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Tribal Land Right-of-Way Overview (3-FD-b)

Information current as of 2020
In the United States, a developer may need a Right-of Way from an Indian tribe and/or the Bureau of Indian Affairs (BIA) to develop a project over and across tribal land. 25 U.S.C. § 324; 25 U.S.C. § 2218; 25 U.S.C. § 3504. Specifically, a developer may need a Right-of-Way from a tribe that that owns the land in fee simple. A developer may also need a Right-of-Way from a tribe to develop a project over or across tribal land either pursuant to a Tribal Energy Resources Agreement (TERA) approved by the Secretary of Interior or the Indian Land Consolidation Act:
  • To explore for, extract or develop energy mineral resources of the Indian tribal located on tribal land including, but not limited to, marketing or distribution;
  • To construct or operate an electric generation, transmission, or distribution facility located on tribal land; and
  • A facility to process or refine energy resources developed on tribal land. 25 U.S.C. § 2218; 25 U.S.C. § 3504.


In addition, a developer may also need a Right-of-Way from BIA to access any lands held in trust by the United States for individual Indians or Indian tribes, communities, bands, or nations or any lands owned by individual Indians or Indian tribes, communities, bands, or nations that are subject to restrictions against alienation. 25 U.S.C. § 323. The BIA may also prescribe conditions with any Right-of-Way. 25 U.S.C. § 323.


Indian tribes and BIA regulate right-of-way access over and across any land belonging to a tribe or held in trust or restricted by the Secretary of the Interior on behalf of a tribe pursuant to 25 U.S.C. § 324, 25 U.S.C. § 2218, and 25 U.S.C. § 3504.


Hydropower

A Federal Energy Regulatory Commission (FERC) licensed hydropower project seeking a right-of-way "upon tribal lands within a reservation for the purpose of constructing, operating, or maintaining dams, water conduits reservoirs, powerhouses, transmission lines or other works" do not need a Right-of-Way. 25 C.F.R. §169.1(c). Instead, BIA utilizes its mandatory 4(e) conditioning authority pursuant to the Federal Power Act to issue conditions to FERC for inclusion in a FERC License for projects located on tribal land within a reservation to ensure the protection and utilization of tribal lands and resources. 16 U.S.C. § 797(e). "Reservation" means "national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but that do not include national monuments or national parks." 16 U.S.C. § 796(2).



Tribal Land Right-of-Way Overview Process


3-FD-b.1 to 3-FD-b.2 – Is the Land Owned by a Tribe in Fee Simple?

The developer should negotiate directly with the Indian tribe with jurisdiction to access tribal lands if the tribe owns the land in fee simple. To own land in fee simple means to own it "completely, without any limitations or conditions." Legal Information Institute – Fee Simple Definition Webpage. Land owned by the tribe in fee simple is not subject to BIA control and any leasing or easements related to such lands do not require BIA approval. If the tribe owns the land in fee simple, then the developer should negotiate with the tribe as it would with any other private landowner.

3-FD-b.3 to 3-FD-b.4 – Is the Land Owned by a Tribe with a Tribal Energy Resources Agreement (TERA)?

The developer may negotiate with the Indian tribe with jurisdiction to obtain a Right-of-Way if the tribe has a Secretary-approved TERA. 25 U.S.C. § 3504(b). A tribe can grant rights-of-way over tribal land without review or approval from the Secretary if the right-of-way was granted pursuant to a TERA for a term of no more than 30 years and serves one of three types of facilities:

  • An electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land;
  • A facility located on tribal land that extracts, produces, processes, or refines energy resources; or
  • The purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land.

25 U.S.C. § 3504(b). Tribal land means "any land or interests in land owned by any Indian tribe, title to which is held in trust by the United States, or is subject to a restriction against alienation under laws of the United States." 25 U.S.C. § 3501(13). For more information, see:

TERA Right-of-Way:
3-FD-h
.

3-FD-b.5 to 3-FD-b.9 – Is the Bureau of Indian Affairs (BIA) Leading the Right-of-Way Negotiations?

The developer may negotiate a Right-of-Way with individual Indian tribe landowners pursuant to the Indian Land Consolidation Act. The Indian tribe landowners may grant the Right-of-Way directly to the developer after obtaining approval from the BIA. The developer must first obtain consent from a certain percentage of the tribal landowners:

  • For land with five (5) or fewer owners of the undivided interest, the developer needs consent from 90 percent of the landowners;
  • For land with more than five (5) and fewer than 11 owners, the developer needs consent from 80 percent of the landowners;
  • For land with more than 10 owners but fewer than 20 owners, the developer needs consent from 60 percent of the landowners; and
  • For land with 20 or more owners, the developer needs consent from a majority of the landowners.

25 U.S.C. § 2218(b).

After obtaining consent from Indian tribe landowners, the developer must provide notice of the written consent to approve the Right-of-Way to BIA. BIA will not approve the Right-of-Way unless it determines that the developer has obtained written consent from the required percentage of the affected Indian landowners and that the grant is in the best interests of the Indian landowners. 25 U.S.C. § 2218(a).

3-FD-b.10 to 3-FD-b.11 – Contact the BIA to Inquire About Acquiring a Right-of-Way

The developer must contact the BIA to inquire about acquiring a Right-of-Way across tribal land. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 14. The BIA then provides a Right-of-Way Application. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 14, 20.

3-FD-b.12 – Hold Preliminary Discussions

The BIA holds preliminary discussions with the developer and the Indian tribe landowner to gather information that will help the BIA know what background information is needed to conduct a complete investigation of the Application. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 14-15. At minimum, these discussions should address the following topics, if applicable:

  • Intent of the parties;
  • A legal description;
  • Purpose;
  • Term;
  • Provisions to be made inclusive in the Grant of Easement for Right-of-Way;
  • Permission to survey;
  • Landowners' consents;
  • Tribal resolution;
  • Maps;
  • Improvements;
  • Consideration or compensation, including appraisal;
  • Payment;
  • Fees;
  • Renewal;
  • Suitability of purpose in relation to the land;
  • Affidavits and certificates;
  • Insurance;
  • Bonds;
  • Business plans;
  • Feasibility analysis;
  • Environmental and historic preservation compliance;
  • Limited power of attorney;
  • Termination;
  • Condemnation; and
  • Tribal jurisdiction.

Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 14-15.

3-FD-b.13 to 3-FD-b.15 – Consent for Permission to Survey

The Indian tribe landowner(s) must complete a Consent for Permission to Survey form that the developer submits to the BIA with the Application for Permission to Survey. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 15-16, 27. The developer can submit a written request to the BIA to obtain a list of the names, addresses, and ownership interest percentages of the neighboring landowners. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 15-16.

At the time the developer submits their Application for Permission to Survey, the BIA also determines double the estimated damages that may be caused by the survey. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 15.

3-FD-b.16 – Submit Tribal Resolution

The developer also needs to obtain and submit a resolution from the tribe's federally recognized governing body that is signed by the tribe's authorized officials and includes the following information:

  • The name of the tribe;
  • A statement specifically addressing what the tribe is requesting the BIA to approve;
  • A land description;
  • The tract allotment number, if applicable;
  • The tribal organizational authority;
  • Authority for the signatories;
  • The date the resolution was signed; and
  • The date the tribe met on the resolution if that date is different than the date on which the resolution was signed.

Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 15-16.

3-FD-b.17– Request Title Status Report

The BIA must request a Title Status Report from the BIA Land Titles and Records Office (LTRO) to verify the land ownership information and consent provided by the developer. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 16, 25.

3-FD-b.18 to 3-FD-b.19 – Perform Survey

The developer must prepare a map or plat and field notes prepared by a registered land surveyor to the BIA. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 16. The map can be submitted in hardcopy on a permanent and reproducible material or as a GIS map that is geo-rectified to common PLSS survey points. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 16. The map must also include the following:

  • The specific location of the Right-of-Way;
  • The allotment number of each tract of allotted land;
  • The section, township, and range of the lands to be crossed by the Right-of-Way; and
  • A scale of 2,000 feet to the inch or larger.

Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 16.

With the map and field notes, the developer must also submit an Engineer's Affidavit filled out by the engineer who completed the survey and an Applicant's Certificate filled out by the developer that certifies the accuracy of the survey and maps. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 16, 31-33.

3-FD-b.20 to 3-FD-b.21 – Perform Baseline Field Inspection

BIA must inspect the property and document its condition (Report of Investigation) prior to granting the Right-of-Way. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 17. The Report of Investigation must include photos of the proposed area, notes on the original condition of the land, and, if applicable, notes on any existing conditions that may have an adverse impact on the land and resources. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 17.

3-FD-b.22 – Request Valuation of the Property

The BIA must submit a request for valuation of the property from the Office of Appraisal Services. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 17, 35. The appraisal (i.e., the fair market value for the right to use the land) is combined with any consideration for severance damages to determine the minimum compensation owed for the use of the land. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 17.

3-FD-b.23 – Consult with Regional Environmental Staff and the Regional Archaeologist

The BIA must consult with regional environmental staff and the regional archaeologist to determine what action, if any, are needed in order to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m, the National Historic Preservation Act, 54 U.S.C. §§ 300101-307108, and the Endangered Species Act, 16 U.S.C. §§ 1531-1544. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 17-18.

3-FD-b.24 – Provide Consent to BIA to Grant the Right-of-Way

The tribe must provide written consent to BIA before BIA can grant a Right-of-Way over tribal trust lands. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 18, 43. The written consent must include the minimum compensation amount for use of the land determined by the valuation process. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 18.

3-FD-b.25 – Right-of-Way Application

The developer must submit two copies of a complete Right-of-Way Application (Application) to the BIA Realty Office. Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, p. 18. A complete Application should include, at minimum:

  • Identification of:
    • The developer;
    • The tract(s) or parcel(s) affected by the Right-of-Way;
    • The general location of the Right-of-Way;
    • The purpose of the Right-of-Way;
    • The duration of the Right-of-Way; and
    • The ownership of permanent improvements associated with the Right-of-Way and the responsibility for constructing, operating, maintaining, and managing permanent improvements under 25 C.F.R. § 169.105;
  • Bond(s), insurance, and/or other security meeting the requirements of 25 C.F.R. § 169.103;
  • Record that notice of the Right-of-Way was provided to all Indian landowners;
  • Record of consent for the Right-of-Way meeting the requirements of 25 C.F.R. § 169.107, or a statement requesting a Right-of-Way without consent under 25 C.F.R. § 169.107(b);
  • Satisfactory evidence of good faith and financial responsibility of the developer;
  • Appraisal to determine damages;
  • A deposit equal to the total estimated consideration and damages, which includes:
    • consideration for the Right-of-Way
    • severance damages,
    • damages caused during the survey, and
    • estimated damages to result from construction, less any deposit previously made;
  • A written statement from federal or state government agencies that the applicant will pay damages when they are sustained (because they are prohibited by law from depositing

advance damages or agreeing to indemnification);

  • State certified copy of corporate charter or articles of incorporation, or a reference to the date and place this information was previously filed;
  • If the applicant (developer) is an unincorporated partnership or association, a certified copy of the Articles of Partnership or Association, or each member of the partnership or association must sign that there are no Articles of Partnership or Association;
  • If the applicant (developer) is a corporation, limited liability company, partnership, joint venture, or other legal entity, except a tribal entity, information such as organizing documents, certificates, filing records, and resolutions demonstrating that:
    • The representative has authority to execute the Application,
    • The Right-of-Way will be enforceable against the applicant (developer), and
    • The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located;
  • Map of the Right-of-Way's definite location (i.e., survey map and field notes);
  • A tribal resolution submitted by the tribe’s Federally recognized governing body and signed by duly authorized tribal officers, if tribal land is involved;
  • An accurate legal description of the Right-of-Way, its boundaries, and parcels associated with the Right-of-Way;
  • A valuation of the property;
  • Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements; and
  • A statement from the appropriate tribal authority that the proposed use is in conformance with applicable tribal law, if required by the tribe.

25 C.F.R. § 169.102(a)-(b); Grants of Easement for Rights-of-Way on Indian Lands Procedural Handbook, pp. 18-19.

3-FD-b.26 to 3-FD-b.29 – Review Application for Completeness

The BIA must review the Application for administrative and technical completeness. 25 C.F.R. § 169.123. The BIA notifies the developer promptly of whether the Application is complete. 25 C.F.R. § 169.123. If the Application is not complete, the BIA's notice to the developer identifies any missing information or documents in the developer's Application package. 25 C.F.R. § 169.123. If the Application is complete, the BIA notifies the developer of the date they received the complete Application. 25 C.F.R. § 169.123.

3-FD-b.30 to 3-FD-b.34 – Review Application for Approval

The BIA reviews a complete Application for approval. Within 60 days, the BIA either makes a decision on the Application, returns the Application for revisions, or notifies the developer that they need additional time to review the Application. 25 C.F.R. § 169.123. If the BIA needs additional time to review the Application, then the BIA informs the developer of their initial concerns and allows 15 days for the developer to respond. 25 C.F.R. § 169.123. Within 30 days of informing the developer of the need for an extended review, the BIA either grants or denies the Application. 25 C.F.R. § 169.123.

The BIA grants Rights-of-Way if all of the requirements under 25 C.F.R. §§ 169.1-169.415 have been met and the BIA determines that granting the Right-of-Way is in the best interest of the Indian landowners. 25 C.F.R. §§ 169.123-169.124. To determine if a Right-of-Way is in the best interest of the Indian landowner, the BIA may require the developer to make modifications or implement mitigation measures necessary to satisfy any requirements including any other Federal or tribal land use requirements. 25 C.F.R. § 169.123. The BIA defers as much as possible to the Indian landowners' determination of whether a Right-of-Way is in their best interest. 25 C.F.R. § 169.124.

The developer or an Indian landowner may appeal the BIA's decision to deny a Right-of-Way within 30 days of that decision following the procedure outlined in 25 C.F.R. §§ 2.1-2.21. 25 C.F.R. § 169.13; 25 C.F.R. § 2.9(a).

3-FD-b.35 – Right-of-Way

The developer must comply with the conditions or restrictions that the Indian landowners provided in their consent forms as well as the other conditions listed at 25 C.F.R. § 169.125. 25 C.F.R. § 169.125(a).

3-FD-b.36 – Appeal BIA Decision (Optional)

Any person adversely affected by the BIA's decision may appeal the decision to approve a Right-of-Way. 25 C.F.R. § 2.3(a).

3-FD-b.37 – Record Right-of-Way

The BIA immediately records an approved Right-of-Way in the LTRO with jurisdiction over the affected land. 25 C.F.R. § 169.125.

3-FD-b.38 – Pay Compensation

The developer must pay compensation for the Right-of-Way either in one lump sum, due by the date the BIA grants the Right-of-Way, or in increments, with the payment due dates clearly outlined in the Right-of-Way grant. 25 C.F.R. § 169.115.


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