RIGHT-of-WAY
in
INDIAN COUNTRY
REALTY and the
TTP PROGRAM
James Brophy
FHWA Tribal Transportation Program
What is a Right-of-Way?
• right of way also right-of-way (rtv-w) n. pl.
rights of way or right of ways
1. a. The right to pass over property owned
by another party.
b. The path or thoroughfare on which such
passage is made.
2. The strip of land over which facilities such
as highways, railroads, or power lines are
built.
3. The customary or legal right of a person,
vessel, or vehicle to pass in front of
another.
What is an Easement?
• Easement
n. the right to use the real property of another
for a specific purpose. The easement is itself
a real property interest, but legal title to the
underlying land is retained by the original
owner for all other purposes. Typical
easements are for access to another property
(often redundantly stated "access and
egress," since entry and exit are over the
same path).
Asset Management
• GIS systems
www.bia.gov/WhatWeDo/ServiceOverview/Geo
spatial/index.htm
OTSGS site for Federally Recognized Tribes
to obtain software through the BIA’s Enterprise
License agreement
? – How can you manage your assets if you
don’t know what your assets are?
The DOI-BIA ESRI Enterprise
License Agreement (ELA)
• The BIA, Federally Recognized Tribal
Entities (FRTE) and PL 93-638 compacted
organizations can obtain specific Esri
products through the Office of Trust
Services Geospatial Support (OTSGS) at
no cost. The OTSGS administers the
configuration, distribution, and support of
the Esri products related to the
Agreement.
The ELA provides:
• ArcGIS core software and most extensions
• Select Virtual Campus Standard Subscription
courses and workshops
• Paid maintenance for existing products
• A limited number of Esri specialty products
• Discounts on purchases of other Esri and
third-party royalty products
• Technical Support: All technical support
inquiries should be directed to the OTSGS
Help Desk
DEFINITIONS
• Definitions of terms common to Indian
Country
CHECKERBOARD
• Indian lands that were alienated as a result of the
General Allotment Act of 1887 were sold or
transferred to non-Indian parties but remained
within reservation boundaries. As a result, trust
lands, fee lands, and lands owned by tribes,
individual Indians and non-Indians are mixed
together on the reservation.
• Lands within reservation boundaries may be in a
variety of types of ownership—tribal, individual
Indian, non-Indian, as well as a mix of trust and
fee lands. The pattern of mixed ownership
resembles a checkerboard.
• Alienated Land
Land that has had its ownership transferred
to another party.
• Allotted Land
Reservation land the federal government
distributed to individual Indians, generally in
40-, 80-, and 160-acre parcels.
• Allottee
An individual who owns an undivided interest
in a parcel of allotted land.
• Beneficial Use
The right to benefit from (live on, use, profit
from) a parcel of land, the legal title to which
is held by the trustee. In the case of Indian
land, the trustee is the federal government.
• Chain of Title
A report of the ownership history from the
government allotment or trust patent to the
current owners.
• Escheat
The reversion of the property of a deceased
person to the government when there are no
legal heirs.
• Fee Simple (Fee Land)
Land ownership status in which the owner holds
title to and control of the property. The owner may
make decisions about land use or sell the land
without government oversight.
• Fee-to-Trust Conversion
When original allotted trust lands that were
transferred to fee simple status are returned to
trust status. Tribes or individual Indians can initiate
the process on fee lands they already own or
lands they acquire. In general, this conversion can
take as much as two years.
• Forced Fee Patents
A trust-to-fee conversion without the request,
consent, or knowledge of the landowner. Forced
fee patents led to the loss of many land parcels
through tax foreclosure sales.
• Fractionated Ownership (Fractionation)
When a trust parcel is owned by more than
one owner as undivided interests.
Fractionated ownership results from
ownership interests being divided again and
again when an owner of the interest dies
without a will providing for the distribution of
the asset.
Trust parcels with fractionated ownership
often have hundreds, sometimes thousands,
of owners. By law, a majority of owners must
agree to a particular use of the land, making
it difficult for any one of the owners to use the
land (i.e. for farming, building a home or
starting a business).
• Indian Land Tenure
The terms and conditions by which Indians
hold land.
• Indian Landowner
Any tribe or individual Indian who owns an
interest in Indian land in trust or restricted
status.
• Interest
When used with respect to Indian land, an
interest is an ownership right to the surface
estate of Indian land that is unlimited or
uncertain in duration.
• Off-Reservation Trust Land
Land outside the boundaries of a reservation that
is protected by the federal government for Indian
use. For example, these pieces of land could be
religious sites or pieces allotted to individuals out
of the public domain.
• Patents-in-Fee
The “patent” is the title deed by which the federal
government conveys or transfers land to people.
“In fee” refers to the fee simple ownership in land.
The term “patent-in-fee” describes the title
document issued by the U.S. Federal Government
to terminate the trust created by the trust patent
issued to the allottee.
• Restricted Fee Land
The ownership is the same as fee simple land, but
there are specific government-imposed restrictions
on use and/or disposition.
• Tenancy in Common
The most common form of ownership of rights to
land held in trust for Native Americans. Tenants in
common have unity of possession, which means
that every owner has an equal right with their coowners to the land as long as they live. A tenant in
common has an undivided interest in the whole
property as if they were the sole owner, and can
transfer their interest by gift, sale or will. A tenant
in common can also decide who will own their
interest when they pass away.
• Title Status Report (TSR)
Also referred to as an Interest Report
Simple or Interest Report, a TSR takes the
place of a title commitment for land that is
held in trust. The TSR is a necessary
precursor to issuing a mortgage for a
property on trust land.
• Tribally-Owned Land
Land that is owned by a group of Indians
recognized by the federal government as
an Indian tribe.
• Trust Land
Land owned either by an individual Indian or a
tribe, the title to which is held in trust by the
federal government. Most trust land is within
reservation boundaries, but trust land can also
be off-reservation, or outside the boundaries
of an Indian reservation.
• Trust Patent
Individual Indian allottees were issued
documents called “trust patents” to verify that
their land was held in trust by the government.
Trust-to-Fee Conversion
• The conversion of lands held in trust by the
U.S. Federal Government to fee simple
status. With the passage of the Burke Act of
1906, Indian lands held in trust were
converted to fee status if the Secretary of the
Interior determined that the Indian landowner
was competent. Today, trust lands can be
converted to fee status in 30 days. Only
individual Indian landowners can request a
trust-to-fee conversion.
Why do we need a RW?
• ROW must be addressed for several
aspects of managing a road system
“Public Road” Requirements
• Easement must be held by a
Governmental Body w/ Police Power
• Easement must be for Construction,
Operations & Maintenance of Facility
• Easement must be on IRR/TTP Inventory
• Easement must be in perpetuity (Or a
minimum, the lifespan of the Federal
Dollars expended)
Multiple Managers
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Tribes
Local Units of Tribal Government
Villages
Chapters
Districts
Municipalities
State
City
County
Multiple Uses
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Construction
Maintenance
Inventory
Open range
Utilities
Vendors
Tort Liability
Utilities and other ROW inhabitants
Enhancements
Conservation Easements
FEDERAL INTEREST
1. A FEDERAL, STATE DOT, LOCAL PUBLIC
AGENCY, OR OTHER ROAD
MAINTAINING AGENCY REQUESTS A
RIGHT OF WAY ACROSS TRIBAL
PROPERTY INTERESTS, TRUST, OR
ALLOTTED LAND, AS PART OF A
FEDERAL AID PROJECT.
2. A TRIBE RECEIVES FEDERAL FUNDING
AND RESPONSIBILITY FOR ACQUIRING
RIGHT OF WAY FOR A FEDERAL LANDS
PROGRAM OR PROJECT.
FEDERAL AID HIGHWAYS
23 U.S. CODE 103 CHAPTER 1
1.
2.
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INTERSTATE SYSTEM
NATIONAL HIGHWAY SYSTEM
Federally assisted State program.
State receives federal funds.
State is responsible for program
administration in partnership with SDOT.
FHWA provides oversight, stewardship and
approvals.
Uniform Relocation Act
• 1970: Public Law 91-646—”Uniform
Relocation Assistance and Real
Property Acquisition Policies Act”
• 1987: Public Law 100-17—”Surface
Transportation and Uniform Relocation
Act Amendments”
FEDERAL LANDS HIGHWAY
23 U.S. CODE 204 CHAPTER 2
“… public roads are to be treated under uniform
policies similar to the policies that apply to Federalaid highways, …a coordinated…program that shall
apply to public lands highways…… and Indian
reservation roads (IRR) and bridges.”
• Funded by FLH; Jointly administered by FHWA and
BIA
• Developed and constructed by FLH, BIA, Tribe or
jointly.
• ISDEA – Tribal Self-Determination Policy and Law.
• Federal Trust Responsibility
TTP Definition
• (12) INDIAN RESERVATION ROAD.—. .
public road that is located within or
provides access to an Indian reservation or
Indian trust land or restricted Indian land that
is not subject to fee title alienation without the
approval of the Federal Government, or
Indian and Alaska Native villages, groups, or
communities in which Indians and Alaskan
Natives reside, whom the Secretary of the
Interior has determined are eligible for
services generally available to Indians under
Federal laws specifically applicable to
Indians.
FEDERAL LANDS HIGHWAYS
• Indian Reservation Roads/ Bridge program is
an integral part of the FLH Program
• FHWA has direct oversight and coordination
responsibilities
• IRR is jointly administered by FHWA and BIA
• Federal roads treated under uniform policies
similar to Federal Aid highways
• Federal Trust Responsibility balanced with
Tribal/Allottee beneficial ownership
PROPERTY
INTEREST FOR RIGHT OF WAY
TENURE OF RIGHT OF WAY
• All ROW shall be easements
• Term may be without limitation
• 25 CFR 169.18
ADEQUACY OF REAL PROPERTY INTEREST
• Acquire ROW adequate for the construction,
operation and maintenance of a project and for the
protection of both the facility and the traveling
public.
• 23 CFR 1.23 23CFR 710.201
Request for Easement on Tribal
Trust/Restricted Land
• BIA is sole authority to issue right of way
easements across trust lands or otherwise
restricted land, under BIA jurisdiction
• Tribe or allottee must consent to the easement
• FHWA Guidance Recognizes Unique BIA Role
• Each State has an FHWA approved ROW
manual with instructions for acquiring right of
way easements on tribal trust or restricted
lands
Tribe or BIA Acquires Right of Way
For a Federally Funded Project
• FHWA Programs; Federal Aid, Federal
Lands Highway and Programs Run by other
Federal Agencies
• Same Basic Requirements in each program;
There may be additional requirements,
exceptions or conditions in the Program
Legislation
• Check with Program Agency for guidance
• Determine Agency with Jurisdictional
Authority
EASEMENT AUTHORITY ON
TRIBAL LAND
• Primary authority for granting ROW across
trust and restricted land - 25 USC 323-328
• BIA regulations appear at 25 CFR 169
GENERAL APPROVAL
PROCESS
1. BIA Approves Appraisals
• Allottee Ownership
BIA/ State DOT Secures Consent from Property
Owner
Fractionated ownership of heirs
2. Tribal Ownership
• Resolution or Consent to Acquire from Tribal
Council
• BIA Superintendent Approves Easement Grant
The R/W Process
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Plans and Title
Appraisal
Appraisal Review
Negotiations
Acquisition
Condemnation
Relocation
Property management
R/W Certification
Plans & Title
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Order Title Reports
Obtain Title Insurance Commitment
Examine Condition of Title
Write Legal Descriptions
R/W Plans & Title (cont.)
R/W plans should show:
• Parcel Numbers
• Property lines
• Old & New R/W Limits
• Before/After/Acquire Areas
• Survey Or Centerline
• Sufficient Ties For Legal Descriptions
• All Rights To Be Acquired
• PE/PLS Signed & Stamped
Appraisal
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Define the Appraisal Problem
Collect Data
Highest & Best Use Analysis
Land Value Conclusion
Three Approaches to Value:
Cost, Income, Market
* Conclude and Report Value
Negotiations/Acquisition
* Title III – Uniform Relocation Act
* Formal offer to purchase based on
estimate of just compensation
* Owner must be given adequate time to
review and accept offer
* If offer is not accepted, agency may make
an administrative settlement in excess of
the agency’s appraisal of fair market value
(may be based on owner’s counteroffer)
Condemnation
* If no settlement is reached,
condemnation is filed
* AG obtains order adjudicating
public use (establish necessity)
* If immediate possession is
required, AG will request a
stipulated “possession and use”
* Must deposit Department’s
estimate of just compensation
with the court for property owner
Acquisition by Condemnation
* If immediate possession and use is not
required, AG will proceed to trial
* Settlement conference
* Trial to determine
just compensation
* Judgment and decree
Relocation Assistance
• Title II -- Uniform
Relocation Act
• “Any person who
moves from real
property or
moves personal
property from
real property.”
Relocation Assistance
* Determine Occupancy Status
* Find DSS Comparable Replacement
Housing
* Replacement Housing Payment (RHP)
* Moving Expenses
* Advisory Services
* 90-day Assurance
R/W Certification
Three types of Certifications:
1. All R/W acquired, occupants
moved.
2. Not all R/W acquired, but
right of entry obtained,
occupants moved.
3. Acquisition not complete,
some occupants still on
project.
Regarding R/W Certification #3
(cont)
“The State may request
authorization on this basis
only in very unusual
circumstances. This
exception must never
become the rule.”
23 CFR 635.309(c) (3)
THANK YOU!
Any Questions?
• James Brophy
TTP Tribal Coordinator,
Realty Specialist
610 East 5th Street
Vancouver, WA. 98661-3801
360-619-7953 Office