1 LAND TITLES OF THE FIVE TRIBES AND

1 LAND TITLES OF THE FIVE TRIBES AND THE STIGLER ACT AMENDMENTS OF 2018 Frank A. Hinton Elias, Books, Brown & Nelson Oklahoma City, Oklahoma September 20, 2019 www. eliasbooks. com

2 Five Tribes - Background • Cherokee, Choctaw, Chickasaw, Creek, and Seminole Tribes • Forcibly removed from southeastern states to Indian Territory between 1830 and 1845 • Generally sided with Confederacy during the Civil War. Justification for Lincoln to dissolve treaties with tribes in 1862.

3 Five Tribes - Background • 1893 – Congress establishes Dawes Commission with intent of negotiated dissolution of tribal governments and allotment of lands to individual tribal members. • 1898 – Congress passes the Curtis Act providing for enrollment, plan of dissolution, and allotment of tribal lands • Tribal leaders pushed for protections from loss of land due to inexperience or fraud.

4 Restrictions on Alienation • Semple, Oklahoma Indian Land Titles – “those restraints placed by acts of Congress on the power of allottees, and heirs or devisees, to alienate their allotted, inherited, or devised lands or lands acquired by gift or purchase with restricted funds. ” • Prior to 1908 – various restrictions. Often allowed conveyance in 1/4 in 1 year, 1/4 in three years, and balance in 5 years.

5 What Determines Restricted Status? • Homestead or Surplus? • Homestead Patent or Allotment/Surplus Patent • Blood Quantum - Before December 31, 2018 • Age and/or Competency of Grantor

6 Dawes Rolls - Index https: //catalog. archives. gov/id/300321 https: //www. okhistory. org/research/dawes

7 Restrictions on Alienation • Act of May 27, 1908 thorpe. ou. edu/treatises/index. html

8 Restrictions on Alienation • After July 27, 1908 • All Restrictions removed from Intermarried Citizens, Freedmen, and Tribal Citizens with less than one-half blood quantum • All Restrictions removed on surplus lands for more than one-half but less than three-quarters blood. • The Stigler Act of 1947 • Provided for procedure by which county courts approved wills, probates, and conveyances by restricted Five Tribes members. • Generally required notice upon Superintendent of the Five Civilized Tribes

9 Stigler Act Amendments of 2018 • “All restrictions against alienation, conveyance, lease, mortgage, creation of liens, or other encumbrances upon all lands, including oil and gas or other mineral interests, in Oklahoma belonging to a lineal descendent by blood of an original enrollee whose name appears on the Final Indian Rolls of the Five Civilized Tribes in Indian Territory, whether acquired by allotment, inheritance, devise, gift, purchase, exchange, partition sale, or by purchase with restricted funds, of whatever degree of Indian blood, and whether enrolled or unenrolled, shall be and are hereby, extended until an Act of Congress determines otherwise. ”

10 Stigler Act Amendments of 2018 • Both prospective and retroactive • Not retroactive – property that lost its restricted status will not be regain its restricted status if: • a) Property was conveyed by a grantor who was unrestricted at the time of the conveyance but would have become restricted after the effective date of the Stigler Act Amendments remains unrestricted (i. e. a presumptive heir or devisee of a restricted tribal member where no final order was entered prior to December 31, 2018), or • b) Property was subject to a final order determining the heirs of the estate of a restricted tribal member (entered prior to December 31, 2018), and the heir or devisee was unrestricted at the time heirship was determined.

11 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • Does it matter the number of deaths that occurred between the restricted tribal member and the current owner? • Answer: No. If Betty, a 3/4 blood allottee dies, and Cindy, her 3/8 blood heir dies, in that order, all prior to December 31, 2018, and no final order has been entered, Cindy’s heirs of any degree of five tribes blood quantum will inherit in restricted status.

12 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • What about oil and gas leases acquired from presumptive heirs who were unrestricted at the time of the lease, but became restricted after December 31, 2018? • Answer: The leases do not need to be approved in District Court. These were conveyances by presumptive heirs without restricted status at the time of the conveyance, so the lease is valid without district court approval.

13 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • Will royalties paid on a lease acquired from a presumptive heir, unrestricted at the time of the lease but subsequently gaining restricted status, be paid to the individual or be considered income of from restricted lands and eligible for deposit into an Individual Indian Money Account? • Answer: Royalties will not be eligible for deposit into Individual Indian Money Account.

14 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • What if restricted land was purchased for value or at partition sale, with court approval and without restricted funds prior to effective date of the Stigler Act Amendments? • Answer: Remains unrestricted.

15 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • What if restricted land was purchased for value or at partition sale, with court approval and without restricted funds prior to effective date of the Stigler Act Amendments? • Answer: Remains unrestricted.

16 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • What if the restricted land passes to someone who is not a lineal descendant of the original allottee, but is a lineal descendant of a Five Tribes original enrollee? • Answer: Property remains restricted. The test is not whether the heir or devisee is a descendent of the original allottee of the land, but whether the heir or devisee is the descendant by blood of an original enrollee.

17 Stigler Act Amendments of 2018 Field Solicitor’s Opinion • Must notice of all probates of estates of Indians of the Five Tribes be served on the Regional Director, Eastern Oklahoma Regional Office, BIA, regardless of blood quantum? • Answer: Yes, if the decedent owned property in restricted states, and the heirs are Five Tribes Members. • Best Practice: Serve notice on Regional Director regardless of belief that decedent owned no property in restricted status.

18 Stigler Act Amendments of 2018 What if the probate was commenced prior to December 31, 2018, but final order was entered after December 31, 2018? • Determinative date is the date of the final order.

19 Stigler Act Amendments of 2018 What if presumptive heir who is a lineal descendant of an enrollee, of less than half-blood conveys their interest to their revocable trust prior to final order and prior to December 31, 2018? • I don’t see any limitations on conveyances, such as purchaser status or BFP status.

20 Stigler Act Amendments of 2018 What if presumptive heir who is a lineal descendant of an enrollee, of less than half-blood devises their interest to their revocable trust prior to final order and prior to December 31, 2018? • I don’t see any limitations on conveyances, such as purchaser status or BFP status.

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