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 TitlePrior 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:
Nonintercourse ActsCongress 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).
TreatiesTreaties 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 ActA 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.