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The Acquisition of Easements over Native American Lands For Transportation Project

V. Summary of Key Findings

This section summarizes the key findings from the research study as identified through the literature search, review of available documentation, the web-based survey, the follow-up telephone interviews and the field interviews. For ease of presentation, the research team divided these key findings into two main categories:

• Best Management Practices
• Issues and Opportunities

A. Best Management Practices

This subsection outlines several best management practices identified by the research team across different Tribes and States. These best management practices facilitate improved communication and collaboration between Tribes and States. These preferred practices include:

• Establishing an effective government-to-government relationship between the State and the Tribe.
• Engaging Tribes in the transportation planning process as of way of helping to provide early notification about projects and thus facilitating the later acquisition of right-of-way.
• Utilizing centralized or specialized resources within the State Department of Transportation to act as a coordinator for Tribal acquisitions.

1. Establishing an effective Government-to-Government Relationship

Establishing an effective government-to-government relationship is essential to strengthening ongoing communication and collaboration between States and the Tribes. Such a relationship provides a valuable, initial framework upon which to discuss Memorandums of Understanding or other project specific agreements that would more specifically define acquisition processes. These agreements can also help to establish the tone and basis for working collaboratively to resolve issues, which could arise as part of individual project level acquisition negotiations.

Several State governments have established Statewide agreements, compacts or similar initiatives with the various recognized Tribes located within their borders. Some of these agreements are quite comprehensive such as Washington State's 1989 Centennial Accord (http://www.goia.wa.gov/Government-to-Government/Government-to-Government.htm) and the subsequent 1999 Millennium Agreement.

The Millennium Agreement " ... addresses the relationship between the parties ..." and has as "... its ultimate purpose ... to improve the services delivered to people by the parties." It requires that "Immediately and periodically, the parties shall establish goals for improved services and identify the obstacles to the achievement of those goals. At an annual meeting, the parties will develop joint strategies and specific agreements to outline tasks, overcome obstacles and achieve specific goals."

Montana, on the other hand, advocates a customized approach tailored to each Tribe's culture and language, with agreements achieved through individual negotiation with each Tribe. The State of Montana's online legislative handbook (http://leg.state.mt.us/css/publications/research/past_interim/handbook.asp) provides the following advice as a foundation for State-Tribal relations.

The Indian nations of Montana are similar in some general respects, but distinct from each other in many important ways.

Although "Indian country" is a useful phrase when considering federal laws and policies applicable to all Indian nations, each nation is unique, with different priorities, values, cultural attributes, and economic circumstances. The distinctions between different Indian nations in Montana need to be considered in discussions and negotiations between the state government and tribal governments.

Government-to-government relations are the norm, not the exception.

Protocol is important. The use of proper channels demonstrates mutual respect and lends dignity to relationships that are often delicate and easily tainted by misunderstanding and the suspicion that state (or federal) bureaucrats are attempting to interfere with internal disputes of tribal government officials.

The preceding examples set the tone for the objectives and principals that need to be part of a cooperative partnership with the Tribes to advance transportation improvements through their land.

2. Engaging Tribes in the Transportation Planning Process

Actively engaging Tribes in the transportation planning process will help to ensure early notification and involvement of the Tribes in the project development process, which consequently helps to facilitate the later acquisition of right-of-way.

The government-to-government initiatives at both the Federal and State level are implemented and customized by each of the agencies whose programs and policies affect the American Indian Tribes. For over 15 years, the United States Department of Transportation has encouraged greater outreach by the State Departments of Transportation to engage the various Tribal governments in the transportation planning process. In 2000, the FHWA created a Native American program coordinator in headquarters to "... continue...efforts to build more effective working relationships with Native American tribal governments and help provide increased opportunities for Native Americans to participate in transportation programs." The FHWA Tribal Transportation page (http://www.fhwa.dot.gov/hep/tribaltrans/index.htm) provides links to information on State activities, reference materials, Tribal planning, Tribal programs and Tribal Technical Assistance Program (TTAP) Centers.

A little more than half of the FHWA division offices responding to the survey indicated that their State had created a similar coordinator position to work with the Tribes to improve the level of Tribal involvement in developing State transportation plans and programs. Similar to the annual summits used by Washington State in implementing its Centennial Accords, most of the States with recognized Tribes and a program of sufficient size used annual or more frequent meetings to enhance the communication between the State Department of Transportation and the Tribes. Based on the interviews, some States had tried a number of outreach efforts including individualized approaches for each recognized Tribe.

Even those States that did not report they had created a specific position for Tribal coordination did indicate they had programs in place to invite and involve the Tribal governments in the State transportation planning process. Almost universally, the States with recognized Tribes have taken steps to promote better dialogue with the Tribes during the planning process. The most prevalent activity is the use of annual meetings between the State Department of Transportation and the Tribes. Some States schedule several meetings that are individualized for each Tribe to go over transportation issues.

Many States also have outreach efforts to bring Tribes into the transportation planning process. Some States have established inter-governmental commissions or utilized other similar mechanisms to promote collaboration and dialogue between the State and the Tribe. As noted above, some States have created Tribal liaison positions and/or created Internal Steering Committees to develop communication links with the Tribes. Several States reported they have formally invited Tribes to participate in developing the Statewide Transportation Improvement Plan (STIP). Other States use individualized project specific meetings when needed.

The web-based survey indicated an increase in Tribal participation in local planning organizations. In some cases, the Tribe participates as a dues paying member of the organization and in other instances serves as a non-dues paying member at the committee level.

The efforts to improve Tribal involvement in transportation planning are not directly related to the acquisition process. However, any efforts made to improve State-Tribal coordination and communication on transportation planning is perceived to be a good first step in gaining better understanding of the needs of both the State and the Tribe when right-of-way or other land interests are needed for a State project on Indian lands.

3. Centralized or focused resources to work on Tribal acquisition issues

While a number of State Departments of Transportation have a Tribal coordinator role within their agency as a whole, only four (4) States reported that they have a coordinator position specifically within their right-of-way unit that focuses on Tribal acquisition issues. These States are Arizona, New Mexico, Oklahoma and South Dakota.

Such a role acts as a consistent point of contact with the Tribes and allows the individual assigned to the position to develop deep expertise in the Tribal acquisition process. The four (4) States who have created these "coordinator" positions appear to have a high volume of Indian lands acquisition work and can easily justify an individual being focused primarily on Tribal issues.

However, other States may still benefit from having one or two resources handle all Tribal acquisition issues, even if because of a lower volume of Tribal acquisition work it is just a part of that individual's responsibilities. This will allow right-of-way unit staff members to build relationships with the various Tribes located within their State and gain experience with the process of acquiring easements over Tribal lands and the differences that exist between this process and the traditional right-of-way acquisition process. Such a specialized resource would be more efficient than using different individuals across the State who would do only a small number of Tribal acquisitions over their career, often with a gap of several years between acquisitions.

One risk for States who establish a central point-of-contract for Tribal acquisitions, however, is to ensure that there is a succession plan in place to be prepared when individuals either move into another position and/or leave State service.

B. Issues and Opportunities

This subsection outlines a number of issues and opportunities identified by the research team through the web-based survey, follow-up telephone interviews with FHWA division realty officers and the field interviews with Tribal officials, State staff, BIA staff and FLH staff. These issues and opportunities include:

• Tribal leaders often do not feel engaged in the acquisition process.
• States do not always provide timely notification to the Tribes about the need for an easement.
• There is considerable confusion and misunderstanding about the controlling authority for acquisition processes involving Native American lands.
• There is ambiguity concerning the ability of States to permit utilities within the highway right-of-way across Indian lands.
• Acquisition of easements across Tribal lands is viewed by many State staff as an extremely time consuming process.
• There are some deviations from the standardized right-of-way acquisition process across various Tribes and/or BIA regions based on local customs and business practices.
• Negotiations with a Tribe to secure right-of-way for a transportation project often involve a number of issues not directly related to the proposed acquisition.
• There are limited information exchange and training opportunities related to the acquisition of right-of-way over Tribal lands.

1. Tribal officials do not feel engaged in the acquisition process

Based on interviews with Tribal officials who have worked on easement and other land acquisitions, the main concern expressed by these officials was that they do not feel they are always as engaged or involved in the transportation project development process as they should or could be. Hence, these individuals were not as prepared as they could have been to work with the State on the acquisition requirements for a particular project. Some of the reasons for this lack of involvement based on input from the survey, telephone interviews and the Tribal officials interviewed by the research team include:

• The Tribe was not involved in the transportation planning and/or project programming process. From the interviews, it appeared this could be the result of one or more of a combination of factors:

  • The Tribe actually was not involved in the decision-making process.

  • Another office in the Tribal government may have been involved in the process but the specific right-of-way official we interviewed was not and any information about the project that another Tribal official may have had was not shared with the right-of-way staff member within the Tribe in a timely way.

  • There had been a change of Tribal leadership and a particular project may have been discussed with prior members of the Tribal leadership; in some cases, for example, Tribal Council members hold their positions for only one or two years.

• Invitations to participate in meetings and other outreach efforts by the State are infrequent and the timing of the sessions are not coordinated to assure staffing commitments will allow participation.

• Several Tribal interviewees indicated that the State often asks that lands needed for a particular improvement be donated. These requested donations were generally for minor road improvements and are presented by the State as being for the benefit of the Tribe rather than specifically needed to enhance the public road. This type of request, however, runs counter to a partnership approach and does little to advance a meaningful relationship.

It should be noted that the limited Tribal field interviews were primarily with officials involved in the right-of-way process. An interview with a Tribal Transportation Director did indicate an active involvement in the various planning organizations sponsored by the counties, cities and the State. One challenge then is how to carry this level of involvement forward to other Tribal officials who may become involved in the project development process such as right-of-way staff. This is similar to the issue State Departments of Transportation often face internally in terms of ensuring early and ongoing involvement of right-of-way and other specialty disciplines with a role in supporting a particular project effort.

2. Lack of timely notification by States of the need for an easement

Another concern expressed by Tribal officials during the interviews was the lack of timely notification by the States of the need for an easement and the subsequent request by a State for the Tribe to process the easement request on an expedited basis so as not to affect a proposed letting date for a construction project. This feedback is similar to the concerns expressed by Federal resource agencies during a prior study dealing with land transfers between Federal agencies. The short timelines presented by the State places a burden on Tribal land offices, much as they do on resource agency staff, to accommodate the workload and still maintain the normal office functions and activities.

3. Confusion and misunderstanding on the controlling authority for acquisition processes involving Native American Lands

There is a need for early clarification during an acquisition process on which of the different controlling authorities will drive the acquisition process. The Tribes and the BIA are knowledgeable of the provisions in 25 CFR, whereas the State is more familiar with the provisions in 49 CFR Part 24, as implemented by individual State law concerning acquisition and relocation procedures. Improving communications between the State and the Tribe requires a reconciliation of these two sets of rules early in the process so that particular provisions that may not apply do not become obstacles to completing the acquisition process. The process for acquiring an easement over Tribal lands needs to be clearly differentiated from the more familiar private land acquisition process that the State Department of Transportation deals with regularly.

The State must recognize the unique role the BIA plays within the Federal government. The BIA's statutes and regulations related to Indian trust lands are the prevailing authority for the acquisition of right-of-way easements over Native American lands. Standard highway legislation in 23 CFR and the provisions in 49 CFR Part 24, the Uniform Act, is not directly applicable to land acquisition over Indian lands. The FHWA Policy Development Guide documents that a number of Federal departments or agencies may require that land transfers be conducted under their own statutory authority. These agencies are The Army, Air Force, Navy, Department of Veterans Affairs and Bureau of Indian Affairs.

The FHWA Policy Development Guide states "Acquisition from these Federal agencies should be coordinated directly. These agencies' regulations, governing the disposition of their property, may also require the payment of compensation. Where transfer without compensation is not possible, after negotiating the transfer conditions, the acquiring agency will have to acquire these Federal lands through their acquisition process." In the case of the BIA, compensation and negotiated settlements agreeable to the Tribe and the BIA are required.

While the controlling authorities regarding acquisition requirements for Indian trust lands lies within BIA, State Departments of Transportation are much more familiar with The Uniform Act and the specific State laws and regulations implementing the Uniform Act within each State. Thus, these differences in terminology and procedural policies can add confusion to the negotiation process. The recently released Procedural Handbook issued by BIA covers the acquisition provisions that will need to be followed for acquiring easements over Native American Lands. However, this handbook does not contain any reference to provisions within the Uniform Act. In addition, during recent rulemaking revising the regulations required to implement the Uniform Act, the FHWA found that the rule does not have any direct effect on Tribal governments nor impose direct compliance costs. ¹

Interviews with FHWA and State personnel for this research study suggested that at least between the FHWA and State staff it is the collected opinion that when a project is funded with Federal highway funds, the Uniform Act applies. This interpretation, however, is not explicitly stated anywhere in the legislative history. This contention point regarding what Federal rules apply is clearly an issue that has to be resolved between BIA, FHWA, the individual Tribe and the State before advancing a State project across Indian lands.

4. Ambiguity concerning the authority of the State to permit utilities in the right-of-way

There are conflicting views on how some of the rules contained in 23 CFR dealing with right-of-way and utilities apply on Indian lands. Consequently, there is ambiguity concerning the ability of States to permit utilities within the highway right-of-way across Indian lands.

For example, in Montana, it is permissible, based on Federal and State law, to locate utilities within a highway right-of-way. However, on Indian trust land, a right-of-way is approved for the specific purpose of its intended use, such as to construct and maintain a road. This does not cover the location or relocation of utilities within that highway right-of-way, which means a separate right-of-way needs to be acquired from the landowners for utilities.

The Tribes and allottees have held that a right-of-way granted previously for a road, does not include the rights to establish a right-of-way for the location of utilities. For example, some oil and gas companies have proposed to locate pipelines within the highway right-of-way to avoid having to acquire a separate right-of-way for a pipeline. The Tribes and the allottees have held that the highway right-of-way does not include this provision and that the companies should acquire separate rights-of-way for this purpose. This position often varies based on the utilities that are to be located, depending on the utility and the value it may provide to the Tribes. For example, electric power lines and telephone may be considered as essential to the Tribes, and may be treated differently from intrastate or interstate oil and gas or fiber optic lines providing little value locally to the Tribes. There are various laws, regulations, and legal opinions supporting the pros and cons on both sides of this issue. Consequently, this item remains a potential issue in any negotiation process for right-of -way acquisitions across Indian lands.

5. Length of the process for acquiring easements over Indian lands

Acquisition of easements across Tribal lands is viewed by many FHWA division and State staff as an extremely time consuming process. Respondents to the FHWA division office survey identified the time commitment required to obtain an easement across Indian lands as a significant area of concern. Based on the survey and the various interviews, some of the reasons why this acquisition process can be become lengthy include:

• Impacts on Tribal resources are not always sufficiently considered with regard to the increased workload created by a large right-of-way acquisition. In one instance, a single Tribal employee was assigned the responsibility for all of the trust right-of-way acquisitions on a major project and yet retained all of his regular office program functions.

• The extensive amount of time required by State Department of Transportation staff or their consultants to prepare all of the paperwork required for BIA processing; this process is sometimes elongated by the State Department of Transportation staff's lack of experience with preparing the BIA package and the need to address differences in appraisal standards between 49 CFR 24 and 25 CFR.

• The time required to obtain approval of the appraisal from the BIA Regional Office can be quite lengthy, sometimes requiring several months.

• The length of time required to complete review by the Tribal Legal Office. The longer than desired time for this review process may be a function of both Legal Office staffing and workloads with some Tribes, as well because of some issues with the quality of the documents submitted.

• The number of errors and omissions on right-of-way documents which then require some degree of correction and re-work. From the interviews our team conducted, we received a number of examples where, during Tribal Legal Review, there were errors identified in legal descriptions, consent agreements etc. In some cases, these changes required substantial and often time-consuming rework such as getting all of the consents again.

• There can be a need to work with many landowners on a single parcel of allotted land where multiple heirs must be contacted. In addition, some allottees may never consent to the right-of-way easement. Finding a way to shorten the timeline for getting consent forms back, and limiting the number of attempts that must be made to gain majority consent is a key area for potential improvement.

• Determination of land values from recent or current land sales can be difficult because the Tribe often will not share sale information on Tribal lands. This can make it hard to determine the true fair market value of the trust lands.

• Property valuation derived from the appraisals can be a problem as an agency's appraisals and the landowners estimated value can become an issue.

• Some Tribes own Tribal fee (non-trust) lands, which require special processing, by both the Tribe and the State.

• There are often issues related to fencing, trees, scrubs, etc. which need to be resolved.

• There can be boundary line issues that require resolution where surveyed boundaries did not agree with perceived landowner boundaries or fenced boundaries.

• There can be unique negotiations items, which need to be resolved. In one situation, a Tribe took a position that all Tribal land should be replaced with land of equal acres and value and that there should be no significant loss of acreage or value. Consequently, there was a need to negotiate provisions between the Tribe and the State for a land exchange. While this approach extended the negotiation process, it was considered a very positive and creative way to achieve a beneficial outcome for both the Tribe and the State through the right-of-way acquisition process.

6. Deviations from the standard acquisition process

The general overview of the right-of-way acquisition process outlined in Section II.B describes the main steps and the interactions required between the States, the Tribes and BIA to secure the acquisition of an easement for a transportation project. The web-based survey and the interviews, however, indicated it is not unusual for an acquisition process to vary from the standard process or for there to be variations in this process between different Tribes and/or BIA regions. The interviews also suggested that some part of the standardized process is being or may be revised. These deviations from the standard process create confusion for State staff and often lead to misunderstandings between the parties and delays in the process.

Several situations were identified through the web-based survey or during the field interviews regarding practices, which deviated significantly between different Tribes or BIA regions and/or did not follow the generalized process outlined in Section II.B of this report. These items include the following:

• BIA is no longer providing certified Title Status Reports (TSR) to the right-of-way acquiring agency. They are now providing Owner Status Reports (OSR). The difference is that the certified TSR provided an accurate ownership through the date of certification, whereas the OSR only provides ownership based on a database that may, or may not be current. Potentially, numerous ownership changes may not have been recorded, such as, deaths, sales, transfers, and uncompleted probates, etc. Consequently, the State Department of Transportation may contact and secure consents from individual landowners based on an allotment ownership listing that is not up to date. This causes problems since the agency will have to make additional contacts to secure consents from the proper allotment owners adding additional elapsed time, work and expense in securing the right-of-way consents.

• BIA Superintendents may require different forms of documentation to meet the 25 CFR 169 requirements. These requests for different forms of documentation can be the result of local protocol, personal preferences, or Tribal council recommendations.

• There were some delays in BIA approval of the right-of-way "grants of easements" because the BIA Superintendent thought the property was under valuated, even though the evaluation had been determined and agreed to by the acquiring agency and the Tribal appraisal office.

• Appraisal procedures may vary based on whether the Tribe, BIA, or the State Department of Transportation is obtaining the appraisals.

• Several examples were provided where the acquiring agency used their appraised values to negotiate right-of-way consents before the appraisals were approved by the BIA Regional Appraisal Office. While this has not been a major problem, it could be if the BIA Regional Appraiser did not concur with the valuation of the land in the appraisal. This could result in changes in the land valuation, which may require renegotiating the owner consent agreements.

While this research project was in progress, BIA issued a new set of guidelines governing the acquisition of easements over Native American lands entitled "Procedural Handbook, Grants of Easement for Right-of-Way on Indian Lands", on March 6, 2006. It is hoped that this new publication will assist in providing guidance that is more complete and ensuring greater standardization of the process. However, this handbook has not yet been widely circulated. It also appears intended primarily for internal BIA use and potentially use by the Tribes. It does not appear to be for use by stakeholders in the process, such as FHWA and the State Departments of Transportation.

7.Need to address non acquisition related issues during negotiations

A number of issues peripheral to the proposed acquisition often must be addressed as part of working with a Tribe to secure right-of-way for a transportation project. Some of these issues may involve subjects related to the proposed transportation project but peripheral to the acquisition. Some topics may even be unrelated to the transportation project itself but instead are a part of overall State-Tribal relations. Examples of the range of issues, which could arise during negotiations, include:

• Addition of construction features such as cattle guards, or bus stops.
• Materials sources for the highway construction project.
• Tribal Employment Rights Ordinance (TERO) issues in regards to the construction contract and other related Tribal labor issues.
• A variety of issues involving cultural and historical concerns.
• State-Tribal water rights negotiations.
• Gaming compacts.
• Administration of social programs.

8. Limited information exchange and training opportunities related to the acquisition of right-of-way over Tribal lands

There is limited guidance material, training courses or information exchange opportunities available related to the acquisition of easements over Indian lands. Both the State and the Tribes affiliate themselves with a number of organizations that deal with transportation planning issues. In particular, the Tribal Transportation Assistance Program's (TTAP) various centers sponsor educational conferences that bring together Tribal transportation officials. However, a review of recent TTAP conference agendas and State / Tribal sponsored events indicated right-of-way presentations are rarely included.

Likewise, there is limited formal guidance material, training courses or workshops available for state transportation agencies related to acquiring easements over Tribal Lands. The guidance materials available through the BIA is primarily focused on Tribes or BIA staff as the audience and not third parties who may be seeking to acquire easements over Native Lands. Likewise, as noted above, BIA has recently completed a detailed guidance manual for its staff, but some of the items in this manual actually create additional confusion for the State Department of Transportation community. In addition, this manual is not generally available to stakeholders such as State Departments of Transportation because of the lack of BIA external websites as part of the Cobell litigation.

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1 Executive Order 13175 (Tribal Consultation)

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000. This action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

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