This section provides background on the legal relationship between Tribes, States and the Federal government. It also provides an overview of the process typically utilized by State Departments of Transportation for acquiring easements over Native American lands.
In order to be successful in negotiating with Native Americans, it is important for State Departments of Transportation to recognize and appreciate the sovereignty of the Tribes, the nature of the relationship between the Tribes and the States, the relationship between the Tribes and Congress and the role of the United States Department of Interior Bureau of Indian Affairs (BIA).
For over 50 years, Presidents have issued executive orders to reinforce the relationship and fundamental principles contemplated for Federal agencies concerning the American Indian. An excerpt from the most recent order (Executive Order 13175 of November 6, 2000) follows:
"Sec. 2. Fundamental Principles. In formulating or implementing policies that have tribal implications, agencies shall be guided by the following fundamental principles:
The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.
Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.
The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination."
As domestic dependent nations, Indian Tribes are not subordinate to State governments. The State of Montana's online legislative handbook (http://leg.state.mt.us/css/publications/research/past_interim/handbook.asp) does an excellent job of defining the nature of the Tribe-State relationship as follows:
Tribal governments are not subordinate to state governments and are not bound by state laws.
With rare exceptions, a state has jurisdiction within a reservation only to the extent that Congress has delegated specific authority to it or in situations in which neither federal nor tribal law preempt state law.
Tribes, however, are subordinate to Congress and for many governmental activities require approval from the Secretary of the Interior or lower ranking officials in the Bureau of Indian Affairs (BIA). BIA has responsibility for the administration and management of the 55.7 million acres of land held in trust by the United States for American Indians, Indian Tribes, and Alaska Natives. There are 561 Federally recognized Tribal governments in the United States. Developing forestlands, leasing assets on these lands, directing agricultural programs, protecting water and land rights, developing and maintaining infrastructure and economic development are all part of BIA's scope of responsibility. As such, the BIA has a direct and important role in the acquisition of easements over Native American lands for transportation projects.
The State of Montana's online legislative manual explains the relationship between the Tribe and the Federal government and the role of the BIA in supporting and facilitating this relationship as follows:
There is always a federal dimension to consider in formal state-tribal interactions.
Tribal governments are subordinate to Congress. In many arenas of governance, including economic development, environmental regulation, and law enforcement, tribal authorities require authorization, appropriations, and approval from the Secretary of the Interior or lower-ranking officials of the Interior Department's Bureau of Indian Affairs (BIA).
The acquisitions of easements over Native American trust lands are subject to the regulations issued by 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 for acquiring an easement over Native American Lands for a transportation project is not that different from the process utilized to obtain property not held in trust. Both cases require the following primary steps:
The main difference when lands are held in trust for Native Americans is that the recourse to use eminent domain is not available, except in rare instances and then only through the Federal courts. This places an emphasis on resolving and negotiating all settlements with Tribal and individuals holding an interest in the trust lands required for the highway or other transportation improvement.
Within 25 CFR Part 169 the provisions related to obtaining a highway easement clearly state that obtaining easements over Indian lands requires the prior written consent of the Tribe and owners of such lands. This applies to securing permission to survey and for the specific terms and conditions of use required for the proposed project.
The following presents a general description of the acquisition process for obtaining an easement over Native American lands for a transportation project. There are variations and intermediary steps required in some jurisdictions that are not covered by this general overview. It is important for the State Department of Transportation to consult with the local offices of the BIA and the impacted Tribe early in the process to identify those variances that may apply.
State Departments of Transportation submit all right-of-way requests for the acquisition of any parcels of Indian trust land on a standard right-of-way application form to the BIA. This application describes the legal description of the land, allotment number if known and the general description of the transportation project. It also states the specific conditions the applicant must comply with to acquire the right-of-way..
The BIA processes the application and then prepares Ownership Status Reports (OSR) or Title Status Reports (TSR) for the land described on the application request. An OSR shows the ownership of the land and its legal description for the specific tracts requested whereas the TSR is a certified report. BIA provides this information back to the State Department of Transportation.
The State Department of Transportation then prepares consent forms that include the legal description, allotment number, compensation offered and the ownership of the allotment. They also prepare right-of-way strip maps that delineate the parcels and property ownership for each landowner.
Before any trust land consents (allotted or Tribal) can be negotiated, an appraisal must be completed for all parcels requested in the right-of-way application. Certified appraisers approved by the BIA Regional Appraisal Office must prepare the appraisal. Once completed, the BIA Regional Appraiser must review and approve the appraisal prior to the initiation of negotiations.
There are several different approaches for performing appraisals, depending on the Tribal government, BIA and the State Department of Transportation. In some cases, the Tribal government may have certified appraisers or may contract the appraisals out to certified appraisal firms. The BIA may acquire the appraisals, or the State Department of Transportation may use in house or contract appraisers to complete the appraisals for each parcel.
The negotiation process varies slightly based on whether the Tribe owns the parcel or whether the parcel is an allotment to an individual(s).
Tribal Ownership Parcels: The State Department of Transportation negotiates with representatives of the Tribe, with the outcome of the negotiations subject to approval by the Tribal government. While this process varies between different Tribal governments, most Tribal governments have an established process for acquiring right-of-way across Tribal trust land. Following these procedures, the State Department of Transportation and the Tribe will negotiate an acceptable compensation. Then, the Tribal Council usually approves all of the Tribal right-of-way parcels for the entire project by resolution. Often this resolution will authorize the Tribal chairperson to approve the final documents on behalf of the Tribal government.
Individual Allottee Ownership Parcels: Following approval of the appraisals by BIA, the State Department of Transportation will negotiate owner consent forms with the individual allotted landowners and secure owner consents for each of the parcels. Usually, on allotted fractional interest parcels, the State Department of Transportation will contact the owners with substantial interests personally, and contact small interest owners via certified mail.
After securing consents on all parcels from the allottees and/or from the Tribal government, the State Department of Transportation submits a package of documentation to the BIA Superintendent. The documents submitted generally include the consent forms with a right-of-way strip map and a right-of-way Grant of Easement form for the entire project. Additional documentation may be required at the discretion of the BIA Superintendent. If everything is in order, the superintendent, will approve the right-of-way Grant of Easement for the transportation project. Following approval by the BIA Superintendent, the State Department of Transportation must deposit the total dollar amount for the project right-of-way with the BIA. The BIA will then distribute the funds to the Tribe and individual allottees in accordance with internal BIA procedures.