CHAPTER 5 TITLE EXAMINATION OF INDIAN LANDS
| Jurisdiction | United States |
(Nov 1977)
TITLE EXAMINATION OF INDIAN LANDS
Crowley, Haughey, Hanson, Toole & Dietrich
Billings, Montana
Before proceeding to a discourse on the subject of examination of Indian land titles, a prefatory comment with respect to the nature of the tribe's interest in Indian lands, the factors resulting in allotment of Indian lands and the possibilities of termination of governmental supervision, would seem appropriate.
TRIBAL OWNERSHIP:
Before conquest by the white man, the tribe's interest was possessory, and its interest extended only to those lands from which it could successfully exclude other tribes. After conquest by the white man, tribes were granted limited "sovereignty" by treaty and/or by Federal statute. Fee simple title to the land was vested in the United States and the tribe was ordinarily granted the exclusive right of occupancy. The United States generally undertook to guarantee the integrity of the borders of the reservations or areas set aside for the tribes, but, as we know, was frequently unsuccessful in doing so.
A provision of an 1871 appropriations bill ended the treaty-making era of Indian affairs, and established the pre-eminent position of Congress in the field of Indian law. Congress derives its plenary power over Indian lands from Article 1, Section VIII of the Constitution of the United States which provides in part:
"The congress shall have power...to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;...".
This power has only been limited by public opinion and the due process requirements of the same Constitution. In special legislation applicable to individual tribes and more generally in the Indian Re-Organization Act of June 18, 1934, Congress has seen fit to delegate to tribes, limited authority to deal with its own problems.
INDIAN ALLOTMENTS:
In an effort to make a farmer out of the warrior, Congress enacted legislation providing for the allotment in severalty of tribal lands. The General Allotment Act of February 8, 1887,
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25 U.S.C. § 331, is the most familiar landmark in this field. This Act provided for allotment (or parceling out) of designated areas of tribal lands, in 40, 80 and 160 acre tracts, to individual Indians on each reservation entitled to rights thereon. It also provided for allotments on public domain (commonly referred to as "section 4" allotments) for those Indians who did not reside on a reservation or whose tribe had no reservation. After the passage of the General Allotment Act of 1887, there was a rash of legislation providing for allotments on specific reservations. After passage of an allotment act for a particular reservation, the Secretary of the Interior issued instructions to some designated person requiring him to proceed to the reservation and act as an "allotting agent." Upon his arrival on the reservation the allotting agent would work in conjunction with surveyors, Indian agency officials, translators, and the individual Indians, in allotting the reservation lands to the Indians who were entitled to allotment. The qualifications of each individual entitled to allotment were established by the appropriate allotment act, as was the quantum of lands to be allotted. Fathers and heads of house-holds were generally entitled to larger allotments than were single persons and children.
When the allotment work in the field was completed, the allotting agent certified a "Schedule of Allotments" to the Secretary of the Interior containing the names of all persons entitled to allotment and the specific tracts of land selected by or for each of those allottees. Each allottee was given an allotment number in the schedule and usually this number stayed with him or her from then on and is used to help identify both the Indian and his lands.
Upon approval by the Secretary of the Interior of the "Schedule of Allotments" either "trust" or "restricted fee" patents were issued to the individual allottees to evidence their beneficial or legal title to the land. There is a distinction between a "trust patent" and a "restricted fee" patent. Indians holding lands under a trust patent are the beneficial or equitable owners of the lands. While the United States holds the legal title in trust for the Indian allottee. In the case of restricted fee patents both beneficial and legal title pass from the United States to the allottee, subject to restrictions on the power of the allottee to convey or otherwise encumber the land.1
Unless the allotment act made specific provision to the contrary, only an Indian in being at the time his allotment lands were selected, was entitled to allotment. It has been held that an allotment made to an Indian who was dead at the time the land was selected was void.2
On some reservations, such as the Crow and Blackfeet Reservations in Montana, the allotments first made passed beneficial title to both the surface and mineral estates. However, subsequent legislation (frequently providing for additional allotments) required reservation of the minerals, or of particular minerals, to the United States for the benefit of the tribe or tribes residing on the reservation. It
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has been held by the Department of the Interior that an Indian who selected land before the enactment of such legislation was entitled to the beneficial interest in both surface and minerals, even though the allotment might not have been approved nor trust patent issued, until after the effective date of the legislation.3 The rationale of the decisions of the Department of the Interior so holding, is that having made a selection of land the Indian has done all that is required of him by statute, and if properly made, he has a vested interest in the land (including minerals) upon selection. This is in contrast to the rule that a homesteader on the public domain does not have a vested right to the minerals until cultivation, improvement and residence requirements imposed by law have been satisfied and final commissions paid.
TERMINATION OF GOVERNMENTAL SUPERVISION:
There are a number of means by which the title to allotted land can become unrestricted or freed of governmental supervision. Of these, the most prevalent are by issuance of a fee patent after application therefor by the Indian allottee or the heirs of the allottee; by a sale and subsequent issuance of fee patent or deed releasing restrictions to a purchaser; by a "forced fee patent" i.e., one issued without application therefor by the allottee; by issuance of a certificate of competency when lands are held by the Indian subject to restrictions on alienation, and by operation of law.
It has been held that since the Department of the Interior has no jurisdiction over a white man, and as a result of this holding, it has always been the policy of the Bureau of Indian Affairs that should a non-Indian inherit from a restricted Indian, the decedent's interest in the land became unrestricted immediately upon the death of the Indian. For the same reason, the Solicitor held in the past that nationals of foreign countries (principally Canadian Indians) also take inherited or devised interests free and clear of any trust or restriction on alienation. This rule and policy was altered by the U. S. District Court ruling in Chemah vs. Fodder.4
Sales of Indian lands may result in extinguishment of the trust, or a removal of the restrictions, depending upon the circumstances and purchasers involved. In those instances where the sale is made between individual Indians or between an Indian and a tribe, the trust or restrictions upon alienation usually remain in force. Such sales sometimes are referred to as "negotiated sales" and a number of such sales are suspect because there was not strict observance by the Department of the Interior of the regulations governing such sales, or sales were negotiated at a time when the regulations did not provide for the particular type of negotiated sale. "Supervised sales" are those which involve competitive bidding and most generally result in the issuance of a fee patent directly from the United States to the purchaser or approval of a deed releasing restrictions.
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With the foregoing review of some of the possible title circumstances, the procedures for determining the status of ownership of the particular land involved should become more relevant.
EXAMINATION OF SOURCES OF TITLE INFORMATION:
Library Source Materials-
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 on the subject5 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 published by the 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 and the Board of Indian Appeals, published in L. D. (Land Decisions) and now in I. D. (Interior Decisions), as well as unpublished opinions of the Attorney General, the Secretary of Interior, the Commissioner of the Bureau of Indian Affairs and the various field and regional 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.
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