CHAPTER 13 EXAMINATION OF TITLE TO INDIAN LANDS

• Jurisdiction: United States

Mineral Title Examination
(Sep 2007)
CHAPTER 13
EXAMINATION OF TITLE TO INDIAN LANDS
Michael E. Webster (Deceased)
Ken G. Hedge
Attorney
Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P.
Williston, North Dakota
Christopher Mangen, Jr.
Attorney
Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P.
Billings, Montana

Michael E. Webster was a partner in the law firm of Crowley, Haughey, Hanson, Toole & Dietrich, p.l.l.p., practicing Indian law in the firm's Billings, Montana office, prior to his untimely death in 2002. Mr. Webster was active in the Rocky Mountain Mineral Law Foundation and authored numerous papers dealing with a variety of topics in the Indian law area, including this paper, "Examination of Title to Indian Lands," originally presented at the 1992 Rocky Mountain Mineral Law Foundation Special Institute on Mineral Title Examination and, later, at the 1999 Rocky Mountain Mineral Law Foundation Special Institute on Natural Resources Development and Environmental Regulation in Indian Country; "Coal Mining on Indian Lands-A Study in Permits, Plans and Paperwork" presented in 1992 at the 4^th Annual American Bar Association Institute on Natural Resources Management and Environmental Enforcement on Indian Lands; "Mineral Development of Indian Lands: Understanding the Process and Avoiding the Pitfalls" presented in 1993 at the 39^th Annual Rocky Mountain Mineral Law Institute; and "Native American Jurisdiction and Permitting" presented in 1995 at the Rocky Mountain Mineral Law Foundation's Special Institute on Oil and Natural Gas Pipelines: Wellhead to End User.

Christopher (Chris) Mangen, Jr. is a partner in the law firm of Crowley, Haughey, Hanson, Toole & Dietrich, p.l.l.p., practicing natural resources law in the firm's Billings, Montana office since 1980. Mr. Mangen began his career in the firm's Natural Resources Department, emphasizing oil, gas and water law. He has been on the faculty of the Rocky Mountain Mineral Law Foundation Short Course on Federal Oil and Gas Leasing and has served as the faculty chairman for the course. He has also lectured on various topics in the natural resources and real estate areas. Since the mid-1980s Mr. Mangen's practice has increasingly emphasized general litigation and he has become heavily involved in the areas of natural resources related disputes, personal injury, product liability and commercial litigation. Mr. Mangen is lead counsel for natural resource litigated matters. He is listed in The Best Lawyers in America in Natural Resources Law.

Ken G. Hedge is a partner in the law firm of Crowley, Haughey, Hanson, Toole & Dietrich, p.l.l.p., primarily practicing oil and gas law in the firm's Williston, North Dakota office. Mr. Hedge graduated from the University of Wyoming College of Law, with Honors, in 1999. He served as the managing editor of the Land & Water Law Review (now the Wyoming Law Review). Mr. Hedge practices in North Dakota and Montana and serves as a Reporter for the Rocky Mountain Mineral Law Newsletter.

TABLE OF CONTENTS

I. BACKGROUND INFORMATION

A. Introduction.

B. Specific Reservations.

C. Government Offices and Jurisdiction.

D. Inapplicability of Recording Statutes.

E. Access to Indian Records.

II. EXAMINATION PROCESS

III. RECORD REPOSITORIES AND PERTINENT RECORDS

A. Bureau of Land Management State Land Offices.

[a] Master Title Plats.

[b] Historical Index.

[c] Mineral Plats.

[d] Tract Books.

[e] Cadastral Survey Data.

[f] Allotment Schedules.

[g] Miscellaneous.

[h] Automated Land Information System.

B. Bureau of Indian Affairs Land Titles and Records Offices (Title Plants).

[a] Introduction.

[b] Land Index.

[c] Title Status Report.

[d] Individual Realty Interest Records.

[e] Reception Book.

[f] Land Ownership Plats and Maps.

[g] Mineral Ownership Plats.

[h] Lease and Permit Plats.

[i] Original Records.

[j] Probate Files.

[i] Background Information.

[ii] Examination of Probate Records - Intestate Succession.

[iii] Examination of Probate Records - Testate Succession.

[iv] General Probate Information.

[k] Miscellaneous.

C. Bureau of Indian Affairs Regional Offices.

[a] Location and Jurisdiction.

[b] Lease or Permit Sale Files.

[c] Individual Mineral Lease or Permit Files.

[d] Ownership Plats.

[e] Miscellaneous.

D. Bureau of Indian Affairs Agency Realty Office.

[a] Introduction.

[b] Land Ownership Plats.

[c] Mineral Lease and Permit Plats.

[d] Mineral Lease or Permit Sale Files.

[e] Individual Mineral Lease or Permit Files.

[f] Surface Lease Index and Files.

[g] Allotment Folders.

[h] Allotment and Estate Cards.

[i] Lessee Qualification Files.

[j] Tribal Authorizations Files.

[k] Probate Files.

E. County Records.

[a] Basic Title Documentation.

[b] Mineral Lease and Permit Recordation and Transfer.

[c] Surface Ownership Documentation.

F. Bureau of Indian Affairs Washington, DC Office.

G. Administrative Law Judges' Offices.

H. Federal Records Centers and National Archives.

I. Tribal Records.

IV. CONCLUSION

I. BACKGROUND INFORMATION

A. Introduction.

While Indian tribes and individual Indians may hold title to land in fee simple,¹ this paper focuses only on the examination of title to land² which is held in trust by the United States for an Indian tribe or Indian allottee or his successors, or land that is owned by an individual Indian or Indian tribe subject to a federally imposed restraint on alienation.³

The examination of title to Indian trust lands differs from the examination of title to all other lands in large part because of federal restraints on alienation⁴ and because of the trust relationship which exists between the United States and the individual Indian or Indian tribe involved.⁵ The title examiner must be aware of these special circumstances, since transactions

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involving trust lands are subject to special and unique laws, some of which are punitive in nature.⁶ The essence of the trust relationship was set forth nearly 170 years ago, but the doctrine continues to be of importance in relation to the development of trust property.⁷ This special relationship between the federal government and Indian tribes and their members has generated numerous procedural statutes and regulations which may or may not affect the particular lands being examined. Thus, the examination of title to Indian trust lands requires, in addition to a review of the appropriate record repositories, a general working knowledge of basic Indian land law and the various national policies that have shaped that law, together with some knowledge of the various statutes, regulations, and executive or secretarial orders peculiar to the particular reservation wherein the lands being examined are located.⁸

One of the primary sources for background Indian land law is the treatise by Felix S. Cohen, Handbook of Federal Indian Law, first printed in 1941.⁹ The original volume was largely rewritten in 1982.¹⁰ Another primary source is a single volume work entitled Natural Resources Law on American Indian Lands.¹¹ Of assistance, also, are opinions and decisions of the United States Attorney General, the Secretary of Interior, the Solicitor of the Department of the Interior, and the Interior Board of Indian Appeals, some of which were published in volumes entitled Land Decisions (L.D.), from July, 1881 to June 30, 1932 (Volumes 1 through 52) and which have since been denominated Interior Decisions (I.D.).¹² Certain of these opinions and

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decisions also are included in a two volume set entitled Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs 1917-1974.¹³

B. Specific Reservations.

The United States Code volumes and the Code of Federal Regulations are indexed in some respects to specific reservations and tribes.¹⁴ Typically, however, statutes which relate only to a particular reservation are not included in the United States Code and can be found only in the Statutes at Large. In order to be assured that all statutes relating to a specific reservation have been reviewed, it is necessary to examine, in addition to the laws of general application, all of the indexes to the Statutes at Large. To assist in this laborious procedure, the examiner can review the index to Kappler's Indian Affairs - Laws and Treaties, a seven volume set of the treaties and statutes and some executive orders and uncodified regulations relating to Indian lands through 1970.¹⁵ Because there is no work subsequent to that of Kappler's which compiles all statutes relating to Indian lands, post-1970 Statutes at Large should be examined to make the examination complete. In addition, a title examiner should monitor the Federal Register to determine whether any new regulatory changes impact the lands being examined.

Of great value as sources of historical information affecting particular reservations are the loose-leaf volumes referred to as RPM Volumes¹⁶ or Legal Files which are maintained by the Bureau of Indian Affairs. These volumes, which generally are located in the Bureau of Indian Affairs land titles and records office¹⁷ or in the Bureau of Indian Affairs area office¹⁸ having jurisdiction over the reservation, often contain treaties, statutes, executive orders, delegations of authority from the Secretary of the Interior to subordinate officials, Solicitor's opinions on various subjects including mineral ownership, and departmental policy letters regarding patents, mineral leasing, land sales, mineral ownership, probates, and inheritance. These volumes may also contain tribal constitutions and bylaws, decisions of the Interior Board of Indian Appeals,

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probate information, and other information concerning the particular reservation or tribe involved.¹⁹

C. Government Offices and Jurisdiction.

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