the mid-1930s, burgeoning oil interests such as Phillips, Getty, Mellon, and Standard had replaced the tribes of eastern Oklahoma as managers of the state's mineral resources.
The western tribes fared only slightly better. Although the Indian mineral-leasing act of 1891 required tribal consent for all leases, tribal leaders knew so little about their resources that they rarely understood the agreements put before them. Leases during this era too often reflected national needs for energy-yielding minerals, rather than Indian needs for a viable economic and cultural existence. The documents contained such features as fixed royalty rates, extremely long durations, a lack of requirements for renegotiation when market conditions changed, weak health and safety provisions, and a lack of requirements for restoration of the environment when mining ceased.
Federal policy generally condoned such arrangements. The relatively progressive 1891 act was followed in 1903 by the U.S. Supreme Court's Lone Wolf decision, which upheld congressional power to take Indian lands without tribal consent. During World War I, an increased need for oil and coal led to a rapid escalation in the leasing of Indian minerals. But when conditions changed in the 1920s, the Department of the Interior suspended leasing on Indian lands. As the demand for energy-yielding minerals slowly increased again, Congress passed a new Indian mineral-leasing act in 1938 that restated the requirement for tribal consent to leases, and standardized leasing policies in an attempt to limit unfavorable lease conditions. As demand continued to increase, however, policy again swung against the tribes, reaching an all-time nadir in 1953 with the passage of the so-called termination resolution, H.J.R. 108. The termination policy emphasized individual management of tribal resources and thus dramatically weakened the ability of tribal governments to participate in the development of their resources. The 1950s also brought the first real boom in uranium mining. For the energy tribes, these wild swings in demand, and corresponding changes in federal policy, made coherent development difficult and underscored one essential lesson: the tribes must gain control over their mineral resources.
Fortunately, Indian tribes have improved their bargaining positions in recent years. President Lyndon Johnson's War on Poverty brought an infusion of federal funds into tribal governments and organizations and strengthened tribal governments. The self-determination legislation of the 1970s also allowed tribes to expand their interests, knowledge, and capabilities, causing many to take on a much stronger role in determining the conditions of mineral development on their lands. One example of this new approach was the formation in 1975 of the Council of Energy Resource Tribes (CERT) by twenty-six tribal governments that, despite differences in their resources and development objectives, had the common goal of asserting control over the development of their mineral resources. CERT was designed to provide member tribes with the same level of information and expertise that the energy corporations possessed. Since 1975 it has worked with the tribes to assess their resources, negotiate and renegotiate lease and contract terms, and enhance tribal capacities to manage mineral resources. Success in these efforts has caused CERT to grow to more than fifty member tribes.
The market in energy-yielding minerals continues to fluctuate, and fragile tribal economies continue to be racked by painful boom-and-bust cycles. Unlike the earlier period, however, recent times have brought major changes in national policy that have not been so uniformly "for" or "against" the tribes. The 1973 oil crisis caused oil and gas prices to soar and increased pressure on Indian tribes to lease more of their minerals. Yet the 1975 Indian Self-Determination Act provided a significant boost to the independence of tribal governments. The United States experienced a second uranium boom from 1975 to 1979, followed by a near collapse in the market after the Three Mile Island accident. A number of tribes have successfully renegotiated the unfavorable terms of old leases, sometimes even canceling leases when the corporations involved refused to renegotiate in good faith. The 1982 Indian Mineral Development Act reflected this new emphasis on the independence and capability of tribal governments. The act allowed tribes to negotiate individual contracts with energy corporations, and empowered them to leave the confines of the standardized leases and strike flexible bargains that better suit tribal priorities.
The 1980s brought a combination of destructive budget cuts and increased political support for tribal sovereignty. In 1986 Congress amended several major pieces of environmental legislation, such as the Safe Drinking Water Act, the Clean Air Act, and Superfund legislation, to allow tribes to control environmental regulation on the reservations. These empowering pieces of legislation mark significant advances for tribal governments in their quest to exercise sovereign control over mineral resources.
A number of the energy tribes have managed to obtain a degree of control over the development of their mineral resources. Some tribal governments have risen to the challenge of becoming knowledgeable and skilled joint partners, or developers in their own right. The Jicarilla Apache tribe and the Fort Peck Assiniboin and Sioux tribes used the experience gained from previous joint ventures to take the risk, successfully, of drilling their own wells. The Navajo Nation set a new standard for tribal participation with its Dineh power-project agreement, in which the tribe and the private companies involved were to participate jointly in all phases of planning and operating the power plant (though the agreement fell through at the end). Today, tribes are likely to combine leases, joint ventures, and other arrangements so as to maximize tribal options.
Some tribal governments have made the equally challenging decision to slow or halt mineral development on their lands. Several tribes, including the Northern Cheyennes and the Crows, canceled or halted leases in the 1970s, despite enormous pressure from industry sources to continue them. These tribes have since maintained a cautious approach to mineral development.
But the struggle has been, and remains, one of trying to repair problems created in the past. Federal policy has immeasurably complicated the job of managing reservation resources. Despite years of mineral development, most tribes have only recently begun to receive royalties that reflect the actual value of their resources, and few tribes have had the opportunity to develop a sustainable economic plan. Virtually every tribe that possesses mineral wealth bears a legacy of past mistakes. Environmental disasters of varying degrees can be found on nearly every reservation that has experienced large-scale mining, from the water and air pollution resulting from the strip-mining of coal to the radioactive waste and spills that have accompanied uranium mining. One of the worst uranium-mining accidents in Indian Country was the 1979 collapse of United Nuclear's mill tailings dam near the Churchrock community on the Navajo Reservation. Millions of gallons of radioactive water poured into the Puerco River and contaminated the major source of water for downstream Navajo communities. From such environmental and health problems as these often flow political conflicts, as tribes find themselves in the difficult position of balancing jobs and royalty money with the health and well-being of their people and lands.
Mineral resources on Indian lands hold enormous opportunities and challenges for the tribes involved. Indian tribes are increasing their demands that their sovereignty be recognized and that they, and they alone, make the decisions about the development of their mineral resources—whether to develop them at all, how much to develop them, how fast, under what conditions. With dedication and commitment, as well as new skills and knowledge, mineral tribes may well see the future outweigh the past.
Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Minerals (Lawrence: University Press of Kansas, 1990); Ward Churchill and Winona LaDuke, The State of Native North America: Genocide, Colonization, and Resistance "Native North America: The Political Economy of Radioactive Colonialism," ed. M. Annette Jaimes (Boston: South End Press, 1992); Linda Hogan, Mean Spirit (New York: Ivy Books, 1990).
Jennifer W. Felmley
University of California at Berkeley
