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Trust-to-Fee Transfer

Click on the image below to open a sample form.

Trust-to-fee transfers, also known as fee patents or patents-in-fee, have a long and sometimes painful history among many Indian people and tribes. In 1906, the Burke Act was passed, which authorized the secretary of the interior to decide whether an Indian person was “competent” to manage his or her lands. If he or she was deemed “competent,” the secretary could take the land out of trust in a “forced fee patent” making the land taxable and available to be sold. The secretary of the interior was authorized to do this with or without the knowledge and/or against the wishes of the allottee. Thus, some Indian people during the early 20th century, including many Indian soldiers away fighting in WWI, ended up having their land sold in tax foreclosure auctions because they owed taxes on land they thought was still in trust.

More recently, some Indian landowners have had concerns that they would not be able to pass their trust land on to a non-Indian spouse or child who does not have the degree of blood quantum required by the tribe for enrollment. In some cases, these landowners have chosen to transfer their trust lands to fee status so they could safely keep their lands in their family. However, there are other options-such as writing a will that includes a life estate for family members.

Steps in the Process
The Application for Patent-in-Fee was last updated in 1955-over half-a-century ago-though it is still the standard form used by the BIA to process a trust-to-fee transfer. Like most of the other BIA forms in this publication, it includes the usual invasive questions about marital status, income and use or proposed use of the land. Compared to the amount of information and documentation required to put land back into trust (in a fee-to-trust transfer), transferring land from trust-to-fee is relatively simple and fast.

Length of Time
While there was a time when a trust-to-fee transfer could take as little as three weeks, these days it generally takes somewhere between three to six months, largely due to the appraisal required. Congressional approval is required to dispose of tribal land, though it’s rare for a tribe to transfer land from trust to fee status.

What Happens When Indian Land Goes out of Trust?

  • The land becomes taxable.
  • The land can easily be sold or transferred to a non-Indian.
  • Checkerboarding on the reservation increases.
  • The tribe loses jurisdiction over the land, diminishing tribal control and sovereignty.
  • In most instances, the land becomes subjected to county zoning and land use codes.
  • Federal programs for trust lands are no longer accessible.
  • It’s very hard to return the land to trust status again in the future.