Industry News

How U.S. Supreme Court Tribal Ruling in Oklahoma Impacts Title Industry, Property Rights

September 1, 2020

A decision by the U.S. Supreme Court in July declaring that most of eastern Oklahoma remains a Native American reservation could impact the title insurance industry and property rights.

In a 5-4 decision in McGirt v. Oklahoma, the court held that the reservation for the Muscogee (Creek) Nation in eastern Oklahoma was never abolished by Congress. The reservation boundaries are based on treaties between the United States and the Muscogee tribe spanning from 1833 through 1866.

A political deal will need to be reached between federal, state and tribal authorities about which government’s sovereign rights control which people and parcels in the reservation. The impact of this deal will be felt in every industry in Oklahoma, including the title industry.

Case Facts

Jimcy McGirt, a member of the Seminole nation, was convicted of three sexual offenses in Oklahoma state court. His sentence from the state court was life in prison, and then some. McGirt appealed this conviction claiming he could not be convicted by the state because they lacked jurisdiction due to the federal Major Crimes Act (MCA). The MCA states, “Any Indian who commits against the person or property of another Indian” any major crime, including murder, kidnapping, felony assault, among others, “within the Indian country, shall be subject to the same law and penalties . . . within the exclusive jurisdiction of the United States.” McGirt’s claim, then, was that because he is an Indian and was accused of committing crimes against another Indian in “Indian country,” his case could only be tried in a federal court. McGirt’s claim left a major question to be answered: were the alleged crimes committed in “Indian country”?

While the holding of the McGirt v. Oklahoma case is narrow in scope to address criminal jurisdiction of the Muscogee under the Major Crimes Act (MCA) for the offense committed by McGirt, the additional impact of the case determining that the Creek Reservation was never disestablished raises issues beyond the particular facts of the case. The Muscogee (Creek) Nation may now assert civil and administrative jurisdiction over all land contained within the boundaries of the reservation.

Ultimately, there is one major complicated consequence of this ruling that creates a waterfall of questions to be answered. If a large amount of land in Oklahoma is technically still a Native American reservation, even though many non-tribal members own land within the reservation boundaries, whose laws apply to which actions, people and parcels of land?

“Many in the real estate, abstracting, title insurance, bar association, oil and gas, and commercial and residential lending industries are examining the possibilities of new issues being raised that were not historically raised before the McGirt decision about the legal jurisdiction of the Muscogee (Creek) Nation, as well as the other tribes that are similarly situated (Seminole, Choctaw, Chickasaw, Cherokee and Osage),” said Jessie Martin, president of the Oklahoma Land Title Association.

OLTA and ALTA, including ALTA's Native American Lands Committee, are active in these discussions. The government sponsored entities (Fannie Mae and Freddie Mac) also are inquiring about the collateral impact of the decision on residential lending in Oklahoma. Issues being discussed now include taxing authority, land use and zoning, access, land records and recordation, subdivision planning, land development, probate, divorce, mortgage foreclosures, mechanic’s liens, bankruptcy and other civil judgment enforcement.

In a letter to U.S. Sen. James Inhofe (R-OK), ALTA Senior Vice President of Public Affairs Chris Morton said that many decisions necessary for driving new economic development or transactions hinge on the central question of which government has sovereignty and jurisdiction over the residents, property and businesses located there.

“The decision creates uncertainty for past transactions where all parties were under the belief that parcels of land were not located on a reservation and that transactions were solely under the jurisdiction of the law of the state of Oklahoma,” Morton wrote. “Confirming everyone’s legal expectations when they entered into these transactions over the past century is an absolutely necessary step for effectively protecting people’s property rights.”

Implications on Property Rights

Land within reservation is treated for many purposes as a sovereign nation, with unclear limits on the tribe’s authority within those boundaries. This gets complicated as there are several types of land within a reservation. One type is tribal property, which is land owned by the tribe. The second is restricted land, which is land held by the tribe or an individual tribal member. This could be held in a trust by the federal government or it may have restrictions placed on it. Finally, there is unrestricted fee land, which is not subject to tribal controls and may be owned by a non-Native or a Native American. It is likely that most of the land within the Muscogee (Creek) reservation in Oklahoma is unrestricted fee land.

If the land is unrestricted fee land, many questions arise. The first among these are about the laws that may apply and what kind of authority the tribe may have over that property. These questions include, but are by no means limited to, the following: Does the tribe have control over zoning? Does the tribe make land use decisions? Can the tribe assess and collect property taxes? Does someone doing business within the reservation boundaries need to have a tribal business license? Specific to real estate, if person A is trying to sell their land to person B, does a title insurance company need to ask if one of them is a tribal member? If so, would asking that question violate discrimination laws? All of these questions will impact the title industry in some way. Further, the list of questions continues, and every question will require a political solution in order to arrive at an answer.

“There are additional questions raised about the application of tribal laws on non-tribal members, as well as challenges in identifying an individual’s status as a tribal member, which brings up the delicate subjects of discrimination, privacy laws and the Fair Housing Act,” Martin said. “These questions can be unsettling for industries that rely on stability of legal concepts and legal remedies for buying and selling properties, residential and commercial real estate lending within these jurisdictional boundaries and insuring the title risks associated with these transactions.”

While the impact most likely will not extend so far as to make people lose titles to their land, until there are answers to the questions, business as usual will be difficult.

As title professionals look to serve their customers and secure their property rights going forward, here are some of the key questions and concerns that the McGirt decision raises, and which will require thoughtful and expedient resolution to minimize doubt around real estate transactions:

• Ownership of real estate
  • Which jurisdiction’s laws and forms (tribal or state) govern the transfer of a parcel of real estate?
  • Was ownership transferred or established in accordance with requirements of the proper governing jurisdiction? If not, what corrective actions will need to take place?
  • What about purchases or transfers by legal entities (trusts, partnerships, LLCs, corporations), or using statutory legal processes (powers of attorney, foreclosures, adverse possession, condemnation proceedings, etc.)?
• Priority of mortgages
  • Which jurisdiction’s land records govern each parcel for recording purposes?
  • What laws or rights do those jurisdictions give for documents recorded in their land records?
  • Was a past mortgage recorded in the proper jurisdiction, or are there certain liens or interests that are given special priority?
• Property boundaries
  • Was any division of the land or adjustment of the boundaries approved by and recorded in the proper jurisdiction?
• Dispute resolution
  • Which courts have jurisdiction for bringing disputes and actions such as mortgage and other lien foreclosures? Are past court decisions still valid?
• Mechanic's liens
  • If a contractor or service provider was unpaid by the property owner and had lien rights, where would the correct jurisdiction or venue have been (or still be) to enforce its lien rights? Are the rules the same for tribal members and non-members?
• Taxation
  • Was the property owner taxed by the appropriate authority, or could an owner now be faced with another authority attempting to collect unpaid real estate or personal property taxes?
• Land use regulation
  • Did the property owner or lessee abide by the proper regulation in the use of property? This could include the subdivision of land, zoning regulations, building codes use restrictions, and homeowner associations, including the enforcement of private covenants and restrictions.
• Access via public roads
  • Were the public roads and highways now used in Eastern Oklahoma established in accordance with the requirements of the proper governing jurisdiction?
  • Will any current landowners lose access to their real property as a result of the McGirt decision?

Native American Lands

According to the Bureau of Indian Affairs (BIA), there are 573 federally recognized tribes in the United States. The U.S. federal government is responsible for overseeing and protecting Native American tribes and their assets. U.S. has a fiduciary obligation to Indian tribes defined by federal statutes, regulations and jurisprudence. This federal trust responsibility was established in the 1831 case Cherokee v. Georgia, which held that tribes are “domestic dependent nations” who, in exchange for ceding their land obtained promises, from the U.S., for protection.

The federal trust responsibility requires the U.S. to uphold the rights reserved or granted to tribes and individual Native Americans by treaties, statutes and executive orders, including management of tribal trust assets, protection of tribal interests and oversight approval of transactions.

Outgrowths of the federal trust responsibility is that title records to Native American lands are owned by the United States, which means they are subject to the federal Privacy Act. As trustee, the U.S. is not neutral when it comes to Native American land. It has many responsibilities to tribes under federal law, including review of transactions in which Indian-owned land is involved. Obtaining the required federal approval is vital. It’s important to know when federal approval is required and insist that it is duly and properly obtained and evidenced on documents.

Determining title to Native American lands, including leases and rights-of-way to or across them, may require review of BIA, state or county, and possibly tribal records. The BIA’s Regional Land Titles and Records Offices (the BIA-LTRO) are that agency’s official repositories for documents reflecting title to or encumbrances on Indian lands. (For more information, title professionals should consult the federal regulations found in 25 C.F.R. Part 150.) All title documents regarding transfers or issuance of leases, rights-of-way, or permits on trust or restricted Native American lands “shall be submitted” immediately upon BIA approval to the appropriate BIA-LTRO. The regulations charge LTRO personnel with the responsibility to prepare “land title status reports,” land status maps, and certification of land records and title documents. While state, county, or other local land records repositories are not “offices of record” for trust or restricted lands, they may contain instruments that provide notice to junior interest owners and records of divorce or estate proceedings that do not appear in BIA records, and those offices become repositories of record when restrictions are removed from Native American lands.

What’s Next?

McGirt will create a domino effect of questions that need to be answered in order for everyone living within reservation boundaries to understand how their conduct may or may not need to change. These new understandings will impact the way many industries do business, and the title industry is no exception. The title industry will undoubtedly be impacted, but the extent of the impact will be unclear until some political answers are generated to the questions this case has prompted.

“Leaving these issues to courts is not a viable option and will only lead to protracted and expensive litigation and further uncertainty for untold numbers of Oklahoma residents and businesses,” Morton said. “ALTA and OLTA believe the federal government, in coordination with the tribes and state, working alongside stakeholders, must act expeditiously to confirm the legal effect of past transactions conducted under the laws of Oklahoma for property currently within the reservations while these issues are comprehensively considered by Congress for permanent resolution.”

Contact ALTA at 202-296-3671 or [email protected].