Whose land? Land status and regulation

Laws regarding land use, ownership and taxation influence everything that is built on reservation land.  There are several categories and subcategories of land, each with their own laws regarding taxation, land value, control, and economic potential. The main categories of land status are “Trust” and “non-Trust” (also called Deeded or Fee). The concept of “trust” goes back to the creation of reservations by the Federal Government, as an attempt to protect tribes and their new, enclosed land.  However, the trust relationship has played out in a way that has led to a checkerboard pattern of land control by the tribe, and complications in the economics of home ownership by individual tribal members.

Trust v. Nontrust

History:

This “checkerboard” comes from a history of experimental and misguided land policies by the federal government. The General Allotment Act in 1887 designated 160 acre plots of land in trust to individual tribal members in the spirit of assimilation and “civilization” through farming.  This land, if maintained, would automatically be turned to non-trust land after 25 years, slowly turning reservation trust land into non-trust land subject to property tax.  This policy of “forced deeds” led to foreclosures and the sale of much of the original property on the reservations to non-Indians.  Additionally, after the distribution of the 160 acre allotments, the “excess” or “surplus” land was sold off by the federal government to non-Indians – further reducing the size of tribal land.  By 1919, 1,052,320 acres of the 2.8 million within the boundaries of reservation were “allotted” on Cheyenne River – a number that shrank to 503,483 acres by 2000.[1] In 2010, that number is 447,094.  In 1934, Congress passed the Indian Reorganization Act, which prohibited “forced” deeds.  Since then, one must request to convert their property to deeded land; otherwise it remains in trust.

Trust (allotted to tribal member or owned by tribe):

Only the tribe (as a political body) and individual tribal members can own trust land.  This land cannot be sold or transferred to a non-Indian. The benefits of trust land are that no property taxes are paid on it, and it can be passed down within the family. Land passed down through family can only go to tribal members.  In the case that it is not passed on, it will be returned to the tribe. Trust land can be traded for other tracts, or can be sold within the tribe. Ownership can be beneficial, title or both – affecting whether income is received from leasing of the land, and how the land is transferred after death. Some tracts of land are 1 to 1 individual ownership, but most land is considered to be “undivided interest land,” meaning that it is in trust to several family members. In this case, an individual owns a percentage of the land, but not a segment. Since the land is in trust by the federal government to the tribe, the land cannot be sold to non-Indians, and the BIA has the power to approve or reject transactions.

Nontrust (also known as Fee or Deeded):

The reservation borders include a sizable amount of land that is not in trust, and has very different regulations that govern it. This land, called “fee” or “deeded” land, is owned in full by anyone, Indian or non-Indian, and is subject to property tax. It can be sold or leased at will.  It was only recently that the tribe gained 51% control of the land within the reservation, after the purchase of 24,000 acres of deeded land. It is still considered deeded until the debt is paid off, and then can be converted to trust land. Before this transaction, the tribe didn’t hold the majority interest on its own reservation.

Indian Country:

Indian Country is trust and nontrust land that is within the boundaries of the reservation and any territory outside the reservation that is under the jurisdiction of the tribe.  Private property on fee land in Indian Country is subject to US and county taxes.  However, these properties are under mixed jurisdiction between the tribe and federal government.  For example, if a non-major crime is committed between Indians in Indian Country, the tribe has jurisdiction. However, if an Indian commits a crime against a non-Indian or vice versa, it is considered a federal crime, and the FBI has jurisdiction – not the state.  All major crimes on the reservation, such as murder and rape, are under FBI jurisdiction.

Conversion Programs:

Individuals who own trust land can apply to have their land converted to fee-simple land, a practice that is usually only done if a tribal member wants to sell their land to a non-Indian, as it subjects the land to taxation. In this case, the land ceases to be considered “reservation” land and is no longer in trust for the tribe. Another process is the fee-to-trust program, in which a tribal member can apply to have their fee land converted to trust land. This process can only be started if all buildings on the property are paid in full.

City/Town Incorporations:

Four towns within the reservation, Dupree, Eagle Butte, Isabel and Timber Lake, have large sections that are incorporated by the state.  Being incorporated by the state means that the land is deeded and is most likely not owned by the tribe.  For example, in Eagle Butte the two main gas stations are in the incorporated section of town; the tribe does not own them.  In fact, there are two Eagle Buttes – Cheyenne Eagle Butte on trust land and Downtown Eagle Butte on fee land.  On tribal land there is no zoning.  To create a commercial site, each individual business venture must go through an approval process by the Tribal Council and BIA, a process that we have been told is tedious and long.  This is particularly problematic for the 15 residential cluster communities like Bridger, Cherry Creek, Iron Lightning and White Horse that are on reservation trust lands but have no precedent or encouragement for commercial activity.

Surface/Minerals:

After studying a map in the realty office of the BIA, we noticed that it was labeled “surface map,” and learned that surface and mineral rights are independently controlled and can have different trust statuses.  For example, in the case that surface land was allotted to an individual and in trust, the minerals below could be fee land owned by another individual.  Legally, mineral rights trump surface rights, so if the owner of the mineral rights wants to access their minerals, they can penetrate the surface land.  Because of this, the tribe’s current policy is to always keep mineral rights in trust when selling any fee land.

Housing Process:

Tribal members can apply for home sites on tribal trust land, which would then be leased indefinitely or traded for individual ownership. Site selection involves the study of a GIS map showing which land tracts are available. Typically, an application is for a five-acre home site. The leases are usually for 25 years, and are generally renewable for another 25 years. After tribal approval, the individual will be responsible for developing the property within 2 years, and will be responsible for acquiring housing on the site, and applying for utilities from the independent companies that sell electricity, propane and water. Tri-County Water charges between $600 and $1000 to install a water meter, though some programs (eg. Indian Health Services) may assist with the costs. However, there have been no new home sites selected in the past three years, due to a current hold on new water meters by Tri-County Water. Pipes laid in the 1970s were too small for current demand, and due to maxed out pipes and pumping station, new water meters will not be installed until a new intake, pump and treatment plant is completed in Armstrong County. This could be several years, depending on funding and climate conditions.  Until then, only sites with previously installed systems are selected (and these are rare), unless a cistern system is used to laboriously haul and hold water, or a more robust system of rainwater collection is put into place.

Range Units:

Much of the undeveloped land within the reservation boundaries is leased to ranchers though a system of Range Units (RU’s).  Individual tribal members can apply to the tribe for 5 year leases of range units, and do not pay taxes on the land. Lease money is paid to the tribe, and the amount is calculated according to the number of animal “units” that can be run. In order to lease a RU, an individual must run at least half of his or her own animals on the property– either all together throughout the year, or half a year at a time. Generally, cattle graze the land, but horses also count for this percentage. The price of leasing land from the tribe is significantly less compared to leasing land from individuals with allotted plots of land – approximately $7/acre compared to approximately $17/acre.  Still, these Range Units provide a substantial source of income to individuals who are lucky enough to have them.  Range Units are difficult to come by and currently there are none available.  The application process includes a non-refundable $100 fee and the selection process is not based on a list or any clear criteria, but rather appears to be a political decision made by the tribe.


[1] Indian Land Tenure Foundation, http://www.indianlandtenure.org/iltfallotment/introduction/introI.htm

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