Nothing Changes but the Numbers on the Calendar
This article is the fourth and final article in a series of issues concerning rights-of-ways across Indian lands. Although this issue isn’t entirely about rights-of-way, it will address issues where either trespass or an undocumented right-of-way has occurred and what your rights as a landowner are. Trespass is defined at 25 C.F.R. § 166.800 as “any unauthorized occupancy, use of, or action on Indian agricultural land.” A right-of-way that may or may not have been authorized at some time in the past, or even in the present, is considered an undocumented right-of-way, or lacking documentation to verify that use or occupancy was granted by either the Bureau of Indian Affairs (BIA) or the landowner.
Trespassing is the oldest crime in history. In the Garden of Eden, Adam stole fruit from a tree that belonged to another. Man is always wanting something that belongs to someone else. It's ok if the owner of the property agrees to allow you use of the property, but absent the authorization of the owner, you are trespassing and there are consequences for that action. Eating fruit belonging to someone else still happens today. Nothing changes but the numbers on the calendar. Man still wants something that belongs to someone else and will take it if he can get away with it.
Trespass can occur either purposely or unknowingly by the unauthorized user. Unknowingly can occur when a legal description is incorrect, or the consent was obtained from someone other than the legal owner of title. Trespass can occur also when a landowner has leased or authorized use of the property and attempts to use the same ground for private use with no consent from the surface user.
My concern is the answer to the question “Did the Cobell Settlement release all past trespass claims against Indian lands?” So far, nothing has been said about this specific issue and the answer will determine what rights remain to Indian landowners in the pursuit of receiving damages and compensation for all unauthorized use. This could be the next billion dollar question, or least several million dollars in damages and compensation withheld due to trespasses.
This question is important because the Cobell settlement agreement (Agreement) explicitly states:
"…shall be deemed to have released, waived and forever (emphasis added) discharged the Releasees from, and the Mismanagement Releasors shall be deemed to be forever barred and precluded from prosecuting, any and all claims and/or causes of action that were, or should have been, asserted in the Amended Complaint when it was filed…”
The recipients of the payment, or IIM account owners, are the Releasors. This statement includes both Trust Administration and Historical Accounting Class members evidenced in the Agreement. Now, I’m not a lawyer, but I do understand the English language and the release stipulation clearly states that acceptance of the settlement releases the Federal Government from all past claims against the government. I guess even a bad deal is better than no deal?
Indian Country is constantly told that’s the best “we can do for you.” Another issue somewhat related to the Cobell Settlement is the enactment of the Indian Claims Limitation Act of 1982 (ICLA), or 28 U.S.C. § 2415, which provides:
“That an action to recover damages resulting from a trespass on lands of the United States; … may be brought within six years after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band or group of American Indians, including actions relating to allotted trust or restricted Indian lands, may be brought within six years and ninety days after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band, or group of American Indians, including actions relating to allotted trust or restricted Indian lands, or on behalf of an individual Indian whose land is held in trust or restricted status which accrued on the date of enactment of this Act…may be brought on or before sixty days after the date of the publication of the list required by section 4(c) of the Indian Claims Limitation Act of 1982.”
Normally, I don’t like to cite less than the full text of the statute so as not to be thought of out of context. However, the full text of the statute can be read here if you prefer to read the full context. The 2415 claims include claims against the government for trespass, forced fee patents, Secretarial transfers of land, and tax forfeiture of land previously owned in trust status. These claims number in the thousands. The Indian Claims Limitation Act of 1982 (ICLA) established a deadline for filing these types of claims.
Those existing claims identified under the Act and published in the federal register were given consideration as a valid claim to be determined by the Department. From that point forward, in order for a claim to be considered, it must be filed with the Department within 6 years 90 days after the claim of action occurred. In other words, if a road was constructed after the ICLA, the 6 years 90 days clock started and failure to file a claim during that time absolved the government of liability for the claim of action. The road would still be in trespass, but the presumption is that claims for past damages and compensation for a valid right-of-way were not required. However, to perfect the existing trespass, it is my opinion that an application should be made by the trespasser to negotiate a valid right-of-way which may not be a bad thing.
Courts have usually awarded damages and compensation for trespass at the value of the taking, or occupancy, at the time of the taking. If the taking occurred in 1920, the value could have been less than $100 for a 10 acre allotment whereas todays value might be as high as $40,000 an acre in some markets. The problem is if the road has existed and been used forever, and you were aware of it, your 6 years 90 days statute of limitation puts you in the same boat for past use expiring 6 years 90 days before you file a claim. Very confusing, but easily resolved.
Of course, one of the factors in determining the value of the taking is offset by the increased value benefit the landowner receives through the construction of the road. In other words, if your property sits on the front end of another parcel that lies on shorefront property on a lake, your property value is benefitted by the road because your property is worth more with lake or shorefront access so the taking value is diminished overall thereby reducing the taking value because it’s existence benefits the landowner rather than impedes you.
The final thought is that trespass has and will continue to occur. So you as a landowner must understand your rights and the responsibility of the BIA to protect your trust resources. If you are unsure that a legal right-of-way exists for a use on your property, require the BIA to provide you with a copy of the right-of-way. If the right-of-way copy can’t be produced, then you need to request the BIA investigate and provide a report and any documentation substantiating or disputing the validity of a right-of-way. It’s your land and it's time for a change other than just the numbers on a calendar.
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/
LINK: Read all 4 parts of the Rights-of-Way Series
Part 1 Don’t ask don’t tell
Part 2 Do you want to get married or just shack up?
Part 3 Don’t close our eyes because if they steal from God they will steal from you