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Published: 2008-03-26

Indian Lands



The examination of Indian lands is really a study of history, international law and governmental policy. It is perhaps best summarized and traced in its chronological development, primarily in federal statutes. Indian land ownership is complex and unique and has, to a significant degree, its own terminology and terms of art. This summary provides an overview of development of the law affecting Indian Lands.

Indian Title

Prior to any European contact, Indian tribes owned and occupied all of the land that now comprises the United States. The growing presence of agents of European countries, the displacement of Indian tribes resulting from war or otherwise and the establishment of non-Indian settlements began to raise questions about the nature of ownership and title to lands. The United States Supreme Court first examined these issues in Johnson v. M'Intosh , 21 U.S. (8 Wheat) 543 (1823). Chief Justice Marshall concluded that the tribes held their lands by "Indian title." This gave the tribes the right to occupy the land and to retain possession of it. 21 U.S. (8 Wheat) at 574. However, he also concluded that "discovery" by European governments vested in those governments the "ultimate dominion" in the land subject only to Indian title. Id . Thus, the capacity of the tribes to convey title to their land was limited to the discovering government. These principles of Indian title have endured over time. They were more recently summarized:
It very early became accepted doctrine in this Court that although fee title to lands occupied by Indians when the colonists arrived became vested in the sovereign - first the discovering European nation and later the original states and the United States - a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian Title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States.
Oneida Indian Nation v. County of Oneida , 414 U.S. 661, 667 (1974).

Nonintercourse Acts

Congress early adopted the first Indian Nonintercourse Act which reserved the right to acquire Indian lands to the United States to the exclusion of individuals and states. Act of July 22, 1790, 1 Stat. 137. The Act provided that a sale of Indian lands was not valid unless "made and duly executed at some public treaty, held under the authority of the United States." Id. The current version contains similar language. 25 U.S.C. § 117. Recently, some eastern Indian tribes brought lawsuits seeking the recovery of lands based upon claims that the 1790 statue was violated because conveyances were made to states and individuals outside the process called for in the Act. See , e.g. , South Carolina v. Catawba Indian Tribe, Inc. 476 U.S. 498 (1986); Mashpee Tribe v. New Seabury Corp. , 592 F.2d 575 (1st Cir. 1979); Narragansett Tribe v. Souther R.I. Land Dev. Corp. , 418 F.Supp. 798 (D.R.I. 1976).

Treaties

Treaties between the United States and Indian tribes became a primary means of extinguishing Indian title and opening lands for settlement. Indian treaties were recognized as "not a grant of rights to the Indians, but a grant of rights from them - a reservation of those not granted." United States v. Winans , 198 U.S. 371 (1905). Tribes would typically cede vast territories to the United States in exchange for some measure of consideration and, at the same time, reserve some of its aboriginal territory for its continued occupancy as a homeland. These tracts became known as "reservations." See, e.g. , the Nez Perce Treaty of June 11, 1855, 12 Stat. 957, Articles 1 and 2. The demand for the opening of more lands often resulted in the United States negotiating additional treaties with tribes by which Indian title to more lands was extinguished and reservations accordingly reduced in size. See, e.g. , the Nez Perce Treaty of June 9, 1863, 14 Stat. 647, Articles 1 and 2. While Indian treaties confirmed the status of Indian tribes as sovereign governments the practice of treating with tribes was ended by Congress in 1871, 16 Stat. 544, 25 U.S.C. § 71. Thereafter, what would have been treaties between the United States and Indian Tribes were deemed "Agreements." See , e.g. , Amended Agreement with Certain Sioux Indians, May 2, 1873, confirmed by Acts of Feb. 14, 1873, 17 Stat. 456 and June 24, 1874, 18 Stat. 167.

General Allotment Act

A large segment of Indian land law and terminology was shaped by the federal government's allotment policy and the General Allotment Act of 1887, also commonly known as the Dawes Act, 24 Stat. 388, codified as amended by 25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, 354 and 381. The policy was based upon the theory that Indians would be become more quickly assimilated if they were owners of a parcel of land and encouraged to pursue civilized agricultural pursuits as opposed to traditional means of existing by hunting, fishing and gathering. Reservations were surveyed and agents were dispatched to begin the allotting process which called for the allocation of a parcel of land to all members of a tribe. After an amendment to the Act, individuals received 80 acres of agricultural land or 160 acres of grazing land. Act of Feb. 28, 1891, 26 Stat. 794, 25 U.S.C. § 331. These allotments were held in trust for individuals by the United States. That is, the legal title was held by the United States and the allottee was given beneficial title - the right to live on, use and profit from the allotment. As evidence of this, each allottee was give a "trust patent" reflecting their "ownership" of the property. So long as the title was held in trust by the United States it was not subject to state or local taxation or regulation.

Upon the completion of the allotment process it was common for the United States to seek agreements with the tribe for the identification of lands to be held in common by the tribe and for the cession of the remaining lands as "surplus" lands. 24 Stat. 388, 389-90, 25 U.S.C. § 348. This process resulted in the loss of approximately 90,000,000 acres of tribal land between 1887 and 1934 through the sale of "surplus" lands and alienation of allotments. Allotments were lost to Indian ownership by a number of means. The Burke Act of 1906 authorized allotments to be taken out of trust if the allottee was deemed "competent." 34 Stat. 182, 25 U.S.C. § 349. When an allotment was taken out of trust, a fee patent was issued to the allottee by the United States reflecting their full ownership of the title - which rendered the land subject to state and local taxes. This resulted in what has come to be known as the "forced fee patent" process which involved individuals certifying that a particular allottee was competent which in turn justified a local Indian agent issuing a certificate of competency for that individual are taking the allotment out of trust - only to have it sold at a tax sale several years later for unpaid taxes.. See , Bordeaux v. Hunt , 621 F. Supp. 637 (D.S.D. 1985); aff'd sub nom. Nichols v. Rysavy , 809 F.2d 1317 (8th Cir. 1987); cert. denied 484 U.S. 848 (1987). Many times, this all happened without the knowledge of the allottee. The Appropriation Act of 1907 also allowed the sale of allotments with the proceeds to be used for the seller's benefit. 34 Stat. 1015, 1018, 25 U.S.C. § 405.

Under the General Allotment Act, allotments were to be held in trust by the United States for individual Indians for a period of 25 years. 24 Stat. at 388, 389, 25 U.S.C. 348. This was to insure that the allotments would not be alienated and that the allottees would be immune from state taxation. United States v. Mitchell , 445 U.S. 535, 544 (1980). Tribal lands were also held in trust by the United States. A similar device was a conveyance to a tribe or an Indian person of title to property containing restrictions against alienation.

Thus, the terms trust land, tribal trust land and trust allotments have come to be common terms in discussions of Indian land. These are distinguished from fee land - that is land that is held in fee simple and not in trust. The terms "patented lands" and "deeded lands" are often used synonymously with fee lands. Although trust or restricted land is most commonly associated with Indian tribes and individuals, it is not uncommon for tribes and individuals to own land in fee as well as in trust status. This often occurs when non-trust lands on reservations are purchased.

Indian Reorganization Act

Proponents of the allotment policy failed to recognize or understand that individual ownership of land was a distinctly foreign concept among most tribes and many individuals made no use of their allotments. The harm done by the allotment policy and the total lack of benefits to Indian tribes and people was eventually recognized. The allotment policy was effectively repudiated and largely reversed by the Indian Reorganization Act (IRA) of 1934. 48 Stat. 984, 25 U.S.C. §§ 461 - 479. The IRA prohibited any further allotments of reservations and extended the trust periods for allotments remaining in trust for an indefinite period. 48 Stat. at 984, 25 U.S.C.§ 461, 462. The Secretary of the Interior was authorized to restore remaining "surplus" lands to tribal ownership and to reacquire interests in land within or without reservations for Indians and to hold that land in trust. 48 Stat. 985, 25 U.S.C. § 465. Procedures for taking fee lands into trust for a tribe or individual Indian were established and are set forth in 25 C.F.R. Part. 151. Proposed rules for amending those procedures were published on April 12, 1999, Vol. 64, No. 69, Federal Register 17574. This process has been cumbersome and time consuming. The proposed regulations are described as containing a process which reflect a presumption in favor of taking title to on-reservation lands in trust and which contain a somewhat more demanding standard when the land into trust application involves lands outside a reservation boundary. This process is extremely important to Indian tribes that are now beginning to reacquire lands lost to tribal ownership within their reservations.

Indian Claims Commission

Indian Tribes were statutorily barred from pursuing claims against the United States before the United States Court of Claims arising from treaties. Act of March 3, 1863, 12 Stat. 765, 767, 28 U.S.C. § 1502. The number of requests for special legislation authorizing individual tribes to present their cases to the Court of Claims resulted in the creation of the Indian Claims Commission in 1946. Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C. §§ 70 - 70v-3. The ICC was authorized to hear tribal claims filed before August 13, 1951. The 1946 Act gave the Commission jurisdiction to hear five distinct categories of claims, one of which was "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands or compensation agreed to by the claimant." 60 Stat. 1049, 1050, 25 U.S.C. § 70a.

Indian Country

The definition of Indian Country, 18 U.S.C. 1151, has to do with jurisdiction as opposed to land issues. It began defining Indian Country for purposes of defining the application of federal criminal law and has come to be used to define the scope of civil jurisdiction to a large degree. Oklahoma Tax Comm'n v. Sac and Fox Nation , 508 U.S. 114 (1993); California v. Cabazon Band of Mission Indians , 480 U.S. 202, 207 n.5 (1987). Three types of Indian Country are defined (a) all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent and including any 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 Gaming Regulatory Act

The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 - 2721, defines "Indian lands" as "All lands within the limits of any Indian reservation" and "any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power." 25 U.S.C. §2703(4). It also contains a specific provision pertaining to gaming on lands acquired after October 17, 1988. It provides that no gaming under the Act is to take place on lands acquired by the Secretary in trust for a tribe after October 17, 1988, unless certain conditions are met and subject to several exceptions. 25 U.S.C. § 2719.

Conclusion

Land is central to the economic development and political stability and well being of Indian tribes across the United States. Many tribes are now implementing strategies to reacquire land that were lost as a result of past federal policies and practices. Consequently, land issues will continue to be prominent legal issues for many years in the future.