Bureau of Indian Affairs Northwest Regional Office Portland

Bureau of Indian Affairs Northwest Regional Office Portland, Oregon Greg Argel, Realty Officer

Land Interests in Land Fee Simple Absolute 2. Tribal Trust Lands 3. Allotted Lands a) Individual Trust Land b) Restricted Fee 1.

Tribal Trust Lands Ü Reservations established under Treaty: by a provision of the Treaty the Tribe cedes territory to the United States; another provision reserves land for the use and benefit of the Tribe, for examples, the Coeur d’Alene Tribe and the Makah Tribe Ü Reservations established by Executive Order: Examples: Spokane

Definition Ü Tribal Trust Land Tribal land is that which a tribe owns. For the purpose of this discussion, an Indian tribe is group of Indians recognized by the Federal Government as a distinct entity to which Federal Indian laws are applicable. “Ownership” for our purposes means all of the attributes of property ownership, or an equitable interest in land with the title being held by the Government as trustee. The members of a tribe do not have individual ownership interests in tribal land. Rather, their interests resemble those a stockholder

Authority for Leasing of Tribal Trust Lands Ü 25 U. S. C. Section 415: Leases of restricted Indian lands (tribally or individually owned) for public, religious, educational, recreational, residential, business, and other purposes; require approval of the Secretary ; specifies term “not to exceed twenty-five years (Lists tribes excepted; also 25 C. F. R. Section 162. 607 lists excepted tribes and authorizes renewal of 25 -year term

Authority for 50 -year Term Native American Housing Assistance and Self-Determination Act Ü 25 U. S. C. Section 4211: For housing purposes, lease shall be for a term not exceeding 50 years. ÜThis section is selfimplementing. ÜThis applies to leases of

Definition Ü Allotted Lands Allotted lands are those which have been removed from tribal ownership (generally) and given to individual members of the tribe. The tribe loses all property interests in the land which becomes the private property of the allottee. As early as 1798, tribal lands were divided into small tracts and distributed to the tribe’s members. Until 1887 allotments were made under laws dealing with specific reservations. In that year, the General Allotment Act provided for the allotment of lands to individual Indians on Indian reservations and in some situations, from the public lands of the United States (I. e. from the public domain). Usually, the allotment process consisted of the five

Definition cont. 1) The allotment of the tribe’s land to its members. 2) The issuance of a patent to the allottee which provided that the land would be held in trust for him by the Government for a specified period of years (usually 25). In some cases, the allottee received a deed or patent which conveyed fee title but contained restrictions against alienation and encumbrance without the permission of the U. S. Government. 3) The land the income from it could not be taxed by a state, sold, leased or otherwise contracted for by the allottee during the trust period, unless

Definition cont. 4) The issuance of the fee or absolute title to the Indian owner or his heirs at the end of the trust period, or the removal of restrictions, as was appropriate. After receiving the fee title or removal of restrictions, the owner could sell, lease, or otherwise use the lands as he saw fit. The land was also subject to state taxes after the fee title was issued. 5) The granting of U. S. citizenship to the allottee. Although many Indians were made United States citizens under the allotment acts, it was not until, 1924 that a general act was passed conferring citizenship on all Indians born within the territorial limits of the Untied States. The same act specified that Indians would also be citizens of the states in which they resided.

Trust Patent for Allotment and Restricted Fee Patent Subject to Restrictions - Distinction Ü Trust Patent for Allotment: “in trust for the sole use and benefit of the said Indian” Ü Fee Patent Subject to Restrictions: “that the title hereby conveyed shall not be subject to alienation or encumbrance, either by voluntary conveyance or by judgment, decree, or order of any court, or subject to

Authority for Leasing Allotted and Individual Indian Restricted Land Ü 25 U. S. C. Section 415: Authorizes leases of restricted Indian lands, whether tribally or individually owned.

25 U. S. C. Section 483 a. Mortgages and deeds of trust by individual Indian owners (a) The individual Indian owners of any land which either is held by the United States in trust for them or is subject to a restriction against alienation imposed by the United States are authorized, subject to approval by the Secretary of the Interior, to execute a mortgage or deed of trust to such land. Such land shall be subject to foreclosure or sale pursuant to the terms of such mortgage or deed of trust in accordance with the laws of the tribe which has jurisdiction over such land or, in the case where no tribal foreclosure law exists, in accordance with the laws of the State or Territory in which the land is located.

25 U. S. C. Section 483 a. Mortgages and deeds of trust by individual Indian owners Ü For the purpose of any foreclosure or sale proceeding the Indian owners shall be regarded as vested with an unrestricted fee simple title to the land, the United States shall not be a necessary party to the proceeding, and any conveyance of the land pursuant to the proceeding shall divest the United States of title to the land. All mortgages and deeds of trust to such land heretofore approved by the Secretary of the Interior are ratified and confirmed.

25 U. S. C. Section 483 a Subsection (b) Ü (b) In the event such land is acquired by an Indian or an Indian tribe, such land shall not be removed from trust or restricted status except upon application to the Secretary under existing law.

25 C. F. R. Section 152. 34 Mortgages and Deeds of Trust Any individual Indian owner of trust or restricted lands, may with the approval of the Secretary execute a mortgage or deed of trust to his land. Prior to approval of such mortgage or deed of trust, the Secretary shall secure appraisal information as he deems advisable. Such lands shall be subject to foreclosure or sale pursuant to the terms of the mortgage or deed of trust in accordance with the laws of the State on which the lands are located. For the purpose of foreclosure or sale proceedings under this section, the Indian owners shall be regarded as vested with unrestricted fee simple title to the lands.

Mortgage ÜA pledge of property as security for repaying the indebtedness evidenced by promissory note. Ü A real property security instrument between borrower/mortgagor and lender/mortgagee by which land is given as security for repayment of loan. Ü Foreclosed on only under decree of court and can be conveyed directly to creditor.

Deed of Trust Ü Borrower is the trustor; lender is beneficiary; property is conveyed to a third person as trustee for both the borrower and lender. A deed of trust is conveyed to a third person with the power of sale. May be foreclosed according to its terms by the trustee without authority of court. There is right to redeem.

Leasing of Trust Lands Individual and Tribal Ü Governed by 25 C. F. R. Part 162: Ü Especially relevant: Section 162. 610

Section 162. 610 Subleases and Assignements Ü (a) Except as provided in paragraphs (b), (c) and (d) of this section, a sublease, assignment, amendment or encumbrance of any lease or permit issued under this part may be made only with the approval of the Secretary and the written consent of all parties to such lease or permit, including the surety or sureties.

(b) Subleases Ü With the consent of the Secretary, the lease may contain a provision authorizing the lessee to sublease the premises, in whole or in part, without further approval. Subleases so made shall not serve to relieve the sublessor from any liability nor diminish any supervisory authority of the Secretary provided for under the approves lease.

(c) Encumbrances and Assignments Ü With the consent of the Secretary, the lease may contain provisions authorizing the lessee to encumber his leasehold interest in the premises for the purpose of borrowing capital for the development and improvement of the leased premises. The encumbrance instrument must be approved by the Secretary.

(c) Encumbrances and Assignments - continued Ü (Purchaser in Foreclosure = Encumbrancer) Ü If a sale or foreclosure under the approved encumbrance occurs and the encumbrancer is the purchaser, he may assign the leasehold without the approval of the Secretary or the other parties to the lease, provided, however, that the assignee accepts and agrees in

(c) Encumbrances and Assignments - continued Ü (Purchaser in Foereclosure Not Encumbrancer) Ü If the purchaser is a party other than the encumbrancer, approval by the Secretary of any assignment will be required, and such purchaser will be bound by the terms of the lease and will assume in writing all the obligations thereunder.

(d) Assignments Ü With the consent of the Secretary, leases of tribal land to individual members of the tribe or to tribal housing authorities may contain provisions permitting the assignment of the lease without further consent or approval where a lending institution or an agency of the United States makes, insures or guarantees a loan to an individual of the tribe or to a tribal housing authority for the purpose of providing funds

(d) Assignments - continued Ü for the construction of housing for Indians on the leased premises; provided the leasehold has been pledged as security for the loan and the lender has obtained the leasehold by foreclosure or otherwise. Ü Such leases may with the consent of the Secretary also contain provisions permitting the lessee to assign the lease without further consent or approval.

Standard Residential Lease of Tribally Owned Land Ü Assignment and Sublease: (a) Except as otherwise provided herein, Lessee shall not assign or sublet this Lease without the prior written consent of the Lessor and sureties, and approval of the Secretary of the Interior.

Standard Residential Lease of Tribally Owned Land - continued Ü If this Lease and/or any improvements on the Leased Premises are mortgaged or pledged as security for a loan, Lessee shall not assign or Ü sublet this Lease without the written approval of the lender and the respective Federal Agency.

Standard Residential Lease of Tribally Owned land - continued Ü Lessee may assign the Lease and deliver possession of the Leased Premises, including any improvements thereon, to the lender or its successors, or the Federal Agency guaranteeing or insuring the loan, if Lessee defaults in any mortgage or other loan agreement for which the Lease and/or improvements on the Leased Premises are pledged as security , and,

Standard Residential Lease of Tribally Owned Land - continued Ü In such event, the lender or its successors in interest may transfer this Lease or possession of the Leased Premises to a successor Lessee; provided, however, that the Lease may only be transferred to another member of the tribe or tribal entity.

Standard Residential Lease of Tribally Owned Land - continued Ü Nothing in this Lease shall prevent the Lessee, with the approval of the Secretary of the Interior and the Secretary of HUD (for Section 248 insured loans), from executing and recording a mortgage , declaration of trust and/or other security instrument as may be necessary to obtain financing for the purchase of a dwelling, refinancing of an existing mortgage , construction and/or improvement of a dwelling and related structures,

Standard Residential Lease of Tribally Owned Land - continued Ü Or shall prevent the mortgagee or other lender from foreclosing or instituting other appropriate proceedings under law in the event of default of any mortgage or other loan agreement by the Lessee, or assigns.

Standard Residential Lease of Tribally Owned Land - continued Ü Except in cases involving loans for home construction or home improvement by a bank, recognized lending institution , or a lending agency of the United States Government, where no such consent or approval of Lessor shall be required, Lessee may not execute a mortgage, declaration of trust or other security instrument pledging their interest in this Lease or any improvements on the Leased Premises without the prior written consent of Lessor and the approval of the Secretary.

Standard Residential Lease of Tribally Owned Land - continued Additional requirements for Lease which secures mortgage insured, guaranteed or held by Federal Agency: Ü (b) Lessee shall not sublease premises if Lease is security for mortgage insured under Sec. 248. Lessee may assign the Lease in accordance with terms hereunder. Ü In the event Federal Agency is lender and acquires the mortgage secured by this Lease, and subsequently acquires Lease by foreclosure, or assignment, his Lessees or assigns (for which approval of the Tribe is not required ) then: Ü

Standard Residential Lease of Tribally Owned Land - continued Ü (1) Agency to notify Tribe of availability of Lease for sale, sale price of home and other terms. Ü (2) Lease may only be assigned to another tribal member or tribal entity. Federal Agency may lease to nonmember under condition specified herein. Sublease or assignment shall be executed consistent with tribal law

Standard Residential Lease of Tribally Owned Land - continued Ü (3) If purchaser found, Lease to be transferred by Federal Agency to purchaser with written consent of Tribe. Ü (4) If purchaser not found, Federal Agency entitled to sublease without prior written approval of Tribe. Sublease shall be to member of Tribe. Ü If tribal member not found, sublease to any individual. Term of Lease period any succeeding period shall not exceed one year each. Any purchase of Lease shall be

Standard Residential Lease of Tribally Owned Land - continued Ü (5) No mortgagee (except Federal Agency as mortgagee or assignee of mortgagee) may obtain title to interest created by this Lease without the prior written consent of Tribe. Ü In the event lender is entity responsible for acquiring Lease and leasehold estate by foreclosure, lender shall have rights of the Federal Agency who had insured or guaranteed the foreclosed mortgage under (1) thru (5) above, provided this sentence