CHAPTER 8 EXAMINATION OF TITLE TO INDIAN LANDS

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 8
EXAMINATION OF TITLE TO INDIAN LANDS
Michael E. Webster
Crowley, Haughey, Hanson, Toole & Dietrich
Billings, Montana

I. INTRODUCTION

The examination of title to Indian lands¹ differs substantially from the examination of title to fee, federal or state lands, principally due to the "trust" status² of such lands. The legal and practical ramifications of the trust status of Indian lands influences not only the United States and the beneficial owner or owners of such land, but also all those who have activities or operations involving such lands.³ While an extended discussion of the unique status of Indian trust lands is beyond the scope of this paper,⁴ it is critical that a party undertaking the examination of title to Indian lands have a general working knowledge of the historical nature of Indian title. This general background is needed in order to understand and appreciate the many records and record sources which must be examined in determining actual ownership of allotted⁵ or tribal⁶ trust lands. In addition, a title examiner must be knowledgable concerning the statutory⁷ and regulatory⁸ law applicable to Indian land titles in order to identify and analyze potential title problems disclosed by the records examined.

To assist in gaining an understanding of the unique considerations pertinent to Indian title, a brief discussion on the historical origins of Indian title, both tribal and allotted, is set forth in Section II of this paper. Section III sets forth sources of additional information helpful to a party undertaking the examination of title to Indian lands. Sections IV and V identify the various record sources which are of importance in determining title to Indian trust lands, as well as identifying the types of records maintained at each repository identified. Finally, Section VI discusses the problems often inherent in attempting to examine certain records which may be considered confidential or privileged by the Bureau of Indian Affairs.

II. OWNERSHIP OF INDIAN LANDS

A. General Considerations

The current ownership of Indian lands and the examination and analysis of title to such lands can only be

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considered by one familiar with the past history of this nation in the context of Indian affairs, taking into account the various national policies that have contributed to the shaping of that history. Such a historical review provides not only the backdrop necessary to explain and understand the current trust relationship existing between the United States and Indian tribes and/or individual Indians, but also provides a context for considering the currently existing restraints on the alienation of Indian lands. Additionally, a consideration of the policies of this nation in the area of Indian affairs provides the foundation and rationale for reviewing and considering title issues related to the allotment of lands to individual Indians.

When the first European settlers arrived in North America, various Indian tribes were already occupying or controlling portions of this continent. The European settlers, relying upon the "doctrine of discovery"⁹ occupied much of the land formerly occupied by these tribes without extinguishing all rights of these tribes to this land. Rather, consistent with the discovery doctrine, 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 land.¹⁰ This fee ownership possessed by the various European sovereigns eventually became vested in the United States, with the right of occupancy remaining in the particular tribe unless and until terminated by some formal act of the sovereign.

In addition to this early recognition of a continuing tribal right of occupancy in lands formerly occupied by tribes, there was, early in the history of this country, a perceived need for a national policy for dealing with Indian tribes.¹¹ This need for a uniform national policy was reflected in various agreements predating the United States Constitution, and was also incorporated into the Commerce Clause of the United States Constitution, which provides that the Congress of the United States has the full and complete power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."¹² In addition, Congress was granted the right and power to make all laws necessary to carry out this responsibility by entering into treaties with Indian tribes.¹³

Congress, beginning in 1790, exercised its constitutional powers in the context of Indian affairs, and enacted the first in a series of acts regulating the sale of Indian lands. These acts, commonly known as the Indian Nonintercourse Acts,¹⁴ typically provided that there could be no sale of Indian land by any Indian or Indian tribe unless the sale was accomplished by some public treaty. These restraints were imposed by Congress "...to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them...."¹⁵ Thus, since 1790, there have existed statutory restraints on the alienation of Indian lands. These same basic

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restraints on the alienation of Indian land also exist today,¹⁶ and they are of critical importance in determining the validity of every conveyance of Indian lands or interests therein.

Also of general importance to the examiner of titles to Indian lands is the judicially-created "Trust Doctrine" applicable to Indian tribes and individual Indians.¹⁷ This doctrine, which continues to evolve even today,¹⁸ has been applied to protect the rights of Indian tribes and individual Indians in various different contexts, including the area of land ownership¹⁹ and the conveyance of interests in Indian lands.²⁰ 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,²¹ its implications go substantially beyond this context, and the doctrine has been used as a basis for interpreting treaties, statutes, regulations and other agreements or policies involving Indian tribes and Indian peoples.²²

The existence of restraints on the alienation of Indian lands, together with the trust status of such lands, have produced numerous procedural statutes and regulations which may impact, either directly or indirectly, title to any Indian lands being examined. These factors, coupled with historical and political developments unique to Indian lands, make the examination of title to Indian lands particularly challenging and unquestionably more difficult than the examination of title to the typical fee, state or federal tract. Some of these historical and political considerations are briefly discussed below in order to provide some frame of reference for understanding the actual examination process.

B. Tribal Lands

The ownership of tribal land is unique in the American property law context in that while tribal land is equitably owned by the particular tribe for all members of the tribe,²³ no tribal member has any inheritable right to any particular tribal land, nor can any tribal member force the partition of tribal lands.²⁴ Tribal interests in real property are typically acquired by one of six different ways²⁵ those being:

1. actions of a prior government;

2. by aboriginal possession;

3. by treaty;

4. by acts of Congress;

5. by actions of the executive;

6. by purchase.

Each of these is briefly addressed below.

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1. Actions of a Prior Government

The United States has long followed international law by recognizing the property rights of individuals obtained from or recognized by another country when that property is conveyed or ceded to the United States.²⁶ While recognizing title to or interests in property derived from acts of a prior sovereign, the United States may require that parties claiming such interests present those claims in a timely fashion and in accordance with whatever scheme is arrived at by Congress for the validation of such claims, and the failure to protect or present claims properly may result in such claims being barred.²⁷ This barring of claims has been held to be applicable to Indian tribes and the claims of individual Indian parties.

The determination of the nature or extent of rights acquired from a prior government may involve a review of prior land grants, deeds, and adjuciations occurring prior to the ceding or conveyancing of the property to the United States.²⁸ The interpretation of these grants and other records of ownership may well be governed by the laws of the prior sovereign.²⁹ Recognition of rights of Indian tribes or individual Indians in lands based upon rights obtained from or recognized by a prior sovereign has primary application to lands in Florida, Alaska, and those states located in the southwestern portion of the United States.

2. Aboriginal Title

As noted above the "doctrine of discovery" provided that the discovering nation became vested with fee title to the lands discovered, subject to the rights of the Indian tribe that had formerly controlled such territory to continue to use and occupy the lands.³⁰ The right of use and occupancy, commonly known as "aboriginal title" or "Indian title," is not an ownership right, but rather is simply the right of continued occupancy recognized or granted by the discovering or conquering nation.³¹ The recognition of aboriginal title by the United States is a creature of the laws of the United States, and the United States Congress possesses the exclusive right to extinguish aboriginal title.³² Congress can extinguish these possessory rights at any time, but the intent to extinguish must be clear and free from any ambiguity. The simple granting of fee title to aboriginal lands to a non-Indian individual by the conquering nation does not...