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Re: [Fwd: Re: NOVA]

At 01:12 PM 3/4/97 -0600, Paul R Janke wrote:
>I beg to differ with your interpretation, Jeff. The BHI did not need
>federal permission to buy the fossil from Williams. Judge Battey
>ruled that because SUE was still (mostly) in the ground at the
>precise moment of sale, she was "real property" and therefore
>federal permission was required for the transaction. Presumably,
>if the money had been given to Williams a few days later, after
>SUE was physically out of the ground, the deal would not have
>been voided by Battey.

   PRESUMABLY, not certainly.  The reason below.

>The legal issue is the question of real vs. private property, and what
>constitutes a "severable asset" under the law and precedent. Gold,
>minerals, oil, timber, vegetation for grazing. etc. are all considered
>"severable assets". If a Native American landowner places their land
>in "trust status" (as in the case of SUE) that landowner may still
>sell these "severable assets" without federal approval. Items sold
>in this fashion are treated as "private property" under the law.
>Maurice Williams owned both the property and the mineral rights.
>No federal forms needed to be filled out, no federal bureaucrat's
>signature was required. Battey was simply wrong.

   That's not what the eighth circuit said, and is not what precedence says.
Basically, they said "severable assets" are only saleable without permission
if 1) the assets were severed as a consequence of using the land for other
purposes and 2) the assets did not constitute a substantial value of the
land.  To wit:

   Here, Black Hills claims that it purchased the right to excavate Sue from
Williams for $ 5000. Williams did not apply to the Secretary for prior
approval of this transaction nor did the Secretary ever approve it. All
parties agree that the fossil is now personal property because it has been
severed from the land. In Starr v. Campbell, 208 U.S. 527, 534, 52 L. Ed.
602, 28 S. Ct. 365 (1908), however, the Supreme Court held that timber from
Indian trust land that the beneficial owner sold was subject to the trust
patent's restraint on alienation even though the timber became personal
property after the purchaser severed it from the land
   The Supreme Court has held that a beneficial owner of Indian trust land
could sell timber from his land without violating the restraint on
alienation because "the cutting was incidental to the preparation of [the]
land for agricultural uses." Felix S. Cohen, Handbook of Federal Indian Law,
at 539 n.94 (1982 ed.) (citing United States v. Paine Lumber, 206 U.S. 467,
473-74, 51 L. Ed. 1139, 27 S. Ct. 697 (1907)). The Court distinguished
Paine, however, in Starr. In Starr, the Court found the timber subject to
the restraint on alienation because the timber constituted 15/16 of the
value of the land and the land was "timber land" unsuitable for farming. 208
U.S. at 534. Holding otherwise, the Court reasoned, would reduce the
restraint on alienation to "small consequence." Id. Thus, Paine does not
apply here because Sue was a valuable part of the land and nothing in the
record suggests that she was excavated to clear the land for farming or
other similar purposes.

   Note that the court considers "Sue" to be a valuable part of the land, so
BHI might *not* have been able to keep "Sue" even if they had waited to
purchase her until after she was fully excavated.

>"In short, because Maurice Williams was a Native American,
>Judge Battey treated him as incompetent to contract, and voided
>his contract with the Larsons as we do minors who may renounce
>their contracts made before the age of eighteen. We beg to differ
>with Judge Battey. In real estate law, Mr. Williams is not incompetent
>to contract merely because he may not have good title.

   Mr. Williams may be competent to conduct his own affairs, but like it or
not Title 25 states that the government has to be involved.  Had BHI and
Williams gone through the govt. the govt. may have agreed and we wouldn't be
arguing about this.  I wonder if the tribal council would have left well
enough alone, though, and not interfered with the process....

>Rather, if he
>agrees to sell something he doesn't own, he is obligated to cure the
>title or return the money, neither of which Maurice Williams did."

   No argument there.

>"As for Judge Battey, he will remain infamous for his ingenious fiction
>that an unexcavated dinosaur is "part of the realty" , unlike other
>commodities like timber, crops, or even gold which could be sold
>by the owner under trust deed."

   This is false according to the eighth circuit, who states that timber in
particular CANNOT be sold except under specific circumstances.  Plus, if
South Dakota law is applied to the situation, "Sue" was "real property"
because it was an "ingredient of the earth," part of the definition of land
within the law.  With wording such as that, there isn't much leeway.

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