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9.08.1
In General
The determination of the capacity of Indians, as individuals or as tribes to acquire, encumber, or convey land requires an extensive historical analysis and a profound legal examination of hundreds of treaties, statutes, judicial decisions, and administrative rulings covering five basic periods in the evolution of federal Indian policy.
By a statute enacted in 1924, all Indians born in the United States were made citizens of the United States and of the state in which they lived. According to the Bureau of Indian Affairs 2005 American Indian Population and Labor report (www.bia.gov.whatwedo/knowledge/reports/index.htm) approximately 1,918,000 individuals lived on the recognized reservations.
In conjunction with the legal analysis of the capacity matter in regard to land, the following factors are required to be considered in any given situation: The political organization of the tribe (if tribal land is involved).
According to the Federal Recognized Indians List (Federal Register Vol. 75 No. 1990, Oct. 1, 2010) there are 3 recognized Tribes in Texas:
9.08.2
Important Definitions
Indian lands is an inclusive term describing:
Indian lands may also include:
Aboriginal Title, or Indian Title, are terms commonly used by courts to describe those Native American tribal rights in real property that predate the imposition of European sovereignty in what is now the United States. Generally, the rights of aboriginal titles are asserted by a tribe rather than by individual members of the tribe.
Recognized Indian Title derives, as its name implies, from any clear and manifest intent of Congress to recognize tribal property rights.
Executive Order Indian Title indicates the establishment of Indian Title by an Executive Order
Land Titles and Records Offices are those offices within the Bureau of Indian Affairs charged with the federal responsibility to record, provide custody, and maintain records that affect titles to Indian lands, to examine titles and to provide title status reports for such land.
A title document is any document affecting the title to or encumbering Indian land and is required to be recorded by regulation or Bureau of Indian Affairs policy.
Recordation or recording is the acceptance of a title document by the appropriate Land Titles and Records Office. The purpose of recording is to provide evidence of a transaction, event or happening that affects land titles; to preserve a record of the title document; and to five constructive notice of the ownership and change of ownership and the existence of encumbrances to the land.
Title Examination means an examination and evaluation by a qualified title examiner of the completeness and accuracy of title documents affecting a particular tract of Indian land with certification of the findings by the Manager of the Land Titles and Records Office.
A title status report is a report issued after a title examination which shows the proper legal description of a tract of Indian land, the current ownership, including any applicable conditions, exceptions, restrictions, or encumbrances on record, and whether the land is unrestricted, restricted, in a trust, or has other status as indicated by the records in a Land Titles and Records Office.
9.08.3
Allotments And Allotters
The precise title that an Indian allottee acquired depends upon the terms of the instrument conferring the title. These instruments may be any of the following:
The General Allotment Act was passed by Congress in l887. The Indian Reorganization Act of 1934 terminated the allotment system which had resulted in a serious diminution of Indian land base.
Statutes provided for allotments to Indian settlers on lands of the United States not otherwise appropriated, and for allotments in the national forests to Indians occupying, living on, or having improvements on land therein who were not otherwise entitled to an allotment on a reservation, or whose tribe had no reservation or whose reservation was not sufficient to afford an allotment to each member.
9.08.4
The Indian Trade And Nonintercourse Acts
In 1790, Congress enacted the first of a series of Trade and Nonintercourse Acts. The current federal prohibition on the transfer of Indian lands without federal consent has remained virtually unamended through successive reenactment since the Trade and Nonintercourse Act of 1793. The Indian Nonintercourse Act now provides:
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.
9.08.5
Indian Land Identification
It is not unusual to ascertain the “Indian” condition of the land as a consequence of the finding of certain specific instruments in a chain of title.
For example:
9.08.6
Indian Land Records
The Land Titles and Records Offices within the Bureau of Indian Affairs are designated as the offices of record for land records and title documents and are charged with the federal responsibility to record, provide custody, and maintain records that affect titles to Indian land, to examine titles, and to provide title status reports.
Shown below are the present Land Titles and Records Offices and the jurisdictional areas served by each office.
9.08.7
Recordation Of Indian Title Documents
All title documents shall be submitted to the appropriate Land Titles and Records Office for recording immediately after final approval, issuance, or acceptance. Bureau officials, through authority delegated by the Secretary of the Interior for the purposes of approving title documents or accepting titles, are responsible for the recordings being completed in accordance with the prescribed Bureau regulations or instructions.
The original, a signed duplicate, or a certified copy of such documents shall be submitted for recording. Following the recording process, the Land Titles and Records Office will return those title documents that are appropriate recording information.
In accordance with 43 C.F.R. Part 4, Subpart D, administrative law judges shall forward the original record of Indian probate decisions and copies of petitions for rehearing, reopening, and other appeals to the Land Titles and Records Office which provides service to the originating agency. If trust land or Indian heirs involved in the probate are located within the jurisdictional area of another Land Titles and Records Office, the administrative law judge shall also send a duplicate copy to that office. Probate records submitted by an administrative law judge for recording will be retained by the Land Titles and Records Office.
9.08.8
Curative Action To Correct Indian Titles Defects
Land titles and Records Office shall initiate an action as described below to cure defects in the record discovered during the recording of title documents or examination of titles.
Copies of administrative modifications shall be distributed to the appropriate administrative law judge, agencies with jurisdiction over the Indian land, and to all persons who share in the estate.
9.08.9
Title Status Reports Of Indian Lands
Land Titles and Records Offices may conduct a title examination of a tract of Indian land provide a title status report upon request to those persons authorized by law to receive such information. Requests for title status reports shall be submitted by or through the Bureau Office that has administrative jurisdiction over the Indian land. All requests must clearly identify the tract of Indian land.
9.08.10
Indian Lands Status Maps
The Land Titles and Records Offices shall prepare and maintain maps of all reservations and similar entitles within their jurisdictions to assist Bureau personnel in the execution of their title service responsibilities. Base maps shall be prepared from plats of official survey made by the General Land Office and the Bureau of Land Management. These base maps, showing prominent physical features and section, township and range lines, shall be used to prepare land status maps. The land status maps shall reflect the individual tracts, tract numbers, and current status of the tract. Other special maps, may also be prepared and maintained to meet the needs of individual Land Titles and Records Offices, agencies, and Indian tribes.
9.08.11
Certification Of Land Indian Land Records And Title Documents
Under the provisions of the Act of July 26, 1892 (27 Stat. 273; 25 U.S.C. section 6), an official seal was created for the use of the Commissioner of Indian Affairs in authenticating and certifying copies of Bureau records. Managers of Land Titles and Records Offices are designated as Certifying Officers for this purpose. When a copy or reproduction of an official seal is certified by a Manager of a Land Titles and Records Office, the copy or reproduction shall be admitted into evidence in the same manner as the original from which it was made. The fees for furnishing such certified copies are established by a uniform fee schedule applicable to all constitute units of the Department of the Interior and published in 43 C.F.R. Part 2, Appendix A.
9.08.12
Title Insurance Considerations
Whether the land is within or outside a reservation, insuring Indian Titles represents an extraordinarily hazardous risk for any title insurance company. On occasion, it is even very difficult to recognize the land as having an Indian source of title.
Unique and complex problems affect the search and examination of Indian titles, and they must be resolved before determining whether or not a policy of title insurance can be issued involving the Indian title. The solution of those problems demands an absolute knowledge of the federal statutes, regulations, treaties, and executive orders dealing with these matters. In addition, the task is aggravated by the fact that Indian land records are not easily located and the record keeping systems vary drastically from one record depository to another.
Consequently, any request to insure title to land now or formerly owned by an individual Indian, an Indian tribe, or an Indian entity, MUST BE IMMEDIATELY REFERRED ONLY TO THE STEWART LEGAL SERVICES IN HOUSTON FOR CONSIDERATION AND REPLY.
The determination of the capacity of Indians, as individuals or as tribes to acquire, encumber, or convey land requires an extensive historical analysis and a profound legal examination of hundreds of treaties, statutes, judicial decisions, and administrative rulings covering five basic periods in the evolution of federal Indian policy.
By a statute enacted in 1924, all Indians born in the United States were made citizens of the United States and of the state in which they lived. According to the Bureau of Indian Affairs 2005 American Indian Population and Labor report (www.bia.gov.whatwedo/knowledge/reports/index.htm) approximately 1,918,000 individuals lived on the recognized reservations. In conjunction with the legal analysis of the capacity matter in regard to land, the following factors are required to be considered in any given situation:
Restriction on the alienation of the land interest under consideration. According to the Federal Recognized Indians List (Federal Register Vol. 75 No. 1990, Oct. 1, 2010) there are 3 recognized Tribes in Texas:
| · | Indian Lands Indian lands is an inclusive term describing: |
| ¨ | All lands held in trust by the United States for individual Indians or tribes. |
| ¨ | All titles to lands held by individual Indians or by tribes, subject to numerous federal restrictions against alienation or encumbrance. |
| ¨ | All lands which are subject to the rights of use, occupancy and/or benefit of certain tribes. |
| Indian lands may also include: |
| ¨ | Land for which the title is held in fee status by Indian tribes. |
| ¨ | U.S. Government-owned land under the jurisdiction of the Bureau of Indian Affairs (the BIA). |
| · | Aboriginal Title Aboriginal Title, or Indian Title, are terms commonly used by courts to describe those Native American tribal rights in real property that predate the imposition of European sovereignty in what is now the United States. Generally, the rights of aboriginal titles are asserted by a tribe rather than by individual members of the tribe. |
| · | Recognized Indian Title Recognized Indian Title derives, as its name implies, from any clear and manifest intent of Congress to recognize tribal property rights. |
| · | Executive Order Indian Title Executive Order Indian Title indicates the establishment of Indian Title by an Executive Order. |
| · | Land Titles and Records Offices Land Titles and Records Offices are those offices within the Bureau of Indian Affairs charged with the federal responsibility to record, provide custody, and maintain records that affect titles to Indian lands, to examine titles, and to provide title status reports for such land. |
| · | Title Document A title document is any document affecting the title to or encumbering Indian land and is required to be recorded by regulation or Bureau of Indian Affairs policy. |
| · | Recordation Recordation or recording is the acceptance of a title document by the appropriate Land Titles and Records Office. The purpose of recording is to provide evidence of a transaction, event or happening that affects land titles; to preserve a record of the title document; and to give constructive notice of the ownership and change of ownership and the existence of encumbrances to the land. |
| · | Title Examination Title examination means an examination and evaluation by a qualified title examiner of the completeness and accuracy of title documents affecting a particular tract of Indian land with certification of the findings by the Manager of the Land Titles and Records Office. |
| · | Title Status Report A title status report is a report issued after a title examination which shows the proper legal description of a tract of Indian land, the current ownership, including any applicable conditions, exceptions, restrictions, or encumbrances on record, and whether the land is unrestricted, restricted, in a trust, or has other status as indicated by the records in a Land Titles and Records Office. |
| Statutes provided for allotments to Indian settlers on lands of the United States not otherwise appropriated, and for allotments in the national forests to Indians occupying, living on, or having improvements on land therein who were not otherwise entitled to an allotment on a reservation, or whose tribe had no reservation or whose reservation was not sufficient to afford an allotment to each member. |
| The General Allotment Act was passed by Congress in l887. The Indian Reorganization Act of 1934 terminated the allotment system which had resulted in a serious diminution of Indian land base. |
| The precise title that an Indian allottee acquired depends upon the terms of the instrument conferring the title. These instruments may be any of the following: |
| · | Patent subject to the rights of the federal government to hold the land in trust for twenty-five years and also subject to the rights of the federal government to allotment certificate. |
| · | Other form of restricted fee interest. |
| · | A fee patent. |
| In 1790, Congress enacted the first of a series of Trade and Nonintercourse Acts. The current federal prohibition on the transfer of Indian lands without federal consent has remained virtually unamended through successive reenactment since the Trade and Nonintercourse Act of 1793. The Indian Nonintercourse Act now provides: |
| No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. |
| It is not unusual to ascertain the “Indian” condition of the land as a consequence of the finding of certain specific instruments in a chain of title. |
| For example: |
| · | A consent to transfer executed by the Bureau of Indian Affairs. |
| · | The identification of a patentee as a member of an Indian tribe. |
| · | A specific recital on a government plat. |
| · | Maintenance of land records and title documents. The Land Titles and Records Offices within the Bureau of Indian Affairs are designated as the offices of record for land records and title documents and are charged with the federal responsibility to record, provide custody, and maintain records that affect titles to Indian land, to examine titles, and to provide title status reports. |
| · | Location and service areas for land titles and records offices. Shown below are the present Land Titles and Records Offices and the jurisdictional areas served by each office. |
| ¨ | Aberdeen, S. Dakota Office, provides title service for Indian land located under the jurisdiction of the Aberdeen and Minneapolis Area Offices, except for Indian land on the White Earth, Isabella, and Oneida Indian Reservations. |
| ¨ | Albuquerque, New Mexico Office, provides title services for Indian land located under the jurisdiction of the Albuquerque, Navajo, and Phoenix Area Offices. |
| ¨ | Anadarko, Oklahoma Office, provides title services for Indian land located under the jurisdiction of the Anadarko Area Office and under the Miami Agency of the Muskogee Area Office. |
| ¨ | Billings, Montana Office, provides title services for Indian land located under the jurisdiction of the Billings Area Office. |
| ¨ | Portland, Oregon Office provides title services for Indian land located under the jurisdiction of the Portland and Sacramento Area Offices. |
| ¨ | Muskogee Area Office, is an office of record and performs limited title functions for all Indian land of the Five Civilized Tribes. The regulations in this part apply to the Muskogee Area Office to the extent that they relate to the title services performed by that office. |
| ¨ | The Juneau Area Office, has title service responsibility for the Juneau Area. This authority has been largely delegated to the agencies. |
| ¨ | The Cherokee Agency has title service responsibility for the Eastern Cherokee Reservation. The regulations in part apply to the Cherokee Reservation. |
| ¨ | The Bureau Central Office, Washington D.C., provides title services for all other Indian land not shown above, including the land of the Absentee Wyandottes. |
| All title documents shall be submitted to the appropriate Land Titles and Records Office for recording immediately after final approval, issuance, or acceptance. Bureau officials, through authority delegated by the Secretary of the Interior for the purposes of approving title documents or accepting titles, are responsible for the recordings being completed in accordance with the prescribed Bureau regulations or instructions. |
| · | Title documents other than probate records. The original, a signed duplicate, or a certified copy of such documents shall be submitted for recording. Following the recording process, the Land Titles and Records Office will return those title documents that are appropriate recording information. |
| · | Probate records In accordance with 43 C.F.R. Part 4, Subpart D, administrative law judges shall forward the original record of Indian probate decisions and copies of petitions for rehearing, reopening, and other appeals to the Land Titles and Records Office which provides service to the originating agency. If trust land or Indian heirs involved in the probate are located within the jurisdictional area of another Land Titles and Records Office, the administrative law judge shall also send a duplicate copy to that office. Probate records submitted by an administrative law judge for recording will be retained by the Land Titles and Records Office. |
| Land titles and Records Office shall initiate an action as described below to cure defects in the record discovered during the recording of title documents or examination of titles. |
| · | If an error is traced to a defective title document other than probate records, the Land Titles and Records Office shall notify the originating office of the defect. |
| · | If errors are discovered in probate records, the Land Titles and Records Office may initiate corrective action as follows: |
| ¨ | An administrative modification shall be issued to modify probate records to include any Indian land omitted from the inventory if such property is located in the same state and takes the same line of descent as that shown in the original probate decision. Authority is delegated to the Commissioner by 43 C.F.R. 4.272 to make such modifications except on those Indian reservations covered by special Inheritance Acts 43 C.F.R 4.300. Copies of administrative modifications shall be distributed to the appropriate administrative law judge, agencies with jurisdiction over the Indian land, and to all persons who share in the estate. |
| ¨ | Land Titles and Records Offices shall notify the Superintendent when modifications are required by errors. Corrective action is then initiated in accordance with 43 C.F.R. Part 4, Subpart D. |
| ¨ | Land Titles and Records Offices shall issue administrative corrections to correct probate errors which are clerical in nature and which do not affect vested property rights or involved questions of due process. Copies of administrative corrections are distributed to the appropriate administrative law judge and agency. |
| Land Titles and Records Offices may conduct a title examination of a tract of Indian land provide a title status report upon request to those persons authorized by law to receive such information. Requests for title status reports shall be submitted by or through the Bureau Office that has administrative jurisdiction over the Indian land. All requests must clearly identify the tract of Indian land. |
| The Land Titles and Records Offices shall prepare and maintain maps of all reservations and similar entitles within their jurisdictions to assist Bureau personnel in the execution of their title service responsibilities. Base maps shall be prepared from plats of official survey made by the General Land Office and the Bureau of Land Management. These base maps, showing prominent physical features and section, township and range lines, shall be used to prepare land status maps. The land status maps shall reflect the individual tracts, tract numbers, and current status of the tract. Other special maps, may also be prepared and maintained to meet the needs of individual Land Titles and Records Offices, agencies, and Indian tribes. |
| Under the provisions of the Act of July 26, 1892 (27 Stat. 273; 25 U.S.C. section 6), an official seal was created for the use of the Commissioner of Indian Affairs in authenticating and certifying copies of Bureau records. Managers of Land Titles and Records Offices are designated as Certifying Officers for this purpose. When a copy or reproduction of an official seal is certified by a Manager of a Land Titles and Records Office, the copy or reproduction shall be admitted into evidence in the same manner as the original from which it was made. The fees for furnishing such certified copies are established by a uniform fee schedule applicable to all constitute units of the Department of the Interior and published in 43 C.F.R. Part 2, Appendix A. |
Whether the land is within or outside a reservation, insuring Indian Titles represents an extraordinarily hazardous risk for any title insurance company. On occasion, it is even very difficult to recognize the land as having an Indian source of title. Unique and complex problems affect the search and examination of Indian titles, and they must be resolved before determining whether or not a policy of title insurance can be issued involving the Indian title. The solution of those problems demands an absolute knowledge of the federal statutes, regulations, treaties, and executive orders dealing with these matters. In addition, the task is aggravated by the fact that Indian land records are not easily located and the record keeping systems vary drastically from one record depository to another. Consequently, any request to insure title to land now or formerly owned by an individual Indian, an Indian tribe, or an Indian entity, MUST BE IMMEDIATELY REFERRED ONLY TO THE STEWART LEGAL SERVICES IN HOUSTON FOR CONSIDERATION AND REPLY.