United States Code
Above from left: Hwéeldi at 150 (Navajo Times 2014); Hwéeldi 1864-68 La Longue Marché et La Deportation des Navajos (Censored News 2018); Men and women gathered on the newly-formed reservation at Fort Defiance 1873 (Nat’l Geographic); early photo, 40th U.S. Congress (1868).
What is the United States Code?
The United States Code (U.S.C.) organizes most federal public laws enacted by Congress, arranging them into broad subject area Titles. Once codified, the public laws become federal statutes (or federal statutory law). The public laws set forth legislative policies and enable the establishment, scope, and funding of federal agencies to implement the legislated policies. Most often, the established agencies are given the power to create rules and regulations to carry out their legislated responsibilities. Agency regulations are separately codified in the Code of Federal Regulations.
Presently, the U.S.C. is arranged in 54 TITLES, which are further organized into chapters and sections. The chapters and sections change as new laws are enacted that add, amend, or even repeal laws. The online Code is updated every few months by by the Office of the Law Revision Counsel of the U.S. House of Representatives, with a “release point” date given for each new update. The Code is provided free for publics access.
This page references federal statutes that most greatly impact reservation local community land use on the Navajo Nation. This includes portions of Title 25 (Indians); Title 16 (Conservation); Title 42 (Public Health & Welfare); and Title 43 (Public Lands).
Title 25 U.S.C.-INDIANS
Title 25 of the U.S.C. codifies public laws specific to Native Americans at sections 1 — 5807 which include establishment of the BIA, agreements, treaty obligations, government of reservations, social and economic welfare, rights of way, allotments, leases housing, and so on.
- INDEX to Title 25 (Indians) – Casetext
- INDEX and full text Title 25 (Indians) prepared by the Office of the Law Revision Counsel of the U.S. House of Representatives
Below are links to some important land-related portions of Title 25 most useful for community land use agreements and planning on Navajo Nation restricted lands.
Section 81 (contracts and agreements involving Tribes) provides that “no agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary, unless excepted by the Dept. of the Interior.”
Given that tribal trust lands are already restricted, there is little agreement as to what an encumbrance of Indian land means. The federal courts view this on a case-by-case basis.
Codified in 1913, section 85 (contracts relating to Tribal funds and property) requires the federal government to give prior consent for any contract relating to tribal funds or property. It provides:
No contract made with any Indian, where such contract relates to the tribal funds or property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given.
Navajo Nation allotments, characterized as “individual” trust property, came into being via the 1887 Dawes General Allotment Act. Congress abandoned the allotment policy in 1934, enacting the Indian Reorganization Act (Wheeler-Howard Act extended federal control and responsibility indefinitely to those allotments that continue to exist. The BIA provides services on allotments in accordance with the below Title 25 sections:
In 1955, Congress enacted the Indian Long Term Leasing Act which formalized land management through tribal leases and permits. The Act provides for agricultural, business, renewable energy, public purpose, religious, educational, recreational, and residential leases without foreclosing other methods of land possession and use. Section 415 is generally applicable to all Indian tribes and is codified at section 415.
Rules and regulations, as well as management for leases and permits are the responsibility of the Bureau of Indian Affairs (BIA).
In 2000, Congress enacted the Navajo Trust Leasing Act (NTLA), which is codified at section 415(e). The NTLA gave the Navajo Nation the privilege–before any other tribes–to take over lease management from the BIA on an unfunded basis (as determined by the U.S. Government’s General Accounting Office (GAO). Please see The HEARTH Act of 2012 and the Navajo Leasing Act of 2000: Financial and Self-Determination Issues, J. Foo, (American Bar Association, Section of Environment, Energy and Resources, Native American Resources Committee 2019)
The NTLA sets a limit of 25 years for business or agricultural leases with an option to renew for up to two additional 25 year terms. A 75 year limit is set for public, religious, educational, recreational, or residential leases if tribal regulations provide for such a limit, which has made any time limitation on such leases unclear.
In 2012, the NTLA unfunded privilege of self-managing leases was extended to all tribes when Congress enacted the HEARTH Act.
The Native American Graves Protection and Repatriation Act (NAGPRA)(1990) at sections 3001-3013 establishes the rights of Indian tribes to obtain repatriation of human remains, funerary objects, sacred objects, and objects of cultural patrimony from federal agencies and museums.
The National Indian Forest Resources Management Act (NIFRMA)(1990) is codified at sections 3101-3120. FIFRMA is the primary statute authorizing federal funds for Indian forest management activities.
NIFRMA extends the multiple-use and sustained yield mandate of Title 43 (Public Lands) to Indian lands and calls for an integrated approach to resource management that involves communities. NIFRMA requires an annual Report on the Status of Indian Forest Lands submitted to congress by the Department of the Interior, and an independent assessment of Indian forest lands and management practices to be completed every ten years. NIFRMA requires the federal government to comply with tribal laws pertaining to Indian forest lands, including laws regulating the environment or historic or cultural preservation, and shall cooperate with the enforcement of such laws on Indian forest lands unless in conflict with federal law.
The American Indian Agricultural Resource Management Act (AIRMA)(1993) is codified at sections 3701 — 3746 – AIRMA governs “land management activities,” requiring that the administration and supervision of agricultural leasing and permitting conform to tribal management plans and ordinances. AIARMA requires that BIA recognize and enforce all tribal laws and ordinances that regulate land use or pertain to Indian agricultural land.
AIRMA authorizes waivers of federal regulations or policies which conflict with a tribal plan or ordinance that do not conflict with federal law or the trust responsibility.
AIRMA extends the multiple-use and sustained yield mandate of Title 43 (Public Lands) to Indian lands, through integrated agricultural resource management planning.
25 U.S.C. §5124 (formerly 25 U.S.C. § 477) contains a short, single paragraph within section 17 of the Indian Reorganization Act of 1934 (IRA) that creates the tribal business structure known as “Section 17 Corporations.” Its complete precise wording:
The Secretary of the Interior may, upon petition by any tribe, issue a charter of incorporation to such tribe: Provided, That such charter shall not become operative until ratified by the governing body of such tribe. Such charter may convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, including the power to purchase restricted Indian lands and to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law; but no authority shall be granted to sell, mortgage, or lease for a period exceeding twenty-five years any trust or restricted lands included in the limits of the reservation. Any charter so issued shall not be revoked or surrendered except by Act of Congress.
Sovereign Immunity. Section 17 Corporations don’t automatically exist. They are brought into being by federal charter at the request of a Tribe, are wholly owned by the Tribe, are tax-exempt, and have tribal sovereign immunity. If the corporation defaults on the payment of funds it has borrowed, only the corporation’s property and assets are at risk. Sovereign immunity removes any tribal government property and assets from risk during a default.
There is no limit to how many Section 17 Corporations a Tribe may have. Such corporations are time-consuming to establish as they need both a tribal resolution and a federal charter. The federal charter for such corporations may only be revoked by Congress.
Congress did not prescribe any specific kind of business structure, which in theory creates creative possibilities for a tribal culture-based models. See BIA-Choosing a Tribal Business Structure. Also see Tribal Business Structure Handbook (DOI/IEED/IRS).
Exemption from Leases. 25 C.F.R. § 162.005(b)(2)(ii) provides: “A [Section 17] corporate entity that manages or has the power to manage the tribal land directly under its Federal charter or under a tribal authorization (not under a lease from the Indian tribe)” does NOT need a lease. The documents need to be recorded in accordance with § 162.343, § 162.443, and § 162.568.
On the Navajo Nation, there appears to be only one Section 17 Corporation as of Aug 22, 2023–Navajo Nation Oil & Gas (NNOGC). The Navajo Nation has otherwise established tribally-chartered tribal enterprises that, unlike Section 17 corporations, need to obtain leases for any land holdings. The Navajo Nation frequently inserts provisions for tribal sovereignty immunity upon creation of tribal enterprises. As of Aug 22, 2023, there are 12 tribal enterprises formed by the tribal government.
25 U.S.C. §§ 5301-5423 is the Indian Self-Determination and Education Assistance Act of 1975 (P.L.93-638), which authorizes the Secretary of the Interior, the Secretary of Health, Education, and Welfare, and some other government agencies to enter into contracts with Tribes for the administration and operation of certain Federal programs which provide services to Indian Tribes and their members. The contracts are referred to as “638” contracts. These 638 contracts are a legal tool for Tribal self-determination, by which Tribes are funded for taking over control of eligible federal government programs. Essentially, 638 authority delegates the federal trust responsibility to tribes, and subjects tribes to federal controls, policies, and laws that seem to constrain self-governance.
Title 16 U.S.C.-CONSERVATION
Title 16 codifies conservation authority on public and private lands across multiple public law enactments, providing specifically for federal agency responsibilities in conservation efforts on federal lands. These include national parks and forests, soil and water conservation, fish and wildlife conservation, archeological resources protection on Native American lands, and secure rural schools and community self-determination.
Below are important sections of Title 16 specific to conservation on Native American lands:
The Historic Preservation Act (NHPA)(1966 amended 2000) codified at sections 470-470x-6 establishes federal historic preservation institutions and creates a clearly defined process for historic preservation.
On the Navajo Nation, the NHPA is supplemented by the Navajo Nation Cultural Protection Act (NNCPRA), a tribal law enacted in 1988, which established a tribal Historic Preservation Dept.operating by delegation from the National Park Service. The NNCPRA sets forth detailed tribal guidelines for preservation of Navajo Nation sacred sites.
The Archeological Resources Protection Act (APRA)(1979 and amended in 1988) codified at sections 470aa — 470mm governs archeological excavation, removal and collection on federal and Native American lands. APRA has full force on the Navajo Nation.
Title 42 U.S.C.-PUBLIC HEALTH & WELFARE
Title 42 codifies public laws enacted by Congress that deal with public health, social welfare and civil rights.
Below are sections especially important to land use on the Navajo Nation:
“Coronavirus Relief, Fiscal Recovery, and Critical Capital Projects Funds” contains some amendments to the American Rescue Plan Act (ARPA) at sections 801-805.
ARPA’s Fiscal Recovery Funds provisions provide funding support of governmental efforts to mitigate the spread and impacts of COVID-19, building on the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The Navajo Nation administers ARPA funds through its Navajo Nation Fiscal Recovery Funds Office. has received more than $2 billion in ARPA funds to supplement existing governmental funding including land management, issue hardship checks, and fund projects including water, broadband, COVID testing, food, and cybersecurity. $7.7 million was allocated to hire chapter project managers. See NN ARPA projects.
The American Indian Religious Freedom Act (AIRFA) (1994) codified at section 1996 protects the rights of Native Americans to exercise their traditional religions by ensuring access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
AIRFA applies everywhere in the United States, not only on tribal reservations.
The National Environmental Policy Act (NEPA) (1970) codified at sections 4321-4370m-12 declares the policy of the United States to fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.
On the Navajo Nation Council, NEPA is supplanted by the Navajo Nation Environmental Policy Act (NNEPA), which is now the operative law on the Navajo Nation, enforced by tribal government via a Memorandum of Understanding with the USEPA. The NNEPA obtained BIA approved as the operative tribal environmental law in 1995.
Title 43 U.S.C.-PUBLIC LANDS
Title 43 codifies the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, is the Bureau of Land Management’s “organic act” that establishes the agency’s multiple-use and sustained yield mandate to serve present and future generations.
“Public lands” in the FLPMA do NOT include lands held for the benefit of Indians. Nevertheless the FLPMA requires coordination of forest, gas, mineral and other plans with Indian land use planning and management programs towards development and revision towards multiple-use and sustained yield. The FLPMA also establishes conservation and protection funds for “federal lands” which do encompass Indian reservations.