INDIAN BUREAU DEFINITIONS OF TYPES OF TRANSACTIONS INVOLVED IN THE DISPOSAL OF INDIVIDUAL INDIAN LANDS FROM TRUST STATUS

Hon. GLENN L. EMMONS,

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D. C., July 18, 1958.

Commissioner, Bureau of Indian Affairs,

Department of the Interior, Washington, D. C. (Attention Branch of Realty.)

DEAR COMMISSIONER EMMONS: We have been requested by a Senate committee to analyze certain materials having to do with Indian land transactions. This assignment has created a problem insofar as the definition of Indian Bureau terminology in land transactions is concerned.

Would you please supply us with a legal or other definition of certain terms and expressions used in such type of actions, said definitions to include the legal authority for each type.

The terms and expressions referred to are as follows:

(1) Sales to fee status.

(2) Patents-in-fee (fee patents).

(3) Takings for public purposes.

(4) Removal of restrictions.

(5) To fee status by inheritance or devise.

(6) Exchange to fee status.

(7) Certificates of competency.

(8) To fee status by partition.

(9) Canceled duplicate allotments.

(10) To fee status by gift.

(11) To fee status by probate.

(12) To fee status by guardianship sale.

Since we have a deadline to meet on this request, we would greatly appreciate your sending this data at your earliest possible convenience. Sincerely yours,

ERNEST S. GRIFFITH, Director.

73

DEPARTMENT OF THE INTERIOR,

BUREAU OF INDIAN AFFAIRS, Washington, D. C., August 13, 1958.

Mr. ERNEST S. GRIFFITH,

Director, Legislative Reference Service,

The Library of Congress, Washington, D. C.

DEAR MR. GRIFFITH: We have your letter of July 18, in which you request definitions, and the legal authority therefor, of certain types of Indian land transactions. There follows by item number an explanation of the terms used.

1. Sales to fee status.-Individually owned trust or restricted Indian land may be sold to Indians or non-Indians and a fee patent issued therefor. The authority for the sale of Indian land is contained in various acts passed by Congress. The principal statutory authorities are cited at the beginning of title 25, Code of Federal Regulations, part 121 under the heading "Authority." [See also 25 C. F. R. 121.9-10.)

2. Patents-in-fee.-The word "patent" means the title deed by which a government, either State or Federal, conveys its lands. "In fee" means that the patent is conveying the "largest possible estate which a man can have, being an absolute estate." Definitions were taken from Bouvier's Law Dictionary. The term "patent-in-fee," as used in this report, describes the title document issued by the Federal Government to terminate the trust created by the trust patent issued to the allottee and operates to vest the fee simple title in said allottee or his heirs or devisees. (See 25 C. F. R. 121.2.) Of course, patents in fee as well as deeds are used in conveyances to the purchasers of lands in the sales described in item 1.

3. Takings for public purposes.-As the phrase implies, this is a taking of Indian land for public use, either by purchase with the consent of the owner, or if that cannot be obtained, then by condemnation proceedings. Some of the purposes for which land may be taken are for rights-of-way for public roads and railroads, for construction of dams and reservoirs, for parks, and for various other uses by other branches of the Government, both State and Federal, that are in the interests of the general public. Authority for the sale of Indian land is stated in item 1 above. The act of February 5, 1948 (62 Stat. 17; 25 U. S. C. 323-8), provides general authority for granting rights-of-way over Indian lands. Allotted Indian lands may be condemned for any public purpose under the laws of the State or Territory where located, in the same manner as land owned in fee is condemned, and the money awarded as damages is paid to the allottee (act of March 3, 1901, sec. 3; 31 Stat. 1084, 25 U. S. C. 357). Although the subject may not be entirely free from doubt, it is our view that in the absence of statutory authorization tribal Indian lands may not be condemned.

4. Removal of restrictions.-In some instances, where land has been purchased by an Indian with trust or restricted funds, title to the land is held under a deed to the individual Indian which contains a restriction against alienation or encumbrance without the consent of the Secretary of the Interior. Where the land is held under such a deed, an order removing restrictions is issued. These restrictions are imposed by the Secretary of the Interior under his general supervisory authority over the expenditure of trust or restricted funds and the

restrictive clause is the sole authority for the removal of such restrictions. (See 25 C. F. R. 121.49 for authority.)

5. To fee status by inheritance or devise; and 11, to fee status by probate. The act of June 25, 1910 (36 Stat. 856), and the act of February 14, 1913 (37 Stat. 678), provide for the determination of heirs by the Secretary and the disposition and sale of allotments of deceased Indians. It has been held that where a non-Indian or an alien Indian inherits or is devised trust or restricted lands, such person takes unrestricted fee title by operation of law. (See Levindale Lead Company v. Coleman, 241 Ú. S. 432 (1916), and Bailess v. Paukune, 344 U. S. 171 (1952).)

6. Exchanges to fee status.-With the approval of the Secretary, exchanges of individually owned Indian land may be made in accordance with title 25, Code of Federal Regulations, section 121.9, and if the exchange is with a non-Indian or Indian desiring fee title, the Indian land exchanged is taken in a fee status.

7. Certificates of competency.-Under the act of June 25, 1910 (36) Stat. 855), Indians may file applications for certificates of competency for lands held under restricted fee patents. If the Secretary finds the applicant capable of managing his own affairs and transacting his own business, he removes the restrictions on the land by the issuance of a certificate of competency. Certificates of competency are issued in accordance with title 25, Code of Federal Regulations, sections 121.3-121.7.

8. To fee status by partition.-In accordance with the act of May 18, 1916 (39 Stat. 127), if the Secretary finds that any inherited trust allotments are capable of partition to the advantage of the heirs, he may cause such fands to be partitioned among them, regardless of their competency, patents in fee to be issued to the competent heirs for their share, and trust patents to be issued to the incompetent heirs for the lands respectively or jointly set apart for them.

9. Canceled duplicate allotments. The acts of January 26, 1895 (28 Stat. 641), and April 23, 1904 (33 Stat. 297), provide that in all cases where it appears that a double allotment of land was wrongfully or erroneously made by the Secretary to any Indian by an assumed name or otherwise, or where a mistake was made in the description of the land inserted in the patent, the Secretary is authorized and directed, during the time that the United States may hold the title to the land in trust for any such Indian, to rectify and correct such mistakes and cancel any patent which may have been erroneously or wrongfully issued. If possession of the original patent cannot be obtained, such cancellation is effective if made upon the records of the General Land Office (now Bureau of Land Management). The land in the canceled allotment reverts to its former status; that is, if it was originally tribal land, it again becomes tribal land, or if it had been public domain, it reverts to the public domain.

10. To fee status by gift.-Title 25, Code of Federal Regulations, section 121.24, permits an Indian owner of trust or restricted land, with the approval of the Secretary, to convey the land to a member of his or her immediate family for less than the appraised value. Such a gift of land may be made for "$1, love and affection," on the part of the recipient of the gift. In this instance the land may be taken in fee if desired. For purposes of reporting, we consider this

30451-58-7