Tribal Lands: An Overview

Tribal Lands: An Overview

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October 14, 2021
Tribal Lands: An Overview
Tribal lands can have a complicated and intermingled mix
etc.) by operation of law. For some purposes, Congress has
of land ownership and designation statuses. For instance,
defined tribal lands to include trust and restricted fee lands,
some federally recognized Indian tribes (hereinafter
such as for leasing Indian agricultural lands (25 U.S.C.
referred to as tribes) have reservations, whereas other tribes
§3703) and rights-of-way (25 U.S.C. §323).
do not. Tribes may have land held in trust by the federal
government or tribes may own restricted fee lands. Still
Fee Lands
other tribes may be landless. Because tribal lands may have
In the context of tribal lands, fee lands are lands owned by a
different ownership statuses, tribes and tribal members may
person who can freely alienate or encumber land without
have different rights to manage and develop their lands and
federal approval. The General Allotment Act, also known
resources. Further, the federal government has varying
as the Dawes Act (Act of February 8, 1887, Ch. 119, 24
levels of responsibility to tribes and their members
Stat. 388), authorized the conveyance of tribal and
depending on the types of land holdings.
individual tribal member ownership of land to non-Indians.
Many fee lands were created when land passed out of tribal
The following are common tribal land holdings: trust land,
or tribal member ownership under the General Allotment
restricted fee land, and fee land. Other types of land
Act. Although the IRA explicitly ended the conveyance, or
designations, while not considered property holdings, can
allotment, of tribal reservations in 1934, today trust or
influence tribal land policy and may include trust, restricted
restricted fee lands can still be converted to fee lands. For
fee, and fee lands within their scope. Such designations
example, individual tribal members can request that the
include allotted land, federal Indian reservations, and the
Secretary remove the restriction against alienation on trust
term Indian Country (see “A Note on Indian Country,
or restricted fee lands, making the parcel freely alienable.
below”). The various types of tribal land holdings and land
The federal government typically does not have a role in
designations are summarized below and in Table 1. This In
land management activities that include fee interests.
Focus also considers selected issues for Congress, including
the fractionation of allotted lands and the land-into-trust
Other Land Designations
process.
Allotted Lands
Allotted lands are lands held in trust or restricted fee status
For more information on tribal lands, see CRS Report
by individual tribal members, sometimes referred to as
R46647, Tribal Land and Ownership Statuses: Overview
allottees or landowners. Allotted lands do not include fee
and Selected Issues for Congress, by Tana Fitzpatrick.
lands. Allotted lands stem from treaties and statutes,
Common Tribal Land Holdings
including the General Allotment Act, which divided land
communally held by tribes and allotted parcels of it to
Trust Lands
individual tribal members. Allotment led to fractionation of
Trust lands are lands owned by the federal government and
the land, which occurred when the undivided interest from
held in trust for the benefit of the tribe communally or tribal
the original allottees was passed down to multiple heirs,
members individually. The United States holds in trust
increasing with each generation. Many landowners—at
approximately 55 million surface acres and 59 million acres
times hundreds—can be on one parcel of land. Further,
of subsurface mineral estate for tribes and individual tribal
when some allotments passed into fee, the result was a
members. Lands typically are brought into trust through the
pattern of land ownership where fee parcels are interspersed
land-into-trust process. Under this process, land can be
with trust or restricted fee parcels—often referred to as
taken into trust through either mandatory acquisitions or
checkerboarding. Checkerboarding and fractionation can
discretionary acquisitions. Mandatory acquisitions occur
contribute to jurisdictional and management challenges.
when Congress directs the Secretary of the Interior
(Secretary) to take land into trust on behalf of a tribe. The
Federal Indian Reservations
Secretary also may be mandated by court order to take land
Federal Indian reservations are areas reserved for a tribe,
into trust. Discretionary trust acquisitions occur when the
or multiple tribes, as permanent homelands through treaties,
Secretary uses authority under the Indian Reorganization
executive orders, acts of Congress, and administrative
Act (IRA; 25 U.S.C. §§5101 et seq.) to approve bringing
actions. Not all tribes have a reservation; however, tribes
land into trust on behalf of a tribe.
without a reservation could still have lands held in trust or
restricted fee. Trust, restricted fee, and fee lands may exist
Restricted Fee Lands
within a tribe’s reservation boundaries. Tribes also may
Restricted fee lands are owned by a tribe or tribal member
have trust, restricted fee, or fee lands outside of reservation
but are subject to a restriction against alienation (i.e., sale or
boundaries.
transfer) or encumbrance (i.e., liens, leases, rights-of-way,
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Table 1. Types of Tribal Land Holdings and Other Land Designations
Name
Description or Definition
Trust
The U.S. government holds legal title to trust land for the benefit of federally recognized Indian tribes (tribes) or
individual tribal members. The United States holds in trust approximately 55 mil ion surface acres and 59 mil ion
acres of subsurface mineral estate for tribes and tribal members.a
Restricted Fee
Restricted fee land refers to land to which a tribe or individual tribal member holds legal title, but the title is subject
to restrictions by the United States against alienation or encumbrance.b
Fee or Fee
Fee lands or fee simple lands are lands previously conveyed out of tribal ownership that are freely alienable or can
Simple
be encumbered without federal approval.c Fee lands may be owned by non-Indians or may be repurchased and
owned by a tribe or individual tribal members.
Allotted
Allotted lands can be held in trust or restricted fee status. These lands stem from the treaties and allotment
statutes that divided land communally held by tribes and allotted parcels of it to individual tribal members.d
Federal Indian
Federal Indian reservation is land reserved for a tribe (or multiple tribes) under treaty, statute, or other agreement
Reservation
with the United States that establishes permanent tribal homelands. Reservations are distinguishable from tribal
property holdings;e for example, trust, restricted fee, and fee lands can be included within reservation boundaries.
Indian Country For criminal jurisdictional purposes, the term Indian Country generally refers to all lands within a federal Indian
reservation, all dependent Indian communities, and all tribal member allotments.f
Source: Compiled by CRS.
a. 25 C.F.R. §151.2(d), 25 C.F.R. §169.2. Surface and subsurface acreage numbers obtained via personal communication between CRS
and the Bureau of Indian Affairs (BIA) on June 17, 2021. Acreage amounts are current as of May 2021.
b. 25 C.F.R. §§151.2(e), 152.1(c).
c. Department of the Interior (DOI), BIA, Acquisition of Title to Land Held in Fee or Restricted Fee Status (Fee-to-Trust Handbook), June 28,
2016.
d. Nell Jessup Newton, ed., Cohen’s Handbook of Federal Indian Law, 2012 edition, 2017, §§16.03, 1.03(6)(b) (Newton, Cohen’s Handbook).
e. DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions; Newton, Cohen’s Handbook, §15.02.
f.
18 U.S.C. §1151.

A Note on Indian Country
recognized under the IRA prior to 1934 could petition to
Indian Country is a legal term that, for purposes of
reserve land in trust. If Congress chooses to address issues
determining criminal jurisdiction, generally refers to all
raised by the Carcieri decision or the administrative land-
lands within a federal Indian reservation, all dependent
into-trust process, legislative options and oversight could
Indian communities, and all tribal member allotments (18
involve potential amendments to the Secretary’s authority
U.S.C. §1151). This definition assists in determining which
to bring land into trust.
entity—state, tribal, or federal—can exercise jurisdiction
when matters involve tribes, tribal members, and non-
Reducing Fractionation
Indians. Although an in-depth look at this definition is
In 2009, the settlement agreement in Cobell v. Salazar, 573
outside the scope of this In Focus, it is noted here to assist
F.3d 808 (D.C. Cir. 2009), established a program to buy
in distinguishing the differences and interdependencies
back fractionated land interests. The DOI Land Buy-Back
between jurisdiction and tribal land holdings.
Program (LBBP) uses the $1.9 billion settlement to
Land-into-Trust Process
purchase fractionated interests from willing sellers,
consolidate those interests, and restore the land to tribal
One issue for Congress could be the administrative process
ownership. The LBBP expires in November 2022. In its
for bringing land into trust. In 2017 and 2018, the
FY2022 budget request, DOI proposed a new
Department of the Interior (DOI) held consultations with
appropriations account—Indian Land Consolidation—with
tribes about amending the land-into-trust regulations
$150.0 million to reestablish the Indian Land Consolidation
addressing off-reservation parcels and creating a separate
Program (ILCP). DOI indicated the ILCP would be a
process for acquisitions for the purposes of gaming. Some
modified version of the land consolidation program that
tribes opposed the proposed changes, stating the revisions
existed prior to the LBBP. DOI stated the ILCP would
would make bringing land into trust more difficult for
continue to consolidate fractionated interests. The House
tribes. State and local governments also commented, stating
considered this proposal favorably in passing an FY2022
their governments would like more opportunities to provide
“minibus” appropriations bill (H.R. 4502) but would fund
input throughout the land-into-trust process.
the account at $75.0 million. The bill is currently pending in
the Senate.
Another issue relates to the Secretary’s determination of
whether a tribe qualifies to petition to bring land into trust.
Tana Fitzpatrick, Specialist in Natural Resources Policy
A 2009 Supreme Court case, Carcieri v. Salazar (555 U.S.
IF11944
379 (2009)), decided that only tribes that were federally
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Tribal Lands: An Overview

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