Patents in Fee
Restrictions on alienation run with the land, and hence even though a restriction is removed on one allotment, the other allotments of the individual Indian will still be subject to the restriction. After an allotment has been approved by the Secretary of the Interior, the present law provides that the allottee may apply for a patent in fee before or at the end of the trust period. If granted, he is entitled to absolute ownership of the property, i.e. like ordinary white-owned land. It can be sold or leased without Government approval. In many cases, patents in fee were given without the consent of the Indians. In 1909 Congress authorized the Secretary to cancel any such patents of unsuitable land and the exchange therefore of other land.
In contrast to trust patents, other allotment acts provide for the issuance of restricted fee patents. These contain a clause that the land shall not be alienated without the approval of the Secretary of the Interior. Application may be made for the removal of this restriction, and upon approval thereof, the allottee also has full rights of a white owner. This type of land holdings was used frequently in Oklahoma.
An allottee ordinarily acquires, by virtue of his allotment, full possessory rights with respect to the improvements and the timber upon his allotment, as well as the minerals beneath it. Occasionally special allotment acts, like the Osage Allotment Act, provide for the reservation of the minerals to the tribe.
Until he is granted a fee patent, or the restrictions are removed, allotted lands while held In trust by the United States cannot be sold by an Indian without the consent of a Federal official. It was soon clear that the hope of the allotment policy that the Indians would be able to exercise wisely the ownership of their land at the expiration of 25 years, or as extended by the President, was too optimistic.
Ending of Allotment Policy
The basic land policy of the Indian Service is to save Indian land for the greatest degree of Indian use and to conserve and build up the land. In line with this objective, the Indian Reorganization Act ended the allotment of Indian lands, postponed indefinitely the ending of the trust period of existing
allotments, and authorized the Secretary of the Interior to enlarge Indian lands by restoration of surplus lands and by purchase, and to establish a policy of sound range and forest management.
Freedom from Encumbrances
The United States agreed to turn over to the Indians at the end of the trust period land free and clear of all encumbrances. Mortgages on restricted lands are prohibited. Mortgages on growing crops have been upheld. Restricted lands cannot be encumbered by judgments entered against an allottee, whether based on tort or contract. Contracts providing for the sale of allotted lands are void, and any money received by an Indian is not returnable to the attempted purchaser, even though he paid the money in good faith and the Indian acted in bad faith with the intention of deceiving the purchaser. The inability to mortgage trust or restricted property is one of the reasons why many Indian veterans are unable to secure a loan from banks and credit concerns and thereby secure some of the benefits of the GI bill of rights. The Federal Government guarantees part of the loan, but if the Indian lacks sufficient security, many private lending companies refuse to make loans.
At the death of an allottee if there is no will governing the allotted property, it descends in accordance with the state laws, which are administered by officers called Examiners of Inheritance. After the heirs have been determined, the Secretary of the Interior may have the lands partitioned or divided. However, the IRA authorizes the Secretary of the Interior to approve exchanges of allotted lands of equal value whenever such exchange, in his judgment, is expedient and beneficial for the proper consolidation of Indian lands and for the benefit of cooperative organizations.
The trust or restriction attaches to the proceeds of the sale of an allotment which may not be spent without the approval of the Secretary of Interior or his authorized representative. The funds derived from the proceeds of the sale may be invested in other lands. The Secretary, as a part of his approving powers, may require that the deed contain a clause restricting the land against alienation without his approval.
TRIBAL AND ALLOTTED LANDS--PROTECTION AND
While most of the laws dealing with tribal and allotted lands have been treated in separate sections, it would be helpful to discuss some rules of law which apply in whole or in part to both tribal and individual Indian lands, like leasing, condemnation and trespass.
Leasing of Indian Lands
teenth century, various authorizing statutes were passed. Some of them dealt with particular tribes, but beginning in1891 some general statutes were passed for leases of tribal lands for varying length of years.
Indians, as individuals or as tribes, are prevented under existing law from leasing their restricted lands for periods longer than five years in cases where the lands are to be used for religious, educational, recreational, business or farming purposes. The principal exceptions to the limitation are (a) lands in the State of Washington, which may be leased for periods of 25 years for these purposes, except farming, (b) lands in any state which are capable of irrigation may be leased for periods of 10 years for farms, under certain circumstances, (c) lands belonging to incorporated tribes may be leased for a period of 10 years for such purposes as are permitted by the tribal charter, and (d) land may be leased for mining so long as income producing minerals are found.
In February of 1948, the Interior Department adopted regulations which enabled individual Indians to make their own leases and collect their own rentals for themselves and their minor children. Indians shown to be incapable of managing their own affairs may have this privilege taken away, and then the old system would again be followed, whereby the superintendent made the lease, after advertising, to the highest and best bidder. The superintendent still executes leases for incompetent Indians, minor allottees and non-resident allottees whose whereabouts are unknown.
In cases where a lease cannot be made, permits may be granted by the tribe for the use of tribal land. A permit, unlike a lease, does not give any interest in land to the permittee and may be revoked at any time.
Who Owns Improvements?
The ordinary rule of law is that if a person to whom land is leased or permitted makes improvements on the land, they belong to the owner of the land at the end of the term. The one exception to this rule is that the lease or permit may contain a provision whereby the lessee or permittee may remove or continue to have the ownership of the improvements. This is one of the reasons why when land is leased for certain purposes, such as farming operations, which require considerable improvements in the lands before a profitable crop may be secured, the lessee may not be willing to take a short term lease on the premises. Sometimes churches, missions and local governments hesitate to erect a permanent building unless they are assured of a long tenure or are allowed by a Congressional act to buy the land on which the church is to be built or the improvements are to be made. That is why a general bill authorizing certain leases for 25 years is advocated by the Indian Bureau and many Indians.
Until recently, the American Indian policy was largely designed to settle problems arising out of the relations between settlers and traders and Indians. Many treaties and laws contain provisions to permit the Indians to live by themselves and without interference from whites. The problem of keeping off Indian lands those individuals who might harm the Indians is still important in some places. The Nonintercourse Act of June 30, 1834, imposed criminal penalties on those who should, without Federal authorization, trade with the Indians, enter the Indian country, purchase Indian lands and settle thereon, drive livestock on Indian lands to graze, introduce intoxicants or publish or distribute in the Indian country any statement that might tend to disturb the peace. Some of these laws have been repealed, including the provision interfering with free speech, and a later provision authorizing the Commissioner of Indian Affairs to remove from the reservation detrimental persons.
A provision appears in the Indian Appropriation Act of July 4, 1884, for the allotment to Indians of lands on the public domain of the United States. This principle is the opposite of the Removal Act of 1834 and provides for assimilation instead of segregation.
Today, a trespasser on tribal land may be compelled to leave by the officials or members of the tribal council, acting in accordance with a tribal ordinance. Just like any other land owner, Indians may use such reasonable force as is necessary to remove persons going on their land unlawfully. In a proper case, the United States Department of Justice, at the request of the Indians, acting through the Department of the Interior, will bring an ejectment action against a trespasser. In a very rare case, if a person trespasses frequently and the suit for damages or ejectment proves inadequate, an injunction may be sought from the court by the Indians or the Government to prevent the trespasser from staying or coming on tribal land.
Congress has passed two special laws offering protection against trespasses on Indian land by stockmen or hunters. One law provides that persons driving stock to feed on land belonging to any Indian or Indian tribe without the consent of the tribe are liable for a penalty of one dollar for each animal of such stock. Prosecution will not usually be brought unless there is clear evidence showing the ownership of the trespassing cattle and other data showing exactly the time and place of the trespass.
The other special statute provides that any non-Indian within the lands of any Indian tribe with whom the United States has existing treaties who hunts, except for subsistence, in the Indian country is subject to forfeit all traps, guns, and ammunition in his possession, and all pelts so taken, and shall be liable for an additional penalty of $500. This law is difficult to enforce.
Sale of Trust Livestock
Restricted funds may be used by the United States to purchase trust or restricted livestock, These animals are purchased for or issued to an Indian or an Indian organization by the United States. Title to the cattle and their issue is held in the United States in trust for the Indian and Indian organization and must be branded ID by the Indian. An Indian or non-Indian commits a crime when he sells restricted or trust livestock without a permit from the Reservation Superintendent.
Condemnation of Indian Lands
Under the Federal Constitution, any lands, including Indian lands, may be taken far Federal purposes if just compensation is paid. State and local governments, however, cannot condemn Indian land without the permission of the Federal Government. In 1901 Congress passed a law permitting the condemnation of allotted lands. A similar law can always be enacted for tribal lands. Indian lands are usually not taken for a public purpose, like a dam or army base, without an attempt being made to reach a fair measure of compensation by negotiation. Frequently, the Indian Bureau assists the Government agency which desires land in dealing with the Indians, and some times the Indian Bureau attempts to make a fair appraisal of the land in question. If an agreement is not reached by the Indian tribes and the Indian allottees involved, then it is necessary to take the matter into court, and the Indian allottee or tribe will then merely receive the fair market value of their land under the law of the state or territory where the land is located. The Indian or tribe would then be awarded the same compensation as any other person, white or Indian. Despite the fact that land may be more valuable be cause it means more to the Indians than to the non-Indians, and despite the fact that a treaty might be involved in the case, the same standard of value would govern the Indian case and the non-Indian case. This means "just compensation as of the date of the taking,"--the cash price that the land would bring in a sale by a ready seller to a ready buyer. This has been explained as meaning when one is willing, but not compelled, to sell to another person willing, but not compelled, to buy. The law does not include money to pay for hardships due to the loss of one's home or farm or other method of making a living.
A jury (if requested), aided by a Judge, after hearing all the evidence, including appraisals of experts, would make the finding of the fair value. If the tribe feels that it is not getting a square deal because a treaty was violated, it could sue before the Indian Claims Commission, if the taking took place on or before August 13, 1946, and in the Court of Claims if subsequent to that date. The Department of Justice defends the interests of the United States in any claims suits. Even if the tribe negotiated and reached an agreement on the value of the land, it could include in the agreement the right to