Bulletin: WA000038

Date:
June 29, 1999
To:
All Washington State Offices and Agents
RE:
Indian Trust Land Case

Dear Associates:

A recent decision from Division 1, Court of Appeals in Landauer v. Landauer, Docket No. 41123-3-I filed 5/3/99 addressed the issue of whether the Washington Superior Court could adjudicate ownership of Indian Trust Land. The finding was that State Courts do not have such authority.

The wife, an Indian, and her husband, a non-Indian, were married for thirty years and had acquired substantial assets. The wife inherited three substantial parcels of land through inheritance. In 1984 the couple executed a Community Property Agreement with language of conveyance. In 1996, the wife filed for dissolution. The property was appraised and the Court offset the value of the Indian Trust Lands against the value of the parties IRA account and divided the remainder of the community property equally. This appeal followed.

The Court of Appeals ruled that the State Court may not adjudicate ownership of Indian Trust lands because State Courts Have No Jurisdiction Over Indian Trust Lands.

In 1953, Congress passed Public Law 280, which conferred civil and criminal jurisdiction over Indians and Indian territory upon five states and permitted all other states to assume jurisdiction without tribal consent. The State of Washington assumed partial, nonconsensual jurisdiction under Public Law 280, including jurisdiction over domestic relations matters. Washington's assumption of jurisdiction was upheld in Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463 (1979). Congress subsequently passed the Indian Civil Rights Act of 1968, which required tribal consent for all future assumptions of jurisdiction over Indian Country. Congress did not make the consent provision retroactive, however, so Washington retained partial jurisdiction as originally legislated. Congress' grant of jurisdiction to state courts has several limitations. Congress retained exclusive federal jurisdiction when Indian trust lands are at issue. Both 28 U.S.C. sec. 1360(b) and 25 U.S.C. sec 1322(b) provide: Nothing in this section shall authorize the alienation, encumbrance or taxation of any real or personal property. . . belonging to any Indian . . .that is held in trust by the United States; . . .or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

In this case the state court adjudicated ownership of the trust property itself, by declaring that ownership of the Indian trust lands was conveyed to the community by community property agreement. The trial court exceeded the scope of its jurisdiction. The court thus erred in its characterization of the trust lands as community property.

The trial court also mischaracterized the wife's property as community for another reason: Federal law prohibits the conveyance of Indian Trust land without the approval of the Secretary of the Interior. Under Federal law the wife could not convey this property, by community property agreement or otherwise, without the Secretary's approval. In the absence of such approval, the trust property she inherited remains her separate property.

Washington has assumed jurisdiction under Public Law 280 and such jurisdiction includes domestic relations matters. Washington law requires the dissolution court to make a just and equitable distribution of property, to consider the nature and extent of the separate property and the economic circumstances of the parties. Ordinarily the court would consider all property, whether or not the court could effectively adjudicate ownership. Nothing in Public Law 280 prevents the court from considering the economic circumstances of each party in arriving at a just and equitable distribution of the marital estate.

Reversed and remained for further proceedings consistent with the opinion.

THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER  AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.

References

Bulletins Replaced:
None
Related Bulletins:
WA000005 Yakima Indian Land Use Case
Underwriting Manual:
9.08 Indian Titles
 
12.00 Marketable Title
Exceptions Manual:
WA Native Americans
Forms:
None