CHAPTER 9 INDIAN LANDS RIGHTS-OF-WAY

• Jurisdiction: United States

Energy & Mineral Development in Indian Country
(Nov 2014)
CHAPTER 9
INDIAN LANDS RIGHTS-OF-WAY
Colby L. Branch
Partner
Crowley Fleck PLLP
Billings, Montana
Alan C. Bryan
Partner
Crowley Fleck PLLP
Billings, Montana

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COLBY L. BRANCH is a partner in Crowley Fleck PLLP's Billings, Montana Energy, Environment and Natural Resources Department. His practice focuses on oil and gas law and Native American law, including title examination of federal, fee, state, and Indian lands; contract matters; and representing clients before state and federal regulatory agencies. A significant component of his practice involves the representation of clients in the negotiation and implementation of natural resource exploration and development projects on Indian Reservations. Colby graduated with highest honors from the Gonzaga University School of Law. He also holds a M.S. degree in Geology, and worked as a petroleum geologist prior to attending law school. He reports for the Rocky Mountain Mineral Law Foundation on recent developments in Montana oil and gas law, and has presented several papers pertaining to mineral development on Indian Reservations at the Foundation's Special Institutes. Colby presently serves as the Upstream President of the Montana Petroleum Association.

ALAN C. BRYAN is a partner with Crowley Fleck PLLP in the Commercial Department of their Billings, Montana office. He has been with the firm since 1997 and is a past chairman of the Commercial Department. Alan's practice emphasizes transactional and financing projects, including matters involving Native American issues. Alan has represented clients in the leasing, acquisition, development, and divestiture of a diverse range of commercial properties, including real estate development and construction, oil and gas properties, coal and hardrock mines, energy gathering and transportation systems, and wind energy. Alan's financing practice includes multi-state and international financing of commercial properties, oil and gas properties, and mining and wind energy projects. Alan's practice also includes matters involving Tribal and Native American issues, such as leasing and development of commercial projects located on Indian reservations, acquisition of rights-of-way for oil and gas development and transportation, negotiating mineral development agreements with Tribes and individual Allottees, wind energy projects, financing, and litigation involving Native American issues. Alan is licensed to practice in Montana, North Dakota, and Wyoming, and is admitted to practice on numerous Indian reservations.

TABLE OF CONTENTS

I. INTRODUCTION

II. FEDERAL INDIAN POLICY AND LAND OWNERSHIP

III. STATUTORY RIGHTS-OF-WAY

A. Early Legislation

1. Act of March 2, 1899

2. Act of February 15, 1901

3. Act of March 3, 1901

4. Act of March 11, 1904

5. Act of March 4, 1911

B. General Right-of-Way Act of 1948

C. BIA Regulations

D. Obtaining a Right-of-Way

E. Right-of-Way Valuation

IV. ALTERNATE SURFACE USE AUTHORIZATIONS

A. Business Leases

B. Wind and Solar Resource Leases

C. IMDA Agreements

D. TERA Rights-of-Way

V. EMINENT DOMAIN

A. Introduction

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B. Allotted Lands

C. Tribal Trust Lands

D. Mixed Interest Trust Lands

E. Tribal Fee Lands

VI. CONCLUSION

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I. INTRODUCTION

Indian reservations in the Western United States are commonly comprised of a haphazard checkerboard of fee,¹ tribal,² and allotted lands.³ This fragmented ownership, together with the fact that Indian trust lands⁴ are governed by federal rather than state law,⁵ creates land use issues not normally encountered outside of an Indian reservation.

At the outset, anyone contemplating business operations in an Indian reservation must be aware of a few basic tenets of Indian law: Congress has plenary power over Indian affairs and lands, subject only to constitutional limitations.⁶ No interest in trust lands, whether beneficially owned by a tribe or by an individual allottee, may be transferred or conveyed except as authorized by Congress.⁷ Any purported conveyance

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in violation of such authorization is void and of no effect.⁸ In view of these tenets, it is essential to ensure that any interest obtained in trust lands, whether by right-of-way, lease, or otherwise, is obtained in full compliance with applicable federal law and regulation, and that the resulting surface use does not exceed the scope of the interest granted.

This paper is intended to provide a practical summary of the means by which one may obtain a right-of-way or similar surface use authorization over Indian trust lands.⁹ An exhaustive review of regulatory procedure is not attempted. Issues specific to particular reservations or to particular applications are not discussed.

For the purpose of ensuring a common base of understanding, we begin with a very brief history of federal Indian policy and the result of this changing policy on land ownership within Indian reservations. Standard Indian rights-of-way are discussed, together with legal issues of current relevance. Alternate surface use authorizations are presented, and the scope and limitations of each method are briefly set out. Finally, we discuss access by the means of last resort, condemnation.

II. FEDERAL INDIAN POLICY AND LAND OWNERSHIP

Changing federal Indian policy through time has resulted in complex and fragmented land ownership within most Indian reservations. The discussion that follows is intended only to provide a common ground for presentation of the substance of this paper. For a more in-depth discussion of federal Indian policy and the effect of such changing policies on land ownership in Indian country, the reader is referred to the many prior publications from which this discussion is largely drawn.¹⁰

Through conquest, treaties, and purchase, the United States acquired the American West.¹¹ As settlement encroached on Indian homelands, the United States

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entered into treaties with Indian Tribes which recognized the tribes' aboriginal right to occupy certain lands in exchange for cession of other lands.¹² Other lands were "reserved" from the public domain for the sole use and benefit of individual tribes by Acts of Congress or Executive Orders.¹³ Legal title to the resulting lands, referred to herein as tribal lands, remained in the United States, but beneficial title vested with the tribe, to be held in common for the benefit of all living members of the tribe.¹⁴

For most Indian reservations, fragmentation began with the General Allotment Act of 1887, also known as the "Dawes Act."¹⁵ This legislation authorized the President to allot tribal lands in severalty to members of the tribe.¹⁶ Title to the allotted lands was to be held by the United States in trust for the benefit of the individual Indian allottee for 25 years, which term could be extended at the discretion of the President.¹⁷ At such time as all eligible members had received an allotment, the Secretary was authorized to negotiate with the tribe for the sale of any "surplus" lands to the United States.¹⁸ Such agreements were not final until ratified by Congress.¹⁹ All surplus lands suitable for agriculture were to be disposed of under the homestead laws.²⁰

The General Allotment Act was put into effect on a reservation-by-reservation basis through special Acts of Congress, which generally implemented (or, in some cases, superceded) the terms of that Act with regard to the allotment of tribal lands. Such implementing legislation also generally contained Congressional ratification of the Secretary's agreement with the tribe regarding the sale of surplus lands to the United States. Legislation implementing the General Allotment Act generally provided that surplus lands were to be disposed of under the homestead, mineral, and town site laws in effect at the time.

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The General Allotment Act effectively turned large blocks of tribal lands into checkerboards of allotted and fee lands. It also caused a "precipitous" decline in the total amount of Indian-owned land, from 138 million acres in 1887 to 48 million acres in 1934.²¹ Much of this land was patented directly to white settlers as surplus lands, but many allotments were also sold to non-Indians by the allottees, following receipt of a fee patent to their land.²²

Passage of the Indian Reorganization Act of 1934 ("IRA") signaled a dramatic reversal in federal Indian policy.²³ The IRA immediately halted the practice of allotment.²⁴ The trust period placed on remaining Indian lands was extended indefinitely.²⁵ The Secretary was authorized to restore to tribal ownership any remaining surplus lands in Indian reservations that had been opened to entry under the General Allotment Act, subject to all valid existing rights.²⁶

Lands restored to tribal ownership pursuant to the IRA were largely those that had gone unclaimed by allottees and settlers. The selection process resulted in the fragmentation of tribal lands. Though large blocks of tribal land do remain, a significant amount of tribal ownership has been reduced to separate and scattered tracts.

III. STATUTORY RIGHTS-OF-WAY

Rights-of-way are possessory interests in real property, and therefore can be granted over trust lands only by Congress or through a valid delegation of Congressional authority. The earliest rights-of-way across Indian lands were established by treaties negotiated by the executive, but ratified by the Senate.²⁷ In 1871, Congress put an end to treaty-making with Indian tribes by passage of a rider to an Indian appropriations act.²⁸

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Thereafter, Congress began a piece-meal process of authorizing individual rights-of-way as needed through special legislation.²⁹

On March 2, 1899, Congress passed the first of a series of general statutes authorizing the Secretary to grant rights-of-way across tribal and allotted trust lands for specific purposes.³⁰ These statutes served...