Washington

Overview of Indian Trust Real Property

Authored By: Northwest Justice Project LSC Funded
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What is Indian trust real property? 

Generally, it refers to land that is held in trust by the United States or otherwise reserved for Indian tribes and individual Indians and is managed by the Bureau of Indian Affairs (BIA) for their benefit.

Why is it called "trust" property? 

Because the federal government is the trustee for the land.  A trustee must manage trust assets in the best interests of the beneficiaries of the trust, in this case the Indian landowners.

What is "restricted" Indian land?

It is like trust land. It is land that is held by a tribe or person subject to a restriction by the United States against alienation (selling or giving the property to anyone else.)  The phrase "trust or restricted land" is common in Indian law.

What is fee land? 

"Fee land" describes the reservation land that is no longer in trust or subject to restriction. It usually refers to land on a reservation that is owned by non-Indians. In some cases, a tribe, or individual tribal members, also has land in fee. The term refers to the "fee patent" document that is issued to the individual Indian land owner. This transfers the land out of trust. It allows it to be deeded to anyone. 

What laws apply when I am on trust land on my reservation?

You will not be subject to many state and local laws and regulations if you live or travel on trust land on your own reservation.   Example: the state or local laws cannot tell you

  • what you can keep in your yard,

  • whether you can have a business in your home, or

  • that you must pay property or other state or local tax. 

There is an exception for certain civil matters under Public Law 280. This gives Washington State concurrent jurisdiction over legal proceedings involving:

  • school attendance

  • public assistance

  • domestic relations

  • mental illness

  • juvenile delinquency

  • adoptions

  • child dependencies and

  • operation of motor vehicles. 

The state does not have jurisdiction over civil traffic infractions, such as speeding tickets, on any roads within your reservation.  Federal civil and regulatory laws may apply. Tribal civil and regulatory laws will apply.  We do not discuss criminal laws and jurisdiction issues in this publication.

What laws apply when I am on fee land within my reservation?

More state and local laws apply on fee land. Exemptions from sales tax and many state and local regulations will still apply.  You are still on your own reservation. Your Tribe has exclusive regulatory powers, even if you are on fee land.

Does land have to be within a reservation to be trust land?

No.  There are off-reservation trust lands. This includes off-reservation allotments.

What is allotted land? 

Allotted land is land that was originally set aside for individual tribal members both on and off reservation.  The U.S. held the land in trust or restricted fee status for the benefit of individuals. Soon after the reservations were set aside or created, federal law allowed the reservations to be divided into individual allotments for tribal members. Many were. This was how "allotted land" was created.

Who can own Indian trust property?

All Northwestern tribes which have reservations that have previously been allotted allow their enrolled tribal members to own individual trust property on their reservation, either through inheritance or purchase.  Some tribes allow members of other tribes to inherit land on their reservation.  Unenrolled Indians and non-Indians usually can inherit only a life estate in trust land. 

The American Indian Probate Reform Act, which applies to estates of Indians who die on or after June 20, 2006, says the tribe may buy interests of less than 5% in jointly owned trust land unless the landowner makes arrangements in a will to consolidate the small interest with other joint owners' interest(s), or transfers the property during his or her lifetime.  The reservations of some tribes have never been allotted. In those cases, the property title remains entirely in the name of the tribe itself.

What if I need legal help?

  • The Northwest Justice Project's Native American Unit (NAU) provides free civil (non-criminal) legal services for Native Americans who cannot afford a lawyer in Washington.  To reach us, call the toll-free hotline at (888) 201-1014, and then press 5 to leave a message for the NAU. You can leave a message 24 hours a day, 7 days a week and we will return your call within two business days. 
  • CLEAR: CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems.  Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m.  CLEAR works with a language line to provide interpreters as needed at no cost to callers.  If you are deaf or hard of hearing, call 1-888-201-1014 using your preferred TTY or Video relay service. You can also apply online with CLEAR*Onlinehttp://nwjustice.org/get-legal-help.
  • Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

 


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This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of the date of its printing,
August 2012.

© 2012 Northwest Justice Project. 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and individuals for non-commercial use only.)