Don’t ask, don’t tell still exists in Indian Country
This article is the first in a series of issues concerning rights-of-ways across Indian lands. This issue is probably the most misunderstood or confusing use of land in Indian Country. Today I will address restricted uses or purposes of rights-of-way. Be sure to read the entire series because I know it will answer a lot of your questions and help you to more effectively negotiate rights-of-way across your Indian lands.
On September 20, 2011, the U.S. military policy of “Don’t ask, Don’t tell” ended. Unfortunately, Indian Country’s version of “Don’t ask, Don’t tell” has not ended. I’m referring to the policy of not telling Indian Country that no doesn’t always mean no. Within the legal limits of the law, there are sometimes ways to work around the bureaucratic red tape and accomplish positive effects in the management of Indian trust lands. If you don’t ask, you won’t find out. And even when you get a verbal answer, require it be given to you in writing within so many days or file a written request and follow up with an appeal due to inaction under 25 CFR Part 2. You can’t afford not to.
Throughout the past several years, and even more recently, I am told by Indian trust mineral and land owners that “the BIA didn’t tell me that.” Or “the BIA said I couldn’t do that.” Common answers that allow the continued course of keeping a people who sit on vast resources that are sought by others from achieving economic success. Although I worked 27 years for the Bureau of Indian Affairs (“BIA”), I can confidently say that I was not part of that when opportunities arose to help Indian folks find a way to get things done. I looked long and hard to find a way to make something good happen so long as it wasn’t illegal and it was beneficial to the Indian landowner.
In Houle, et al., Plaintiffs, v. Central Power Electrical Cooperative, Inc., et al., Defendants, the final pre-trial conference is set for May 21, 2013. This case is very interesting and one I have followed since the beginning. Primarily, because in my former employment, I was responsible for negotiating and processing the granting rights-of-way across Indian lands.
“The sad part is that the recent Cobell Settlement may have released trespassers from being assessed trespass damages and rent from the inception of the trespass until after September 30, 2009 pursuant to the terms of the settlement agreement accepted by Cobell class members. But, I have an idea how to make this work for folks in this situation. Just ask me!”
But also because this case challenges the long standing practice of issuing “use permits”, which is “piggybacking” or “trespassing“,to utility companies within BIA rights-of-ways grants for purposes other than the stated purpose within the easement. Rights-of-Way and easements is an interchangeable term.Central Power (“CP”) attempted to obtain the Houles’ consent to an easement for a 45′ wide strip of land adjacent to the right-of-way for the Bureau of Indian Affairs (“BIA”) Road No. 5 as it runs from the north to south across the easterly edge of the Houles’ Turtle Mountain Band of Chippewa allotment. When CP could not reach an agreement with the Houles, it commenced construction anyway. CP argued it had the right to proceed with construction because it had obtained an occupancy permit from the BIA, which it contended was the only approval it needed for the location of the transmission line within the BIA’s road right-of-way. Houle’s reply to the brief included the following question:
“Is permission granted by the USA to allow the sharing of a roadway right-of-way for a non-conforming use the legal equivalent of a grant of an easement for the new non-conforming use?”
Essentially, a use permit circumvents the entire right-of-way process outlined in 25 U.S.C. §§ 323-328. Grants of Rights-of-Way always specify the “Purpose” of the grant and use of the easement is limited to the identified use. In other words, an easement for the construction and maintenance of a road restricts future uses such as a telephone line, or internet coaxial development “without” the consent of the Indian landowner. Piggybacking usually means no additional compensation and potential overburdening of the land which BIA is required to determine before it can grant a right-of-way.
Overloading of an easement is a concept that has to do with an attempt to grant the benefit of an existing easement to other land, which did not previously enjoy the right. The “overburdening” of an easement relates to an attempt to expand the use of the easement as to the same property but for different or expanded purposes and usually without the written consent of the landowners.
Just think about it. If you have a 66 foot strip of your land encumbered by a BIA road with a damage payment for their use of the land, and then subsequently an electric power line, gas utility line, internet or cable television line, and other purposes, are constructed, you may receive compensation only from the BIA for their road. That means you loss compensation from 4 or more other uses. The BIA road appraisal only encompasses the value of the taking of the land for a road use and usually the BIA would not generate income from the use. But the other types of uses generate income and therefore the value of the taking should be more meaning more income for the landowner. Usually doesn’t happen though.
Houle may forever change this practice, or at least cause road easements to include other purposes as stated in their applications which would then change the scope of work to be performed in an appraisal which should increase the value. This is a case to watch and root for the Indian.
Some landowners come back to visit family on the reservation and check out their land only to find out that there are various uses of their land which they were not aware of until the field visit. Don’t ask and don’t get told. I say ask, and make them tell.
Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com/