November 3, 2014 is the NEW deadline for individual tribal members to write concerns and comments on the BIA’s drafted rights-of-way regulations across individual allottee lands.

The following was posted on Facebook’s “This is Mandaree” wall recently. Because of the oilfield activity and all that it involves in developing wells and infrastructure, many landowners have shown great concern that rights-of-ways across their individually-owned Indian lands will create a vacuum where they have no say over what happens on their land.

This is a not 100% correct in that the process is hard to understand and most understanding of this practice is driven by federal training/consulting contractors and attorneys who merely see this issue as a way to create a source of revenue for their own gain. Fears of loss of land, Bureau of Indian Affairs (“BIA”) consent without landowner approval, environmental issues, etc. This clearly demonstrates the necessity of the regulatory drafting process that is in place. Not a put down, but landowners really don’t understand the process. BIA technical staff, most of whom have family subject to these regulations, are the guardians of your estate. Sure, in the past it was a bureaucratic agency driven by non-Indians, but various reorganizations and recruiting of Indians has changed this backdrop. There is and has always been a fear by Indian landowners that the BIA can’t be trusted.

However, the BIA is still governed by statutory and regulatory authority and movement outside of those applications can result in federal claims to correct problems. BIA specialist, who have worked with these requirements understand what is allowable and not. Government attorneys ensure that the law is complied with. Together, and through subsequent collaboration and soliciting of tribal/individual comments, a final rule is drafted, published, and implemented. It’s a process and those who understand it the least create the most confusion and difficulty about the right-of-way process.

There is a landowner group who wants to participate in the drafting of regulations for rights-of-way. There are attorneys who want lucrative tribal contracts to draft comments in response to the publishing of the final rule, and there are eager consultant/contractor companies who see sweet little contracts by riling up individual Indian landowners steering them to believe there is a conspiracy to “take their land.”

The rulemaking process is set up to appoint federal technical and legal staff to “draft” proposed rules and then put them forth to tribes and individual Indian landowners for review and comment. If it’s not legal, it will never be put forth for final publishing and implementation. In this process, every side is represented and their rights are protected. True, the current process ensures this occurs.

Below is a post on Facebook’s “This is Mandaree” regarding the second extension of the proposed rule making review and comment period. It is somewhat incorrect in that some of the beliefs or interpretations of proposed rules are misunderstood. But once again, this is what those who stand to benefit from dragging out the process intend as it benefits their interest.

November 3, 2014 is the NEW deadline for individual tribal members to write concerns and comments on the BIA’s drafted rights-of-way designed to allow toxic pipelines, transmission lines, etc across individual allottee lands.

1) Among other things in this draft, the BIA is proposing that ONLY the industry – but NOT the individual tribal landowner – must be directly notified whenever the BIA makes any decisions about gas, oil, or toxic saltwater pipelines, etc. across your allottee lands. Not correct as individual Indian landowners “always” have a right to appeal any administrative decision. The other recourse is to include as a negotiated point within the easement specific requirements in the administration of the easement.

2) Further, the BIA also proposes the industry can decide the value of allotted lands – when it comes to paying for a right-of-way across your allotted tribal lands.

3) Tribal landowners were excluded from the development of these BIA-developed laws for allottee lands

Most of the trust lands on Fort Berthold are allotted.

There are other issues in this draft that tribal allottees must be aware of – and oppose. Write a letter or email your comments that these weak laws are designed to benefit the industry…not the individual tribal member.

Tell the BIA that 1) individual tribal landowners must be allowed to participate on the BIA work committee that will approve the final language for the rights-of-way across allottee lands. 2) Individual tribal members must receive the same direct notice by the BIA that they propose to give to the industry. 3) An independent appraisal must determine the value of your land before you agree to any right-of-way across your lands. Not entirely correct. Participation of Indian landowners is provided through the review and comment process. If you understood this process and regulations, you would see how your opinion and understanding fit withthin this process. When you understand the regulations, you understand that appraisals and appraised value determinations are required by law. Most folks don’t understand that an appraised value is a starting negotiation point and not an ending point.

Of course, the best practice to follow if you don’t agree with the proposed right-of-way agreement is to deny consent. The only issue in this action is that unless the majority owners feel the way you do and don’t want to consent to the easement, you may be saddled with a right-of-way that you don’t want. But that’s the American way – Majority rules. Another resolve would be for you to acquire, or purchase, interest from other landowners so that you can obtain majority ownership and can determine the course of your land’s development. It’s just like a tribal election. The majority rules and the one with the most votes wins.

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.