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Abstract

The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the checkerboard and correspondingly reduced tribal control over reservation land use and natural resources.

In addition to these geographic boundaries, Indian tribes must work across governmental boundaries, particularly those imposed by the trust relationship between tribes and the federal government. This relationship, rooted in the Supreme Court’s earliest Indian jurisprudence, impedes the free alienability of tribal land and resulted in the ownership of such land by the federal government in trust for Indian tribes. As federally-owned and managed lands, Indian lands are subject to federal oversight, which often requires federal approval of leases and other transactions affecting those lands. This federal role imports to Indian lands the requirements of other federal laws, such as the National Environmental Policy Act of 1964 (“NEPA”), and the additional burdens of federal administrative and regulatory procedures. Therefore, tribes must often transcend the federal-tribal boundary when seeking to successfully manage and develop natural resources on their own tribal lands.

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