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The Acquisition of Easements over Native American Lands For Transportation Project

To meet the study objectives and address the investigative questions, the research team utilized a work plan that focused on those States and Tribes that have had recent experience in advancing transportation projects across Indian lands. The approach utilized a literature search and an initial one-day stakeholder meeting to define the broad issues. The web-survey then helped to narrow the range of issues for further study and identify a number of individual stakeholders for further detailed follow-up through telephone and field interviews.

The key steps of the research approach were:

The subsections below describe each of these work plan components in more detail.

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A. Web-Based Literature Search

Dye Management Group, Inc. conducted a web-based literature search throughout the research activity. The purpose of the literature search was to identify and review more in-depth studies of Native American sovereignty, culture, and organizations. The research team viewed an understanding of these topics as being a critical component to improving relations with the Tribes.

The team also conducted additional research through Federal resources (i.e. Firstgov, Department of Justice, FHWA, etc.) as well as on State practices and agreements through the websites of various State Departments of Transportation.

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B. Stakeholder Review of Survey and Interview Questionnaires

Dye Management Group, Inc., along with FHWA's Office of Real Estate Services, conducted a one-day stakeholder meeting at the FHWA Eastern Federal Lands Highway Division office in Sterling, Virginia on October 20, 2005. This stakeholder group consisted of representatives from eight (8) State Departments of Transportation, FHWA's Office of Federal Lands Highway, FHWA's Office of Real Estate Services and BIA. These stakeholders have a considerable amount of experience either with the acquisition of easements over Native American lands and/or with working with Tribal considerations in general. The purpose of this meeting was to:

Dye Management Group, Inc. first discussed the background, research objectives, and anticipated outcomes of the study. The team then handed out and walked through the investigative questions and draft survey instruments, getting stakeholder input along the way in regards to clarity and appropriateness. This session also gave the stakeholders the opportunity to suggest additional questions for study if needed.

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C. Web-based Survey of FHWA Division Realty Officers

The research team conducted a web-based survey of the division realty officers in all of the FHWA division offices in November and December of 2005. The purpose of this survey was to identify the key issues and considerations related to the acquisition of easements over Native American lands and to gather FHWA division office and State Department of Transportation perceptions concerning the effectiveness of the State's existing easement process. The analysis of the survey results also included identifying where States had entered into effective partnering agreements with the Tribes to enhance cooperation in planning and constructing highway improvements across trust lands. In addition, the survey helped the team to determine the twelve (12) most active States in terms of acquiring easements across Native Lands. The research team then targeted these States for further in-depth research.

The research team sent an e-mail invitation to each prospective respondent on November 3, 2005 with a link to the website containing the survey. The research team also sent reminder email messages and made direct phone contacts as appropriate to encourage completion of the survey.

Thirty-nine (39) of 52 FHWA division offices completed a survey form, for a response rate of 75%. Exhibit IV-1 provides a list of the division offices that participated in the survey.

Exhibit IV-1: FHWA Division Office Responses to the Web-based Survey

Responding Division Offices
Alabama Louisiana Oregon
Arizona Maryland Pennsylvania
Arkansas Massachusetts Rhode Island
California Michigan South Carolina
Colorado Mississippi South Dakota
Delaware Montana Tennessee
Florida Nebraska Texas
Georgia Nevada Utah
Hawaii New Hampshire Vermont
Illinois New York Virginia
Indiana North Dakota West Virginia
Iowa Ohio Wisconsin
Kentucky Oklahoma Wyoming
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D.Follow-up Telephone Interviews with Division Realty Officers

Based on a review of the responses to the web-based survey, the team conducted follow-up telephone interviews with realty personnel in twelve (12) FHWA division offices. Ten (10) of the individuals interviewed had responded to the initial web-based survey. The team selected two (2) other individuals for follow-up based on the number of Tribes located within their States and the prospect that inquiry into the practices and procedures within their assigned State would be beneficial to the findings of this study.

Exhibit IV-2 provides a list of the FHWA division offices selected for follow-up telephone interviews.

Exhibit IV-2: FHWA Division Offices Selected for Follow-up Telephone Interviews

Follow-up Interview States
Arizona Montana Oregon
California New Mexico South Dakota
Florida New York Washington
Mississippi Oklahoma Wisconsin

The follow-up telephone interviews with division realty officers concentrated on documenting existing State policies and procedures, assessing the issues/obstacles in more detail, and obtaining referrals to the State and/or Tribal officials knowledgeable of right-of-way issues and in a position of authority to speak on behalf of their State or Tribe. The follow-up telephone interviews also identified BIA contacts that work with the State on behalf of the various Tribes involved in the land transfer process. This interview process also allowed Dye Management Group, Inc. the opportunity to gather copies of State procedure manuals.

In addition, the follow-up telephone interviews provided some insight into the operations of the individual States concerning collaborating with the Tribes and the process for involving Tribes in the transportation planning process. There was little new information gathered regarding the actual acquisition process beyond the information provided in the web-based survey responses. The interviews confirmed the fact that the State Department of Transportation, the specific Tribe and the BIA primarily handle the easement acquisition process with limited involvement by FHWA division office personnel. This lack of direct participation in the acquisition process by most of the division office personnel made it difficult for them to provide more detail than had been provided through the initial web-based survey.

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E. Field Interviews of Tribal Officials and State, BIA, and FLH Representatives

As an outcome of the follow-up telephone interviews with the FHWA division realty officers, Dye Management Group, Inc. developed a list of 25 Tribal officials and State Department of Transportation staff knowledgeable about issues involving the acquisition of easements over Native American lands for transportation projects and authorized to speak on behalf of their Tribe or State. From this list, the FHWA Office of Real Estate Services then selected nine (9) individuals with whom the research team conducted detailed on-site interviews during the early spring of 2006. In addition to the interviews of Tribal officials and State staff, the research team also interviewed BIA regional staff who work with the Tribes and States who were interviewed and with FLH staff involved in the Indian Reservation Roads (IRR) program.

The remainder of this subsection provides a summary of these various field interview processes.

1. Interviews of Tribal Officials

The research team conducted in-person interviews with seven (7) representatives of various Tribes identified as being knowledgeable concerning Tribal transportation issues based on input received from the follow-up telephone interviews with FHWA division office staff. These in-person interviews typically lasted between 60 and 90 minutes at a location selected by the interviewee. The interviews sought to document the role of the Tribe in the State's project delivery process, the Tribe's own specific acquisition procedures and the perspective of the Tribe with regard to the issues and obstacles with the right-of-way easement process over Indian lands and any potential solutions to address these issues. Some of the topics addressed in the interviews included:

Exhibit IV-3 provides a list of the Tribes participating in the field interviews.

Exhibit IV-3: Tribes Participating in Field Interviews

Participating Tribes
Fort Peck Tribe
Confederated and Salish Kootenai
Standing Rock Sioux
Shoshone – Bannock Tribes
Tesuque Pueblo
Navajo Nation
White Mountain Apache Tribe

2. Interviews of State, BIA and FLH Staff

To supplement the information gained from the Tribal interviews, the research team interviewed right-of-way staff members from two (2) State Departments of Transportation directly involved in the acquisition of easements over Tribal lands. The team also conducted follow-up discussions with representatives from two of the State Department of Transportation right-of-way units who participated on the stakeholder team. The research team also interviewed eight (8) BIA regional staff members. These interviews concentrated on identifying approaches to facilitating collaboration between States and the Tribes in the acquisition process. In addition, the team interviewed two (2) FLH staff members due to their involvement in advancing the Indian Reservation Road program for additional background and perspective. These interviews focused on proven coordination practices.

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F. Analysis of State – Tribal Agreements

Throughout the survey and interview process, the research team identified several Statewide compacts, memorandums of understanding and various project level agreements between Tribes and States. As part of the study effort, the research team reviewed these documents and assessed their applicability as a best practice regionally and/or nationally.

Updated: 04/02/2013
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