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You Need Do Not Need to be Tribal or Native American to own Fee Simple or Deeded Land within the boundaries of the Rez
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A Short Legal Brief on Deeded vs. Indian Lands
By Douglas Roger Nash
The examination of Indian lands is really a study of history, international law and governmental policy. It is perhaps best summarized and traced in its chronological development, primarily in federal statutes. Indian land ownership is complex and unique and has, to a significant degree, its own terminology and terms of art. This summary provides an overview of development of the law affecting Indian Lands.
Indian Title
Prior to any European contact, Indian tribes owned and occupied all of the land that now comprises the United States. The growing presence of agents of European countries, the displacement of Indian tribes resulting from war or otherwise and the establishment of non-Indian settlements began to raise questions about the nature of ownership and title to lands. The United States Supreme Court first examined these issues in Johnson v. M'Intosh , 21 U.S. (8 Wheat) 543 (1823). Chief Justice Marshall concluded that the tribes held their lands by "Indian title." This gave the tribes the right to occupy the land and to retain possession of it. 21 U.S. (8 Wheat) at 574. However, he also concluded that "discovery" by European governments vested in those governments the "ultimate dominion" in the land subject only to Indian title. Id . Thus, the capacity of the tribes to convey title to their land was limited to the discovering government. These principles of Indian title have endured over time. They were more recently summarized:
It very early became accepted doctrine in this Court that although fee title to lands occupied by Indians when the colonists arrived became vested in the sovereign - first the discovering European nation and later the original states and the United States - a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian Title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States.
Oneida Indian Nation v. County of Oneida , 414 U.S. 661, 667 (1974).
Nonintercourse Acts
Congress early adopted the first Indian Nonintercourse Act which reserved the right to acquire Indian lands to the United States to the exclusion of individuals and states. Act of July 22, 1790, 1 Stat. 137. The Act provided that a sale of Indian lands was not valid unless "made and duly executed at some public treaty, held under the authority of the United States." Id. The current version contains similar language. 25 U.S.C. § 117. Recently, some eastern Indian tribes brought lawsuits seeking the recovery of lands based upon claims that the 1790 statue was violated because conveyances were made to states and individuals outside the process called for in the Act. See , e.g. , South Carolina v. Catawba Indian Tribe, Inc. 476 U.S. 498 (1986); Mashpee Tribe v. New Seabury Corp. , 592 F.2d 575 (1st Cir. 1979); Narragansett Tribe v. Souther R.I. Land Dev. Corp. , 418 F.Supp. 798 (D.R.I. 1976).
Treaties
Treaties between the United States and Indian tribes became a primary means of extinguishing Indian title and opening lands for settlement. Indian treaties were recognized as "not a grant of rights to the Indians, but a grant of rights from them - a reservation of those not granted." United States v. Winans , 198 U.S. 371 (1905). Tribes would typically cede vast territories to the United States in exchange for some measure of consideration and, at the same time, reserve some of its aboriginal territory for its continued occupancy as a homeland. These tracts became known as "reservations." See, e.g. , the Nez Perce Treaty of June 11, 1855, 12 Stat. 957, Articles 1 and 2. The demand for the opening of more lands often resulted in the United States negotiating additional treaties with tribes by which Indian title to more lands was extinguished and reservations accordingly reduced in size. See, e.g. , the Nez Perce Treaty of June 9, 1863, 14 Stat. 647, Articles 1 and 2. While Indian treaties confirmed the status of Indian tribes as sovereign governments the practice of treating with tribes was ended by Congress in 1871, 16 Stat. 544, 25 U.S.C. § 71. Thereafter, what would have been treaties between the United States and Indian Tribes were deemed "Agreements." See , e.g. , Amended Agreement with Certain Sioux Indians, May 2, 1873, confirmed by Acts of Feb. 14, 1873, 17 Stat. 456 and June 24, 1874, 18 Stat. 167.
General Allotment Act
A large segment of Indian land law and terminology was shaped by the federal government's allotment policy and the General Allotment Act of 1887, also commonly known as the Dawes Act, 24 Stat. 388, codified as amended by 25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, 354 and 381. The policy was based upon the theory that Indians would be become more quickly assimilated if they were owners of a parcel of land and encouraged to pursue civilized agricultural pursuits as opposed to traditional means of existing by hunting, fishing and gathering. Reservations were surveyed and agents were dispatched to begin the allotting process which called for the allocation of a parcel of land to all members of a tribe. After an amendment to the Act, individuals received 80 acres of agricultural land or 160 acres of grazing land. Act of Feb. 28, 1891, 26 Stat. 794, 25 U.S.C. § 331. These allotments were held in trust for individuals by the United States. That is, the legal title was held by the United States and the allottee was given beneficial title - the right to live on, use and profit from the allotment. As evidence of this, each allottee was give a "trust patent" reflecting their "ownership" of the property. So long as the title was held in trust by the United States it was not subject to state or local taxation or regulation.
Upon the completion of the allotment process it was common for the United States to seek agreements with the tribe for the identification of lands to be held in common by the tribe and for the cession of the remaining lands as "surplus" lands. 24 Stat. 388, 389-90, 25 U.S.C. § 348. This process resulted in the loss of approximately 90,000,000 acres of tribal land between 1887 and 1934 through the sale of "surplus" lands and alienation of allotments. Allotments were lost to Indian ownership by a number of means. The Burke Act of 1906 authorized allotments to be taken out of trust if the allottee was deemed "competent." 34 Stat. 182, 25 U.S.C. § 349. When an allotment was taken out of trust, a fee patent was issued to the allottee by the United States reflecting their full ownership of the title - which rendered the land subject to state and local taxes. This resulted in what has come to be known as the "forced fee patent" process which involved individuals certifying that a particular allottee was competent which in turn justified a local Indian agent issuing a certificate of competency for that individual are taking the allotment out of trust - only to have it sold at a tax sale several years later for unpaid taxes.. See , Bordeaux v. Hunt , 621 F. Supp. 637 (D.S.D. 1985); aff'd sub nom. Nichols v. Rysavy , 809 F.2d 1317 (8th Cir. 1987); cert. denied 484 U.S. 848 (1987). Many times, this all happened without the knowledge of the allottee. The Appropriation Act of 1907 also allowed the sale of allotments with the proceeds to be used for the seller's benefit. 34 Stat. 1015, 1018, 25 U.S.C. § 405.
Under the General Allotment Act, allotments were to be held in trust by the United States for individual Indians for a period of 25 years. 24 Stat. at 388, 389, 25 U.S.C. 348. This was to insure that the allotments would not be alienated and that the allottees would be immune from state taxation. United States v. Mitchell , 445 U.S. 535, 544 (1980). Tribal lands were also held in trust by the United States. A similar device was a conveyance to a tribe or an Indian person of title to property containing restrictions against alienation.
Thus, the terms trust land, tribal trust land and trust allotments have come to be common terms in discussions of Indian land. These are distinguished from fee land - that is land that is held in fee simple and not in trust. The terms "patented lands" and "deeded lands" are often used synonymously with fee lands. Although trust or restricted land is most commonly associated with Indian tribes and individuals, it is not uncommon for tribes and individuals to own land in fee as well as in trust status. This often occurs when non-trust lands on reservations are purchased.
Indian Reorganization Act
Proponents of the allotment policy failed to recognize or understand that individual ownership of land was a distinctly foreign concept among most tribes and many individuals made no use of their allotments. The harm done by the allotment policy and the total lack of benefits to Indian tribes and people was eventually recognized. The allotment policy was effectively repudiated and largely reversed by the Indian Reorganization Act (IRA) of 1934. 48 Stat. 984, 25 U.S.C. §§ 461 - 479. The IRA prohibited any further allotments of reservations and extended the trust periods for allotments remaining in trust for an indefinite period. 48 Stat. at 984, 25 U.S.C.§ 461, 462. The Secretary of the Interior was authorized to restore remaining "surplus" lands to tribal ownership and to reacquire interests in land within or without reservations for Indians and to hold that land in trust. 48 Stat. 985, 25 U.S.C. § 465. Procedures for taking fee lands into trust for a tribe or individual Indian were established and are set forth in 25 C.F.R. Part. 151. Proposed rules for amending those procedures were published on April 12, 1999, Vol. 64, No. 69, Federal Register 17574. This process has been cumbersome and time consuming. The proposed regulations are described as containing a process which reflect a presumption in favor of taking title to on-reservation lands in trust and which contain a somewhat more demanding standard when the land into trust application involves lands outside a reservation boundary. This process is extremely important to Indian tribes that are now beginning to reacquire lands lost to tribal ownership within their reservations.
Indian Claims Commission
Indian Tribes were statutorily barred from pursuing claims against the United States before the United States Court of Claims arising from treaties. Act of March 3, 1863, 12 Stat. 765, 767, 28 U.S.C. § 1502. The number of requests for special legislation authorizing individual tribes to present their cases to the Court of Claims resulted in the creation of the Indian Claims Commission in 1946. Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C. §§ 70 - 70v-3. The ICC was authorized to hear tribal claims filed before August 13, 1951. The 1946 Act gave the Commission jurisdiction to hear five distinct categories of claims, one of which was "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands or compensation agreed to by the claimant." 60 Stat. 1049, 1050, 25 U.S.C. § 70a.
Indian Country
The definition of Indian Country, 18 U.S.C. 1151, has to do with jurisdiction as opposed to land issues. It began defining Indian Country for purposes of defining the application of federal criminal law and has come to be used to define the scope of civil jurisdiction to a large degree. Oklahoma Tax Comm'n v. Sac and Fox Nation , 508 U.S. 114 (1993); California v. Cabazon Band of Mission Indians , 480 U.S. 202, 207 n.5 (1987). Three types of Indian Country are defined (a) all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent and including any rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Indian Gaming Regulatory Act
The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 - 2721, defines "Indian lands" as "All lands within the limits of any Indian reservation" and "any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power." 25 U.S.C. §2703(4). It also contains a specific provision pertaining to gaming on lands acquired after October 17, 1988. It provides that no gaming under the Act is to take place on lands acquired by the Secretary in trust for a tribe after October 17, 1988, unless certain conditions are met and subject to several exceptions. 25 U.S.C. § 2719.
Conclusion
Land is central to the economic development and political stability and well being of Indian tribes across the United States. Many tribes are now implementing strategies to reacquire land that were lost as a result of past federal policies and practices.
Glossary
Land that has had its ownership transferred to another party.
Reservation land the federal government distributed to individual Indians, generally in 40-, 80-, and 160-acre parcels.
An individual who owns an undivided interest in a parcel of allotted land.
The right to benefit from (live on, use, profit from) a parcel of land, the legal title to which is held by the trustee. In the case of Indian land, the trustee is the federal government.
A report of the ownership history from the government allotment or trust patent to the current owners.
The reversion of the property of a deceased person to the government when there are no legal heirs.
Land ownership status in which the owner holds title to and control of the property. The owner may make decisions about land use or sell the land without government oversight.
When original allotted trust lands that were transferred to fee simple status are returned to trust status. Tribes or individual Indians can initiate the process on fee lands they already own or lands they acquire. In general, this conversion can take as much as two years.
A trust-to-fee conversion without the request, consent, or knowledge of the landowner. Forced fee patents led to the loss of many land parcels through tax foreclosure sales.
When a trust parcel is owned by more than one owner as undivided interests. Fractionated ownership results from ownership interests being divided again and again when an owner of the interest dies without a will providing for the distribution of the asset.
Trust parcels with fractionated ownership often have hundreds, sometimes thousands, of owners. By law, a majority of owners must agree to a particular use of the land, making it difficult for any one of the owners to use the land (i.e. for farming, building a home or starting a business).
The terms and conditions by which Indians hold land.
Any tribe or individual Indian who owns an interest in Indian land in trust or restricted status.
Fund account administered by the Department of the Interior. Funds deposited into these accounts come from a number of sources, including land-related income from leases, timber harvest and mineral extraction on Indian land. In general, each Indian person with an undivided interest in trust land holds an IIM Account.
When used with respect to Indian land, an interest is an ownership right to the surface estate of Indian land that is unlimited or uncertain in duration. This includes life estates.
Leaving no legally valid will.
When land with is owned with other parties as joint tenants and the right to the land lasts as long as each joint tenant is alive. As each joint tenant dies, the surviving joint tenants receive the share of the deceased joint tenant. Eventually, the last surviving joint tenant owns the entire interest in the land, and only that person can decide who gets the land after that remaining tenant dies.
Although we often speak of people “owning land,” in an American legal context it is more correct to say that people have obtained rights to inhabit and use land. American jurisprudence has slowly evolved to consider property as not the physical object but as a “bundle of rights” composed as legal relationships such as the “right to sell” or “right to devise.” Usually, these rights or legal relations have economic or sale value if they are allowed to be transferred.
In American law, the rights to inhabit and use land can be gained by conquest, decree, sale, lease, easement, escheat, patent, or by other agreement. The rights held by one individual may be conveyed to one or more other individuals. The rights to the surface of the earth may be held by different individuals than those who have the rights to the space above (super-surface) and the material below the surface (subsurface) of the earth. Furthermore, the rights to the surface, subsurface, and super-surface may each be shared by many individuals.
Most rights are conveyed by a written instrument which evidences a transaction in which any interest in land is created, alienated, mortgaged, or assigned.
However, it is important to note that, while different Native people may treat and use land very differently, the concept that people inhabit but do not own the land is still a part of Native American culture. The following quote is a good example of this philosophy: “Some of our chiefs make the claim that the land belongs to us. It is not what the Great Spirit told me. He told me that the land belongs to him, that no people own the land…” (Kanekuk, Kickapoo Prophet)
The right to live on, use, and take income from land during a person’s lifetime.
Land outside the boundaries of a reservation that is protected by the federal government for Indian use. For example, these pieces of land could be religious sites or pieces allotted to individuals out of the public domain.
Rights to land that are owned by one individual.
The “patent” is the title deed by which the federal government conveys or transfers land to people. “In fee” refers to the fee simple ownership in land. The term “patent-in-fee” describes the title document issued by the U.S. Federal Government to terminate the trust created by the trust patent issued to the allottee. The patent-in-fee operates to vest fee simple ownership in an allottee or their heirs.
The process by which property is transferred from a deceased property owner to his or her heirs and/or beneficiaries. Under the General Allotment Act, a tribe’s traditional rules of descent and property transfer were replaced by the probate laws of the territory or state in which the tribal member resided or where the property was located. This is still the case when an Indian landowner dies without having written a will or when there is no tribal probate code. The Office of Hearings and Appeals (OHA) is responsible for the probate of trust property owned by deceased Native Americans and examines federal law, federal regulations, tribal law, and state law to determine the heirs and/or beneficiaries, the validity of wills, and the validity of claims.
If a person owns a remainder interest in land, his or her right to the land begins when the person owning the life estate in the land dies. If an Indian has the remainder interest, the land stays in trust.
To prevent Indian lands from passing out of trust status, non-Indian heirs will only receive a life estate in Indian lands. Because a non-Indian heir owns less than the full interest, a “remainder interest” is created, and this remainder interest must go to an Indian. If there are no such heirs, the remainder may be purchased by any Indian co-owner of the parcel. If no offer is made to purchase the parcel, the remainder interest passes to the tribe. The rules are applicable to both testate and intestate Indian estates.
The ownership is the same as fee simple land, but there are specific government-imposed restrictions on use and/or disposition.
The most common form of ownership of rights to land held in trust for Native Americans. Tenants in common have unity of possession, which means that every owner has an equal right with their co-owners to the land as long as they live. A tenant in common has an undivided interest in the whole property as if they were the sole owner, and can transfer their interest by gift, sale or will. A tenant in common can also decide who will own their interest when they pass away.
Property bequeathed or set out in a will.
Having made a legally valid will.
The transfer of property according to a legally valid will.
Also referred to as an Interest Report Simple or Interest Report, a TSR takes the place of a title commitment for land that is held in trust. The TSR is a necessary precursor to issuing a mortgage for a property on trust land.
Land that is owned by a group of Indians recognized by the federal government as an Indian tribe.
Land owned either by an individual Indian or a tribe, the title to which is held in trust by the federal government. Most trust land is within reservation boundaries, but trust land can also be off-reservation, or outside the boundaries of an Indian reservation.
Individual Indian allottees were issued documents called “trust patents” to verify that their land was held in trust by the government.
The conversion of lands held in trust by the U.S. Federal Government to fee simple status. With the passage of the Burke Act of 1906, Indian lands held in trust were converted to fee status if the Secretary of the Interior determined that the Indian landowner was competent. Today, trust lands can be converted to fee status in 30 days. Only individual Indian landowners can request a trust-to-fee conversion.
A share of the ownership interest in a parcel of trust land. The number of interests grows with the division among heirs of these interests according to federal or tribal
The legal right to use or profit from another's property.
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