[Senate Report 105-205]
[From the U.S. Government Publishing Office]
Calendar No. 400
105th Congress Report
SENATE
2d Session 105-205
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TO PERMIT THE LEASING OF MINERAL RIGHTS, IN ANY CASE IN WHICH THE
INDIAN OWNERS OF AN ALLOTMENT THAT IS LOCATED WITHIN THE BOUNDARIES OF
THE FORT BERTHOLD INDIAN RESERVATION AND HELD IN TRUST BY THE UNITED
STATES HAVE EXECUTED LEASES TO MORE THAN 50 PERCENT OF THE MINERAL
ESTATE OF THAT ALLOTMENT
_______
June 5, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2069]
The Committee on Indian Affairs, to which was referred the
bill (S. 2069) to permit the leasing of mineral rights, in any
case in which the Indian owners of an allotment that is located
within the boundaries of the Fort Berthold Indian Reservation
and held in trust by the United States have executed leases to
more than 50 percent of the mineral estate of that allotment,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute, and recommends that
the bill, as amended, do pass.
Purpose
The purpose of S. 2069 is to amend the Mineral Leasing Act
of 1909 to facilitate the leasing of mineral rights within the
exterior boundaries of the reservation of the Three Affiliated
Tribes of the Fort Berthold Reservation.
Background
The Fort Berthold Reservation was established for the
Arikara, Mandan, and Hidatsa Tribes by the Fort Laramie Treaty
of 1851. While the three tribes were once geographically and
linguistically distinct and still maintain their separate
tribal identifies, they function as one tribal entity in terms
of their relations with the federal government.
Initial contact of the tribes with non-Indians is estimated
to be around 1790. At that time, the three tribes lived along
the Missouri river, hunting buffalo and growing squash, corn
and beans. Contact brought a devastating smallpox epidemic in
1837. To escape the disease, a group of Hidatsa moved up the
Missouri River in 1845 and established the village of Like-A-
Fishhook. Later, they were joined by the other two tribal bands
and by 1862, formal unification of the tribes had begun.
Though the Treaty of Fort Laramie established a reservation
of over 12 million acres for the three tribes, subsequently-
issued Executive Orders and allotments of tribal land reduced
the reservation to its contemporary size of less than one
million acres. In 1954, the tribes lost another 152,300 acres,
along with an abundance of natural resources, because of the
Missouri River Pick Sloan program, and the filling of Garrison
Reservoir, now Lake Sakakawea, by the U.S. Army Corps of
Engineers.
The flooding destroyed traditional tribal population
centers, and families who had sustained themselves by ranching
and farming along the fertile Missouri River bottomlands were
relocated to dry, windy uplands. The tribal administrative
center was moved to New Town, an area that was not part of the
reservation. Though the tribes received approximately $12
million in compensation for their flooded lands, the value of
the lost land was later placed at $20 million.
The three tribes elected to come under the Indian
Reorganization Act of 1934, forming a representative tribal
government and adopting a constitution and by-laws, which
though subsequently amended, remain the tribes' governing
documents. The Three Affiliated Tribes Business Council serves
as the governing body, consisting of a tribal chairman, vice-
chairman, treasurer, secretary, and three at-large members. The
total tribal enrollment is approximately 8,500 members of whom
5,387 reside on reservation lands.\1\
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\1\ The preceding section of the Background was derived in part
from information contained in ``American Indian Reservations and Trust
Areas'', a publication of the Economic Development Administration, U.S.
Department of Commerce.
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The reservation is located in parts of Mountrail, McLean,
Dunn, Mercer, McKenzie and Ward counties. Ownership of the
surface and mineral estates on the reservation is diverse,
including tribal, federal, state and private lands. There are
about 350,000 private acres, and 17,834 state-owned mineral
acres on the reservation, but the latter are not leased for oil
or gas exploration.\2\
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\2\ Information with regard to oil exploration and production on
the Fort Berthold Indian Reservation and on lands outside of the
reservation is derived from a briefing book on S. 1079 prepared for the
Committee on Indian Affairs by Jim Powers, President, Powers Energy
Corporation, and Thomas M. Disselhorst, Staff Attorney for the Three
Affiliated Tribes of the Fort Berthold Reservation.
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Through 1996, there have been 245 drilling permits issued
on the reservation, while statewide, there have been 14,600
permits issued, with 452 permits issued in 1996 alone. From
lands located off the tribes' reservation, more than one
billion barrels of oil have been produced in North Dakota, with
over 32 million barrels produced in 1996. In contrast, there
have been 14 million barrels of oil produced from the
reservation, with less than 52,000 barrels produced on tribal
lands in 1996.
Within the Fort Berthold Reservation, Antelope Field is the
only field with significant production. It was discovered in
1953, with three of the four producing zones discovered on
lands located outside of the reservation's boundaries. A total
of 29 successful non-exploratory oil wells were drilled on
Indian lands, but 20 of those wells are no longer productive.
Outside of the Antelope Field, only 13 oil wells have been
drilled on tribal lands within the reservation, 12 of which are
no longer producing.
Fifth-seven oil wells have been drilled on fee lands within
the reservation, 35 of which are still producing. 353,583
barrels of oil have been produced from tribal lands within the
reservation, while 3,684,361 barrels of oil have been produced
from fee lands within the reservation, or ten times the
production from tribal lands.
In the early 1990's, the Three Affiliated Tribes sought to
explore the potential for oil and gas development on tribal
lands. In 1995, the tribe approached tribal allottees about making
their lands available, through leasing, for such mineral development. A
tribal prospectus was developed and submitted to several hundred
companies, but few companies responded, citing barriers to development
that include: (1) too many mineral interests tied up in probate; and
(2) fractionated heirship problems, which is compounded by the
requirement of the 1909 Mineral Leasing Act that all persons who have
an undivided interest in any particular parcel must consent to its
lease.
According to testimony received by the Committee on Indian
Affairs in an October 6, 1997 hearing on S. 1079, an earlier
but identical version of S. 2069, there are approximately 293
Indian estates involving lands on the Fort Berthold Reservation
pending in the process of probate, which may affect as many as
1,200 tracts of land and as many as 12,000 undivided interests
in those tracts.\3\
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\3\ Testimony of Thomas M. Disselhorst, Staff Attorney for the
Three Affiliated Tribes of the Fort Berthold Reservation, before the
October 6, 1997 Hearing of the Committee on Indian Affairs on S. 1079.
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The problem of fractionated heirships arises out of the
General Allotment Act of 1887. As explained by the Deputy
Solicitor for the Department of the Interior, Edward B. Cohen,
in his testimony before the Committee on October 6, 1997:
The purpose of the statute was to accelerate what
was at that time termed to be `the civilization of
Indians by making them private landowners and farmers.'
Many Indians sold their land. A few assimilated into
surrounding communities, and in 1934, Congress
recognized that this policy was fairly unsuccessful. It
resulted in 100 million acres being removed from the
Indians land base, and it also left us a legacy of
fractionation.
The cause of this fractionation was that Congress
enacted probate laws which provided that as individual
Indian owners died, their property descended to their
heirs as undivided fractional interests in the land. So
if you do the math quickly, if an Indians owner had a
160-acre allotment and died and had four heirs, the
heirs did not inherit 40 acres each; each inherited a
25 percent interest in the 160-acres allotment. When
they died, assuming that they each had four heirs, each
of the sixteen heirs inherited a 6.25 percent interest.
If you take that just one generation more, and assuming
that each of the heirs had four theirs, each of the 64
owners then had a 1.56 percent share. And this
exponential fractionation occurs with each successive
generation.\4\
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\4\ Testimony of Edward B. Cohen, Deputy Solicitor, U.S. Department
of the Interior, before the October 6, 1997 Hearing of the Committee on
India Affairs on S. 1079.
In 1992, the General Accounting Office (GAO) conducted a
study of the fraction problem on twelve Indian reservations,
including the Fort Berthold Reservation. The GAO study found
that of 2,610 tracts of land on the Fort Berthold Reservation,
352 had two Indian owners, 999 had three to ten Indian owners,
675 had eleven to twenty-five Indian owners, 377 had twenty-six
to fifty Indian owners, 174 had fifty-one to one hundred Indian
owners, and 33 had from one hundred one to three hundred Indian
owners.\5\
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\5\ ``Indian Programs--Profile of Land Ownership at 12
Reservations'', Briefing Report to the Chairman, Select Committee on
Indians Affairs, U.S. Senate, by the U.S. General Accounting Office,
February, 1992, GAO/RCED-92-96BR.
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The Mineral Leasing Act of 1909, 25 U.S.C. 396, provides
that:
all lands allotted to Indians in severalty, except
allotments made to members of the Five Civilized Tribes
and Osage Indians in Oklahoma, may by said allottee be
leased for mining purposes for any term of years as may
be deemed advisable by the Secretary of the Interior;
and the Secretary of the Interior is authorized to
perform any and all acts and make such rules and
regulations as may be necessary for the purpose of
carrying the provisions of this section into full force
and effect; Provided, That if the said allottee is
deceased and the heirs to or devisees of any interest
in the allotment have not been determined, or, if
determined, some or all of them cannot be located, the
Secretary of the Interior may offer for sale leases for
mining purposes to the highest responsible qualified
bidder, at public auction, or on sealed bids, after
notice and advertisement, upon such terms and
conditions as the Secretary of the Interior may
prescribe. the Secretary of the Interior shall have the
right to reject all bids, whenever in his judgment the
interests of the Indians will be served by doing so,
and to readvertise such lease or sale.
The Mineral Leasing Act has been interpreted as requiring
the Secretary of the Interior to secure the consent of all
owners who have an undivided interest in a parcel ofland that
would be the subject of a mineral lease.\6\ Because of fractionated
heirship problems associated with the manner in which Indian estates
are inherited or devised, there can be hundreds of owners of an
undivided interest in a parcel of land.
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\6\ Ruling of the United States District Court of the District of
New Mexico on McClanahan, et al., v. Hodel, et al., No. 83-161-M Civil
(D.N.M., Aug. 14, 1987).
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In contrast, where non-Indian owned mineral acres are
concerned, most states allow the mineral acres to be developed
with less than 100 percent consent of all interest holders as
long as all persons who own an interest in the minerals receive
an accounting for production from the lease. Partly because of
the fundamental difference in leasing procedures between
property held by non-Indians and land held in trust by the
United States for the benefit of Indians, oil and gas
exploration companies have been reluctant to pursue the
potential for oil exploration on many Indian reservations,
including the Fort Berthold Reservation.
The Fort Berthold Reservation is an otherwise attractive
parcel to develop because it falls within the overall
geological boundaries of the Williston basin, an area in which
more than a billion barrels of oil have been produced to date.
The United States holds more than 475,000 mineral acres in
trust for the Tribes and its members, or roughly half of the
total land area within reservation boundaries. As outlined
above, oil has been and is being produced in commercial
quantities on the lands within the Tribes' reservation that are
not held in trust by the United States.
The area of the Williston Basin in which the Fort Berthold
Reservation is located is geologically complex, however it is
thought that the area is not likely to contain a single large
pool of oil that can easily be developed. Thus, the oil and gas
companies seek access to large blocks of land for detailed and
thorough exploration to enable both wide-scale and profitable
exploration and development of the oil and gas potential on the
lands comprising the Fort Berthold Reservation.
Acquisition of such large blocks of land on the Fort
Berthold Reservation is made more difficult because of the
checkerboard nature of land ownership by the Tribes, tribal
members and non-tribal members. This is primarily the result of
the allotments to more than 1,000 tribal members under the
General Allotment Act of 1887, and the 1910 Act specific to the
Fort Berthold Indian Reservation, which allowed non-Indians to
settle on unallotted lands within the reservation. There are
approximately 3,200 allotments on the Reservation, with each
allotment representing tracts of land varying in size from a
few acres to 320 acres. Estimates indicate that 30% of these
tracts are held by only one individual, but the balance of the
tracts have an average of about 20 owners. Some tracts are
owned by up to 200 individuals, all of whom would have to agree
to lease the allotment in order for mineral exploration to
occur.
Unlike other tribes that have been able to develop their
oil and gas resources, most of the mineral acres held in trust
which are available for oil and gas development on the Fort
Berthold Reservation are either held by individual tribal
members or are located under Lake Sakakawea. Because large
tracts are needed for successful development, few wells have
been drilled and little production of oil has taken place
except in areas directly adjacent to fields off the reservation
that have already been explored.
Legislative History
S. 2069 was introduced on May 12, 1998, by Senator Dorgan,
for himself and Senator Conrad, and was referred to the
Committee on Indian Affairs. An earlier and identical version
of S. 2069, S. 1079 was introduced on July 29, 1997 by Senator
Dorgan, for himself and Senator Conrad, and was referred to the
Committee on Indian Affairs. A hearing on S. 1079 was held on
October 6, 1997. S. 1079 was reported by the Committee on
Indian Affairs on October 23, 1997, and passed the Senate on
November 7, 1997. S. 1079 was passed in the House of
Representatives on November 12, 1997, with an amendment which
is unrelated to the substance of S. 1079. The House amendment,
known as the Quincy Library bill, authorizes a logging
demonstration project in California. Because of the apparent
controversy associated with the Quincy Library amendment, the
Senate has not acted on S. 1079. In an effort to overcome the
impasse associated with the unrelated amendment to S. 1079,
Senators Dorgan and Conrad introduced S. 2069.
Committee Recommendation and Tabulation of Vote
On May 20, 1998, the Committee on Indian Affairs, in an
open business session, considered an amendment in the nature of
a substitute to S. 2069 proposed by Senator Dorgan, and, by
unanimous vote, ordered S. 2069 to be favorably reported to the
Senate with an amendment in the nature of a substitute and with
a recommendation that it do pass.
Summary of the Amendment in the Nature of a Substitute
The amendment in the nature of a substitute provides
authority for the Secretary of the Interior to approve any
mineral lease or agreement affecting individually-owned Indian
land, if the owners of a majority of the undivided interest in
the Indian land which is the subject of the mineral lease or
agreement consent to the mineral lease or agreement and if the
Secretary determines that approval of the lease or agreement is
in the best interest of the Indian owners.
That determination by the Secretary is governed by
regulations found at 25 C.F.R. 212.3, which provides that:
In the best interest of the Indian mineral owner
refers to the standards to be applied by the Secretary
in considering whether to take an administrative action
affecting the interests of an Indian mineral owner. In
considering whether it is ``in the best interest of the
Indian mineral owner'' to take a certain action (such
as approval of a lease, permit, unitization of
communization agreement), the Secretary shall consider
any relevant factor, including but not limited to:
economic considerations, such as the date of lease
expiration; probable financial effect on the Indian
mineral owner; feasibility of land concerned; need for
change in the terms of the existing lease;
marketability; and potential environmental, social and
cultural effects.
The effect of the majority owners' agreement and the
Secretary's approval is to make the lease or agreement binding
on all owners of an undivided interest in the Indian land,
including any interest owned by an Indian tribe, and all other
parties to the lease or agreement to the same extent as if all
of the Indian owners had consented to the lease or agreement.
Proceeds derived from the lease or agreement are to be
distributed to all owners in accordance with their ownership
interest.
The amendment also authorizes the Secretary to execute any
mineral lease or agreement affecting individually-owned Indian
land on behalf of an Indian owner who is deceased and the heirs
to or devisees of the interest of the deceased owner have not
been determined, or if determined, some or all of them cannot
be located. The amendment further provides that leases or
agreements authorized for approval or execution under this
subsection need not be offered for sale through a public
auction or advertised sale.
The amendment in the nature of a substitute is intended to
supercede the Act of March 3, 1909, to the extent provided in
subsection (1) of that Act.
Effect on Existing Law
The substitute amendment to S. 2069 allows mineral leases
of lands held in trust or restricted status by the Secretary of
the Interior for the benefit of individual Indians on the Fort
Berthold Indian Reservation to be approved by the Secretary
where persons who hold a majority of the undivided mineral
interest in a single parcel of land subject to any lease or
agreement have agreed to the terms of the lease or agreement.
This applies to all leases or agreements covering lands on the
Fort Berthold Indian Reservation regardless of whether the
leases or agreements are presented or approved by the Secretary
under the 1909 Indian Mineral Leasing Act, 25 U.S.C. 396, or
the Indian Mineral Development Act of 1982, 25 U.S.C. 2101-
2108, or any other applicable law. The substitute amendment is
intended to supercede any contrary requirement or
interpretation of existing law, as it applies to the Fort
Berthold Indian Reservation, such as that contained in the
unreported U.S. District Court case, McClanahan v. Hodel, 16
Indian L. Rep. 3113, Civil No. 83-161-M, Aug. 14, 1987).
The substitute amendment also changes existing law as it
applies to the Fort Berthold Indian Reservation, including
those provisions of the 1909 Act and its regulations, which
require the Secretary to have a public auction or advertised
sale in the case of a mineral lease or agreement affecting
individually-owned Indian lands when the owner is deceased and
the heirs to or devisees of the interest of the deceased owner
have not been determined or cannot be located. The substitute
amendment permits the Secretary to execute a lease or agreement
in these circumstances without first conducting a sale. The
substitute amendment is intended to supercede existing law,
including that contained in the 1909 Act, which would otherwise
require the Secretary to offer such leases for sale only
through public auction or advertised sale in these
circumstances.
Section-by-Section Analysis
Section 1
Section 1 (a)(1) sets forth the definitions of the
following terms as they are applied in the Act: ``Indian
Land'', Individually-Owned Indian Land'' and ``Secretary''.
Section 1(a)(2) addresses the effect of approval by the
Secretary of the Interior. Section 1(a)(2)(A) provides that the
Secretary may approve any mineral lease or agreement that
affects individually-owned Indian land if the owners of a
majority of the undivided interest in the Indian land that is
the subject of a mineral lease or agreement, including any
interest covered by a lease or agreement executed by the
Secretary under paragraph (3), consent to the lease or
agreement, and the Secretary determines that approving the
lease or agreement is in the best interest of the Indian owners
of the lands.
For the purpose of determining whether the owners of a
majority of the undivided interest in the Indian land consent
to a lease or an agreement, the undivided interest of both the
Three Affiliated Tribes and the individual owners shall be
counted. The interests of the Three Affiliated Tribes and the
individual owners need not be covered by the same lease or
agreement.
Section 1(a)(2)(B) provides that upon the approval by the
Secretary of the Interior under subparagraph (A), the lease or
agreement shall be binding, to the same extent as if all the
Indian owners of the Indian land involved had consented to the
lease or agreement, upon all owners of the undivided interest
in the Indian land subject to the lease or agreement, including
any interest owned by the Three Affiliated Tribes, and all
other parties to the lease or agreement.
Section 1(a)(2)(C) provides that the proceeds derived from
a lease or agreement that is approved by the Secretary under
subparagraph (A) are to be distributed to all owners of the
Indian land that is subject to the lease or agreement in
accordance with the interest owned by each such owner.
Section (1)(a)(3) provides authority for the Secretary to
execute a mineral lease or agreement that affects individually-
owned Indian land on behalf of an Indian owner if that owner is
deceased and the heirs to, or devisees of, the interest of the
deceased owner have not been determined or the heirs of
devisees referred to in subparagraph (A) have been determined,
but one or more of the heirs or devisee cannot be located.
Section 1(a)(4) provides that it shall not be a requirement
for the approval or execution of a lease or agreement under
this subsection that the lease or agreement be offered for sale
through a public auction or advertised sale.
Section 1(b) sets forth a rule of construction which
provides that this Act supercedes the Act of March 3, 1909, 25
U.S.C. 396, only to the extent provided in subsection (a).
The amendment in the nature of a substitute to S. 2069
amends the title of the Act to read: ``A bill to permit the
mineral leasing of Indian land located within the Fort Berthold
Indian Reservation in any case in which there is consent from a
majority interest in the parcel of land under consideration for
lease.''.
Cost and Budgetary Considerations
The cost estimate for S. 2069, as developed by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 2, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2069, a bill to
permit the mineral leasing of Indian land located within the
Fort Berthold Indian Reservation in any case in which there is
consent from a majority interest in the parcel of land under
consideration for lease.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Kathleen
Gramp (for federal costs) and Marjorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
June E. O'Neill, Director.
Enclosure.
S. 2069--A bill to permit the mineral leasing of Indian land located
within the Fort Berthold Reservation in any case in which there
is consent from a majority interest in the parcel of land under
consideration for lease
S. 2069 would modify the conditions under which the
Secretary of the Interior may approve a mineral lease or
agreement that affects individually owned Indian land within
the Fort Berthold Reservation in North Dakota. Under current
law, approval of such leases requires the consent of all of the
individuals that have an undivided interest in a property. This
bill would ease that requirement by making the Secretary's
approval contingent upon the consent of a simply majority of
individual owners. Once approved by the Secretary, an agreement
would be binding on all owners of the property, and any
receipts would be distributed in proportion to each owner's
interest in the property.
CBO estimates that implementing S. 2069 would have no
effect on direct spending or receipts, because any income
resulting from agreements approved under this legislation would
be paid directly to the Indian owners or to the Fort Berthold
tribal government. Hence, pay-as-you-go procedures would not
apply to the bill. Although the Bureau of Indian Affairs would
incur additional costs if S. 2069 results in more leasing
activity on the reservation, we estimate that any effect on
discretionary spending would be insignificant.
S. 2069 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The Fort Berthold tribal government might receive additional
income if these changes lead to increased leasing activity on
the reservation.
On October 30, 1997, CBO transmitted a cost estimate for S.
1079, an identical bill that was ordered reported by the Senate
Committee on Indian Affairs on October 23, 1997. The CBO
estimate for S. 2069 is identical to the estimate provided for
S. 1079.
The CBO staff contacts are Kathleen Gramp (for federal
costs) and Majorie Miller (for the impact on state, local, and
tribal governments). This estimate was approved by Paul N. Van
de Water, Assistant Director for Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 2069 will
have a minimal impact on regulatory requirements and that the
enactment of S. 2069 will reduce the amount of paperwork
associated with the leasing of lands on the Fort Berthold
Reservation.
Executive Communications
The testimony of Edward B. Cohen, Deputy Solicitor, U.S.
Department of the Interior, on S. 1079, is set forth below:
Statement of Edward B. Cohen, Deputy Solicitor, the Department of the
Interior
Mr. Chairman and Members of the Committee, I am here today
to present the views of the Department of the Interior on S.
1079, a bill ``To permit the leasing of mineral rights, in any
case in which the Indian owners of an allotment that is located
within the boundaries of the Fort Berthold Indian Reservation
and held in trust by the United States have executed leases to
more than 50 percent of the mineral estate of that allotment.''
We support enactment of S. 1079 if amended. Before
detailing our proposed amendments, we appreciate the work of
the sponsors in introducing S. 1079 which is a positive step
that, if enacted, would complement the Department's current
legislative proposal dealing with the issue of fractionated
ownership of Indian trust and restricted lands. The issue of
fractionated ownership of land is a problem caused by
peculiarities in Federal Indian law. As each generation passes,
their heirs continue to own interests in land which are
undivided; i.e., parcels of land which are not separately
identified to a specific owner. In 1992, the General Accounting
Office issued a report profiling the ownership of 12
reservations, one of which was the Fort Berthold Reservation.
The Fort Berthold Reservation has the fourth highest number of
fractionated ownership interests.
As the number of owners increase in these tracts of land,
the administration of the land becomes increasingly more
difficult. Approximately 80 percent of the Bureau of Indian
Affairs' real estate services budget goes to attempting to
administer less than 20 percent of the lands under its
jurisdiction.
The Act of March 3, 1909 (25 U.S.C. 396) provides that
consent of all owners of a tract of trust or restricted land
must be obtained prior to approval of a mineral lease by the
Secretary of the Interior. As a consequence of this statutory
requirement, firms engaged in mineral exploration and
development are less likely to lease Indian lands because of
the costs associated with locating and acquiring the consent of
all owners to a parcel of Indian land. The result is that the
Indian owners do not gain maximum economic benefit from their
ownership. This 100 percent consent requirement is not found in
other laws governing the use of Indian lands. For instance,
rights of way across Indian land can be granted by the
Secretary when a majority of the interests consent; and surface
leases, i.e. agricultural, may be granted by the Secretary when
the owners of the land are unable to agree upon a lease. In
addition, we cite 25 U.S.C. Sec. 406 which states,
Upon request of the owners of a majority Indian
interest in land in which any undivided interest is
held under a trust or other patent containing
restrictions on alienations, the Secretary of the
Interior is authorized to sell all undivided Indian
trust or restricted interests in any part of the timber
on such land.'' (Sale of Timber on Lands Held Under
Trust)
While agricultural and timber uses are renewable resources
in contrast to mineral resources which are not renewable and
are non-replaceable, the rationale for majority consent still
applies. The Department believes the 1909 statute did not
contemplate the ownership of Indian land becoming as highly
fractionated as it now exists and, unlike other existing
statutes, it has not been amended since enactment to conform
with contemporary times.
Turning to our amendments, first, we believe that the title
should be amended to read, ``To permit the mineral leasing of
Indian land located within the Fort Berthold Indian Reservation
when there is a majority interest in the parcel of land under
consideration for lease consent.'' Second, Subparagraphs (A)
and (B) of (a)(1) should be deleted in their entirety and the
following should be added in lieu thereof, ``The Secretary of
the Interior may approve any mineral lease affecting
individually owned trust or restricted land that requires
approval by the Secretary, if the owners of a majority interest
in the trust or restricted land consent to the mineral lease
and the Secretary determines that approval of the lease is in
the best interest of the Indian owners. Upon such approval the
lease shall be binding upon the minority interests in the trust
or restricted land, including any interest owned by an Indian
tribe, and all other parties to the lease to the same extent as
if all of the Indian owners had consented to the transaction.
Proceeds derived from the lease shall be distributed to all
mineral interest owners in accordance with the interest owned
by each owner.'' Third, in subsection (a)(2) delete the words
``ALLOTMENT--An allotment described in this paragraph is an
allotment that--,'' and in lieu thereof add ``INDIAN LAND.--
Indian land described in this paragraph means land that,'' and
in (a)(2)(B) delete ``is held in trust by the United States,''
and in lieu thereof add ``is held in trust or restricted status
by the United States.''
We understand that the government of Three Affiliated
Tribes of the Fort Berthold Reservation also supports S. 1079.
The Bureau of Indian Affairs encourages the Committee to
consult with the allottees of the Reservation.
This concludes my prepared statement. We look forward to
working with the Committee to develop the desired changes to
the bill. I will be happy to answer any questions the Committee
may have.
Changes in Existing Law
The amendment in the nature of a substitute to S. 2069 will
establish a new section of Title 25 of the United States Code,
modifying the manner in which 25 U.S.C. 396 applies to the
approval by the Secretary of the Interior to leases of Indian
land on the Fort Berthold Indian Reservation.
A P P E N D I X A \7\
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\7\ ``Indian Programs--Profile of Land Ownership at 12
Reservations'', Briefing Report to the Chairman, Select Committee on
Indian Affairs, U.S. Senate, by the U.S. General Accounting Office,
February, 1992 GAO/RCED-92-96BR.