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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:

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:

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:

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:

Updated: 04/02/2013
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