JUNE 2024 | 21 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. for business entities or trusts.” The AG has promulgated three separate affidavit forms (i.e., individual, nonexempt business/ trust and business/trust exemption). The affidavit for business/ trust exemption has language that echoes the concerns of the OAR. To be eligible to use this business/ trust exemption affidavit, the grantee must be (per Section 121) “a business entity that is engaged in regulated interstate commerce in accordance with federal law.” The entity must swear, on the “business/trust exemption” affidavit, “4. … I further acknowledge and understand that an entity engaged in or supporting the cultivation of marijuana in Oklahoma is not ‘engaged in regulated interstate commerce in accordance with federal law.’” NEW ENFORCEMENT TOOLS This new approach shifts part of the burden of enforcement from the AG and the local district attorneys to the local county clerks, who will act as “gatekeepers.” If the “deed” fails to have the appropriate affidavit attached to it – swearing that the grantee is a U.S. citizen or is (or intends to be) a bona fide Oklahoma resident – it will not be accepted for recording. The three affidavit forms, listed above, contain positive assertions that 1) the affiant is at least 18 years old and has personal knowledge of the statements being made, 2) the affiant is the grantee of the land or the authorized agent of the entity/ trust grantee, 3) the individual grantee is a U.S. citizen or bona fide resident alien (or intends to be) of Oklahoma, or the trustees and all direct and contingent beneficiaries and a business’s direct and indirect owners are U.S. citizens or bona fide resident aliens (or intend to be) of Oklahoma, 4) generally, this acquisition is in accordance with the terms of Section 121 et seq., 5) no funding sources were used in violation of this law and 6) acknowledging that U.S. citizens or resident aliens can acquire and hold title to land in Oklahoma. The pre-SB 212 process for initiating an escheat process continues to be described under this amended Section 121 and the remaining unamended Sections 122-127. QUESTIONABLE PARTS OF THIS STATUTORY BAR – BOTH PRE-SB 212 AND POST-SB 212 The SB 212 Statutory Bar Against Aliens ‘Indirectly’ Owning ‘Land’ by ‘Business Entities and Trusts’ Appears to Be at Least Partially Unenforceable in the Face of the Cartwright Decision Recognizing Domesticated Alien Corporations as Bona Fide Residents The constitutional bar and the implementing statutory bar, both of which were adopted in 1910, remained unchanged until the passage of SB 212 in 2023, which amended one of the sections (Section 121) of the statutory bar. In the interim, Enrolled Senate Bill No. 11 was adopted in 1979, and it provided, in pertinent part: Section 1. The Oklahoma Senate calls upon every citizen with knowledge of non-resident alien land purchases to report to their local District Attorney or to the Attorney General. The Attorney General is directed to conduct an investigation into foreign land investment in Oklahoma and to report to the Oklahoma Senate by May 1, 1979. No action shall be taken against any non-resident land purchaser who has rights by treaty to purchase and own land within the United States. In response to this senate bill, on May 1, 1979, the AG published the “Non-Resident Alien Ownership of Land in Oklahoma: Report of the Oklahoma Attorney General” (herein the “AG Alien Report”) In 1979, following the issuance of its “AG Alien Report,” then- current AG Jan Eric Cartwright issued a formal opinion announcing its position against alien ownership of Oklahoma land: 1. An alien may not directly or indirectly acquire title to or own land in the State of Oklahoma. 2. An alien who can be shown to have taken up bona fide residence in this State may acquire and hold lands during the continuance of such bona fide residence; provided, that if such resident alien shall cease to be a bona fide inhabitant of this State, the said alien shall within five years from the cessation of such bona fide residency alienate the lands so held. 3. A nonresident alien may hold land in Oklahoma only if the said nonresident alien acquired it by devise, descent or by purchase, where such purchase was made under a legal proceeding foreclosing a lien in favor of such alien, and land acquired by such means may be held for only five years. 4. Title to land which has been conveyed in violation of Article XXII, Section 1 of the Oklahoma Constitution, and 60
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