Attachment is the Overview and Application
OVERVIEW OF GIFT DEEDS
With the approval of the Secretary of Interior or his/her authorized delegate, Native landowners of restricted property may convey all or part of their land by deed for no consideration, other than “love and affection.” If the landowner receives something of tangible value for their restricted property, that transaction is a sale, not a gift deed.
The Bureau has a responsibility as trustee for restricted Native land. As a Realty Specialist or Realty Officer, your responsibility is to ensure that the gift deed is in the long-range, best interest of the Native landowner(s). The Native landowner must have an interest in restricted property—i.e., Certificate of Allotment, Restricted Native Trustee Deed, or a Trust Patent—in order to issue a gift deed. A Native landowner can gift deed all or part of his/her restricted land, including undivided interests.
Many original restricted landowners have passed on since receiving title, so the landowners’ heirs acquire an undivided interest in the property. As this “fractionation” increases, restricted land is often owned by multiple owners. If there is more than one owner, all owners need to be equally informed. If multiple owners are going to convey their respectful interests in a restricted parcel to one individual, it is better—for practical purposes—to have them all sign one deed. Native landowner(s) may gift deed to their spouse, brother, sister, or lineal descendent. Gift conveyances may also be made when a “special relationship” exists or a special circumstance exists that warrants approval.
A special relationship exists with a niece, nephew, aunt, uncle, son-in-law, or daughter-in-law. Other examples of special relationships are gifts to a church in which the landowner is a member, or a gift to the landowner’s Tribe, or ANCSA Corporation in which he/she has stock. However, the special relationship must be clearly documented, and should be spelled out clearly in the Report of Investigation.
Special relationships other than described above must be justified in great detail. Compelling reasons, justification, etc. must be demonstrated in the Report to lend strong support for approval of the transaction. A simple short paragraph citing that it is in the long-range best interest of the client will not be sufficient. Packages will be rejected if the report is not compelling and convincing.
The individual Alaska Native grantee has the option of receiving the land in either restricted or unrestricted status. Tribes and non-Native grantees cannot receive land in restricted status. Counseling will be provided on both types of ownership. In order to convey portions of restricted property, the land being conveyed must be actually surveyed, with monuments set in the ground and the plat reviewed and approved by the Bureau Indian Land Surveyor (BILS). The Alaska Region has a written policy that expressly forbids conveyances of restricted property using Metes and Bounds legal descriptions.
If the land being gifted is leaving restricted status, the following reports—the “Big Four” — are required:
- Current Appraisal;
- Section 106 Compliance Report (Archeological Inventory);
- National Environmental Policy Act (NEPA) document; and
- Certified Title Status Report.
However, if the gift deed is to another Alaska Native and restrictions are to be retained, an Appraisal is usually not required (see exceptions in “Procedures”). The Solicitor’s Office expressed concern that the landowner(s) may not know the true value of the restricted property that they are giving away. However, many landowners—because of age and the resulting inability to access their restricted property anymore, cultural desire to bequeath property to their descendants, or other considerations—may wish to gift their restricted property regardless of its value. The landowners should be carefully counseled, with the proper counseling documents included in the transaction package, with proper documentation in the Report of Investigation.