Can the Boy Scouts (now Scouting America) sell off any of the 2,840 acres they got from the State of Arkansas in 1976 without losing the property to the state, and is the 1973 act that created those restrictions still good law?
Subject
Whether the Westark Area Council of the Boy Scouts of America can lawfully sell part of approximately 2,840 acres in Logan County purchased from the State of Arkansas under Act 167 of 1973, and whether Act 167 has been superseded by later legislation.
Plain-English summary
Representative Jon Eubanks asked the AG whether the Boy Scouts can sell part of land they bought from the State of Arkansas in 1976 to raise funds for "various future projects and endeavors." The land (about 2,840 acres in Logan County) was conveyed under Act 167 of 1973 by deed dated February 18, 1976.
The opinion turns on the doctrine of "restraints on alienation" in property law. There are two kinds: direct restraints (which forbid sale or transfer outright) and indirect restraints (which limit how the property can be used, with an incidental effect on its sale value).
Direct restraints in the 1976 deed. The deed says the land cannot be "sold, donated, conveyed, leased, or used for any other purpose" than the specified ones. Each of the prohibitions on transfer is a direct restraint. At common law, "disabling restraints" (a category of direct restraint that flatly forbids transfer) are void with one carve-out for spendthrift trusts. The Boy Scouts deed isn't a spendthrift trust, so under common law the direct restraints would be void.
Why the common-law rule doesn't apply here. The General Assembly can override common-law rules. Act 167 of 1973 specifically required the deed to contain these direct restraints. The AG concluded this is sufficiently plain to indicate Act 167 overrides the common-law rule. So the direct restraints are valid because Act 167 made them so.
Indirect restraints. The deed's use restrictions (the property must be used for Boy Scouts programs, Girl Scouts and youth recreation, or controlled use under agreement with the Game and Fish Commission) are indirect restraints. Indirect restraints are generally valid at common law if there's a "rational basis." The use restrictions here clearly support Act 167's stated goal of supporting youth development programs. The AG concluded the use restrictions are valid.
Reverter clause. The deed says property reverts to the State if the Boy Scouts cease to use any portion of the land for the listed purposes for five years. The AG noted the reverter is keyed to non-use, not to attempted alienation. So a sale isn't even legally available; the prohibition operates at the point of attempted transfer rather than triggering the reverter.
Constitutional question (Amendment 14). Amendment 14 prohibits "local or special acts." The AG addressed whether Act 167 (which deals with a single specific 2,840-acre tract) violates this. The Arkansas Supreme Court has held Amendment 14 doesn't apply when "the state legislate[s] with respect to its own affairs." When the state acts on its own property and its relationship with one of its citizens, the act is general, not local or special. So Act 167 is constitutional.
Status of Act 167 today. Act 167 of 1973 is still valid law. Act 320 of 1973 placed the Arkansas Tuberculosis Sanatorium under what became the Developmental Disabilities Services Board; it didn't alter Act 167. Act 38 of 1991 directed the Board to execute a quitclaim deed because of an apparent surveying ambiguity, but Act 38 didn't amend the 1976 deed itself.
Act 1026 of 2025. The General Assembly passed Act 1026 of 2025, which amends Act 167. As of the date of the opinion (June 6, 2025), Act 1026 was not yet effective. The AG cautions that amending Act 167 alone does not necessarily alter the 1976 deed's terms, because the deed incorporated Act 167 as it existed in 1976. Act 1026 doesn't directly amend the deed's text.
Caveats. The AG flagged he had been told there was a quitclaim deed executed in September 1991 but had not been provided a copy, so the analysis was limited to the 1976 deed. Additional facts could change the analysis.
What this means for you
Boy Scouts council officials and Scouting America leadership
You currently cannot sell, donate, convey, or lease any portion of the 2,840 acres without violating the 1976 deed. The direct restraints are enforceable because Act 167 of 1973 required them. If your fundraising plan depends on liquidating a portion of the property, that plan does not work under current law.
Routes forward, in rough order of effort: (1) ask the General Assembly to amend Act 167 (Act 1026 of 2025 already does some amendment, though the AG flagged that amending Act 167 alone may not change the 1976 deed's terms because the deed incorporated Act 167 as of 1976); (2) ask the General Assembly to release the State's reversionary interest by special legislation, allowing a transfer; (3) review the September 1991 quitclaim deed (which the AG didn't see) for any text that may have modified the original deed's restrictions.
The use restrictions (Boy Scouts, Girl Scouts, youth recreation, controlled use with Game and Fish Commission) are independently valid as a rational-basis indirect restraint. Even if the alienation question is resolved, the property still has to be used for the listed purposes for five years at a stretch or it reverts.
Real property attorneys and title examiners
This opinion is a good illustration of how a legislative act can override common-law restraints on alienation. The "presumption against change in common law" requires that the legislative override be made plain. Act 167's express requirement of restraints in the deed satisfies that test. If you encounter similar deeds where the underlying conveying act required specific restrictions, treat the restraints as enforceable on the same logic.
The constitutional analysis under Amendment 14 is also notable. State property dispositions to a single named recipient look like "special acts" but are saved under the doctrine that the state legislating about its own property is acting generally. The line of cases (Matthews, Urquhart, Huxtable) is well-settled.
State legislators
Act 1026 of 2025, as the AG points out, amends Act 167 but doesn't directly amend the 1976 deed. If the legislative intent is to allow the Boy Scouts to sell, you may need to do more than amend the underlying act. Releasing the State's reversionary interest, or directing execution of a new deed instrument, may be required to actually enable conveyance authority.
Anyone working with state-conveyed property in Arkansas
If you're acquiring or financing property that was originally deeded by the State of Arkansas under a special act, look at the act itself, not just the deed. The act's substantive requirements (use restrictions, reverter triggers, alienation prohibitions) get incorporated into the deed and can override common-law alienability rules.
Common questions
Q: I thought direct restraints on alienation are void. Why aren't these?
Because the General Assembly required them. The common-law rule against direct restraints (disabling restraints) is a court-made doctrine. Statutes can override common-law doctrines if they make the override sufficiently plain. Act 167 of 1973 expressly required the deed to forbid sale, donation, conveyance, and lease. That's plain enough.
Q: The deed has a reverter clause. Doesn't that mean the property goes back to the state if the Boy Scouts try to sell?
Read carefully, the reverter is keyed to ceasing to use the property for the listed purposes for five years, not to attempted alienation. The AG noted this. The alienation prohibition operates at a different point: the sale itself can't happen. The reverter handles a separate scenario (long-term non-use).
Q: What about the quitclaim deed from 1991?
The AG hadn't seen it. Act 38 of 1991 directed the Developmental Disabilities Services Board to execute a quitclaim deed to address an ambiguity from a Booneville Human Development Center survey. The 1991 quitclaim deed (if it was actually executed) might have resolved the survey issue without amending the 1976 deed's substantive terms. To know for sure, someone needs to pull the 1991 quitclaim deed from the recorder's office and examine its language.
Q: Doesn't Amendment 14 of the Arkansas Constitution prohibit "special acts"?
Yes, but the Arkansas Supreme Court has long held that Amendment 14 doesn't apply when the State is legislating about its own property and its own affairs. Acts that dispose of state property to a particular recipient are treated as general acts even when they name the recipient.
Q: Is Scouting America's name change relevant?
No. The Boy Scouts of America renamed itself Scouting America on February 8, 2025, and the Westark Area Council and Quapaw Area Council merged into the Natural State Council on December 1, 2023. Those organizational changes don't affect the 1976 deed's restrictions, which run with the property and bind whoever holds it.
Q: Could the Boy Scouts use the land as collateral for a loan?
That would likely qualify as a "lease, mortgage, or other encumbrance," which is a form of alienation. The deed's alienation prohibition probably reaches that, though the AG didn't address financing transactions specifically. Real-property counsel should review carefully before structuring such a transaction.
Q: What about leasing part of the land for an unrelated commercial activity?
That would conflict with the use restrictions in the deed (boy scouts, girl scouts, youth recreation, or use under Game and Fish Commission agreement) and would trigger the reverter if non-permitted use continued for five years. A short-term lease for an authorized purpose (a Game and Fish Commission hunting program, for example) would fit within the deed's terms.
Background and statutory framework
Restraints on alienation come in two categories:
- Direct restraints "by [their] terms[,] penalize[] the power to transfer property." A "disabling restraint" is a sub-category that forbids transfer outright. Under Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984), disabling restraints are void at common law except those incidental to spendthrift trusts.
- Indirect restraints have only an "incidental effect" on alienation. Use restrictions are the classic example. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759, says use restrictions are generally valid if there's a rational basis.
The Arkansas Supreme Court in Nelson v. Arkansas Rural Medical Practice Loan & Scholarship Board, 2011 Ark. 491, 385 S.W.3d 762, held that the General Assembly can alter common-law rules when the change is "made plain" by the statute. The presumption is against change in common law (Scalia & Garner, Reading Law: The Interpretation of Legal Texts 318 (2012)), but the presumption yields to a "fair reading that changes the common law."
Act 167 of 1973 was the special act authorizing the conveyance from the Arkansas Tuberculosis Sanatorium to the Boy Scouts. Section 4 of the Act required specific deed restrictions: prohibitions on selling, donating, conveying, and leasing; a reverter to the State if the property ceases to be used for boy scouts programs, girl scouts and other proposed youth recreational activities, or partial/controlled use under agreement with the Game and Fish Commission.
The 1976 deed (executed February 18, 1976) embodies these restrictions. Because the deed expressly references and incorporates Act 167, the deed can be read together with the Act under the principle from Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985), and Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974).
Act 1026 of 2025 amends Act 167. As of June 2025, it was not yet effective. Even when effective, its impact on the 1976 deed is questionable, because the deed incorporated Act 167 as it existed in 1976. Subsequent amendment of the underlying act does not necessarily amend the deed's terms; that would generally require a new instrument.
The Amendment 14 analysis (which prohibits "local or special acts") is governed by Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425 (1939), and Urquhart v. State, 180 Ark. 937, 23 S.W.2d 963 (1930). Both establish that the State's legislation about its own property and affairs is treated as general, not special.
The presumption against implied repeal is from Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179: "[A] repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand."
Citations
- Act 167 of 1973
- Act 320 of 1973
- Act 38 of 1991
- Act 1026 of 2025
- Ark. Const. amend. 14
- Ark. Const. art. 19, § 22
- Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759
- Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984)
- Nelson v. Ark. Rural Medical Practice Loan & Scholarship Board, 2011 Ark. 491, 385 S.W.3d 762
- Simmons First Bank v. Bob Callahan Services, 340 Ark. 692, 13 S.W.3d 570 (2000)
- Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425 (1939)
- Urquhart v. State, 180 Ark. 937, 23 S.W.2d 963 (1930)
- Huxtable v. State, 181 Ark. 533, 26 S.W.2d 577 (1930)
- Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179
- Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985)
- Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974)
- Restatement (Third) of Property: Servitudes §§ 3.4, 3.5 (Am. L. Inst. 2000)
- Black's Law Dictionary 1575 (12th ed. 2024) (definition of "restraint on alienation")
- Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 318 (2012)
Source
Original opinion text
101 West Capitol Avenue
Little Rock, Arkansas 72201
Opinion No. 2024-080
June 6, 2025
The Honorable Jon S. Eubanks
State Representative
Post Office Box 34
Subiaco, Arkansas 72865
Dear Representative Eubanks:
You have requested my opinion regarding whether the Westark Area Council of Boy Scouts of America ("Boy Scouts") can lawfully sell part of its real property "to raise funds for various future projects and endeavors." You report that, pursuant to Act 167 of 1973, the Boy Scouts purchased, subject to certain conditions, 2,840 acres in Logan County, Arkansas, from the Arkansas Tuberculosis Sanatorium. (On December 1, 2023, the Westark Area Council and Quapaw Area Council merged into the Natural State Council. And the Boy Scouts of America officially changed its name to Scouting America on February 8, 2025. For clarity, I will continue to refer to the organization as "Boy Scouts.")
You have asked these questions:
- Subject to current state law and the underlying deed, may the Boy Scouts convey and transfer any of their acreage to a third party without title reverting and vesting back to the State of Arkansas?
Brief response: As explained more fully below, no. A reviewing court would likely uphold the restraints on alienation in the 1976 deed, which were required by Act 167 of 1973.
- In light of the unique circumstances in which it was passed and enacted, is Act 167 of 1973 still valid state law or has it been superseded and replaced by Act 320 of 1973, Act 38 of 1991, or any other more recent Act?
Brief response: Act 167 of 1973 is still valid state law. But the General Assembly passed Act 1026 of 2025, which is not yet effective, to amend Act 167 of 1973.
DISCUSSION
Before analyzing your questions individually, I must make some remarks that apply to both of them. First, the General Assembly passed Act 1026 of 2025, which amends Act 167 of 1973. Act 1026 is not yet in effect. As explained more below, I caution that amending Act 167 alone does not necessarily alter the legal relationship between the State and the Boy Scouts related to the deeded property.
Second, as my predecessors and I have often opined, the Attorney General's Office is not a factfinder when issuing opinions. Instead, I take "the facts as they are presented to me" and assume that they are true. But Act 1026's legislative findings mention a quitclaim deed that was executed in September 1991. I have not been provided a copy of that quitclaim deed, so I cannot factor it into my analysis. I have only been provided a deed dated February 18, 1976. Thus, my analysis is limited to the 1976 deed.
Question 1: Subject to current state law and the underlying deed, may the Boy Scouts convey and transfer any of their acreage to a third party without title reverting and vesting back to the State of Arkansas?
- Restraints on Alienation. Restrictions in a deed on an owner's "ability to sell or transfer [the] real property" are known as restraints on alienation. There are two types of restraints on alienation: direct and indirect.
1.1. Direct Restraints. A deed provision is a direct restraint on alienation if it, "by its terms[,] penalizes the power to transfer property, such as a provision in a deed that prohibits the property from being alienated in the future." As required by Act 167 of 1973, the 1976 deed prohibits the land being "sold, donated, conveyed, leased, or used for any other purpose" than those specified. Each of these (other than the use restraint) is a direct restraint on alienation. Although the deed provides that the property reverts to the State if the Boy Scouts "cease to use all of said lands, or any portion of said lands," they do not create a similar reverter if the land is alienated.
In other words, the Boy Scouts are prohibited from conveying the property; the property does not revert to the State on an improper sale because the sale itself cannot happen. Thus, this is "a disabling restraint[, which] is created when property is devised or conveyed with the limitation that it not be alienated." Under common law, all disabling restraints are void except those restraints on alienation incidental to spendthrift trusts. This deed is not a spendthrift trust, so under the common law, these disabling restraints would be void.
But this is not the end of the matter. The prohibition on disabling restraints is a common-law rule. As discussed below, the General Assembly can override common-law rules, and Act 167 of 1973 does just that.
1.2. Indirect Restraints. Unlike direct restraints, indirect restraints on alienation have only an "incidental effect" on an owner's ability to sell the property. This includes restrictions on the use of the property, and use restrictions are "generally valid," even if "they severely reduce the value of the property." Thus, a use restriction will be upheld if "there is a rational basis to support the provision."
Here, there is an indirect restraint in addition to the direct restraints. The property will "revert to and vest absolutely in the State of Arkansas" if for five years the Boy Scouts "cease to use all of [the] lands, or any portion of [the] land, for the purposes" specified in the Act and deed. As required by the Act, the 1976 deed provides that the land must be "used solely by" the Boy Scouts for:
- "boy scouts programs benefiting boy scouts throughout Arkansas";
- "girl scouts and other proposed youth recreational activities"; or
- "partial or controlled use thereof under agreement with the Game and Fish Commission and other public agencies where the use thereof for such public purposes will not impair the uses by the boy scouts for scouts and youth recreational purposes."
These use restrictions are rational to meet the goals in deeding the land to the Boy Scouts. As Act 167 explains, the General Assembly's goal was to "recognize, encourage, and support programs of the Boy Scouts" that develop "resourcefulness, self-reliance, character, independence, public responsibility, respect for law and order, and other youth developmental goals" in young people. This fits neatly alongside categories of use restrictions that have been upheld, including "[u]se of property for open space, protection of views, historic preservation, and conservation of habitat for plants and animals."
Thus, it is my opinion that the use restrictions in the 1976 deed are valid. And, as discussed below, even if they were not valid at the common law, Act 167 would overcome those limitations.
- Act 167 and the Common Law. "[T]he General Assembly has the power to alter the common law." Therefore, one could argue that even if the restraints on alienation would be void under the common law, Act 167 altered the common law's application to the 1976 deed.
Courts will "construe[] [an act] as overruling a principle of common law [if] it is made plain by the act that such a change in the established law was intended." So if an act is in "derogation [of] the common law," courts will "use the plain meaning of the language employed," looking at the "entirety" of the statute and "harmonizing each subsection where possible."
Act 167 specifically required the deed with the Boy Scouts to include restraints on alienation, both direct and indirect. In my opinion, this is sufficiently plain to indicate that Act 167 overrides the common-law rule against restraints on alienation. Thus, the direct and indirect restraints on alienation contained in the deed are valid under Act 167, regardless of whether they are valid under the common law. (Interpreting Act 167 in this way does not violate Amendment 14 to the Arkansas Constitution, which prohibits "[t]he General Assembly [from] … pass[ing] any local or special act." The Arkansas Supreme Court has explained that Amendment 14 "has no application" when "[t]he state … legislate[s] with respect to its own affairs." The rationale for this principle is that "the Legislature may treat every subject of sovereignty," like State finances and property, "as within a class by itself and such acts would be general and not local or special laws." Thus, it is my opinion that a court would consider Act 167 of 1973 as a matter "between the state and one of its citizens" that is not subject to Amendment 14.)
Therefore, it is my opinion that the restrictions in the 1976 deed, which were required by Act 167, are valid. But I again caution that there may be additional facts that I have not been provided that might alter the analysis above.
Question 2: In light of the unique circumstances in which it was passed and enacted, is Act 167 of 1973 still valid state law or has it been superseded and replaced by Act 320 of 1973, Act 38 of 1991, or any other more recent Act?
Act 167 is still valid state law; it has not been superseded or replaced by Act 320 of 1973, Act 38 of 1991, or any other law. First, Act 320 of 1973 placed control of the Arkansas Tuberculosis Sanatorium in what would become the Developmental Disabilities Services Board. The Act did not alter Act 167 of 1973.
Second, as explained above, although Act 1026 of 2025 does amend Act 167, it is not yet effective. It does not purport to alter the State's 1976 deed to the Boy Scouts. Instead, Act 1026 only amends Act 167 of 1973. Although the 1976 deed incorporates Act 167, it incorporates Act 167 as it existed at the time of incorporation in 1976. Thus, Act 1026 does not alter the terms of the 1976 deed.
Finally, Act 38 of 1991 directed the Developmental Disabilities Services Board to "execute a quitclaim deed in favor of the" Boy Scouts for the property formerly owned by the sanatorium because of "a survey of the Booneville Human Development Center" that "may" have created an "ambiguity … with respect to the deed executed pursuant to Act 167 of 1973." But Act 38 of 1991 did not amend the 1976 deed. Instead, it directed the Developmental Disabilities Services Board to execute a quitclaim deed. If the Board properly quitclaimed all its ownership interests in the property to the Boy Scouts in 1991, then that deed resolved the survey issue.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General