When discussing Indian Lands, there are two types of transactions involved. The first involves land that is clearly located within an established Indian reservation. Any transfer of title to this land is going to depend on a close examination of the tribal records, combined with federal regulations. Specifically, Title 25 of the Code of Federal Regulations must be completely
understood, and all local treaties must be examined as well.
Here in the Northeast, there are relatively few existing Indian reservations. Transfers involving land in a reservation are extremely difficult. Tribal records are frequently inaccurate and incomplete. It is not uncommon to have the records scattered across the country in various locations. The tribe itself may keep records, the Bureau of Indian Affairs Land Title and Records office may keep records, the Bureau of Land Management may keep records, and the Department of Interior may keep records. For this reason, you must obtain specific approval from the local office before insuring any lands located within an Indian reservation.
A more common problem arising with respect to Indian lands concerns the second kind of transaction. This involves land which is not actually located on an Indian reservation, but for which a claim is being asserted on behalf of a particular tribe or Indian council. Several recent actions filed on behalf of Indian tribes have proven successful in various parts of the country. There are presently several thousand pending lawsuits involving Indian claims.
One of the first successful suits involved vast tracks of land located in the State of Maine. An award was realized by the Indians which included assets from federal, state, and local governments. In addition to land, there were cash and regulatory awards as well. For the most part, tribes have been far less successful in obtaining subsequent results.
Here in Massachusetts, after numerous appeals, the lawsuit in Mashpee was finally dismissed for the last time by the United States Supreme Court. Part of the ongoing problem on Martha's Vineyard in the Gay Head area has now been resolved. It should be emphasized, however, that there are still active Indian claims in the Commonwealth.
We do not wish to provide title insurance with respect to any land involved in a lawsuit, or where a lawsuit appears imminent, in which an adverse interest in the land is being claimed by or on behalf of a particular tribe or group of Indians. If we have a previous title insurance policy outstanding on the land that you are now being asked to insure, or if we have already insured numerous other parcels in the claimed area, it may be prudent to continue issuing policies. Absent that specific fact scenario, no title insurance policies may be issued in areas against which Indian claims are pending without taking a specific exception in Schedule B of the policy for the rights and claims of the Indians under the particular lawsuit.
If you have any questions concerning this topic, or if there is any doubt in your mind concerning Indian claims in a particular area, you should contact the local office.