User:Ryschtaar/project2/page2

Methods and Modes of Acquisition

"Methods of acquisition" refers to the type of transaction used to acquire a legal interest in land and can be subdivided into

• actions taken through a legislative or judicial body and
• actions taken in the marketplace.

Legislative actions include lobbying Congress for new federal legislation and working with an executive agency to create or revise regulations. New legislation can be narrow or broad in scope. A statute might require the Secretary of the Interior to place a specific tract of land into trust, or it may require the Secretary of Agriculture to re-work regulations surrounding a loan program.

Judicial actions can be coercive or remedial. One might file suit to compel action by a federal agency or enjoin a transaction between two parties; on the other hand, a lawsuit might be filed to have the courts recognize or affirm a legal interest in a particular property (e.g., making a claim under aboriginal title).

Legislative and judicial options are ultimately directed toward effecting a land transaction between two (or more) parties. The types of market transactions available fall into several general (and overlapping) categories: purchases, exchanges, gifts and options.

The type of transaction entered into is often controlled in part by the type of property interest being sought. These "modes of acquisition" include

• ownership in fee simple or as trust beneficiary
• ownership jointly or individually, and
• ownership of an easement or restrictive covenant.

Legislative and Judicial Options

Statutory Authorization

Statutory authorization to transfer land from one entity to another takes many different forms.

Withdrawal of Public Land

By preventing both the entry onto and the sale of public lands, Congress has set aside or "reserved for the sole use and occupancy" public lands for Indian tribes. Examples conferring the "sole use and occupancy" of the public land include

• Act of June 20, 1935, 49 Stat. 393 (Kanosh Band of Utah);
• Act of May 23, 1928, 45 Stat. 717 (Acoma Pueblo); and,
• Act of March 3, 1928, 45 Stat. 162 (Koosharem Band of Utah).

Purchase of Private Land

Congress can authorized an executive agency to purchase private lands for Indian use through voluntary transactions or condemnation. The Act of June 23, 1926, § 2, 44 Stat. 763 authorized the Secretary of the Interior to condemn land so as preserve "wild rice beds for the exclusive use and benefit of the Chippewa Indians of Minnesota."

Land Exchanges

Land exchanges swap Federally or tribally controlled lands for private or State lands. While scores of historical examples exist (see Act of May 29, 1944, 58 Stat. 257 (an exchange of private lands for tribal lands on the Navajo Reservation)), land exchanges remain a current tool for controlling a land base as discussed in this Congressional Research Service report.

Sale of Reservation Lands, Proceeds Used for Other Lands

Similar in principle to a land exchange, an Indian nation may prefer to sell land under its control and use the assets to acquire new land holdings.

Approval of Voluntary Transfers between Indian Nations, States, and Individuals

On a few occasions, Congress has authorized voluntary purchases and exchanges including

• the purchase of Pueblo lands by the Navajo (Act of Aug. 9, 1955, 69 Stat. 555, as amended by Act of July 11, 1956, 70 Stat. 522) and
• an exchange of state land in Utah for Navajo tribal land (Act of Sept. 7, 1949, 63 Stat. 695)

Authorization to Consolidate Holdings through Acquisitions from Individuals

Also of note are statutes that provide for the consolidation of land holdings by Indian tribes through the acquisition of privately owned fee land.

See, e.g. Pub. L. No. 88-196, § 2, 77 Stat. 349 (1963),

American Indian Probate Reform Act of 2004

The American Indian Probate Reform Act of 2004 (AIPRA) contains provisions that can lead to the forced sale of interests that represent less than five percent ownership of an inherited property. It also allows for the acquisition of interests in land through escheatment in certain circumstances. More information on AIPRA is available here.

Other Avenues

Congress has also created interests in land through

• Conferring title to land through the restoration of recognition and
• Reservation partition

Aboriginal Title

Also known as original Indian title.

Claims Settlement Acts

Cite Examples

Forms of Ownership and Interests

The law of real property recognizes many different forms of ownership. Cohen's Handbook of Federal Indian Law lists seven:

1. Fee simple ownership,
2. Equitable ownership,
3. Leasehold interests,
4. Rights of reverter,
5. Easements,
6. Ownership of subsurface estates, and
7. Water rights.

While this list is not exhaustive, it covers the major categories with the deliberate exception of trust land. Information on fee to trust can be found here.

1. Ownership in fee simple is "[t]he private ownership of property (real estate) in which the owner has the right to control, use and transfer the property at will." Fee simple implies absolute title to the property, unencumbered by any claims thereto. Fee simple is as broad a form of ownership as is recognized in the law.

2. Equitable ownership is ownership by one who does not hold legal title. For example, a trustor who has deeded the title to a property to a trustee as security for a loan holds equitable title to that property. The equitable owner, the trustor, while not holding legal title to the property, may nevertheless sue the legal owner, the trustee, for specific performance, or another equitable remedy.

3. A leasehold is a tenant's possessory estate in land. Four forms of tenancy are commonly recognized:

1. Tenancy for years,
2. Periodic tenancy,
3. Tenancy at will, and
4. Tenancy at sufferance.

A tenancy for years is any lease of fixed length, whether for one week or ten years. A periodic tenancy, unless terminated with notification, automatically continues from one period to another. A month to month lease is a common example of a periodic tenancy. In a tenancy at will, the tenant's possession is held with the consent of the landlord but without any fixed terms. Either party may terminate a tenancy at will with reasonable notification. Tenancy at sufferance is closely analogous to holding over, or retaining possession of a property after a lease agreement has expired. At this point, the tenancy is either at will or periodic, depending on the circumstances and jurisdiction.

4. While both rights of reversion and remainder interests are future interests, the former is retained by the grantor while the latter is created in a party who is neither the grantor or the transferee. For example, if A gives X to B for life, upon the passing of B the property reverts back to A (or A's heirs). On the other hand, if A gives X to B for life, and then to C and her heirs, C has a remainder interest, and A has retained nothing.

5. An easement is an interest in land owned by another. The owner of an easement has the ability to use or control part of the land of another for a specific purpose. For example, if land belonging to B lies between land belonging to A and a public highway, A might have an easement allowing her to cross B's land to gain access to the highway. An easement may be permanent, unlike a license or lease, but does not confer the right to possess or dispose of the land. Easements generally benefit another property (granting access to a highway) and are called easements appurtenant. An easement that benefits an individual is an easement in gross. Many flavors of easements exist including aviation, railroad, utility, sidewalk, view, conservation and historic preservation easements.

Conservation easements are particularly interesting because they can lead to significant tax advantages for the landowner while creating a legally enforceable agreement between that same landowner and a third party (often a land trust, county, or municipality). Such an agreement will usually preclude certain types of development or land uses resulting in resource conservation. Environmental, natural and cultural resource easements are common forms of the encumbrance.

6. Ownership of a subsurface estate grants rights to minerals and oil, mining and drilling, and sometimes water. In some jurisdictions, these rights are severable from the surface estate.

7. Water rights can be divided into two separate legal doctrines, riparian water rights and prior appropriation rights (the Colorado Doctrine). Under the riparian system, a land owner bordering a river lake or stream has rights to the reasonable use of the water. The right is not severable from the land and exists whether or not it is exercised. The appropriative system developed in the West when most of the land was federally owned and the cost of investment to put existing water to use was extremely high. The resulting system gave the first person to put a water source to beneficial use the right to continue to take the same amount of water as long as the beneficial use continued. The right was not associated with the land and was transferable, unlike riparian water rights.

Indian water rights fall somewhere between these two doctrines. Reading together two Supreme Court cases, Winters v. United States, 207 U.S. 564 (1908) and Arizona v. California, 460 U.S. 605 (2000), There are five discernible principles:

1. "Winters rights" are found exclusively in federal law
2. The establishment of a reservation, whether by treaty, statute, or executive order, implies a reservation of rights to the water within or bordering that reservation.
3. The amount of water reserved is an amount sufficient to irrigate all land practically irrigable. (This is a broad generalization, and at least one state court has held that the amount reserved is that sufficient to achieve the purposes of the reservation, whether or those purposes are agricultural.)
4. Unlike riparian water rights, Indian water rights are subject to competing users with appropriative dates prior to the creation of the reservation.
5. Unlike appropriative water rights, Indian water rights are not lost by non-use.

Ownership and possession are not the only ways to exercise control over the use of a tract of land. The principle alternative is zoning, the practice of subdividing a geographic area, often corresponding with a municipality, into areas subject to different land use and development regulations.

Types of Transactions

While the variety of types of land transactions available to interested parties is limited only be human ingenuity, six major categories present themselves upon reflection.

1. Fair Market Value Purchases: Fair Market Value is that price a willing buyer would pay to a willing seller given a reasonable amount of time for negotiation. Fair market value purchases are characterized by each party having reasonable knowledge of material information and a reliable secondary market.

2. Donations: A donation or gift is the voluntary transfer of property from one entity to another without valuable consideration. Donations of land can lead to tax advantages for both the donor and donee.

3. Part-sale/part-gift: The transaction that effects a transfer of property can be a hybrid of both a sale and gift. If a property is sold for significantly less than its fair market value, the difference between that value and the sale price may considered a gift and the donor may receive favorable tax advantages.

4. Options: An Option is an agreement, made for valuable consideration, that confers upon the option holder the right to purchase or sell a property at a specified price by a specified date.

5. Rights of first refusal: One who owns a first refusal right in a property has the first opportunity to purchase that property when the owner decides to sell it. If the owner receives an offer on the property from a third party, she must give the owner of the right of first refusal an opportunity to match that offer. Rights of first refusal are often given by to the lessee of a property.

6. Leases: A lease is an arrangement by which a property owner, the lessor, conveys the right of possession of that property to a lessee in exchange for valuable consideration (rent) for a specified period of time (term).