Burke Act

Burke Act (1906), (Also known as the Forced Fee Patenting Act) was designed to correct certain defects in the General Allotment Act ("GAA") also known as the Dawes Act of 1887, under which the land in the Indian reservations was to be broken up and distributed in severalty to the individual Indians. Because of the unpreparedness of most Indians for citizenship it provided that citizenship be granted on the final validation of their trust patents at the end of the probationary period of twenty-five years instead of on the receipt of the trust patents as stated in the Dawes Act.

The Burke Act further amended the GAA to give the Secretary of the Interior the power to issue allotees a patent in fee simple to people classified ‘competent and capable.’ The people deemed 'competent and capable' were usually mixed blood Indians with some European ancestry. These allotees were deemed ‘competent’ by the Secretary of the Interior because it was thought at the time that their European ancestry made them mentally superior and therefore 'competent' and able to take responsibility of their land. These 'competent' allotees would have their land taken out of trust status, subject to taxation, and could be sold by the allottee. The act reads:

“..the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed.”

The use of competence opens up the categorization making it much more subjective and thus increasing the exclusionary power of the Secretary of Interior. Although this act gives power to the allottee decide whether to keep or sell the land, provided the harsh economic reality of the time, lack of access to credit and markets, liquidation of Indian lands was almost inevitable. It was known by the department of interior that virtually 95% of fee patented land would eventually be sold to whites (Robertson, 2002). The following passage from the 1913 annual report from the Pine Ridge agency reveals how the eventual dispossession of land after issuing a fee patent was an expected outcome and even considered a ‘valuable lesson’ by the department of Interior’s reservation superintendent.

“It is still the conviction of this office that the issue of a patent in fee for a portion of an Indian’s land who is judged as being competent or near-competent, is the proper procedure in dealing with the land question among the Indians…Even if the proceeds derived from the dispossession of the land are squandered he still has plenty of land left and he may have learned a few lessons that will prove of value in the future.” (Department of the Interior, Annual Report of the Pine Ridge Agency, SD, August 1, 1913)

There were other legal consequences of the Burke Act. In some cases the Indian who was deemed competent often was not informed that they were deemed competent, and that their land was now a fee patent as opposed to trust land. As a result, the land owner did not know the land was being taxed. After a period of unpaid taxes, the land was sold without the owners consent to pay past taxes. This process was known as the "forced fee patent process." In this way, the Burke Act contributed to the on-going fractionation and loss of Tribal or Indian owned lands.