9.08 Indian Titles

9.08.1

In General

The determination of the capacity of Indians or Native Americans, as individuals or as Tribes, Nations, Bands, Pueblos, Communities or Villages ("Tribes") to acquire, encumber, or convey land requires historical analysis and an examination of treaties, statutes, judicial decisions, and administrative rulings covering five basic periods in the evolution of federal Indian policy.

  • Treaty and agreement period.
  • Executive order period.
  • Allotment period.
  • Integration period
  • Self-government period.

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.

The following factors must be considered in any insuring situation:

  • Whether the land interest is tribal land.
  • Whether the land interest is the interest of a tribe member in tribal land.
  • Whether the land interest is owned by an Indian as an individual.
  • · If tribal land is involved, the political organization of the tribe.
  • If tribal land is involved, the associative or corporative organization of the tribe.
  • If owned by an Indian as an individual, whether the land interest was acquired by allotment, by inheritance, by devise or by some other means.
  • The date of the transaction.
  • The name of the tribe (if tribal land).
  • The type of transaction.
  • The restriction on the alienation of the land interest under consideration.

9.08.2

Definitions

Aboriginal Title

Aboriginal Title, is the term commonly used by U.S. courts to describe those Native American tribal rights in real property that predate the settlement of what is now the United States of America by immigrants of primarily European origin. Generally, the rights of aboriginal titles are asserted by a tribe rather than by individual members of the tribe.

Indian Country/Indian Lands

Indian Country grenerally means (a) all land within the limits of any Indian reservation notwithstanding the issurance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Indian Lands

Indian lands is a general term which may overlap the definition of Indian Country. It includes:

  • 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:

    • Land owned in fee by tribes, or Indian entities.

Land Titles and Records Offices

Land titles and Records Offices are those offices within the Bureau of Indian Affairs ("BIA"), Interior Department, 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. In addition, these offices have additional responsibilities and functions not directly related to land titles.

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 of the land.

Title Document

A title document is any document affecting the title to or encumbering Indian land and is required to be recorded by federal regulation or Bureau of Indian Affairs policy.

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 BIA title examination of the records in the Land Titles and Records Office which shows reservation code and name, current tract/allotment number, land description, listing of reservations, encumbrances/liens, and exceptions affecting land, other notes regarding land, owner information, and purpose of report.

9.08.3

Allotments And Allottees

The General Allotment Act of 1887 provided for allotments to individual Indian settlers of reservation lands.

The Indian Reorganization Act of 1934 ended the allotment program which had resulted in a considerable diminution of the Indian land base.

The title that an Indian allottee acquired depends upon the terms of the instrument conferring the title. These instruments may be any of the following:

  • A patent declaring the federal government holds the allotment in trust for the allottee and the allottee's heirs for twenty-five years.
  • Other forms of restricted fee interest.
  • A unrestricted fee patent.

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 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 an indication of an Indian owenership interest in 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, or an approval of an instrument by BIA including in the document.
  • The identification of a patentee as a member of an Indian tribe.
  • A specific recital on a government plat.

9.08.6

Indian Land Records

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 (1) the Regional BIA Realty Offices, and (2) the Land Titles and Records Offices for each region and (3) the jurisdictional areas served by each office.

ALASKA (Juneau, AK) (Alaska except for al small area under the jurisdiction of the Northwest Region) (The Land Title and Records Office for this region is located in Anchorage, Alaska)

EASTERN OKLAHOMA (Muskogee, OK) (Part of Oklahoma; see Southern Plains Region for other offices in Oklahoma)

EASTERN (Fairfax, VA) (Florida, Mississippi, New York, and North Carolina) (Note: The Eastern Regional Office is scheduled to move to Nashville, Tennessee in 2001)

GREAT PLAINS (Aberdeen, SD) (Nebraska, North Dakota, and South Dakota)

MIDWEST (Minneapolis, MN) (Michigan, Minnesota and Wisconsin) (The Land Title Records Office for this region is located in the Great Plains Regional Office)

NAVAJO (parts of Arizona and New Mexico; see Southwest Region for other offices in New Mexico; see Western Region for other offices in Arizona) (The Land Title Records Office for this region is located in the Southwest Regional Office)

NORTHWEST (Portland, OR) (part of Alaska, part of Montana, Idaho, Oregon and Washington; see rocky Mountain Region fro other offices in Montana)

PACIFIC (Sacramento, CA) (California)

ROCKY MOUNTAIN (Billings, MT) (Montana except for a small area under the jurisdiction of the Northwest Region; and Wyoming)

SOUTHERN PLAINS (Anadarko, OK) (Kansas, Texas and Western Oklahoma; see Eastern Oklahoma for other offices in Oklahoma)

SOUTHWEST (Albuquerque, NM) (Colorado and part of New Mexico; see Navajo Region for other offices in New Mexico)

WESTERN (Phoenix, AZ) (Part of Arizona, Nevada and Utah; see Navajo Region for other offices in Arizona) (The Land Title Records Office for this region is located in the Southwest Regional Office)

9.08.7

Recordation Of Indian Title Documents

All title documents must be submitted in accordance with BIA regulation or practice, to the appropriate Land Titles and Records Office for recording immediately after final approval, issuance, or acceptance. The actual submission generally will be handled by a tribes BIA Agency or Area Office. 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 is submitted for recording. Following the recording process, the Land Titles and Records Office will return those title documents.

Probate records

Generally the determinations of heirs and approval of wills is governed by federal regulations. They provide that 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 will 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

The Land Titles and Records Office are authorized to 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 will 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 to make such modifications except on those Indian reservations covered by special Inheritance Acts.

    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.

  • Land Titles and Records Offices will 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.

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 and provide a Title Status Report upon request to those persons authorized by law to receive such information. Requests for Title Status Reports should be submitted by or through the BIA 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 are 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, are used to prepare land status maps. The land status maps 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

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 includes the official seal and 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 units of the Department of the Interior and published in the Code of Federal Regulations.

9.08.12

Title Insurance Considerations And Indian Lands

Whether the land is within or outside a reservation, insuring Indian Titles represents an risk for any title insurance company. In some cases, it is difficult to recognize the land as having an Indian source of title.

Unique 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 readily accessible to title insurance issuing agents or title insurance companies. Furthermore the record keeping systems currently vary from one record depository to another. (However, the BIA began changing it's record system in 1999 and if implemented as designed, will standardize the system for all Land Titles and Records Offices).

Consequently, any request to insure title to any interest (leasehold, fee, easement) in land now or formerly owned by an individual Indian, an Indian tribe, or an Indian entity, must be referred to a Senior Underwriter for consideration.