CHAPTER 19 EXAMINATION OF TITLE TO INDIAN LANDS

• Jurisdiction: United States

Mineral Title Examination
(Feb 2012)
CHAPTER 19
EXAMINATION OF TITLE TO INDIAN LANDS
Michael E. Webster (Deceased)
Crowley Fleck PLLP
Billings, Montana
Craig B. Burns
Crowley Fleck PLLP
Bismarck, North Dakota
Colby L. Branch
Crowley Fleck PLLP
Billings, Montana

CRAIG B. BURNS is a Partner in the Energy, Environment and Natural Resources Department at Crowley Fleck PLLP in Bismarck, North Dakota. He joined the firm in 2009 after practicing with Fleck, Mather & Strutz, Ltd. in Bismarck, North Dakota, since 2007. His practice focuses on oil and gas title examination. Mr. Burns also has prior experience as legal counsel for the North Dakota Insurance Department and as a sole practitioner. Mr. Burns is a member of the Landman's Association of North Dakota and the Oil, Gas and Energy Law Section of the Texas State Bar.

COLBY L. BRANCH is a Partner in the Energy, Environment and Natural Resources Department at Crowley Fleck PLLP in Billings, Montana. His practice focuses on oil and gas law and Native American law, including title examination of federal, fee, state and Indian lands, contract matters, and representing clients before state and federal regulatory agencies. A significant component of his practice involves the representation of clients in the negotiation and implementation of natural resource exploration and development projects on Indian Reservations. Mr. Branch received his Juris Doctorate from the Gonzaga University School of Law, where he graduated with highest honors. He has a M.S. degree in Geology, and worked as a petroleum geologist prior to attending law school. Mr. Branch reports on recent developments in Montana oil and gas law for the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter, and is a member of the Board of Directors for the Montana Petroleum Association.

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

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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

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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 involving trust lands are subject to special and unique laws, some of which are punitive in

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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 1941⁹ and most recently rewritten in 2004.¹⁰ 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 decisions also

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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.

Examining title to Indian trust lands involves the review of a variety of records and record repositories. However, in every case, examination of title to such lands will require that the records of the Bureau of Land Management (BLM) and the Bureau of Indian Affairs (BIA) be reviewed. In isolated cases where the trust lands were owned at one time by non-federal entities such as states, counties, and municipalities or by federal agencies outside the Department of the Interior, the examination may also need to include the records of these other governmental departments.²⁰ The location and areas of responsibility of such departments must be ascertained by research and/or inquiry.²¹

Indian land title record repositories within the Department of Interior are discussed below,²² and the types of records normally located in each are identified. Essentially, the basic repositories include:

1. BLM state land offices, which have responsibility for retention of basic records relating to the source or root title and any dispositions of title which require action by the BLM;²³

2. BIA Land Titles and Records Offices²⁴ which are charged with the responsibility for accumulating and maintaining a record of title to all Indian lands and...