RIGHTS-OF-WAY THROUGH INDIAN COUNTRY

1. RIGHTS-OF-WAYTHROUGH INDIAN COUNTRY Greg Argel, Regional Realty Officer Northwest Regional Office, BIA Telephone : (503) 231-6787 Tom Caster- BLM Indian Lands Surveyor Northwest Region Telephone: 503-231-6809

2. SOME PRELIMINARY INFORMATION Trust Lands Location Acreages Tribes BIA Organization

3. Northwest Region Bureau of Indian Affairs

4. Total Acreages Northwest Region • Tribal Trust 4,287,421.41 Acres • Individual Trust 2,536,486.75 Acres • Government 45,816.19 Acres Total: 6,869,724.34 Acres

5. Oregon Indian Tribes • Coos, Lower Umpqua, Siuslaw (Coos Bay) • Grand Ronde (Grand Ronde) • Coquille (North Bend) • Cow Creek Band (Roseburg) • Siletz (Siletz) • Umatilla (Pendleton) • Burns Paiute (Burns) • Warm Springs (Warm Springs) • Klamath (Chiloquin)

8. Land and Interests in Land • Fee Simple Absolute • Tribal Trust Lands • Allotted Lands • Individual Trust Land Patent • Restricted Fee Patent

9. Tribal Trust Lands • Reservations established under Treaty: by a provision of the Treaty the Tribe cedes territory to the United States; another provision reserves land for the use and benefit of the Tribe, for examples, the Coeur d’Alene Tribe and the Makah Tribe • Reservations established by Executive Order: Examples: Spokane Reservation and Shoalwater Reservation • Lands Outside the Boundaries of a Reservation taken into trust by the U.S. under general authority of the Secretary (Section 5 of the Indian Reorganization Act) or special congressional acts

10. Definition • Tribal Trust Land Tribal land in which title is in the U.S. in trust for a tribe. For the purpose of this discussion, an Indian tribe is group of Indians recognized by the Federal Government as a distinct entity to which Federal Indian laws are applicable. “Ownership” for our purposes means all of the attributes of property ownership, or an equitable interest in land with the title being held by the Government as trustee. The members of a tribe do not have individual ownership interests in tribal land. Rather, their interests resemble those a stockholder has in the assets of a corporation.

11. Definition • Allotted Lands • Allotted lands are those which have been removed from tribal ownership (generally) and given to individual members of the tribe. The tribe loses all property interests in the land which becomes the private property of the allottee. As early as 1798, tribal lands were divided into small tracts and distributed to the tribe’s members. Until 1887 allotments were made under laws dealing with specific reservations. In that year, the General Allotment Act provided for the allotment of lands to individual Indians on Indian reservations and, in some situations, from the public lands of the United States (i.e., from the Public Domain). Several in Burns and Columbia River area.

12. Definition cont. Usually, the allotment process consisted of the five following elements: 1) The allotment of the tribe’s land to its members. 2) The issuance of a patent to the allottee which provided that the land would be held in trust for him by the Government for a specified period of years (usually 25). In some cases, the allottee received a deed or patent which conveyed fee title but contained restrictions against alienation and encumbrance without the permission of the U.S. Government. 3) The land and the income from it could not be taxed by a state, sold, leased or otherwise contracted for by the allottee during the trust period, unless specifically authorized by the Congress.

13. Definition cont. 4) The issuance of the fee or absolute title to the Indian owner or his heirs at the end of the trust period, or the removal of restrictions, as was appropriate. After receiving the fee title or removal of restrictions, the owner could sell, lease, or otherwise use the lands as he saw fit. The land was also subject to state taxes after the fee title was issued. 5) The granting of U.S. citizenship to the allottee. Although many Indians were made United States citizens under the allotment acts, it was not until,1924 that a general act was passed conferring citizenship on all Indians born within the territorial limits of the United States. The same act specified that Indians would also be citizens of the states in which they resided.

14. Allotments continued: • In 1884 the federal government established the Indian Homestead Act. The Act stated that if tribal members surrendered their tribal status and became U.S. citizens, they could receive a 160-acre homestead, provided that they settled on the homestead and improved the tract of land. • Fortunately, “surrender of tribal status” as a condition was not rigorously required.

15. Trust Patent for Allotment and Restricted Fee Patent Subject to Restrictions - Distinction • Trust Patent for Allotment: “in trust for the sole use and benefit of the said Indian” • Fee Patent Subject to Restrictions: “that the title hereby conveyed shall not be subject to alienation or encumbrance, either by voluntary conveyance or by judgment, decree, or order of any court, or subject to taxation of any character, but shall remain inalienable and not subject to taxation for the period of twenty years .”

16. Allotments continued • For most “realty transaction” purposes, (including the granting of easements) trust allotments and restricted fee allotments are treated the same. • The main difference is in the method for conversion of the trust allotment to fee status and the “lifting of the restrictions” from a restricted fee allotment.

17. A county may show land as: • Indian • Trust • US • US Government • It may be fee land owned by an Indian or Tribe and is not in trust status. We can determine that at the regional office

18. Finding Records of Rights of WayGranted by the BIA Tom Caster 503-231-6809 Northwest Region Title Plant Fax (503) 231-6715 Agency Realty Records National Archives and Records Centers If Renewal, Applicant’s Records County Records

19. SOURCES • Contact me at the BIA Regional Office • Need the section, township, range of the property • Will review the records in the regional office • May have to try archives • Could be something at the county

20. Trust Assets Accounting Management System (TAAMS) Records System of ownership in Indian Country -Encumbrances -Legal descriptions -Leases -Etc

21. EASEMENT • An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific, limited purpose. • A Right-of-Way is a type of easement.

22. AUTHORITIES FOR GRANTS OF EASEMENTS Act of March 3, 1901 (25 U.S.C. § 311) authorized the Secretary to grant rights-of-way to a State or local authority for the opening an establishment of public highways in accordance with State law through Indian reservations and allotted lands. Act of February 5, 1948 (25 U.S.C. § 323 et seq.) authorizes the Secretary to grant rights-of-way over tribal and allotted lands for all purposes; requires use of right-of-way be specifically identified in application. Requires consent of IRA Tribe (25 CFR Part 169 applies consent requirement to all tribes). Requires majority consent of allotment owners.

23. DURATION • Unlike a lease or license, an easement may last FOREVER, but it does not give the holder the right to possess, take from, improve, or sell the land. • ROWs granted under part 169 shall be for a period not to exceed 50 years. 25 CFR sec. 169.18 • ROWs longer than 50 years should be sent to the NWRO for review.

24. TYPES OF EASEMENT • 1) RIGHT-OF-WAY: The right to pass through the property owned by another. • 2) RIGHT TO LIGHT OR AIR. • 3) RIGHT TO ACCESS WATER. • 4) RIGHT TO KEEP SOMETHING ON THE SERVIENT ESTATE. (e.g., CONSERVATION EASEMENT FOR WILDLIFE HABITAT)

25. EASEMENT APPURTENANT • An easement created to benefit another tract of land. • Examples – Access road rights of ways (ROWs), Water line ROWs, sewer line ROWs, and electrical line ROWs.

26. DOMINANT ESTATE • The land benefiting from an easement.

27. SERVIENT ESTATE • The land burdened by an easement.

28. PRESCRIPTIVE EASEMENT • An easement created from an open, adverse, and continuous use over a statutory period. • There are NO Prescriptive Easements on ANY Federal Property, including tribal or individual trust property.

29. Implied Easements (A Theory) • Applies to former allotments on a reservation • Requires following factors: • A fee parcel was formerly part of the reservation and was severed from Federal ownership by allotment process; • No feasible, alternative route to the property that does not cross trust land; and • The road was built prior to the 1948 enactment providing for the Secretary to grant rights-of-way across Indian land.

30. SUBDIVIDING AN ALLOTMENT • When an allotment is subdivided into separate tracts or lots, there MUST be access easements for all utilities (water, sewer, & electric) and ingress and egress for each new tract or lot.

31. EASEMENT IN GROSS • An easement benefiting a particular person or entity, but not a particular piece of land. • Example – Bonneville Power Administration (BPA) transmission line, public highways, railroads, oil and gas pipelines.

32. PROCEDURES • How to Process a Request for Grant of Easement for Right-of-Way.

33. APPLICATION REQUIREMENTS • 1) Application for Grant of Easement for ROW (in DUPLICATE). • 2) Consents of Landowners (ROW Form 94-7). • 3) Map of definite location (2 original mylars & 2 copies, See 25 CFR 169.6,7,8,9,10 &11) CONTINUED

34. APPLICATION REQUIREMENTS • 4) Deposit of estimated damages or compensation (See 169.4 & 169.14) • 5) Evidence of Authority of Officers to Execute Papers (ROW Form 94-4) • 6) Permission to Survey for ROW. • CONTINUED

35. APPLICATION REQUIREMENTS • 7) FOR CORPORATIONS: 169.4&5 • a) State certified Articles of Incorporation. • b) Certified Corporate Resolution, By-Laws, Articles of Partnership or Association authorizing signatory to file the application.

36. TITLE STATUS REPORT • Request a TSR from LTRO. • Under ILCA sec. 2216(e) – Names, address, and ownership interest may be disclosed to prospective users for a specific tract. ID numbers and other “personal” information should be redacted.

37. CONSENT FOR PERMISSION TO SURVEY • 1) Application for Permission to Survey Should Include: • a) Purpose • b) General Location • c) Written Consents for permission to survey required by 25 CFR sec. 169.3

38. CONSENT FOR INDIVIDUALS • The Secretary may issue permission to survey and may grant ROW for individual owners when: • 1) owners are minors or non compos mentis. • 2) The majority ownership consents. • 3) owners whereabouts are unknown. • 4) heirs of an estate have not been determined. • 5) owners are so numerous it would be impracticable to obtain their consent.

39. MAPS/PLATS (IN DUPLICATE) • 1) Width and Length of ROW should be clearly shown with center-line. • 2) Scale should be 2,000 ft to inch or larger. • 3) Map should show allotment numbers, together with sections, townships, and ranges.

40. AFFIDAVIT AND CERTIFICATE • Maps require an affidavit executed by the surveyor who made the survey and a certificate executed by the applicant, certifying to the accuracy of the survey.

41. CONSENTS TO GRANTS OF ROW • 1) Written Consent of Tribe for ROWs on Tribal Trust Land is required. • 2) Written Consent of Individual Indian owners for ROWs on Individual Trust Land is required. • See 25 CFR sec. 169.3

42. EMINENT DOMAIN • The inherent power of a government to take privately owned property and convert it to public use, subject to reasonable compensation.

43. CONDEMNATION • The determination and declaration that certain property is assigned to public use, subject to reasonable compensation; the exercise of eminent domain. • Condemnation is allowed against Individually-owned trust land, but condemnation is NOT allowed against Tribally owned trust land. • Any attempt to take action to condemn individually-owned lands for a ROW must be reported immediately to the BIA office having administrative jurisdiction over the lands. 25 CFR sec. 169.21

44. ACTION ON APPLICATION • A duplicate original copy of the conveyance instrument, permanent and reproducible maps, the application, with any other pertinent documents shall be transmitted to the Land Titles and Records Office for recordation. 25 CFR sec. 169.15

45. AFFIDAVIT OF COMPLETION • An Affidavit of Completion, shall be promptly filed with the Secretary upon completion of the ROW, in duplicate, executed by the engineer/surveyor and certified by the applicant. One copy shall be sent to the Land Titles and Records Office for recording. 25 CFR sec. 169.16

46. FINAL INSPECTION REPORT • After receiving the Affidavit of Completion, the ROW must be inspected to determine whether there have been damages caused during the survey or during construction. Any part of the Damage Deposit not required to cover damages shall be refunded to the applicant.

47. PROCEDURAL HANDBOOK • The March 6, 2006, “Bureau of Indian Affairs, Procedural Handbook, Grants of Easement for Right-of-Way on Indian Lands” can be e-mailed to you upon request.

48. QUESTION??