Tribal Land Foreclosures

Learn about foreclosures of homes on Native American land.

If you live on Native American land and fail to make your mortgage payments, the lender may foreclose the property. But the process might be somewhat different than a typical foreclosure in your state. Native American tribes are sovereign governments, and most have their own laws, including foreclosure ordinances.

Tribal courts typically have jurisdiction over lawsuits, including foreclosure lawsuits, against Native Americans. So, a bank often has to foreclose through tribal court. Though, that court might follow state foreclosure procedures. Tribes sometimes adopt and incorporate the applicable state foreclosure statutes as part of their foreclosure ordinances. However, the foreclosure might go through state court if there isn't a tribal foreclosure law or if the tribal court doesn't review foreclosures.

Ultimately, whether your foreclosure will go through tribal court or state court depends mainly on what type of land is involved—like trust land or fee simple land—and your tribe's laws.

Trust Land

With trust land, the title to the property is held in trust by the U.S. government. This category can be further broken down depending on whether the land has been designated for an individual or a tribe.

  • Individual trust land. The federal government holds legal title to the land, but the beneficial interest goes to the individual.
  • Tribal trust land. The federal government holds legal title to the property, but the beneficial interest goes to the tribe.

Restricted Fee Simple Land

Restricted fee simple land, on the other hand, is land where an individual Native American or tribe holds title to the property. The property is not held in trust. This type of land is restricted in that it can only be alienated (transferred or sold) or encumbered (for example, mortgaged) by the owner with the approval of the Secretary of the Interior.

This category can also be further broken down depending on whether the land has been designated for an individual or a tribe.

  • Individual restricted fee simple land. An individual Native American holds legal title to the property, but there are legal restrictions against alienation or encumbering the property.
  • Tribal restricted fee simple land. The tribe holds legal title to the property, but there are legal restrictions against alienation or encumbrance.

Mortgages on Native American Land

Often, banks secure mortgage loans on Native American land with:

  • a security interest in the real property, or
  • a security interest in a leasehold.

Whether the mortgage will encumber the property itself or a leasehold interest usually depends on if an individual or the tribe holds the property.

Property Held by an Individual: Trust Lands and Restricted Fee Simple Lands

Real property that the federal government maintains in trust or that is in restricted fee status for individual tribe members can be mortgaged, generally, with the approval of the Secretary of the Interior.

Property Held by the Tribe: Trust Lands and Restricted Fee Simple Lands

If the land is tribal trust land or tribal restricted fee land, mortgaged property is sometimes set up as a leasehold estate. To mortgage a leasehold, the individual tribal government must typically first approve a residential lease agreement, and the lease must be executed by the tribe (the lessor) and borrower (the lessee) and approved by the Secretary of the Interior.

In this setup, the lender holds a security interest in the leasehold, not the property. So, it is this lease, and not the land itself, that the lender can seize if the borrower defaults on the loan. The title to the property remains in trust for the tribe.

Foreclosure Procedures for Tribal Land

As a general rule, state courts don't have subject matter jurisdiction over lawsuits brought by non-Native Americans because Native American tribes are sovereign nations. But when it comes to a defaulted mortgage loan, the foreclosure will be processed through the legal system that has jurisdiction over mortgage loans, which might include tribal or state court.

Foreclosure of Trust Properties

Due to specific jurisdictional limitations on trust properties, foreclosures of trust property (whether tribal or individual) are generally completed in tribal court unless the particular tribal code grants state jurisdiction. Many tribal codes dictate how creditors can repossess collateral or otherwise obtain relief if a borrower should default on a loan.

Though the foreclosure will likely take place in tribal court, that court will often utilize state foreclosure statutes. Many tribes adopt and incorporate by reference the applicable state statutes. However, the forum, hearings, and procedures can be quite different from state court. For example, in Navajo lands, the trial courts must explain the rights, charges, and the factual basis for charges in the Navajo and English languages.

Foreclosure of Restricted Fee Properties

The foreclosure of restricted fee properties might take place in tribal court or the state court in the county where the property is located. If no tribal foreclosure law exists or the tribal court chooses not to exercise jurisdiction over foreclosures, the foreclosure will typically be completed in state court in accordance with the laws of that state. The loan documents may also confer jurisdiction to the applicable state courts.

Talk to an Attorney

Because of the complicated nature of foreclosures involving Native American land, it's highly recommended that you contact a lawyer if you're behind in the payments for a home that's located on tribal land. A lawyer can advise you about the foreclosure process, including any potential defenses, as well as help you work out an alternative to foreclosure, like a loan modification.

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