The Acquisition of Easements over Native American Lands For Transportation Project
I. Introduction and Project Overview
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.
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:
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.
This inquiry involved a literature search to identify the legislative environment and unique cultural circumstances related to seeking highway easements using lands held in trust for Native Americans. The research team reviewed both available public and private sector information to clarify and establish additional context on a number of issues including Tribal sovereignty and civil jurisdiction, archeological disposition, and easement term limits.
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.
This electronic survey of FHWA division offices gathered information regarding the incidence in each State of the acquisition of easements over Native American lands and the approach each State has adopted to advance projects and secure right-of-way across Native American lands held in trust. A stakeholder team of key Federal and State right-of-way officials who are familiar with the process of acquiring easements over Native American lands validated this survey for completeness.
Through this survey, FHWA division realty officers in States with a high incidence of activity dealing with reservation and allotted lands were identified for follow-up phone interviews to discuss issues and potential best practices in more detail.
Conducting nine in-person interviews of Tribal officials and State right-of-way staff based on FHWA's selection from the list of 25 potential interviewees.
As an outcome of the follow-up telephone interviews from the web-based survey, Dye Management Group, Inc. developed a list of 25 State and Tribal officials knowledgeable about issues involving the acquisition of easements over Native Lands for transportation projects and authorized to speak on behalf of their Tribe or State. From this list, FHWA then selected nine (9) individuals with whom the research team conducted detailed on-site interviews.
The goal of these interviews was two-fold:
To secure the Tribal perspective on the transportation development process generally and the right-of-way acquisition process specifically.
To obtain clarification and additional insight on best practices at the State level.
The final selection of officials for these interviews also attempted to help provide insight into any cultural and regional differences that exist among the Native Tribes.
Conducting interviews of Bureau of Indian Affairs (BIA) and FHWA Federal Lands Highway (FLH) staff to provide additional background and insight.
The research team interviewed select BIA regional staff. The goal of these interviews was to identify potential opportunity areas, to supplement information obtained from other sources and to gain insight and clarification of issues raised at the State and Tribal levels. In addition to interviews with BIA, the research team conducted background interviews with FLH staff who work with the Indian Reservation Roads (IRR) program.
Synthesizing and analyzing the results of the surveys, telephone interviews and in-person interviews into a final report.
The goal of this report is to provide a summary of key findings related to the acquisition of easements over Native American lands for transportation projects. This report also documents best practices identified during the study process and assesses the applicability of these best practices on a regional and/or national basis. It also provides a set of options for consideration at the national level and by States and Tribes for improving the process for acquiring transportation easements over Native American lands.
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:
Section II. Project Background. This section provides background on the legal relationship between Tribes, States and the Federal government. It also provides an overview of the process typically followed by State Departments of Transportation to acquire easements over Native American lands.
Section III. Investigative Questions. This section outlines Dye Management Group, Inc.'s key research questions for this project. These questions provide the overall framework for the research, and establish the underlying basis for questions included in the survey instruments and interview guides developed during the project.
Section IV. Research Approach and Methodology. This section provides an overview of Dye Management Group, Inc.'s approach and methodology for this research effort including the stakeholder review, literature search, web-based survey of FHWA division offices, follow-up telephone interviews of select FHWA Division office staff and in-person interviews of Tribal and State officials.
Section V. Summary of Key Findings. This section summarizes the key findings from the research study. It includes a discussion of both preferred practices and issues and opportunities with the process for acquiring easements over Native American lands.
Section VI. Mapping of Options to Address Issues and Opportunities Identified by the Research Team. This section presents a mapping of the various issues and opportunity areas identified by the research team with the proposed options for consideration by the stakeholders.
