CHAPTER 4 TITLE EXAMINATION OF INDIAN LANDS
| Jurisdiction | United States |
(Apr 1982)
TITLE EXAMINATION OF INDIAN LANDS
Crowley, Haughey, Hanson, Toole & Dietrich
Billings, Montana
The subject of title examination of Indian land has been treated in a number of excellent and helpful articles which are cited in the footnotes.1 It is the intention of the writer to treat the subject matter in a more basic manner than in the previous articles, but with the assumption that the reader will have read or will desire to read, the earlier articles. The subject matter will be limited to mineral title examination and restricted to Rocky Mountain area reservations.
As is the case with examination of all mineral titles, the important determinations to be made by the examiner with respect to Indian lands are (1) the owners of mineral fee and (2) the proper method of mineral leasing or development.
When dealing with Indian lands, the title examiner normally will find the owner of the mineral fee to be one of the following:
(a) The U.S.A. but in trust2 for a tribe;
(b) The U.S.A. but in trust for an allottee; or for the allottee's heirs or devisees either within3 or without a reservation;4
(c) An Indian tribe in fee simple;
(d) An Indian in fee simple;
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(e) The U.S.A. subject to a reservation of some5 or all minerals6 although located within an Indian reservation or on ceded lands;7
(f) A non-Indian or a non-trust Indian8 even though located within an Indian Reservation or on ceded lands.
However, before commencing examination of any records to determine which of the above (or more obscure possibilities)9 is applicable, the examiner should, indeed must, have acquired a thorough knowledge of the various treaties, statutes, regulations, executive orders and significant cases or opinions which are germane to Indian mineral titles generally or are applicable to the particular reservation being examined or to the tribe involved. Only with this background will the title source material examined be put into proper perspective so that the existence of a title defect is ascertainable.
PRELIMINARY EDUCATIONAL PROCESS:
Information of General Application —
Obviously, it is essential that the examiner be versed in basic Indian land law. However, the unique nature of the subject matter leads the student or practitioner to a relatively few articles and texts, such as the various Institute articles on the subject and the exhaustive, but somewhat dated treatise by Felix S. Cohen entitled "Handbook of Federal Indian Law". The original volume of this treatise was published in 1940 and a revision was
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published the by U.S. Government Printing Office for the Department of Interior in 1958 and entitled "Federal Indian Law".
The opinions and decisions of the U.S. Attorney General, the Secretary of Interior, the Solicitor of the Department of the Interior and the Board of Indian Appeals published in L.D. (Land Decisions), now called I.D. (Interior Decisions) or in the two volume set entitled "Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs", as well as unpublished opinions of the Attorney General, the Secretary of Interior, the Commissioner of the Bureau of Indian Affairs and the various solicitors of the Department of Interior are also important sources of data and insight. Unfortunately, the indices of the published decisions and opinions have not been collected into a cumulative index and no index to the unpublished decisions and opinions have been made available to the public insofar as known to the author so that only an important issue or a significant defect in title to an important tract will warrant the expense of research into such sources.
Another research tool for the title examiner, at least for post 1973 title matters, is the Indian Law Reporter, published monthly in Washington, D.C.
Specific Reservations or Tribes —
All treaties and statutes relating to Indian Lands from sovereignty to June 29, 1938, together with significant executive orders, presidential proclamations, court decisions and unratified treaties with Indian tribes are collected in a five volume set
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compiled by Charles M. Kappler and entitled "Indian Affairs — Laws and Treaties". This work has been out of print for a number of years and, therefore, copies are difficult to obtain. However, a number of large law libraries and most firms doing Indian title examination will possess a set, as will the offices of the U.S. Department of Interior Solicitors in the states where Indian reservations are located. Other than the volumes of Kappler, there are no compilations of the treaties, statutes and executive orders available except a general citator for treaties, statutes and executive orders last revised to June 30, 1929.10
The examiner's review of statutes can be brought current by a perusal of the recent indices to the U.S. Statutes At Large. Moreover, the index to U.S. Code Annotated should be scrutinized but the reader is cautioned that many statutes relating to Indian Reservations and tribes have not been published there. In this connection, it should also be noted that treaties, as a method of contracting with Indian tribes, have been banned since passage of the Act of March 3, 1871.11
All regulations which have direct application to title to Indian lands and to reservations, tribes and allottees are contained in Volume 25 C.F.R. and in 43 C.F.R. Part 4.
Absent a comprehensive office file on the particular reservation or tribe, there is no real alternative to a laborious search of the indices to the statute books, regulations and executive orders in order to be knowledgeable concerning every significant governmental acton which has taken place concerning
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the reservation or tribe. The indices and volumes are available in most law school and State Supreme Court libraries and in the libraries of some large lawfirms as well as some city or county law libraries. Moreover, on a few reservations, the tribe or other interested group has taken it upon itself to collect the pertinent material.
Record Repositories —
The repositories of basic source documents (in order of possible examination — not in order of importance) are:
(a) Bureau of Land Management land office having jurisdiction over the land.
(b) Bureau of Indian Affairs title plant maintaining records with respect to the land.
(c) Bureau of Indian Affairs area office having jurisdiction over the land.
(d) Indian Agency office having jurisdiction over the land.
(e) County records pertaining to the land.
(f) The records of the probate examiner for the agency or tribe involved.
(g) Records of the Bureau of Indian Affairs in Washington, D.C., or environs.
(h) National Archives in Washington, D.C.
The first five sources will be examined in virtually every search, whereas, the records of the probate examiner will be examined only when the mineral estate is, or has been, owned
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by an allottee and even then only when the agency or title plant records are not complete. The Washington, D.C. record sources will be examined on rare occasions when the other records are not complete or indicate existence of a title defect which involves records not maintained in the local offices.
Federal Land Office Records —
The sequence of title examination is, of course, optional, but should the examiner choose to proceed in the order set forth above, the process usually will commence in the Federal Land Office by a perusal of the master title plat. The master title plat will disclose, by appropriate identification, whether the land has been patented, as well as, when appropriate, the number of the patent and a code indication of any reservations made by the U.S.A. in its sovereign capacity. With respect to aboriginal tribal land or land granted by Congress to tribes without ever having been patented, the master title plat will merely indicate that the land was included within the boundaries of an Indian Reservation by some specific treaty, act of Congress, or Executive Order. This information occasionally is reflected either in the right hand margin of the master title plat or in the lowest portion of the particular land as platted, with some sort of dashed or dotted line encompassing the area described in the treaty, etc. If the land is later patented, either to the tribe or to allottees, the master title plat normally will show only the last patent which issued covering the land, even if the entire fee was not transferred by the last patent. Mineral reservations to an allottee or tribe are not indicated. Moreover, it is not
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possible to determine the type of patent (whether trust, restricted fee, fee, surface, or mineral) from the master title plat. Other matters which can be determined from the master title plat are the existence of rights-of-way granted by the Department of Interior or, perhaps by the Federal Power Commission, and the existence of withdrawals, some of which might have a bearing on mineral title.
If the lands are located within a fairly recently established reservation, one perhaps created by Executive Order after the date on which rights could have accrued to mining claimants, homesteaders, railroads, states or federal agencies, particular attention must be given to references on the master title plat to such matters, so that all dispositions of interests in the land prior to establishment of the Indian Reservation are known. Title defects arising from these matters are considered in some depth by Mr. Gibbons in his article.12
The oil and gas plat, any special mineral plats, (such as coal plats, sodium plats, uranium plats, potassium plats, and perhaps others), must similarly be examined for conflicts with the Indian title, especially where the reservation is one which has ceded portions or portions within the diminished reservation which were opened for homesteading or...
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