NEGOTIATING RIGHTS-OF-WAY OVER TRIBAL LAND: A TRIBAL ATTORNEY'S PERSPECTIVE
| Jurisdiction | United States |
(Mar 2011)
NEGOTIATING RIGHTS-OF-WAY OVER TRIBAL LAND: A TRIBAL ATTORNEY'S PERSPECTIVE
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Washington, D.C.
REID PEYTON CHAMBERS served from 1973 to 1976 as Associate Solicitor for Indian Affairs of the U.S. Department of the Interior, the Department's chief legal officer with responsibility over Indian and Alaska Native matters. Since joining the firm in 1976, Mr. Chambers has represented tribes or other Alaska Native interests in litigation involving land, timber and water rights, hunting and fishing rights, reservation disestablishment, Alaska tribal rights and immunities, gaming law, tribal jurisdiction and taxation, oil and gas rights, and coal development. Mr. Chambers has codified tribal laws, advised Native American corporations on government procurement, and engaged in legislative advocacy on behalf of a variety of tribal interests. In 2003 Mr. Chambers represented the Bishop Paiute Tribe before the U.S. Supreme Court in Inyo County v. Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S.701 (2003). For over thirty years Mr. Chambers has taught a seminar on federal Indian law at Georgetown Law School. He has also taught the seminar several times at Yale Law School. In 1988, he served as the Chapman Distinguished Visiting Professor at Tulsa University Law School. Mr. Chambers is a co-author of the 1982 revised edition of Cohen's landmark treatise on federal Indian law and has published two oft-cited articles in the Stanford Law Review on federal Indian law issues, as well as a number of articles on Indian water rights. Mr. Chambers taught law for three years as a professor at the University of California at Los Angeles (UCLA), worked extensively with the Native American Rights Fund, and for three years practiced privately in Washington, D.C. at Arnold & Porter. He received his undergraduate degree from Amherst College in 1962 and received his law degree from Harvard Law School in 1967, where he was a member of the Board of Editors of the Harvard Law Review. He also holds a graduate degree in Economics from Balliol College, Oxford.
I. Introduction.
Two basic legal principles govern the grant of rights-of-way over tribal lands.
First, entities seeking rights-of-way over tribal lands cannot condemn these lands, because since the earliest days of the Republic, federal law has prohibited conveyances of Indian lands except as authorized by Congress.1 And Congress has never authorized condemnation of rights-of-way over tribal lands.2
Second, the law for at least the past six decades has specifically required tribal consent for any right-of-way over tribal lands. The Department of the Interior's rights-of-way regulations promulgated in 19513 and in force ever since it expressly requires all tribes to consent to all rights-of-way over tribal lands.4
A principal consequence of these two factors - the statutory requirement to obtain tribal consent for rights-of-way over tribal lands and the absence of any legal power to condemn rights-of-way over tribal lands - has been that in recent decades entities seeking grants of rights-of-way over tribal lands have usually paid more (indeed, sometimes considerably more) than for rights-of-way over private or public lands administered by the Bureau of Management or Forest Service which they believe are of comparable economic value. In addition, entities that obtained rights-of-way over tribal lands many years in the past have found that when those grants expire, tribes generally insist on greatly increased compensation to renew those grants as compared to the amount paid for
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the initial grant. The increased payments for grants or renewals of rights-of-way over tribal lands in recent years has produced a conflict of expectations - between private entities accustomed to rights-of-way being granted for much lower amounts, and tribes seeking to assert greater governmental and proprietary control over activities on their lands.
II. Interior and Energy Departments' study of compensation for tribal rights-of-way.
Apparently prompted by the conflict of expectations discussed above, Congress enacted Section 1813(b) of the Energy Policy Act of 2005, requiring the Departments of Energy and Interior to prepare a report to Congress containing:
(1) an analysis of historic rates of compensation paid for energy rights-of-way on tribal land;
(2) recommendations for appropriate standards and procedures for determining fair and appropriate compensation to Indian tribes for grants, expansions, and renewals of energy rights-of-way on tribal land;
(3) an assessment of the tribal self-determination and sovereignty interests implicated by applications for the grant, expansion, or renewal of energy rights-of-way on tribal land; and
(4) an analysis of relevant national energy transportation policies relating to grants, expansions, and renewals of energy rights-of-way on tribal land.5
In May 2007, after exhaustive consideration and consultations with both tribal and industry groups, the two Departments submitted their final Report to Congress entitled "Energy Policy Act of 2005, Section 1813 Indian Land Rights-of-Way Study," ("Study").
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This Study recommended no change in the law, concluding that "valuation of energy rights-of-way on tribal lands should continue to be based on terms negotiated between the parties." Id. at 54.6 The Departments reasoned that:
"The principle of tribal sovereignty is central to understanding the statutory and regulatory requirement of consent. Sovereignty is generally defined as the authority of a government to define its relationship with other governments, commercial entities, and others. A tribe's authority to confer or deny consent to an energy ROW across tribal land derives from its inherent sovereignty - the right to govern its people, resources, and lands. The present right of tribes to govern their members and territories flows from a historical and preexisting independence and right to self-government that has survived, albeit in diminished form, through centuries of contact with other cultures and civilizations. Most treaties include clauses intended to preserve this right of self-governance, at least with regard to tribes' internal affairs."
Id. at 19.
The Departments' Study continued that:
"[a]ny reduction in the tribe's authority to make that determination [of whether to consent to a right-of-way] is a reduction in the tribe's authority and control over its land and resources, with a corresponding reduction in its sovereignty and abilities for self-determination. Granting a ROW on tribal land only with the consent of a tribe is in accordance with the Federal policy of promoting tribal self-determination and self-governance."
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Id. at 21.
The Departments' Study, which focused on rights-of-way for pipelines and transmission lines transporting oil, gas and electricity, did find that the monies paid tribes for rights-of-way over their lands, especially the renewal of rights-of-way already in place, have increased significantly in recent decades, and noted that industry representatives generally feel they are paying more for rights-of-way over tribal lands than for comparable private lands. Study at 39. The Departments concluded, however, that these increased prices reflect the increased involvement of tribes "in the day-to-day decision-making and management of activities on tribal lands" and "the increased responsibilities assumed by tribes, such as cultural resource management and the provision of health, safety, and environmental protections." Id. at 36.
The Study also found that right-of-way compensation over tribal lands in the 1950s and 1960s - before most tribes became involved significantly in the process and where the Bureau of Indian Affairs (BIA) typically set the compensation with minimal tribal involvement - "was generally for damages calculated on a per rod or per acre basis." Id. at 25. When the BIA had appraised the value of the right-of-way during that time period, "BIA appraisers determined fair market value by using comparable easements as a standard and by determining the land's sale value on the basis of its highest and best use." Id. at 25.7 The Study reported that starting in the 1970s and 1980s - as tribes generally became more involved and protective of their interests - "types of consideration for energy ROWs began to vary. Per rod or per acre rates were
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replaced by annual lump sum payments, or compensation based on throughput, and/or tribal ownership interests (particularly for pipelines)." Id. at 25.
For sake of completeness, I should point out that the conclusions in the Departments' Section 1813 Study is not the first time the tribal consent requirement has been reaffirmed by Congress or the courts. When the Interior Department proposed in 1967 to revise BIA regulations governing tribal rights-of-way to weaken the tribal consent requirement, strong opposition by the House Committee on Government Operations8 and "great mistrust and apprehension on the part of...
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