JurisdictionUnited States
Mineral Title Examination III
(Feb 1992)


Michael E. Webster
Crowley, Haughey, Hanson, Toole & Dietrich
Billings, Montana


The Minerals Management Service, in its 1990 summary on mineral revenues from federal and Indian leases,1 reported that there were 7439 mineral leases, permits, applications or licenses covering approximately 3.3 million acres of Indian tribal and allotted land under the administration of the Department of the Interior.2 Of these 7439 leases and permits, 4137 were categorized by the MMS as producing or producible oil and gas leases, covering approximately 1.6 million acres of tribal and allotted land.3

Production from these leases is substantial. In 1990, 15,317,646 barrels of oil, 126,939,751 mcf of gas, and 27,526,318 tons of coal were produced from Indian lands.4 The combined sales value of this production exceeded 1.081 billion dollars.5 In addition, it is estimated that 15% of the coal reserves within the United States, including 33% of the low sulpher strippable coal, lies under Indian-owned or controlled lands.6 Thus, it seems clear that the development of Indian mineral resources will remain an important element in satisfying this county's demand for greater energy independence in the years to come.

One of the most fundamental, and yet most important steps in the development of Indian mineral resources is the determination of who holds title to the lands and resources to be developed. The examination of title to Indian lands7 is unlike the examination of title to fee, federal or state lands. The primary differences stem from the "trust" status8 of Indian lands, and the federal restraints on alienation that attach to those lands.9 The legal and practical ramifications of these differences impacts not only the United States and its relationship with the beneficial owner or owners of Indian land, but these doctrines also impact all those who have activities or operations involving Indians and their lands.10

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While an extended discussion on the unique status of Indian trust lands, and the considerations and complexities that result therefrom is beyond the scope of this paper,11 it is nevertheless essential that a party examining title to Indian lands have some basic understanding of the historical processes whereby tribes and individual Indians obtained their respective interests in lands, and the on-going relationship of the United States to such lands. This general understanding of Indian law is necessary to appreciate not only the many records and record sources which must be examined in determining the actual ownership of allotted12 or tribal13 trust lands, but also to understand the significance of the information being reviewed. In addition, one examining title to Indian lands must be cognizant of the statutory14 and regulatory15 law applicable to the particular Indian land title being examined in order to identify and analyze potential title problems disclosed by the records under review.

To set the proper backdrop for considering the unique matters pertinent to Indian title, a brief review of the historical origins of title to Indian lands, both tribal and allotted, is set forth in Section II of this paper. Section III describes some of the additional sources of information that may be helpful to a party undertaking the examination of title to Indian lands. Sections IV, V, and VI identify the various record sources which are of importance in determining title to Indian lands, as well as identifying the types of records maintained at each of the identified repositories. Section VII discusses the problems often encountered in attempting to examine certain records which may be considered confidential or privileged by the Bureau of Indian Affairs. Finally, Section VIII briefly discusses several non-title matters that are unique to the development of Indian lands and which should be in the minds of those contemplating, perhaps for the first time, mineral development on Indian reservations.


A. General Considerations and Historical Backdrop.

The examination and analysis of title to Indian lands can only be effectively undertaken by one familiar with the past history of this nation in the context of Indian affairs and with the various national policies that have contributed to the shaping of that history. This historical framework provides not only the backdrop necessary to understand the

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current trust relationship existing between the United States and Indian tribes and/or individual Indians, but also provides the appropriate context for considering current restraints on the alienation of Indian lands. In addition, an understanding of the policies of this nation concerning Indian affairs provides a useful foundation for reviewing and considering title issues related to both tribal and allotted lands.

European settlers, upon their arrival in North America, found various Indian tribes already occupying or controlling significant portions of this continent. As increasing numbers of European settlers arrived in America, these settlers moved to occupy much of the land formerly occupied by tribes. The settlers justified their actions, from a legal sense, by relying upon a somewhat modified version of the "doctrine of discovery". Under this theory the European settlers who first "discovered" a particular area of land became vested with fee title to the lands discovered, with the particular Indian tribe involved retaining the right to occupy this "discovered" land.16 The ownership interests possessed by the various "discovering" European sovereigns eventually vested in the United States, subject to a continuing right of occupany remaining in the particular tribe unless and until terminated by some formal act of the sovereign.

In addition to the discovery doctrine which recognized, in legalistic terms, a continuing tribal right of occupancy in lands, there also developed early in the history of this country a perceived need for a uniform national policy for dealing with Indian tribes.17 This need was reflected in various agreements predating the United States Constitution,18 and was also incorporated into the Commerce Clause of the United States Constitution, wherein it is provided that the Congress of the United States shall have the full and complete power to "regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes."19 This need for national uniformity in dealing with Indians also is reflected in the treaty provision of the United States Constitution.20

Congress, beginning in 1790, enacted the first in a series of acts, commonly known as the Indian Nonintercourse Acts, regulating the sale of Indian lands. These acts21 typically provided that there could be no sale of land by any Indian or Indian tribe unless the sale was accomplished by some public treaty. These restraints on the sale of Indian lands were imposed by Congress " prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them...."22 These same basic statutory restraints on the alienation of Indian land also exist today,23 and knowledge of such restraints is of

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critical importance in determining the validity of every conveyance of Indian lands or interests therein.24

The judicially-created "Trust Doctrine" applicable to Indian tribes and individual Indians also has great importance in determining the ownership status of Indian lands and interests in such lands.25 The trust doctrine, which continues to evolve even today,26 essentially requires the United States to act as guardian for tribes and individual Indians, and to insure that actions undertaken relative to Indian lands be in the "best interests" of the Tribe or individual Indian.27 This doctrine has been relied upon to protect the rights of Indian tribes and individual Indians in various matters, including land ownership28 and the conveyance of interests in Indian lands.29 While the trust doctrine operates principally to define the standard of treatment owed by the United States and its officers to tribes and individual Indians,30 its implications go substantially beyond this context. Thus the doctrine has been used as a basis for interpreting treaties, statutes, regulations and other agreements or policies involving Indian tribes and Indian peoples.31

The existence of restraints on the alienation of Indian lands, coupled with the trust status of such lands, has resulted in numerous procedural statutes and regulations which may impact, either directly or indirectly, title to any tract of Indian land being examined. These factors, which are unique to Indian lands, make the examination of title to such lands particularly challenging and unquestionably more difficult, time consuming, and costly than the examination of title to the typical fee, state or federal tract.

B. Tribal Lands.

The ownership of tribal land is unique in the American property law context. Tribal land is considered to be equitably owned by the particular tribe for all members of the tribe.32 No tribal member has any inheritable right to any particular tract of tribal land, nor can any tribal member force the partition of tribal lands.33 Tribal real property interests typically arise through one of the following methods:34

1. actions of a prior government;

2. by aboriginal possession;

3. by treaty;

4. by Acts of Congress;

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5. by actions of the executive;

6. by purchase.

Each method is briefly addressed below.

1. Actions of a Prior Government.

The United States, in accordance with international law, has long recognized the property rights of individuals obtained from or recognized by another country upon the conveyance or ceding of such property to the United States.35 The United States may, however, require...

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