RIGHT-of-WAY in INDIAN COUNTRY

Transcription

1 RIGHT-of-WAY in INDIAN COUNTRY REALTY and the TTP PROGRAM James Brophy FHWA Tribal Transportation Program

2 What is a Right-of-Way? right of way also right-of-way (rtv-w) n. pl. rights of way or right of ways 1. a. The right to pass over property owned by another party. b. The path or thoroughfare on which such passage is made. 2. The strip of land over which facilities such as highways, railroads, or power lines are built. 3. The customary or legal right of a person, vessel, or vehicle to pass in front of another.

3 What is an Easement? Easement n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated "access and egress," since entry and exit are over the same path).

4 Asset Management GIS systems spatial/index.htm OTSGS site for Federally Recognized Tribes to obtain software through the BIA s Enterprise License agreement? How can you manage your assets if you don t know what your assets are?

5 The DOI-BIA ESRI Enterprise License Agreement (ELA) The BIA, Federally Recognized Tribal Entities (FRTE) and PL compacted organizations can obtain specific Esri products through the Office of Trust Services Geospatial Support (OTSGS) at no cost. The OTSGS administers the configuration, distribution, and support of the Esri products related to the Agreement.

6 The ELA provides: ArcGIS core software and most extensions Select Virtual Campus Standard Subscription courses and workshops Paid maintenance for existing products A limited number of Esri specialty products Discounts on purchases of other Esri and third-party royalty products Technical Support: All technical support inquiries should be directed to the OTSGS Help Desk

7 DEFINITIONS Definitions of terms common to Indian Country

8 CHECKERBOARD Indian lands that were alienated as a result of the General Allotment Act of 1887 were sold or transferred to non-indian parties but remained within reservation boundaries. As a result, trust lands, fee lands, and lands owned by tribes, individual Indians and non-indians are mixed together on the reservation. Lands within reservation boundaries may be in a variety of types of ownership tribal, individual Indian, non-indian, as well as a mix of trust and fee lands. The pattern of mixed ownership resembles a checkerboard.

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11 Alienated Land Land that has had its ownership transferred to another party. Allotted Land Reservation land the federal government distributed to individual Indians, generally in 40-, 80-, and 160-acre parcels. Allottee An individual who owns an undivided interest in a parcel of allotted land.

12 Beneficial Use The right to benefit from (live on, use, profit from) a parcel of land, the legal title to which is held by the trustee. In the case of Indian land, the trustee is the federal government. Chain of Title A report of the ownership history from the government allotment or trust patent to the current owners. Escheat The reversion of the property of a deceased person to the government when there are no legal heirs.

13 Fee Simple (Fee Land) Land ownership status in which the owner holds title to and control of the property. The owner may make decisions about land use or sell the land without government oversight. Fee-to-Trust Conversion When original allotted trust lands that were transferred to fee simple status are returned to trust status. Tribes or individual Indians can initiate the process on fee lands they already own or lands they acquire. In general, this conversion can take as much as two years. Forced Fee Patents A trust-to-fee conversion without the request, consent, or knowledge of the landowner. Forced fee patents led to the loss of many land parcels through tax foreclosure sales.

14 Fractionated Ownership (Fractionation) When a trust parcel is owned by more than one owner as undivided interests. Fractionated ownership results from ownership interests being divided again and again when an owner of the interest dies without a will providing for the distribution of the asset. Trust parcels with fractionated ownership often have hundreds, sometimes thousands, of owners. By law, a majority of owners must agree to a particular use of the land, making it difficult for any one of the owners to use the land (i.e. for farming, building a home or starting a business).

15 Indian Land Tenure The terms and conditions by which Indians hold land. Indian Landowner Any tribe or individual Indian who owns an interest in Indian land in trust or restricted status. Interest When used with respect to Indian land, an interest is an ownership right to the surface estate of Indian land that is unlimited or uncertain in duration.

16 Off-Reservation Trust Land Land outside the boundaries of a reservation that is protected by the federal government for Indian use. For example, these pieces of land could be religious sites or pieces allotted to individuals out of the public domain. Patents-in-Fee The patent is the title deed by which the federal government conveys or transfers land to people. In fee refers to the fee simple ownership in land. The term patent-in-fee describes the title document issued by the U.S. Federal Government to terminate the trust created by the trust patent issued to the allottee.

17 Restricted Fee Land The ownership is the same as fee simple land, but there are specific government-imposed restrictions on use and/or disposition. Tenancy in Common The most common form of ownership of rights to land held in trust for Native Americans. Tenants in common have unity of possession, which means that every owner has an equal right with their coowners to the land as long as they live. A tenant in common has an undivided interest in the whole property as if they were the sole owner, and can transfer their interest by gift, sale or will. A tenant in common can also decide who will own their interest when they pass away.

18 Title Status Report (TSR) Also referred to as an Interest Report Simple or Interest Report, a TSR takes the place of a title commitment for land that is held in trust. The TSR is a necessary precursor to issuing a mortgage for a property on trust land. Tribally-Owned Land Land that is owned by a group of Indians recognized by the federal government as an Indian tribe.

19 Trust Land Land owned either by an individual Indian or a tribe, the title to which is held in trust by the federal government. Most trust land is within reservation boundaries, but trust land can also be off-reservation, or outside the boundaries of an Indian reservation. Trust Patent Individual Indian allottees were issued documents called trust patents to verify that their land was held in trust by the government.

20 Trust-to-Fee Conversion The conversion of lands held in trust by the U.S. Federal Government to fee simple status. With the passage of the Burke Act of 1906, Indian lands held in trust were converted to fee status if the Secretary of the Interior determined that the Indian landowner was competent. Today, trust lands can be converted to fee status in 30 days. Only individual Indian landowners can request a trust-to-fee conversion.

21 Why do we need a RW? ROW must be addressed for several aspects of managing a road system

22 Public Road Requirements Easement must be held by a Governmental Body w/ Police Power Easement must be for Construction, Operations & Maintenance of Facility Easement must be on IRR/TTP Inventory Easement must be in perpetuity (Or a minimum, the lifespan of the Federal Dollars expended)

23 Multiple Managers Tribes Local Units of Tribal Government Villages Chapters Districts Municipalities State City County

24 Multiple Uses Construction Maintenance Inventory Open range Utilities Vendors Tort Liability Utilities and other ROW inhabitants Enhancements Conservation Easements

25 FEDERAL INTEREST 1. A FEDERAL, STATE DOT, LOCAL PUBLIC AGENCY, OR OTHER ROAD MAINTAINING AGENCY REQUESTS A RIGHT OF WAY ACROSS TRIBAL PROPERTY INTERESTS, TRUST, OR ALLOTTED LAND, AS PART OF A FEDERAL AID PROJECT. 2. A TRIBE RECEIVES FEDERAL FUNDING AND RESPONSIBILITY FOR ACQUIRING RIGHT OF WAY FOR A FEDERAL LANDS PROGRAM OR PROJECT.

26 FEDERAL AID HIGHWAYS 23 U.S. CODE 103 CHAPTER 1 1. INTERSTATE SYSTEM 2. NATIONAL HIGHWAY SYSTEM Federally assisted State program. State receives federal funds. State is responsible for program administration in partnership with SDOT. FHWA provides oversight, stewardship and approvals.

27 Uniform Relocation Act 1970: Public Law Uniform Relocation Assistance and Real Property Acquisition Policies Act 1987: Public Law Surface Transportation and Uniform Relocation Act Amendments

28 FEDERAL LANDS HIGHWAY 23 U.S. CODE 204 CHAPTER 2 public roads are to be treated under uniform policies similar to the policies that apply to Federalaid highways, a coordinated program that shall apply to public lands highways and Indian reservation roads (IRR) and bridges. Funded by FLH; Jointly administered by FHWA and BIA Developed and constructed by FLH, BIA, Tribe or jointly. ISDEA Tribal Self-Determination Policy and Law. Federal Trust Responsibility

29 TTP Definition (12) INDIAN RESERVATION ROAD... public road that is located within or provides access to an Indian reservation or Indian trust land or restricted Indian land that is not subject to fee title alienation without the approval of the Federal Government, or Indian and Alaska Native villages, groups, or communities in which Indians and Alaskan Natives reside, whom the Secretary of the Interior has determined are eligible for services generally available to Indians under Federal laws specifically applicable to Indians.

30 FEDERAL LANDS HIGHWAYS Indian Reservation Roads/ Bridge program is an integral part of the FLH Program FHWA has direct oversight and coordination responsibilities IRR is jointly administered by FHWA and BIA Federal roads treated under uniform policies similar to Federal Aid highways Federal Trust Responsibility balanced with Tribal/Allottee beneficial ownership

31 PROPERTY INTEREST FOR RIGHT OF WAY TENURE OF RIGHT OF WAY All ROW shall be easements Term may be without limitation 25 CFR ADEQUACY OF REAL PROPERTY INTEREST Acquire ROW adequate for the construction, operation and maintenance of a project and for the protection of both the facility and the traveling public. 23 CFR CFR

32 Request for Easement on Tribal Trust/Restricted Land BIA is sole authority to issue right of way easements across trust lands or otherwise restricted land, under BIA jurisdiction Tribe or allottee must consent to the easement FHWA Guidance Recognizes Unique BIA Role Each State has an FHWA approved ROW manual with instructions for acquiring right of way easements on tribal trust or restricted lands

33 Tribe or BIA Acquires Right of Way For a Federally Funded Project FHWA Programs; Federal Aid, Federal Lands Highway and Programs Run by other Federal Agencies Same Basic Requirements in each program; There may be additional requirements, exceptions or conditions in the Program Legislation Check with Program Agency for guidance Determine Agency with Jurisdictional Authority

34 EASEMENT AUTHORITY ON TRIBAL LAND Primary authority for granting ROW across trust and restricted land - 25 USC BIA regulations appear at 25 CFR 169

35 GENERAL APPROVAL PROCESS 1. BIA Approves Appraisals Allottee Ownership BIA/ State DOT Secures Consent from Property Owner Fractionated ownership of heirs 2. Tribal Ownership Resolution or Consent to Acquire from Tribal Council BIA Superintendent Approves Easement Grant

36 The R/W Process * Plans and Title * Appraisal * Appraisal Review * Negotiations * Acquisition * Condemnation * Relocation * Property management * R/W Certification

37 Plans & Title * Order Title Reports * Obtain Title Insurance Commitment * Examine Condition of Title * Write Legal Descriptions

38 R/W Plans & Title (cont.) R/W plans should show: Parcel Numbers Property lines Old & New R/W Limits Before/After/Acquire Areas Survey Or Centerline Sufficient Ties For Legal Descriptions All Rights To Be Acquired PE/PLS Signed & Stamped

39 Appraisal * Define the Appraisal Problem * Collect Data * Highest & Best Use Analysis * Land Value Conclusion * Three Approaches to Value: Cost, Income, Market * Conclude and Report Value

40 Negotiations/Acquisition * Title III Uniform Relocation Act * Formal offer to purchase based on estimate of just compensation * Owner must be given adequate time to review and accept offer * If offer is not accepted, agency may make an administrative settlement in excess of the agency s appraisal of fair market value (may be based on owner s counteroffer)

41 Condemnation * If no settlement is reached, condemnation is filed * AG obtains order adjudicating public use (establish necessity) * If immediate possession is required, AG will request a stipulated possession and use * Must deposit Department s estimate of just compensation with the court for property owner

42 Acquisition by Condemnation * If immediate possession and use is not required, AG will proceed to trial * Settlement conference * Trial to determine just compensation * Judgment and decree

43 Relocation Assistance Title II -- Uniform Relocation Act Any person who moves from real property or moves personal property from real property.

44 Relocation Assistance * Determine Occupancy Status * Find DSS Comparable Replacement Housing * Replacement Housing Payment (RHP) * Moving Expenses * Advisory Services * 90-day Assurance

45 R/W Certification Three types of Certifications: 1. All R/W acquired, occupants moved. 2. Not all R/W acquired, but right of entry obtained, occupants moved. 3. Acquisition not complete, some occupants still on project.

46 Regarding R/W Certification #3 (cont) The State may request authorization on this basis only in very unusual circumstances. This exception must never become the rule. 23 CFR (c) (3)

47 THANK YOU! Any Questions? James Brophy TTP Tribal Coordinator, Realty Specialist 610 East 5 th Street Vancouver, WA Office