Native American Agriculture

Overview

Native American law is a broad body of federal law and policy that deals with the unique relationship between the federal government and the various recognized tribes. This type of law has slowly developed since the founding of the country and the current status of today’s laws are tied in closely with the history of its development. The development of Native American law has taken a circuitous route based upon the position of the federal government at a given time and these changes of position (often referred to as eras) still play an important role in modern legal issues. The U.S. Constitution gives Congress the power under the Commerce clause to regulate commerce with the Indian Tribes and the President with the power to negotiate treaties with the tribes. Along with early Supreme Court decisions, the provisions found in the Constitution have effectively given the federal government the sole authority to regulate the tribes. The tribes also have a right to self-governance, subject only to the authority of the federal government, which gives rise to the rest of the statutes, regulations, and cases that comprise Native American law. Read the full overview

Note: Recently added resources are posted at the top of the applicable sections.

Treaties

Early Recognized Treaties With American Indian Nations – (University of Nebraska, Lincoln)
Indian Affairs: Laws and Treaties – (Oklahoma State University)

Major Statutes

Land Fractionation

General Allotment Act of 1887 (Dawes Act), 25 U.S.C. §§ 331-358

End of Treaty Making 1871

Future treaties with Indian Tribes, 25 U.S.C. § 71
Abrogation of Treaties, 25 U.S.C. § 72
Indian Reorganization Act, 25 U.S.C. §§ 461-479

Termination Policy

House concurrent resolution 108 (HCR-108) of 1953
Public Law 280, State Jurisdiction over Offenses Committed by or against Indians in the Indian Country, 18 U.S.C. § 1162
The Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. §§ 450-458bbb2

42 U.S.C. § 9626 (Indian tribes)
42 U.S.C. § 9628 (a)(1)(B) (State response programs; use of grants by Indian tribe)

Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y

7 U.S.C. § § 136u (a) (state cooperation, aid, and training; cooperative agreements with Indian tribes)

Federal Water Pollution Control Act (a/k/a Clean Water Act), 33 U.S.C. §§ 1251 – 1387

33 U.S.C. § 1263 (Alaska native village demonstration projects)
33 U.S.C. § 1263a (grants to Alaska to improve sanitation in rural and Native villages)
33 U.S.C. § 1268 (c) (13) (Great Lakes management; Public information program in coordination with Indian tribes)
33 U.S.C. § 1377 (Indian tribes)

National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370f

42 U.S.C. § 4368b (Indian Environmental General Assistance Program Act of 1992)

Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6908a

42 U.S.C. § 6908a (agreements with Indian tribes)

Safe Drinking Water Act, 42 U.S.C. §§ 300f – 300j-26

42 U.S.C. § 300f (14) (Indian tribe defined)
42 U.S.C. § 300g-3 (a) (3) (reports; public water system compliance on Indian reservations)
42 U.S.C. § 300g-9 (f) (2) (small public water systems technology assistance centers; water systems that serve Indian Tribes)
42 U.S.C. § 300h-1 (e) (primary enforcement responsibility by Indian Tribe)
42 U.S.C. § 300j-1 (e) (technical assistance to public water systems owned or operated by Indian Tribes)
42 U.S.C. § 300j-2 (a) (public water systems supervision programs; grants; exception for Indian Tribes)
42 U.S.C. § 300j-6 (d) (Indian rights and sovereignty as unaffected)
42 U.S.C. § 300j-11 (Indian Tribes)

Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629

Finance and Credit

Agricultural Credit, 7 U.S.C. §§ 1921-2009aa-13

7 U.S.C. § 1926 (water and waste facility loans and grants; including to Indian tribes)
7 U.S.C. § 1926c (water and waste facility loans and grants to alleviate health risks; including to Indian tribes)
7 U.S.C. § 1941 (c) (4) (A) (direct loans; farm and ranch operations on tribal lands)
7 U.S.C. § 2009c (d) (strategic plans for each federally recognized Indian tribe)
7 U.S.C. § 2009dd-2 (e) (3) (J) (establishment and administration of Rural Collaborative Investment Program;
representatives of Indian tribes in National Board)

Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f
Indian Tribal Land Acquisition Program (ITLAP), 25 U.S.C. § 488

Forestry

National Indian Forest Resources Management, 25 U.S.C. §§ 3101-3120

National Forests, 16 U.S.C. §§ 471-546a-5

16 U.S.C. § 543f (National forests; traditional Native American uses)
16 U.S.C. § 544 (g) (Columbia River Gorge National Scenic Area; definitions; Indian tribes)
16 U.S.C. § 544d (e) (scenic area management plan; consultations with Indian tribes)
16 U.S.C. § 544g (b) (2) (D) (land acquisition; consent of the Indian tribe)
16 U.S.C. § 544k (b) (National forests; tributary rivers and streams; exception for Indian reservations)
16 U.S.C. § 544o (a) (savings provisions; effect on rights of Indians)

Lacey Act, 18 U.S.C. §§ 41-48
Lacey Act Amendments, 16 U.S.C. §§ 3371-3378

16 U.S.C. § 3377 (c) (interstate shipment or transshipment through Indian country of fish, wildlife, or plants for
legal purposes)

Timber Protection Act of September 20, 1922, 16 U.S.C. § 594

16 U.S.C. § 594 (protection of timber owned by United States from fire, disease, or insect ravages (including upon the
lands of Indian reservations))

Healthy Forest Restoration Act of 2003, 16 U.S.C. §§ 6501-6591

16 U.S.C. § 6512 (g) (5) (B) (authorized hazardous fuel reduction projects; diverse stakeholders (including Indian tribes))
16 U.S.C. § 6514 (f) (environmental analysis; public collaboration with Indian tribes)
16 U.S.C. § 6542 (a) (tribal watershed forestry assistance; assistance to Indian tribes for the purpose of expanding
tribal stewardship capacities)
16 U.S.C. § 6542 (b) (technical assistance to Indian tribes to protect water quality)
16 U.S.C. § 6542 (c) (watershed forestry program in cooperation with Indian tribes)
16 U.S.C. § 6572 (e) (3) (eligibility and enrollment of lands in program; acreage owned by Indian tribes)

Cooperative Forestry Assistance Act of 1978, 16 U.S.C. §§ 2101-2141

16 U.S.C. § 2109b (b) (competitive allocation of funds for cooperative forest innovation partnership projects;
eligibility; Indian tribes)

Nutrition

The Food and Nutrition Act of 2008, 7 U.S.C. §§ 2011-2036

7 U.S.C. § 2013 (b) (food distribution program on Indian reservations)
7 U.S.C. § 2020 (d) (administration; plan of operation by State agency; approval by Secretary; Indians)
7 U.S.C. § 2034 (a) (3) (assistance for community food projects; underserved community)

Food Conservation and Energy Act of 2008 (H.R.6124)

Sec. 4211. Assessing the nutritional value of the Food Distribution Program on Indian Reservations (FDPIR) food package.
Sec. 14001. Improved program delivery by Department of Agriculture on Indian reservations.

Special Supplemental Nutrition Program for Women, Infants, and Children, 42 U.S.C. § 1786

42 U.S.C. § 1786 (h) (5) (D) (special supplemental nutrition program for women, infants, and children; remote Indian
or native villages)
42 U.S.C. § 1786 (h) (8) (A) (iv) (III) (special supplemental nutrition program for women, infants, and children; addition
of small state agencies and Indian state agencies)

Renewable Energy

Indian Energy, 25 U.S.C. §§ 3501-3506

The Energy Independence and Security Act of 2007, Pub. L. No. 110-149, 121 Stat. 1492 (codified throughout scattered
sections of Title 42 U.S.C.)

Sec. 545 (b) Eligible units of local government and Indian tribes

Renewable Energy, 42 U.S.C. § 13317 (b)

Loans and Loan Guarantees for Renewable Energy Systems, 7 U.S.C § 1932

7 U.S.C § 1932 (a) (2) (loans and loan guarantees for renewable energy systems; loans to Indian tribes)
7 U.S.C § 1932 (g) (9) (A) (ii) (loans and loan guarantees for renewable energy systems; “underserved community”)

Electricity Produced from Certain Renewable Resources, 26 U.S.C. § 45

26 U.S.C. § 45 (c) (9) (Electricity produced from certain renewable resources, etc.; Indian coal)
26 U.S.C. § 45 (d) (10) (Electricity produced from certain renewable resources, etc.; Indian coal production facility)

Blending of Compliant Reformulated Gasolines, 42 U.S.C. § 7545 (o)(1)(I)(ii)

Urban Encroachment

Farmland Protection Program, 7 U.S.C. §§ 3838h-3838j

7 U.S.C. § 3838e (tribal lands are eligible for enrollment in the program)
7 U.S.C. § 3838g (payment limitations; exception for recognized Indian tribes or Alaska Native corporations)

Water Law

Federal Power Act, 16 U.S.C. §§ 791a – 823d

16 U.S.C. § 796 (Reservations defined)
16 U.S.C. § 803 (a) (recommendations of Indian tribes affected by the project)
16 U.S.C. § 803 (e) (approval of the Indian tribe)
16 U.S.C. § 803 (i) (waiver of conditions; use of lands within Indian reservations)
16 U.S.C. § 808 (a) (Indian tribe applying for a license for a project located on the tribal reservation)
16 U.S.C. § 808 (b) (identification of Federal or Indian lands included)
16 U.S.C. § 810 (a) (disposition of charges arising from licenses)
16 U.S.C. § 823c (b) (“qualifying project works” and Indian lands)

Reclamation Act of 1902, 43 U.S.C. §§ 371 – 390h-20

43 U.S.C. § 373b (c) (authorization of law enforcement officers)
43 U.S.C. § 373b (e) (legal status of State or local law enforcement officers)
43 U.S.C. § 373d (grants and cooperative agreements with Indian tribes and organizations)

Reclamation Reform Act of 1982, 43 U.S.C. §§ 390aa – 390zz-1

43 U.S.C. § 390jj (a) ( water conservation; coordination of ongoing programs; full public participation)

Water Resources Development Acts, 33 U.S.C. §§ 2201 – 2339

33 U.S.C. § 2269. (Tribal partnership program)
33 U.S.C. § 2282 (d) (feasibility reports; Indian tribes)
33 U.S.C. § 2326b (c) (sediment management; consultation with Indian Tribes)
33 U.S.C. § 2338 (b) (Reburial; consultation with affected Indian tribes)
33 U.S.C. § 2347 (coordination and scheduling of Federal, State, and local actions)
33 U.S.C. § 2348 (d) (project streamlining; coordinated reviews)

Regulations

General Agriculture and Property

Land Acquisitions, 25 CFR §§ 151.1-151.15

25 CFR § 151.3; Land Acquisition policy
25 CFR § 151.4; Acquisitions in trust of lands owned in fee by an Indian
25 CFR § 151.6; Exchanges
25 CFR § 151.7; Acquisition of fractional interests

Issuance of Patents and Removal of Restrictions to Sell Land, 25 CFR §§ 152.1-152.35

25 CFR § 152.17; Sales, exchanges, and conveyances by, or with the consent of the individual Indian owner

Easements and Rights of Way, 25 C.F.R. § 169

Agricultural Leases

Land Records and Title Documents, 25 C.F.R. § 150
Land Acquisitions, 25 C.F.R. § 151
Issuance of Patents in Fee, Certificates of Competency, Removal or Restrictions, and Sale of Certain Indian Lands, 25 C.F.R. § 152
Determination of Competency: Crow Indians, 25 C.F.R. § 153
Osage Lands, 25 C.F.R. § 158
Sale of Irrigable Lands, Special Water Contract Requirements, 25 C.F.R. § 159
Inclusions of Liens in all Patents and Instruments Executed, 25 C.F.R. § 160
Navajo Partitioned Lands Grazing Permits Leases and Permits 25 C.F.R. § 162

25 CFR § 162.104; When is a lease needed to authorize possession of Indian Land?
25 CFR § 162.105; Can tracts with different Indian landowners be unitized for leasing purposes?

Leases and Permits; Agricultural Leases, 25 C.F.R. §§ 162.200 – 162.256

25 CFR § 162.205; Can individual Indian landowners exempt their agricultural land from certain tribal leasing policies?
25 CFR § 162.206; Can the terms of an agricultural lease be negotiated with the Indian landowners?
25 CFR § 162.207; When can the Indian landowners grant an agricultural lease?
25 CFR § 162.208; Who can represent the Indian landowners in negotiating or granting an agricultural lease?
25 CFR § 162.209; When can BIA grant an agricultural lease on behalf of an Indian landowner?
25 CFR § 162.211; What type of valuation or evaluation methods will be applied in estimating the fair annual rental of Indian land?
25 CFR § 162.212; When will the BIA advertise Indian land for agricultural leases?
25 CFR § 162.239; How will payment rights and obligations relating to agricultural land be allocated between the Indian landowners and the tenant?
25 CFR § 212.54; Lease or permit cancellation; Bureau of Indian Affairs notice of noncompliance

Grazing Permits, 25 C.F.R. § 166
Navajo Grazing Regulations, 25 C.F.R. § 167
Grazing Regulations for Hopi Partitioned Lands Area, 25 C.F.R. § 168

Competitive Leasing, 43 CFR §§ 3420.0-1-3420.6

43 CFR § 3420.1-7; Consultation with states and Indian tribes
43 CFR § 3420.4-4; Consultation with Indian tribes

Business Organizations

Business Development/Small Disadvantaged Business Status Determination, 13 CFR §§ 124.1-124.1014

13 CFR § 124.109; Do Indian tribes and Alaska Native Corporations have any special rules for applying to the
8(a) BD program?

Environmental Law

Pesticide Programs Regulations, 40 C.F.R. pts. 150-180

40 C.F.R. § 171.10; Certification of applicators on Indian Reservations
40 C.F.R. § 171.11; Federal certification of pesticide applicators in States or on Indian Reservations where there is
no approved State or Tribe certification plan in effect

Radiation Protection Programs Regulations, 40 C.F.R. pts. 190-197

40 C.F.R. § 192.01 (k); Definitions; Indian Tribe (Standards for the Control of Residual Radioactive Materials from Inactive Uranium Processing Sites)

Solid Waste Regulations, 40 C.F.R. pts. 239-259

40 C.F.R. § 258.42; Approval of site-specific flexibility requests in Indian country (Solid Waste Regulations)

Superfund, Emergency Planning and Community Right-to-Know Programs Regulations, 40 C.F.R. pts. 300-399

40 C.F.R. § 300.610; Indian tribes (Trustees for Natural Resources)
40 C.F.R. § 300.175 (a) (9) (x); Federal agencies: additional responsibilities and assistance (Bureau of Indian Affairs: Coordination of activities affecting Indian lands)
40 C.F.R. § 300.180 (a); State and local participation in response (participation of Indian tribes in the appropriate RRT)
40 C.F.R. § 300.515 (a); Requirements for state involvement in remedial and enforcement response (cooperative
agreements or contracts with a federally recognized Indian tribe)
40 C.F.R. § 300.515 (b); Requirements for state involvement in remedial and enforcement response (Indian tribe
involvement during response)

Toxic Substances Control Act Regulations, 40 C.F.R. pts. 700-789

40 C.F.R. § 745.320; Scope and purpose (Toxic Substances Control Act Regulations; State and Indian Tribal Programs)
40 C.F.R. § 745.324; Authorization of State or Tribal programs (Toxic Substances Control Act Regulations; State and
Indian Tribal Programs)
40 C.F.R. § 745.325; Lead-based paint activities: State and Tribal program requirements (Toxic Substances Control Act
Regulations; State and Indian Tribal Programs)

Finance and Credit

General Program Administration, 7 C.F.R. § 761

7 C.F.R. § 761.208 (a) (3); Target participation rates for socially disadvantaged groups (when distributing loan funds
in counties within Indian reservations)

Guaranteed Farm Loans, 7 C.F.R. § 762

7 C.F.R. § 762.129 (b) (4); Percent of guarantee and maximum loss (when a guaranteed OL is made to a farmer whose farm
land is subject to the jurisdiction of an Indian tribe)

Direct Loan Making, 7 C.F.R. § 764.104 (c)
Indian Tribal Land Acquisition Program (ITLAP), 7 C.F.R. § 770.2

Forestry

General Forestry Regulations, 25 CFR §§ 163.1-163.37

25 CFR § 163.10; Management of Indian forest land
25 CFR § 163.13; Indian tribal forest enterprise operations
25 CFR § 163.35; Indian forest land assistance account
25 CFR § 163.40; Indian and Alaska Native forestry education assistance

National Forest System Land and Resource Management Planning, 36 C.F.R. § 219

36 C.F.R. § 219.15; Interaction with American Indian tribes and Alaska Natives (National Forest System Land and Resource
Management Planning)

Protection of Archeological Resources, 36 C.F.R. § 296

36 C.F.R. § 296.5; Permit requirements and exceptions (excavation and/or removal of archaeological resources
from public lands or Indian lands)
36 C.F.R. § 296.7; Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance

Management of Designated Wilderness Areas, 43 C.F.R. §§ 6301.1-6305.30

43 C.F.R. § 6302.18; How may American Indians use wilderness areas for traditional religious purposes?