The Acquisition of Easements over Native American Lands For Transportation Project
The latest transportation bill signed into law on August 10, 2005 (the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" or "SAFETEA-LU") provides five years of funding for transportation improvements, including a substantial number of projects which will require the acquisition of easements across Native American lands. The acquisition of easements over Native American trust lands for transportation projects are subject to the regulations issued by the Bureau of Indian Affairs (BIA) in 25 CFR 169. These regulations cover all types of easements including those required for State and local highways.
At its core, the process of acquiring easements over Native American lands is similar to the steps required to obtain property not held in trust. The State Department of Transportation or other acquiring Agency identifies land requirements; surveys the proposed acquisition; identifies ownerships; appraises the property and conducts negotiations. The main difference when lands are held in trust for Native Americans is that the recourse to use eminent domain is generally not available, except in rare instances. No authority exists for using condemnation to acquire Tribal lands and allotted lands are rarely condemned since jurisdiction is retained in the Federal courts. This limitation requires States to be more diligent in the negotiation process and to plan for and allow the time needed to secure the necessary approvals by the Tribe and individual owners of allotted lands and approval by the BIA.
Negotiations for right-of-way over Tribal lands have become increasingly complex and often include issues not directly related to the acquisition process itself. As a result, some State Departments of Transportation have encountered increased difficulty in completing the acquisition of right-of-way easements over Native American lands in a timely manner. These delays in completing the acquisition of right-of-way easements over Tribal lands have had, or may have in the future, an impact in completing transportation projects on time and on budget.
In response to these concerns, the Federal Highway Administration (FHWA) Office of Real Estate Services (HEPR) initiated this research activity. The purpose of this research is to analyze the challenges inherent in obtaining right-of-way easements over Tribal or allotted lands, identify best practices in use by some State Departments of Transportation, and assess the applicability of these best management practices for use nationally. This research seeks to develop potential options for reducing the complexity and risk associated with the acquisition of right-of-way easements over Tribal or allotted lands.
Dye Management Group, Inc. conducted this research activity for FHWA under Task Order DTFH61-05-T-27010 as part of its IDIQ research contract with HEPR. Dye Management Group, Inc.'s scope of work for this research effort consisted of a number of steps including:
- Conducting a literature search to review the legislative context and other issues and opportunities related to highway easements over lands held in trust for Native Americans.
- Conducting a web-based survey of all FHWA division realty officers to gather information and identify 12 States for follow-up telephone interviews where activity related to this inquiry is most prevalent.
- Conducting nine (9) in-person interviews of Tribal officials and State right-of-way staff based on FHWA's selection from a list of 25 potential interviewees developed through the web-based survey and telephone interviews.
- Conducting interviews of BIA and Federal Lands Highway (FLH) staff to provide additional background and insight.
- Synthesizing and analyzing the results of the surveys, telephone interviews and in-person interviews into a final report.
Based on these research steps, Dye Management Group, Inc. identified a number of preferred practices, which are helping individual States to facilitate acquisition activities over Tribal lands. These include:
- Establishing an effective government-to-government relationship in order to strengthen communication between the State and the Tribe.
- Engaging Tribes in the transportation planning process; early notification and ongoing involvement of the Tribes as a stakeholder in the State's project development process can help to facilitate the later acquisition of right-of-way.
- Utilizing a centralized or dedicated resource to act as a coordinator for Tribal acquisitions provides a common point of contact for Tribes and allows State staff to develop on-going relationships with the Tribes.
The research team also identified a number of issues and opportunities with the existing process for acquiring easements over Native American lands. These challenges include:
- Tribal leaders often do not feel engaged in the acquisition process.
- States do not always provide timely notification to the Tribes about the need for an easement.
- There is considerable confusion and misunderstanding about the controlling authority for acquisition processes involving Native American lands.
- There is ambiguity concerning the State's authority to permit utilities within the highway right-of-way across Indian lands.
- Acquisition of easements across Tribal lands is viewed by many State staff as an extremely time consuming process.
- There are some deviations from the standardized process across various Tribes and/or BIA regions based on local customs and business practices.
- Negotiations with a Tribe to secure right-of-way for a transportation project often involve a number of issues not directly related to the proposed acquisition.
- There are limited information exchange and training opportunities related to the acquisition of right-of-way over Tribal lands.
In response to these issues and opportunities, the research team has developed a number of options for stakeholder consideration, which could help to address the issues and opportunities identified in the study. These options include:
- Developing additional guidance and other resource materials including:
- Guidance materials for States and Tribes that clarify the specific controlling authorities for the acquisition of right-of-way over Tribal lands. This guidance material should also address other related issues such as the ability of States to permit utilities in easements over Tribal lands.
- Templates for a Memorandum of Understanding (MOU) and a Project Specific Agreement (PSA), which individual States and Tribes can then customize for their specific needs.
- Detailed procedures for the process of acquiring easements over Tribal lands as part of the State's project development manual.
- Creating additional training materials/courses and knowledge transfer opportunities including:
- Establishing a brief course or workshop based on any new guidance material to provide an overview of the process of acquiring right-of-way over Tribal lands.
- Strengthening information exchange between States, Tribes, and BIA through participation in various national meetings and/or by hosting a national forum to address Tribal lands acquisition issues.
- Strengthening communication and collaboration between States and Tribes by:
- Engaging the Tribe as a partner in transportation planning.
- Establishing liaison positions with Tribes in either the Transportation Planning and/or Right-of-Way units to provide a common point of coordination and to establish rapport with the Tribes.
- Encouraging early involvement in the project development life cycle by State and Tribal Realty staff.