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The Acquisition of Easements over Native American Lands For Transportation Project

This section introduces this research project. It summarizes the purpose for the research study and provides an overview of the research scope and objectives.

A. Research Problem

Some State Departments of Transportation have encountered increased difficulty in the timely completion of the acquisition of right-of-way easements over Native American lands. 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.

The new transportation reauthorization 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. Likewise, SAFETEA-LU also reauthorizes the Indian Reservation Roads (IRR) program and includes earmarks for specific Tribal projects as well as authorizes additional funds for reservation bridge projects.

There are currently about 2,000,000 Native Americans living in the United States. There are about 280 Federal Indian Reservations established within 33 States. Reservation lands are those held in trust by the Federal Government for the common benefit of the Tribe. Allotted lands are reservation "trust" lands conveyed by the government to individual Indians.

As outlined in 25 CFR Part 161, right-of-way easements over Tribal or allotted lands may be without limitation as to term of years. These easements may also be in force for a limited term with the compensation renegotiated upon renewal. To execute the proposed right-of-way easement, acquiring agencies must first obtain a Tribal Council resolution consenting to the proposed right-of-way easement, as a prerequisite to its execution by the Bureau of Indian Affairs (BIA).

Negotiations for right-of-way over Tribal lands have become increasingly complex. These negotiations often involve issues directly related to the acquisition process such as easement term limits or the ability for the States to permit utilities within the right-of-way easement. Other issues may involve subjects related to the proposed transportation project but peripheral to the acquisition itself such as the use of Tribal material sources during construction or the disposition of archeology and human remains disturbed by construction activities. Some topics may even be unrelated to the transportation project itself but instead are a part of overall State-Tribal relations such as Tribal water rights and gaming compacts.

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 their applicability for use nationally. The 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.

The information gathered and evaluated during this research will assist HEPR in developing effective guidance materials to increase the overall awareness of FHWA and State Department of Transportation officials with both the issues involved in dealing with sovereign Tribes and the processes that have proven effective in securing needed land interests to support transportation improvements. The outcome of these efforts will be more effective and timely clearance of right-of-way over Native American lands by State Departments of Transportation.

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B. Project Scope and Objectives

Dye Management Group, Inc. conducted this research project for FHWA under Task Order DTFH61-05-T-27010 as part of its Indefinite Delivery Indefinite Quantity (IDIQ) research contract with HEPR. Dye Management Group, Inc.'s scope of work for this research effort consisted of a number of steps designed to identify the key trends and practices related to the acquisition of easements over Native American lands and to assess the applicability of these trends for adoption on a national basis. These research activities included:

The remaining sections of this report provide an overview of the process for acquiring easements over Native American Lands, an inventory of the key research questions, a discussion of our research approach and methodology, a summary of the key findings from the research, and a set of options based on these findings. The remainder of this report consists of:

Updated: 09/05/2014
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