Lessons Inform the Future

Indian Land Tenure FOUNDATION THE Message______Runner Volume 3

RIGHTS OF WAY

Lessons of the past should inform the future

  have been granting rights of way Iand easements across their territories since time immemorial. Originally, these permissions were granted to other friendly tribes for the purposes of accessing hunting or fi shing areas, trading or seasonal travel. ere were no written documents granting these permissions but there were clear agreements on the purpose and use of rights of way. e coming of non-Indians to the government, acting as trustee, to approve rights of their reservation lands or preserve lands that are continent led to continual pressure on tribes to grant way for utilities and services such as trails, roads, important to their cultures. Individual owners may many more rights of way and easements. At fi rst, railroads and telegraph lines, across reservations of fi nd themselves in a similar situation and unable to many were verbal agreements, but increasingly there even the most resistant tribes. use their land as they wish once a right of way is in were written documents that paralleled the coming place. At the same time, tribes and individual land- of the European style of land ownership. As time In the intervening 120 years, literally thousands owners must be vigilant that the conditions of the went by and disagreements arose, Indians often of rights of way have been granted across Indian rights of way are being adhered to and that trespass found themselves being told that the document they land. e permissions granted by the rights of way is not occurring out of negligence or expediency to had signed—written in a language they did not are quite variable, ranging from perpetual ease- the detriment of their land. understand—prevailed over the understanding of ments for transportation or communication routes Indian Land Tenure Foundation provides this those who had agreed to it. Often, trespass was bla- to the granting of short-duration rights of way for issue of the Message Runner with the intent of assist- tantly occurring but was dismissed as insignifi cant construction or servicing of sites. Some rights of ing individual landowners and tribes in beginning or for the non-Indian public good. e repeated way aff ect one allotment or parcel of tribal land the process of understanding rights of way. It is an exploitation of Indian good will, resources and land while others cross hundreds of allotments and important learning process for us all as we attempt was a lesson to be learned and not forgotten. involve thousands of individual Indian land interest to maximize the benefi ts derived from our lands for By the time the last reservations had been creat- owners, including the tribe. our families and the future of the tribe. It is equally ed, the written agreement for a right of way was the Today, tribes and individual Indian landowners important to remember that the process does not matter of course. Nevertheless, encroachment and are under pressure to issue new rights of way as well end with a right of way agreement that we under- trespass were common because many tribes were as to renew agreements for existing but expiring stand. Continual monitoring for compliance by reluctant to relinquish any more of their diminished rights of way. Recent legislative attempts to allow all parties is necessary. Our ancestors learned this land areas to new rights of way. Many historians the Secretary of Interior to sign off on rights of way lesson; we should not forget. trace the reluctance of tribes to issue rights of way, for individual Indian people have been thwarted for particularly for the railroads, as the underlying pur- the time being but will no doubt re-emerge as there pose for the passage of the General Allotment Act are billions of dollars at stake for major industries. of 1887. Not only did the Act open up considerable It is now incumbent upon the tribes and Indian acres of reservation land for non-Indian settlement landowners to inform themselves about the geo- and development, it also transferred title of all graphic location of rights of way on their land and reservation land to federal government ownership to the values of both the rights of way and the lands Cris Stainbrook, President be held in trust for the tribes and individual Indian they cross. Without knowledge of these basic is- Indian Land Tenure Foundation people. e means were now in place for the federal sues, tribes will not be able to eff ectively develop

A Message from the Indian Land Tenure Foundation President 2 Indian Land Tenure Indian Land Tenure FOUNDATION ______FOUNDATION

Glossary of Terms

Allotted Land Just Compensation property such as the right to future ownership Land that was distributed to individual Indians The fair payment to owners of private property (remainder), the right to occupy for a period of by the federal government under the terms taken for public use through condemnation time (tenancy or life estate), or an easement of the General Allotment Act of 1887 or other under eminent domain. It is usually, though across another’s property. specifi c allotment acts. Generally, allotments not always, the market value of the interest Right of Way were 40-, 80- or 160-acre parcels of reserva- taken plus any damages or loss in value to the A right of way is an easement that gives tion lands assigned to individual Indians. remaining property interests. someone the right to cross property owned by Appraisal Land another person. Examples of rights of way are Estimation of market value, investment value, The air above, the surface and sub-surface of public and private roads, pipelines and power insurable value or other property-defi ned value the earth. lines. A right of way for a road usually requires of a specifi c parcel at a given date. Land Ownership Rights the purchase of property surface rights within the right of way. Appraiser Authorize individuals to: A professional who makes appraisals of the • Use the land in diverse ways such as Severance Damages value of property. For a federally related constructing buildings, operating farms When the property condemned and taken by transaction, an appraiser must be licensed or and businesses, extracting minerals from the government is a part of a larger parcel of certifi ed by the state. below the surface, grazing livestock and property, in addition to compensation for the building roads. property being taken, the landowner is entitled Checkerboarding • Convey part or all of their rights to others to recover compensation called “severance Since the General Allotment Act allowed for a through deeds, sale contracts, wills, mort- damages,” for the damage, if any, to the signifi cant amount of land to pass out of tribal gages, leases, easements and permits. remainder. or individual Indian hands, land within reserva- • Offer their rights as collateral to guarantee tion boundaries may be owned by the tribe, Trespass repayment of loans or obligations. individual Indians or non-Indians, and contain Any unauthorized intrusion or invasion of a mix of trust and fee lands. This pattern of Leverage private premises or land of another. A positional advantage that one party has over mixed ownership resembles a checkerboard. another. Leverage can be very important in Trust Land Condemnation negotiating a right of way. Indian-owned land, the title to which is held in Process by which a governmental agency may trust and protected by the federal government. Personal Property Interests take private property for public use under the Indian people and tribes have use of the land, A type of property that may include any asset right of eminent domain. Constitutionally, the but ultimate ownership and control of the land other than real estate. The distinguishing owner must receive just compensation. remains with the federal government. factor between personal property and real Easement estate is that personal property is movable. Tribal Trust Land Exemption from Third A legally binding agreement authorizing the That is, the asset is not fi xed permanently Party Condemnation right to use another person’s land for a stated to one location as with real property such Tribal trust land cannot be condemned unless purpose. It may involve a general or specifi c as land or buildings. Examples of personal permitted by federal law. Allotted trust and fee portion of the property. An easement may property include vehicles, furniture and lands can be condemned for public purposes. be used to restrict the use of a property as in collectibles. Undivided Interest the case of historical easements that forbid Real Property Interests A share of the ownership interest in a parcel of changes to a property. Land and all the things that are attached to trust land. The number of interests grows with Eminent Domain it. This includes rights to the surface, rights the division among heirs of these interests The power of federal, state and local govern- to the space above and rights to the material according to state or tribal probate laws. The ments to take private property for public use. below the surface—any of which can be income derived from the parcel is divided A private entity may also exercise eminent owned by different individuals, separately or according to the percentage of the total domain, though it must be authorized by a jointly. This also includes all “interests” in the interest held by an individual. governmental agency to do so. A variety of property rights are subject to eminent domain, such as air, water Air Above and land rights. ‘Land’ refers to the air above, land’s surface Fair Market Value The price at which a prop- and its sub-surface The Surface erty would change hands The rights to the between a willing buyer and air, surface and a willing seller, neither being sub-surface may compelled to buy or to sell be held by different and both having reasonable parties. These knowledge of relevant facts. rights may be held Fee Land by one person or Land held in fee simple shared by many. title, the broadest property They may also be interest allowed by law. Fee limited by public law or private restrictions. land is taxable by the state Layers below the surface and is held by an individual

landowner who holds title Redbird Media & Design and control of the land. Indian Land Tenure Indian Land Tenure 3 FOUNDATION ______FOUNDATION Understanding

ight of way laws, the regulations. ese regulations were revised in 1948 and as they relate to published in 1951 with a tribal RIndian lands, can consent stipulation. be confusing. As tribes e revised regulations of 1948 and individuals face either were signifi cant in that a series of statutes to govern all rights of renewing an existing right way on Indian lands were en- of way or considering a acted. A Senate report claimed proposal for a new one, these laws were meant to “satisfy they should know how the need for simplifi cation and uniformity in the administration the laws governing rights of Indian law.” However, these of way came to be and laws were neither simple nor to understand the rights unifi ed. e 1948 laws did not replace the old ones; they added of individual landowners another level of complexity. For and tribes. instance, they limited the power First of all, a landowner may of the Secretary of the Interior be an individual, tribe or group over rights of way to trust or of individuals who share interest restricted fee lands, but they did in an allotment or parcel of land. not explain how that relates to When a right of way is given, the original language found in landowners allow others the the statutes. right to use or to pass over their Despite their complexity, the land without transferring own- 1948 statutes did have positive ership of the land to the user. outcomes for tribes. e most Normally a right of way is signifi cant of these statutes sought for a public purpose by requires that tribes organized tribes, local government, and under the IRA must give consent state or federal government for rights of way across Indian for roads or other public ac- lands. In addition, the regula- cess needs. For example, utility tions expand the consent require- companies seek rights of way for ment to all tribes, not just IRA placement of equipment, such tribes. e 1948 laws also make as telephone poles and power clear that landowners must be lines, to provide services to their justly compensated at fair market customers. Starting in 1899, value for rights of way. How- railroad companies were granted ever, they also allow most rights easements—or “rights of way”— of way to be perpetual, unless across Indian lands for their rail The complexity of the granting document says lines. Railroad rights of way otherwise. is is important to were the fi rst form of easements address when granting a right of to cross Indian lands. right of way laws way. Landowners must insist on Granting and using rights of a time limit, or it will be per- way is complex. Many laws and petual by default. regulations governing the estab- In 1971, the Bureau of Indian lishment of rights of way can be for Indian lands Aff airs issued a manual for rights tied to century-old laws passed of way on Indian lands. ese by the United States. Know- regulations give landowners ing the historical and legislative opportunities to negotiate new origins of these infl uential land- or renewed rights of way. e use arrangements is helpful to assess existing and statutes. As tribal lands were declared surplus compensation section requires that not less than future rights of way contracts in Indian Country. and opened to homesteading, these “excess” lands fair market value must be paid, unless waived were acquired by settlers. As settlers began to in writing, and the Secretary “shall obtain and P P D develop these prime lands, they needed utilities. advise the landowners of the appraisal informa- Prior to 1899, most rights of way over Indian Exercising its new-found plenary powers, Con- tion to assist them . . . in negotiations for a right lands were fi rst obtained through agreements gress enacted a series of laws in the early 20th of way or renewal.” e regulations further state made with tribes or individual landowners, and Century that delegated authority to the Secretary that the applicant must pay landowners all dam- then afterwards ratifi ed by Congress. Negoti- of the Interior to grant rights of way without ages resulting from surveys or the construction ating directly with tribes was necessary as, up landowner consent. and maintenance of the facilities. until the 1870s, the United States used the treaty Subsequently, in 1928, the Secretary of the making process to gain consent through treaties Interior released comprehensive regulations B I. A Q before passing laws that aff ected Indian nations. governing rights of way over Indian lands. e Energy Policy Act of 2005 contains new However, in 1871, an Act of Congress ended ese regulations covered oil and gas pipelines, provisions that authorize tribes to “grant a right treaty making with tribes, ultimately leading to electricity transmission lines, railroads, of way over tribal land for a pipeline or an elec- the Supreme Court’s “plenary powers doctrine.” telephone and telegraph lines, roads, drainage tric transmission or distribution line without ap- is doctrine allowed Congress to make unilat- and irrigation projects, and other types of rights proval by the Secretary” in certain circumstances. eral decisions aff ecting Indian nations by con- of way. is is a signifi cant departure from prior law gressional act, or statute, rather than having to e Indian Reorganization Act in 1934 and is designed to encourage tribes to develop fi rst gain acceptance of the tribe through a treaty ended the allotment process and put into place a their own energy resources. negotiation process. Once freed of constitutional number of policies that recognized tribal author- constraints, Congress began to impose laws and ity and encouraged tribal control of reservation e complexity of right of way laws and regula- regulations for rights of way that proved disas- land and resources. However, even though the tions can be daunting. It is important for tribes trous for Indian people. IRA did include provisions on compensation and landowners to be informed and ask questions. e implementation of the General Allotment and damages for rights of way, requiring tribal Now is the time to protect the land for future Act of 1887 initiated a series of rights of way or landowner consent was not mentioned in generations. 4 Indian Land Tenure Indian Land Tenure FOUNDATION ______FOUNDATION

HISTORY: Major right of way legislation

he following is a historical been exploring this issue for opportunities to seek still authorizes the Secretary to make decisions compensation from utilities that have piggy- regarding rights of way on reservations without summary of major right of way backed on Interior-approved rights of way. fi rst acquiring landowner consent. Tlegislation: e Supreme Court decided in 1997 case, E P  R Strate v. A-1 Contractors, that tribes generally lack the authority to regulate activities of non- C L In 1899, Congress passed the fi rst laws gov- Indians on state highways because these rights of e annual appropriation act for the U.S. De- erning rights of way for railroads and telegraph way are the same as non-Indian fee lands. is partment of Agriculture authorized rights of way lines on Indian lands. It authorized the Secre- ruling could put tribal governments at a distinct for electric power and communication lines and tary of the Interior to grant to railroad companies disadvantage when they start to plan the devel- poles over Indian reservations in 1911. It pro- rights of way over reservation or off -reservation opment of their own utilities and other infra- vided, “that the head of the department having allotments for railroads, telegraph and telephone structure to meet the needs of their communities jurisdiction over the lands be . . . authorized lines and town-site stations. Not only did these on their reservation. and empowered, under general regulations to be historic laws pave the way for the permanent fi xed by him, to grant an easement for rights of alteration and division of a previously natural and T  T L way . . . upon the public lands, national forests open landscape, but the new services and utilities e Secretary of the Interior was authorized and reservations of the United States for elec- allowed for the growth of cities and the expan- to grant rights of way over reservation or allot- trical poles and lines for the transmission and sion of overall development, ultimately increasing ted lands for telegraph and telephone lines by the distribution of electrical power . . . .” A later the amount of confl ict between the newcomers same act of 1899 that applied to railroads. provision explained that “reservation” meant “any and Indian people who did not directly benefi t In 1901, the Court of Appeals for Indian Ter- national park, national forest, military, Indian, or from these changes. ritory held that municipalities and states have any other reservation.” e law set the term of R  H no authority to grant telephone companies a the right of way up to 50 years. Today, this law is franchise to operate on reservations. is was a applied to cellular towers on reservations. In 1901, Congress passed a law authorizing the power held exclusively by tribes. To address this Secretary of the Interior to grant rights of way decision, Congress passed another law in 1901 H P  through Indian reservations for public highways. that separated rights of way laws for telegraph T L at statute authorizes the Secretary of the and telephone lines apart from those for rail- Under the Federal Power Act (FPA) of 1920, Interior to grant permission “to the proper State roads. Congress delegated the authority to grant rights or local authorities for the opening and establish- A year later, the Eighth Circuit Court of of way for hydroelectric projects to the Federal ment of public highways, in accordance with the Appeals held that the 1901 law gave the Secre- Power Commission (FPC), now the Federal laws of the State or Territory in which the lands tary of the Interior the exclusive power to grant Energy Regulatory Commission (FERC) in the are situated, through any Indian reservation.” In franchises to telephone companies on Indian Department of Energy. e FPA requires FERC its emphasis on the “laws of the State,” this in- lands. at power was eventually shared with to take measures to protect Indian reservations fl uential legislation allowed states to “piggyback” tribes through amendments to the rights of way when licensing hydroelectric projects located electric power lines within highway rights of way laws passed in 1948. In a 1997 amendment to within those reservations. e licenses can be for without providing additional compensation to the 1996 Telecommunications Act, Congress a period of up to 50 years. Section 10(e) of the the landowner or approval from the Department conferred this power on the Federal Communi- FPA requires that annual charges for the use of of the Interior, if the state law authorized such cations Commission (FCC). Unfortunately, the a tribe’s lands under any FERC license shall be practices. legal history of the rights of way laws for Indian subject to the approval of the tribe. is stipulation resulted in many utilities Country has been ignored in the FCC’s imple- Recently, there have been legislative attempts being piggybacked on highway rights of way mentation of the new telecommunications laws. to challenge tribes’ ultimate authority to grant through Indian lands; neither the tribes nor the rights of way on their lands. However, in its fi nal Department of the Interior has any record of O  G P form, the Energy Policy Act of 2005 ultimately these occurrences. However, tribal governments In 1904, Congress passed legislation allow- reaffi rmed tribes’ control over rights of way on are discovering utility piggybacking when they ing the Secretary of the Interior to grant rights reservation lands. As a result of the Act, FERC review state department of transportation re- of way through reservations and allotted lands can now grant permission for rights of way proj- cords. Although piggybacking may be allowed, for 20-year periods for oil and gas pipelines. e ects in some areas of “national interest.” How- according to the Fifth Amendment right to just Secretary was authorized to extend the right of ever, according to section 1221(e)(1) of the Act, compensation, the owners of Indian land should way for another 20 years, “upon such terms and the eminent domain authority given to FERC for still receive compensation when other utilities conditions as he may deem proper.” e current certain transmission projects does not extend to piggyback on existing rights of way. Tribes have law remains more or less unchanged; as such, it rights of way on tribal lands. Indian Land Tenure Indian Land Tenure 5 FOUNDATION ______FOUNDATION Appraising a right of way

What is an appraisal? Who conducts an loss from the taking of all or part of the prop- appraisal? Why should an appraisal be done? erty rights. It is important for landowners to know what In determining the value of the right an appraisal is and why they should have one of way, the landowner must consider the prepared. Knowing the value of their land terms (limited or perpetual) and conditions will help landowners to negotiate fair and (loss of use by the owner) in the right of just compensation before agreeing to a right way agreement document. In determining of way. the value of the severance damages, the landowner would consider how the facilities W    will impact the original legal purpose of An appraisal is an opinion of value, usually reservation land (a permanent homeland for a conducted by a professional appraiser. Rights particular tribe) and the customary purposes of way appraisals are prepared for property of land (such as hunting, gathering cultural owners and acquiring agencies (agencies seek- plants and gathering of wood). Usually, a right of way provides signifi cant economic benefi t to the acquiring party. Some examples are trunk lines for oil and gas and electric power lines. In these cases, the acquiring agency may negotiate compensations that here should be nothing so are greater than the loss to the property owner. When the land- complicated in an appraisal that it owner is able to negotiate a gain T cannot be understood. that is more than the appraised value of the right of way, the just compensation becomes a market derived value ing a right of way) to ne- that is measured by the rate per linear rod gotiate the comprehensive terms or foot of the right of way. and conditions of the right of way. Appraisals on rights of way on Indian reservations must D    be prepared, in writing, by a state licensed      or certifi ed appraiser and the appraisal must comply with the Uniform Standards of Pro-   fessional Appraisal Practice (USPAP). In the case of reservation-based land that is held in trust for the tribe or individual In- W     dian landowner, the Bureau of Indian Aff airs In most cases the party wanting to acquire (BIA), as trustee of the land, must approve all fi ed appraiser and that it is consistent with the the right of way pays for an appraisal (either a real estate transactions. industry’s professional standards. (See the list staff appraiser or a contract appraiser). If the e approved appraisal report is the govern- of web resources on the back page for links to property owner believes the appraisal is not ment’s documentation to support the decision sites that explain these standards in detail.) accurate or is incomplete, it is up to the prop- to approve or reject the acquiring party’s off er Finally, landowners should determine if the erty owner to hire his or her own appraiser to of just compensation. appraisal report makes logical sense. ere refute the acquiring agency’s appraisal. should be nothing so complicated in an ap- C   praisal that it cannot be understood. At the H    same time, landowners should read appraisals  Appraisal reports that do not meet the carefully in order to fully understand all of In many cases, just compensation is the three tests of an appraisal should be chal- their contents and implications. diff erence between the “market value of the lenged by the landowner. In most cases, appraisals are accurate property rights before the right of way” and First of all, landowners should read the and relevant; however, if a landowner is not the “market value of the remaining property appraisal report carefully. ey should check satisfi ed with the appraisal, the individual rights after the right of way” plus severance the factual data in the report, such as acres, or tribe can seek another appraisal. In some damages. land use, building inventory, easements, water cases, this might require going to court to Severance damages are the fi nancial rights and utilities. If factual errors are found force another appraisal or accepting a second impacts to the remainder of the land across in the report, it should be challenged. appraisal. which the right of way is granted. is model Secondly, landowners should make sure Should the tribe or Indian landowner provides a measure of the property owner’s that the appraisal was conducted by a certi- determine there is a problem with an appraisal report from any acquiring party (federal agency, company or individual) seeking a right of way on trust land, the BIA should prepare an appraisal and be prepared to defend it in Valid Appraisals court. e tribe or Indian landowner should also report the appraiser to the State Appraisal Board. In addition to being conducted by a certifi ed appraiser, In the event of a dispute, the appraisal is reviewed in court by judges and juries an appraisal must meet all three tests to be valid and in order to determine just and reasonable credible. It must be: compensation. A word of caution: landowners should avoid • Statistically and mathematically correct. forwarding appraisal challenges that are based on emotional reasoning or incomplete data. • Consistent with the uniform standards of When the tribe or Indian landowner does a more thorough job of research and data professional appraisal practice. analysis than the appraiser, the challenge to • Logical. the appraisal is sound and has a better chance of refuting the appraiser’s opinion of value that is in question. 6 Indian Land Tenure Indian Land Tenure FOUNDATION ______FOUNDATION The Right of Way Process

Step 1: Application ¡ e right of way application must be in writing and submitted to the Secretary of Interior through the Bureau of Indian Aﬀ airs (BIA). An initial application must be made in order to survey the land, and a subsequent application is made for the right of way itself. ¡ Federal regulations dictate the application’s required contents. ¡ Because of its trust responsibility, the BIA must approve all realty transactions involving reservation trust lands.

Step 3: Appraisal ¡ e party who wants to acquire the right of way pays for the appraisal. ¡ e owner is advised to accompany the appraiser during the inspection of the property. ¡ All appraisals must be done by a state-licensed or certiﬁ ed appraiser. ¡ If the landowner disagrees with the appraisal amount, the appraisal can be contested. e landowning individual or tribe can make a counteroﬀ er in negotiations or, if the parties cannot agree to terms, resolve the issue in court. ¡ Just compensation that is not less than fair market value plus severance damages must be paid for a right of way.

Step 4: Negotiation ¡ Negotiations can occur at any stage of the process. ¡ Landowners should clarify their roles in the negotiation process in relation to BIA ofﬁ cials who are also participating. ¡ Landowners should also clearly communicate their bottom line ﬁ nancially and in caring for the land. ¡ Tribal governments should clarify policy considerations such as those regarding taxation, environmental and other land regulations and restrictions, and community needs regarding the utility. Indian Land Tenure Indian Land Tenure 7 FOUNDATION ______FOUNDATION The Right of Way Process

Step 1: Application Step 2: Notifi cation ¡ ¡ e right of way application must be in writing and Landowners will be notifi ed of an entity’s submitted to the Secretary of Interior through the Bureau of interest in acquiring a right of way. Indian Aff airs (BIA). An initial application must be made ¡ in order to survey the land, and a subsequent application is Initial notifi cation will seek a landowner’s made for the right of way itself. permission to enter land for survey and mapping purposes. ¡ Federal regulations dictate the application’s required ¡ contents. Disputes regarding title should be taken up with the BIA realty offi ce. If a tribe owns an interest ¡ Because of its trust responsibility, the BIA must approve all in trust land, either partial or total, that entire realty transactions involving reservation trust lands. parcel of land cannot be subject to eminent domain. Any right of way must be approved by the tribe.

Step 4: Negotiation ¡ Negotiations can occur at any stage of the Step 5: process. Closing ¡ At closing, all funds are received ¡ Landowners should clarify their roles in the and dispersed and all taxes, liens negotiation process in relation to BIA ofﬁ cials and mortgages are addressed. who are also participating. ¡ Documentation of the transaction ¡ Landowners should also clearly communicate will use the common forms their bottom line ﬁ nancially and in caring for required by law. the land. ¡ Whenever possible, tribes or ¡ Tribal governments should clarify policy individual landowners should considerations such as those regarding use their own forms and taxation, environmental and other land documentation. regulations and restrictions, and community needs regarding the utility.

Redbird Media & Design 8 Indian Land Tenure Indian Land Tenure FOUNDATION ______FOUNDATION HOW TO: HOW

Negotiate a right of way efore power line companies negotiate with an individual land- What do they want? How far will they be willing to go for the right owner or tribe for a right of way, they prepare. ey educate of way? themselves on the status and value of the rights they seek. ey • Share all information collected with other undivided interest holders Blearn about laws and regulatory requirements that apply. ey of the land. know how much they are willing to pay and how much they think the • Create a journal of every communication, writing down to whom other side will demand. Individuals and tribes MUST do the same. they spoke, the subject of the discussion, and when the discussion Beware! Before the acquiring party submits their proposal for a right of took place. Whenever possible, they should include a third party in way, they have conducted extensive research. One of the key tools in fi nd- the discussions and record that person’s name as well. ing out about the tribe or individual landowners is communication with the Individual negotiations may be complicated by fractionation or mul- Bureau of Indian Aff airs, the tribal administration and all other landown- tiple owners who have undivided interests in the parcel where the right of ers involved. Landowners should carefully consider what other entities may way would be located. Another barrier is the inconsistent policies among have already shared with the acquiring party before negotiations begin. agency offi ces of the BIA regarding negotiations between the landowner Gathering data is critical. Landowners and tribes must be fully prepared or interest holder and the acquiring party. Some agencies refuse to allow before they begin negotiations. Once negotiations begin, every commu- individual landowners or undivided interest holders to negotiate directly nication, written or oral, with those who seek a right of way becomes part with the acquiring party, insisting BIA offi cials do the negotiating. e of the negotiation process. is information should be carefully recorded. individual Indian landowners should assert themselves in the negotiation Landowners and tribes should also undertake a comprehensive assessment process. In those instances where the fractional ownership by an individual of all existing rights of way on the current and historical use of the land is a small interest, the BIA might request that a majority of the owners be and the current value of the land, and compile the results. Armed with in agreement before allowing landowners to participate in the negotiations. information about existing rights of way before negotiations, the tribe or individual landowner will know with certainty whether companies are in E  O S trespass or if adequate compensation to use the land was previously given. In many instances, the acquiring party for a right of way might not be aware of the unique character of reservation lands. Negotiations can go T G P more smoothly when the tribe is able to successfully explain the concept Tribal governments should: of “permanent homelands.” When the acquiring party appreciates the • Compile a list of all right of way documents on fi le with the BIA. permanent homeland concept, they will more likely understand why tribes ese documents should be reviewed by the tribal attorney for com- and individual Indian rights must be protected whenever rights of way are pliance and completeness. An understanding of existing rights can created or renewed. For example, the acquiring party may not always ap- be helpful for a tribe asserting regulatory authority over utilities. preciate the signifi cance of burial grounds hundreds of years old until they • Visit the state department of transportation and obtain all right of realize they are negotiating with the descendants. is could be an oppor- way records for reservation roads. is will identify if piggybacking tunity to help them understand the signifi cance of the legends and stories is allowed. (In the case of power lines, they might be piggybacked handed down through the generations. Educating rather than alienating onto BIA rights of way for roads and highways without BIA ap- potential right of way holders could result in improved services, in addition proval.) to increased cultural awareness. • Conduct a visual survey of the site where the right of way is being For instance, utility companies that lack tribal representation on their sought. It is important to conduct an on-the-ground survey to docu- governing boards generally have little concept of the tribal community’s ment the actual location of every right of way. Include photographs needs and existing tribal regulatory systems. Outside utility companies of poles and lines, determine the age of existing facilities, fi x GPS might be more willing to submit to a tribal regulatory system once they are locations, and match the photos with available aerial photos on fi le. educated by the tribal negotiators on the signifi cance of those concerns to • Develop a customer survey, and survey everyone served by the util- the tribe, community and individual tribal members. ity. Unknown problems with utility service will reveal themselves Rights of way on tribal trust land and allotted lands are subject to tribal through customer surveys. ese surveys will give negotiators an regulatory controls where these policies are in place. ( e policies regard- understanding of what customers want in terms of service. If cus- ing the authority of tribal regulations on reservation fee lands are less clear, tomer needs are understood, negotiation for improved services can and compliance may be subject to the landowner’s decision.) Establish- be a condition of the right of way. ment of tribal regulations and policies regarding land rights and land uses provides guidance both to the tribe and to those wanting to do business on I L P tribal lands. e tribe might be concerned about protection of sacred sites, Individual landowners should: burial grounds or other areas of cultural signifi cance. Tribal zoning regula- • Compile a list of all right of way documentation related to their tions, for example, might help to encourage certain uses for some tribal lands. lands and discourage undesirable uses for others. Tribes can eff ectively pro- • Obtain copies of current rates and agreements the utility has negoti- tect and regulate their lands by enacting and enforcing a tribal regulatory ated on this right of way with the tribe and other trust land owners. process that may be imposed as a condition for acquiring a right of way. • Be aware of the availability of third party condemnation for indi- All of these strategies and tactics are important to a successful right of vidual Indian-owned land. way negotiation process. When negotiations are approached with knowl- • Gather information and data on the acquiring party: Who are they? edge, preparation and optimism, the result is more likely to be a win-win. Indian Land Tenure Indian Land Tenure 9 FOUNDATION ______FOUNDATION

LEVERAGE: A valuable negotiating tool

everage is a positional advantage In these cases the amount off ered for that one party has over another and the right of way may be at appraised it can be very important in negoti- value with little consideration for Lating a right of way. For example, severance damages. knowing the fi nancial limitations and time Utility companies are subject to constraints of the acquiring party gives an oversight by federal or state regula- advantage to the landowner. e question is, tory agencies. Before entering into how much will the acquiring party give up to right of way negotiations with a util- get the right of way before deciding to seek an ity company, know what regulatory alternative route? requirements and timelines apply. Trespass can be another important lever- Knowing a utility company is out of age point for the landowner. Research on this compliance with applicable regula- topic may identify that the current right of tions provides tremendous leverage way holder is in trespass, or it may identify a for the negotiator. renewal request that is pending. It is helpful Off ering to assist the utility com- to know how and when a right of way was ob- pany to come into compliance as part tained. It is easy to assume a previous right of of the negotiations shows good faith way was handled properly, but that may not be and alerts the company that land- the case. Landowners should investigate the owners are aware of them being out land’s legal history and fi nd out the facts. of compliance. Remember, an acquiring agency may use For example, off ering to have the any means available to ascertain a right of way tribe write a letter of support could at minimal cost. For example, an acquiring promise of payment when all other landowners go a long way with regulators, and a agent may identify and seek out those land- sign. is creates division among landown- utility might be willing to give up something owners with limited fi nancial means and have ers seeking fair and equitable payment against signifi cant in exchange for such a letter. Of them sign a right of way agreement based on a those in fi nancial need. course, this letter would only be forwarded after negotiations are complete, agreements Undivided interest holders of an al- signed and compensation paid. lotment may be particularly vulner- In some cases, BIA regulations may also able to this tactic if they have lost give the tribe and Indian landowners leverage a meaningful connection to their in negotiating new or renewed rights of way. land. Additionally, heavily frac- For example, not less than fair market value some cases, BIA regulations tionated allotments make it very must be paid unless waived in writing. And, may give tribes and landowners diffi cult to get information to and applicants for rights of way must pay landown- negotiate agreement with all inter- ers all damages resulting from surveys. Inleverage in negotiations. est holders. Finally, it is important to remember that the ese issues limit the landowners’ BIA may terminate a right of way for failure to leverage for negotiating the best price. comply with terms or applicable regulations. 10 Indian Land Tenure Indian Land Tenure FOUNDATION ______FOUNDATION HOW TO:

terms and conditions than the negotiated tribal terms and conditions. is regulation is workable if there is an eff ective tribal negotiation process. It is important to keep in mind that third parties may not condemn tribal trust lands unless federal law permits it. is is also true where the tribe is an undivided partial interest holder, even a small interest holder, in an allotment. is inability to condemn ensures that tribes have the last word on use of their lands. M Managing rights of way on Indian lands has generally been left to the BIA. Tribes may wish to exercise care over the activities of third parties on their reservations by copying all BIA right of way documents and performing an analysis to determine the extent of third party rights. ese documents will include the dates rights are granted, expiration dates of the rights, and whether the parties currently using tribal lands are those described in the documentation. A site-based GPS review of facilities will assist in determining whether facilities on tribal lands are on the rights of way or are trespassing. Tribes can pass regulations governing trespassing facilities including fi nancial penalties for trespass, removal of facilities and reclamation of lands. Eff ective right of way documents Manage a right of way must contain all the elements of a contract including: identifi cation of the parties, types of interests transferred, overeignty is strengthened when tribal governments are able to description of lands suffi cient to identify the site, and length of term. manage existing rights of way. However, in many cases tribes do Documents without these elements can be voided. not exert their sovereignty to the fullest extent. Increasingly, more Stribes are exploring possibilities of protecting their homelands C T  C and are establishing regulations and processes regarding rights of way that When negotiating new rights of way or reviewing existing documents, provide guidance to companies and people wanting to do business with note specifi c terms describing: them. ere are a number of ways tribal governments can establish eff ec- • To whom the rights are granted and whether they are transferable. tive management systems that strengthen their sovereignty. • e specifi c actions authorized and the limitations of those actions. • e specifi c description of the facilities authorized. C L U P  P • e start and end dates of the rights. Tribes can establish comprehensive policies governing the development • Other termination provisions and what happens to the facilities and of reservation lands. ese land-use plans set policy that can encourage or lands upon termination. discourage third party uses of tribal lands for various purposes. Diff erent • Exact location of the rights including length, width and height with parts of the reservation can be subject to diff erent use policies, ultimately maps and surveys attached. encouraging development in some areas and protecting other areas from • Rights of ingress and egress. unwanted intrusion. • Restriction on maintenance activities. Having sound tribal policies on negotiation and valuation of land • Notices of entrance or other actions. rights can help bring services and infrastructure to various parts of the Before fi nalizing a right of way agreement, landowners should make sure reservation. Without these policies in place, tribes may inadvertently that all of the terms are correct and acceptable. insulate their lands, and in some cases their economies, from much needed It is also important to remember that tribal law will apply in interpreting infrastructure and economic development. these documents. Tribes can pass regulations stating that any document transferring an interest in tribal lands will be strictly construed in favor of A  T L the tribe. ird parties will generally request tribe and BIA approval to Procedures for BIA approval of rights of way across tribal trust lands their standard form easement contract. Tribes should insist on using their and allotted lands are found in 25 CFR 169. e BIA has internal rules particular language needed to describe the rights given and reserved. Due governing approvals of rights of way. to recent court cases, tribes should also explicitly reserve their rights to tax, Because land rights are subject to federal trust responsibility, the rules regulate and exercise dominion and control must be strictly followed. Under the regulations, BIA may approve a right over lands within rights of way. of way only with tribal consent and for consideration equal to or greater than “fair market value.” ese provisions give tribes the opportunity to adopt regulations, ordinances, or procedures for tribal consent, for valuing tribal lands, and governing the terms and Rights of Way conditions of rights of way on their lands. A  A Effective right of way documents must contain all the Right of way acquisitions across allotments are prob- elements of a contract, including: lematic. ird parties seeking such rights must negotiate with numerous individuals, often for small sums of • Identifi cation of the parties. money. Allottees cannot create a cohesive negotiation plan or even hire experts who can speak for the allot- • Types of interests transferred. ment without approval of a majority of allottees. ese policies leave protection of allottee interests to the BIA. For tribes to extend protection to allottee lands, they • Description of lands suffi cient to identify the site. could pass a regulation stating that tribal consent to rights of way will be withheld until the applicant shows • Length of term. that all similar allottee acquisitions have equal or better Indian Land Tenure Indian Land Tenure 11 FOUNDATION ______FOUNDATION

“We have given ourselves a better understanding of our land base on the reservation. We now know what we have and what we need to work toward. It also keys us in on the fee land on our valley ﬂ oor that will also enable us to buy back land.” Portia Shields, executive secretary of the Yakama Nation Tribal Council

Yakama Nation realty project pays off

hen Portia Shields drives down Correcting the discrepancies involved gather- students before they went out into the fi eld to a Yakama Nation reservation ing documents that in some cases dated back impress upon them the importance of their work. road, she doesn’t notice the to the 1800s and involved trips to the National Wiseman said the students felt that by partici- Wgigantic evergreen trees, the Archives in Washington, D.C. pating in the realty project they were contribut- golden wheat fi elds or the shimmering waters of After the third year of the project, Wiseman ing to the solution. e Tribe has benefi ted from a nearby river. said data on the title status reports had to be all the work in the realty project. Wiseman said She looks at utility poles. verifi ed because he had run into so many records that with the corrected records of the Tribe’s land Shields’ sightseeing habits changed when she that had incorrect facts. holdings, it received a rebate of $450,000 in back and others became involved in what she calls e Tribe hired right of way specialist Hol- taxes from the county. the realty project, an ambitious undertaking to lyanna Pinkham to assist in the project. When “ is project has paid for itself,” he said. “ e account for every parcel of land on this 1.3-mil- Pinkham investigates a parcel of land, she Tribe has a fair assessment of its property owner- lion-acre reservation in central Washington, an gathers maps and surveys and enters them into a ship and it allows them to tackle their problems area that covers 1,573 square miles in Klickitat database to create a map layer. She also collects one at a time and when they are ready.” and Yakima counties. easements, lease agreements, rights of way and e Tribe has found multiple uses for all the all other pertinent documents. data it has collected. ese uses provide for: P     en, using GPS and other mapping tools, • A true inventory of land holdings. e initial intention was to inventory power she goes out into the fi eld to fi nd out everything • Ease in the mapping of rights of way. poles, but the work mushroomed into a seven- about that parcel of land. At the site, she locates • A comparison of written records and titles year project costing $670,000. After surveying every piece of infrastructure on, under or above with actual uses and aerial photography. sections, redrawing boundary lines and mapping the land, including power and gas lines, roads, • Planning of land use across multiple parcels, the Yakama Nation has a database for driveways, telephone lines, pipelines and en- jurisdictions. every piece of land and knows the location of all trances and exits on the property. • e ability to link multiple databases 1,800 power poles on its reservation. together for a complete picture of a piece “Now, we drive down the road and we’re look- P    of property. ing at power poles and what’s attached to them,” After collecting all the information, Pinkham Shields said the Tribe was able to create an at- said Shields, executive secretary of the Yakama enters the data into the computer to create an las of every township on the reservation from the Nation Tribal Council. “Never did I think I updated map layer. She then assesses the data by land status data it collected. e 70-page color would be looking at power poles.” comparing and contrasting the information she publication identifi es all the roads, streams and Ray Wiseman, Yakama Nation’s geographic has gathered. other physical features of the reservation. information systems manager at the time, said “Putting all these pieces together is like put- “We have given ourselves a better understand- the Tribe asked him in 1995 to account for every ting a puzzle together,” Pinkham said. ing of our land base on the reservation,” she piece of property it owned. “I thought, ‘How She makes sure that everything in the map- explained. “We now know what we have and hard could that be?’” ping data matches up with what she fi nds in the what we need to work toward. It also keys us in Almost immediately, the surveyors started fi eld. Assistance with this project came from on the fee land on our valley fl oor that will also fi nding problems. Property corners weren’t college and high school students. Wiseman said enable us to buy back land.” lining up with property descriptions. Parcels of they hired from the summer youth program and Wiseman said the work of the realty project land were listed as trust, but records indicated teamed high school students with college stu- was a real eye-opener. they were fee. Roads were not in the right of dents to inventory power poles, do fi eld work and “I think it has defi nitely given the Tribe the way. ey also discovered many agricultural scan documents. ability to defend its membership and to assure trespasses. Members of the tribal council talked to the that their assets are being properly looked after.” 12 Indian Land Tenure FOUNDATION ______

Reasserting control over Indian homelands

road width, surfacing, sidewalks and landscaping, he Confederated Tribes of Coos, Lower Umpqua and Siuslaw vegetative buﬀ ers, streetlights and storm Indians in west-central Oregon face challenges regarding land drainage. Tissues that most treaty tribes in the U.S. do not. Crombie said he is not sure if the developers have experience with tribal jurisdiction. Of the 109 tribes and bands whose federal ments and condominiums next to a nine-acre site “Currently,” Crombie said, “the situation is not recognition was terminated by the U.S. govern- where the Tribes’ administration building sits. fully resolved but the Tribes and the developers ment in the Termination Act of 1954, 62 were e Tribes purchased this site for their admin- will continue to meet in good faith and try to from Oregon. istrative building from the Elks Lodge who had create a win-win outcome. We just have to e Confederated Tribes, who were among previously sold an easement for a private right of work closely with the developers to make sure those terminated, did not have their federal rec- way along the border of the nine-acre ognition restored until 1984. tract. Having lost their lands during termination, the e non-tribal landowner wants to existing 800 tribal members have had to slowly use the easement to provide access to reacquire their land base. the new housing development. e ey now control 320 acres consisting of Tribes and the developers have been small and widely scattered parcels of land that meeting to create a workable solution. they have acquired mainly through donation or “We have told them they are purchase. subject to tribal jurisdiction,” e Confederated Tribes’ highly dispersed said Howard Crombie, Director tribal land base forces much more interaction and of Natural Resources for the coordination with non-tribal landholders than Confederated Tribes. “ ey said they might be faced on other reservations. are open to working with us. ey e challenges to resolve issues increase understand the uses will be subject to because non-tribal landholders are not familiar tribal jurisdiction.” with how tribal government and tribal land issues If the developers comply, they will have to they understand that they and the users of this work. follow the Tribes’ expressed standards for the easement must abide by all applicable tribal laws Currently, the Tribes are working with a non- easement. governing the standards of development and the tribal landowner who wants to construct apart- e standards include speciﬁ c requirements for use of the right of way.”

Indian Land Tenure Foundation Web Resources 151 East County Road B2 Little Canada, MN 55117-1523 T       Phone: 651-766-8999 • Energy Policy Act of 2005, Section 1813, Indian Land Rights of Way Study Fax: 651-766-0012 http://www.oe.energy.gov/DocumentsandMedia/EPAct_1813_Final.pdf [email protected] • Bureau of Land Management, Rights of Way, Principles and Procedures www.iltf.org http://www.blm.gov/nhp/news/regulatory/2800-Final/2800f.pdf Fall 2007 • Uniform Appraisal Standards for Federal Land Acquisition http://www.usdoj.gov/enrd/land-ack/ Cover photo by Pat Chase. e cover • e Appraisal Foundation photo illustrates three types of right of way http://www.appraisalfoundation.org issues on Indian lands. You can also ﬁ nd other links to helpful resources concerning Indian land on the Indian Land Tenure Foundation’s web site: www.iltf.org.