1. Tips, Tricks, Pitfalls to Avoid Michael J. McMillin
LEASING INDIAN LANDS
Tips, Tricks, Pitfalls to Avoid
Michael J. McMillin

2. Contact Information
Munson & McMillin, P.C. 247 N. Broadway Edmond, Oklahoma (405)

3. General Overview Restricted Lands v. Trust Lands

4. General Overview
Osage Tribe
This discussion does not apply to lands owned by the Osage Tribe

5. General Overview Restricted Lands
Began in the 1890’s with the Dawes Commission
Established census, tribal rolls, Curtis Bill established plan for the restricted status of land
Several more laws dealing with restrictions
May 28, 1908 – Removal of restrictions for several types of Allottees
1934 – Indian Reorganization Act
5 Civilized Tribes
Cherokee, Muscogee (Creek), Chickasaw, Choctaw, Seminole

6. General Overview Restricted Lands
Restrictions on sales and leases (any transfer of ownership)
Fitzpatrick Indian Title Chart
½ blood quantum or more (today)
District courts are vested with jurisdiction
Stigler Act

8. General Overview Trust Lands
All other tribes
General Allotment Act of 1887
The federal government holds title to the land for the benefit of an individual Indian
Keep in mind
Generally, Indian status of land is NOT dependent on blood quantum
Approval of the Secretary is needed to sell/convey/lease the property

9. General Overview Trust Lands
Goal of Federal Government
Oversight
Management of land/minerals
Guardian/Ward relationship
Initial trust patents were set out for 25 years
The timeframe has been extended by acts of Congress
State courts have NO jurisdiction as long as the lands are in trust

10. General Overview Ensure all early conveyances were properly completed
Estoril Producing Corporation v. Murdock, 1991 OKCIVAPP 122
Conveyance from Kah-Kah-to-the-Quah, who received an allotment of trust land in He subsequently conveyed an interest to the railroad, which was NOT approved by the Secretary of the Interior.
In 1980, the successors to the railroad attempted to lease this interest.
The original conveyance did not meet three criteria:
Conveyance made on terms prescribed by Secretary of the interior, made under the supervision of the Commissioner of Indian Affairs, and approved by the Secretary of the Interior
Therefore, the original conveyance was not fee simple, only an easement. The 1980 lease was set aside.

11. Leasing Restricted Lands

12. Leasing Restricted Lands
Cherokee, Muscogee (Creek), Chickasaw, Choctaw, Seminole
The leases are executed by the individual Indian owner, but approved by the district court in the county where the land is located.
Private lease
No more than 3 year terms, 3/16 royalty, paid up, no warranty

13. Leasing Restricted Lands
The lessee will negotiate terms with the individual owner
If the Indian owner has a blood quantum of ½ or more, then you will need district court approval
Always confirm restricted status with the appropriate tribal office
The MRTA does NOT apply to Indians of the five civilized tribes

14. Leasing Restricted Lands
Muscogee (Creek) Nation Realty Trust Services
Cherokee Nation Real Estate Services
Eastern Oklahoma Regional Office Bureau of Indian Affairs
Chickasaw and Seminole
Choctaw Nation Real Property Division
ginger-

15. Leasing Restricted Lands
As you get information, send it to the attorney (even before leases are executed)
Be sure to include all information you have
Roll Nos.
Heirs/last will and testaments
Set out all heirship from Allottee
Any information you have received from the tribe
The attorney will provide the proposed petition and waiver
The attorney will file the Petition for approval, publish notice (which recites the consideration)
Notice will be given to the Solicitor’s office

16. Leasing Restricted Lands
A hearing will be set
Not less than 10 days after notice
Set by the BIA depending on tribe
Competitive bidding may occur at the hearing
Based on fair market value
Judge must be satisfied with the consideration (best interest of the Indian owner)
Evidence and hearings will be transcribed. There must be a record.
Sale will be confirmed to the highest bidder
The purchaser/lessee must pay all costs of the case
Generally, the lessor is then paid directly

17. Leasing Restricted Lands
This process is in an administrative capacity as delegated by the federal government
Therefore, any heirship that is set out is NOT a final determination of heirship
Order cannot be used to clear title nor is the lease warranted
There must be a separate case filed (probate or quiet title) to determine heirship
Operators may take the business risk and rely on affidavits or files of the BIA
Minors and incompetents must have guardians appointed (pursuant to state law)

18. Force Pooling Restricted Lands
There is a process to force pool restricted lands
What you need to do:
Contact the appropriate BIA office
Will need to provide proof of attempting to locate the owners through searches of county records, telephone directories, Tribal papers, BIA records
Publish in the appropriate Tribal newspaper
Forward the above along with the application for pooling and testimony given for market value to the BIA
That information is then forwarded to the BLM for review
Forward the final order to the BLM for approval
Time to complete

19. Leasing Trust Lands

20. Very different process from restricted lands
Leasing Trust Lands
Very different process from restricted lands
Leases are approved by the appropriate agency within the BIA
State courts do not have jurisdiction
All leases will be on the appropriate BIA form
Eastern Tribes
Western Tribes

21. Leasing Trust Lands Eastern Tribes Western Tribes
Administered by the Eastern Oklahoma Regional Office in Muskogee
Periodic sealed bids
There are some five civilized tribal lands that are held in Trust
It all goes back to the original allotment/patent
Western Tribes
Tribes are divided by agencies (see contact sheet)

22. Records Maintained under the Southern Plains Regional Office in Anadarko
Anadarko Agency: Apache Tribe Caddo Nation Comanche Nation Delaware Nation Fort Sill Apache Tribe Kiowa Indian Tribe Wichita and Affiliated Tribes Concho Agency: Cheyenne-Arapaho
Horton Agency:
Iowa Tribe of Kansas & Nebraska
Kickapoo Tribe in Kansas
Prairie Band of Potawatomi Nation
Sac and Fox Nation of Missouri
Pawnee Agency:
Kaw Nation
Otoe-Missouria Tribe of Indians
Pawnee Nation
Ponca Tribe of Indians
Tonkawa Tribe

23. Leasing Trust Lands
Always obtain a Title Status Report (TSR) from the appropriate agency
This will be the record title for those trust lands
Agencies are charged with record title, not the county clerk’s office
All leases and subsequent assignments must be filed with the appropriate agency
These must also be on the appropriate BIA form
The BIA keeps the official records

24. Leasing Trust Lands
Contact the appropriate agency to begin the leasing process
All negotiations are generally handled through the administrative office, NOT with the Indian owner
Permission may be given to negotiate with the Indian owner
The lease forms may vary slightly based on tribe/office
Eastern – lease royalties are gradual based on production
Western – generally a 1/5 lease
All leases will contain depth clauses
For each agency, there are notice requirements, a bidding process, then approval (4-6 weeks after submission for approval)

25. Leasing Trust Lands
All BIA leases will be subject to all federal environmental regulations (Clean Air Act, National Environmental Protection Act, etc.)
The expiration date of the lease is from the date of approval
Assignments must be on BIA forms and filed with the appropriate BIA office
Pooling and spacing language will NOT be included in BIA leases
Must obtain a Communitization Agreement

26. Leasing Trust Lands Communitization Agreement
Will be limited to the lands and common sources of supply required for production
Timely execution is vital
90 days prior to lease expiration
Miles v. Southern Plains Regional Director, BIA, 60 IBIA 257 (2015), vacated and remanded to Board, Cimarex Energy Co. v. Gilbert Miles, No. CIV F (W.D. Okla. 2016), remanded to Concho Agency Superintendent, Miles v. Southern Plains Regional Director, 63 IBIA 55 (2016), appeal dismissed, Cimarex Energy Co., et al. v. Acting Southern Plains Regional Director, 65 IBIA 277 (2018)
The issue is whether the Communitization Agreement was properly approved

27. Leasing Trust Lands Key Points from Miles
The Communitization Agreement must be filed with the Superintendent or Regional Director 90 days prior to the first expiration date of any Indian Leases in the proposed drilling unit (See 25 C.F.R. § (e))
At its discretion, the Agreement may be reviewed within the 90 days if it is in the best interest of the Indian
However, a Communitization Agreement must be approved before the lease expiration date (See 25 C.F.R. § (f))
“An Indian oil and gas lease expires by its own terms when there is no production during the primary term and the lease is not included within a producing unit under a CA approved prior to the expiration of the lease.” Black Hawk Oil Co. v. Acting Anadarko Area Director, 18 IBIA 414, 421 (1990) (citing Continental Oil Co., 2 IBIA 116 (1973))

28. Key Points Each tribe is different Always contact the agency first
Building relationships
With heirs – name as many as you can
With BIA
Payments

29. Helpful Websites and Resources
Dawes Rolls
Fitzpatrick Charts
Guide to Rarick’s Oklahoma Indian Law Titles
Southern Plains Region
Contact Handout