Don’t Close your eyes because if they steal from God, they will steal from you

This article is the third in a series of issues concerning rights-of-ways across Indian lands. This issue is very important because you can not effectively negotiate a right-of-way unless you know what the rules are. A unique problem is that there are so many applicable federal statutes. Many have never been repealed  and can be interchangeable in application for each type of right-of-way.

When the missionaries came to Africa they had the Bible and we had the land. They said “Let us pray.” We closed our eyes. When we opened them we had the Bible and they had the land. Desmond Tutu

The following is a brief listing of existing right-of-way statutes currently followed for various types of rights-of-way. Regulations promulgated to implement these statutes are generally in 25 CFR § 169.

Road development and improvements took off after federal funding for roads began with the Federal-Aid Highway Act of 1916 and continued with the Federal-Aid Highway Act of 1921, and the Act of February 5, 1948, 25 USC § 323-328 (the “1948 Act”), Rights-of-Ways for All Purposes Across Indian Lands.  Section 4 of the 1948 Act provided that existing statutory authorities were not repealed by its enactment.

The Act of Mar. 11, 1904, 33 Stat. 65; Mar. 2, 1917, 39 Stat. 973, 25 USC § 321 (25 CFR § 169.25) applies to oil or gas pipelines.  One of the key provisions is that a oil or gas pipeline term could not exceed 20 years and but could be extended for another period not to exceed 20 years plus an option to renew for an additional term of 20 years following the procedures set out in § 169.25, but the 1948 Act provided for 50 year terms.

The Act of March 2, 1899, 30 Stat. 990, 25 USC § 312, applied to rights-of-way for railway, telegraph, and telephone lines; and town-site stations.

The Act of March 3, 1901, 31 Stat. 1084, 25 USC § 311, applied to rights-of-way for Public Highways.  The Secretary of Interior may grant road rights-of-way to state or local authorities through any reservation or allotment.

And the Act of March 3, 1901, 31 Stat. 1083, 25 USC § 319, authorizes rights-of-way for telephone and telegraph lines. There are several railroad Acts authorizing railroads to basically condemn Indian lands for railroad uses. Although tribal lands cannot be condemned, allotted lands can be condemned meaning that consent is not required from Indians for individually-owned lands if the action is initiated in federal court. If the tribe owns any interest in an allotted tract, the condemnation right is negated because tribally-owned land cannot be condemned. It usually is in the individual Indian owner’s best interest to consider conveying interest, e.g. 1%, to the tribe to prevent the taking of individually-owned land through condemnation.

In Blackfeet Indian Tribe, Petitioner v. Montana Power Company, et al., Defendant, Supreme Court No. 87-2108, October 1988, the Court responded to the question “Whether the Act of February 5, 1948, ch. 45, 62 Stat. 17, 25 U.S.C. 323 et seq., authorized the Secretary of the Interior, with the consent of the Blackfeet Tribe, to grant pipeline rights-of-way over tribal land for a term of 50 years.”

During the 1960′s, the Secretary of the Interior (Secretary) granted the Montana Power Company (MPC) five rights-of-way for pipelines across lands on the Blackfeet Indian Reservation in Montana. The Blackfeet Indian Tribe (Tribe) consented to the rights-of-way for a term of 50 years.  The Secretary approved the rights-of-way under the Act of February 5, 1948, 25 U.S.C. § 323 et seq. (1948 Act.) In 1983, the Tribe filed suit against the MPC and the Secretary, alleging that oil and gas pipeline rights-of-way were limited to 20 years under the Act of March 11, 1904, 25 U.S.C.§ 321 (1904 Act), and the Secretary had exceeded his authority in approving rights-of-way for more than 20 years and MPC’s use of the pipelines after expiration of 20 years amounted to a trespass.

The legislative history confirms the straight forward meaning of the 1948 Act.  Congress enacted the statute to strengthen the Department of the Interior’s ability to grant rights-of-way across Indian lands for any legitimate purpose. The Court stated, at the time, the authority of the Secretary of the Interior to grant rights-of-way is contained in many acts of Congress, dating as far back as 1875.  In each application for a right-of-way over Indian land, the Secretary must make certain that the right-of-way sought falls within a category specified in some existing statute, which may limit the type of right-of-way that may be granted, or the character of the land across which it may be granted.

In order to avoid any possible confusion, provision was made in section 4 of the bill to preserve the existing statutory authority relating to rights-of-way over Indian lands. The Court believed that Congress intended to give the Secretary the “ability to grant rights-of-way with whatever restriction and conditions he determined were appropriate in light of his trust responsibilities to the Indians.” In conclusion, the Court denied certiorari and the lower court’s decision was affirmed.

The 1948 Act basically consolidated various federal right-of-way statutes by authorizing the Secretary to promulgate, or the formal process of rule making, Code of Federal Regulations specifically at 25 C.F.R. § 323-328. That’s why a pipeline right-of-way can have a term of 20 years plus the option to renew for an additional 20 years (Act of 1904), or a 50 year term (Act of 1948).

In fact, the 1948 Act added an additional class of landowners for whom the Secretary can consent on behalf of at 25 C.F.R. § 169.3(c)(5) when he determines that the owners of interest in land are so numerous that it would be impractical to obtain consent and there would be no harm to the land by consenting on the landowner’s behalf. How many is too numerous? There is no clear definition so the Secretary could consent for any tract where there are several (?) owners and a company is in a rush to start construction. You have to know your rights.

If the grant is silent to term, such as for a road, the right-of-way is considered to be for a perpetual term, or forever provided that it continues to be used for the purpose it was granted. Make sure you understand the term and it’s identified in the right-of-way. Some rights-of-way provide options to renew without further consent of the landowner. Make sure that any option requires landowner consent with a 60 day advance notice of intent to renew by the grantee. If you’re not happy about what was agreed to, at the time of renewal, you may negotiated new or modified terms.

Oil and gas pipelines are a different beast. Most rights-of-ways generally service the landowner such as an improved road potentially providing future or present access to your property enhancing the property value, or a utility that provides service to you, future family and even your neighbors, do not generate lucrative monetary reward to the grantee and a one time payment is acceptable. Oil and Gas pipelines are granted at today’s fair market value (FMV) with a projected inflationary increase during the term or life of the grant. However, five years ago, the price of oil was approximately $22.81 per barrel. Today, the average price is $92.85 per barrel. Therefore, to protect your interest and maximize income, landowners should require that a payment be made every 5-10 years during the term of the grant based upon the average value of the market. Most rights-of-way are one time payments to landowners. Landowners usually do not negotiate additional payments. Other types of rights-of-way probably would not include additional payments unless the right-of-way has a perpetual term. Owners change all the time through demise, estate and land sales and it’s probable that the owners twenty-five years from now will be an entire new set of owners.

Rights-of-Way are probably one of the most simple yet complex disciplines in Indian land management. You have to understand, know, and utilize your rights to your benefit. Remember that you may not need a pipeline or road running across your land, but someone does, so you are in control of the negotiation. Once a tribal utility director asked me why he had to get landowner permission to run a utility line across Indian land when it benefits the landowner and the tribes. I asked him how he would feel if someone just showed up at his house and started digging up his yard to upgrade or install a new telephone line. He said, “oh, ok.” It’s your land, don’t be bullied into thinking that you have no choice. Whatever you do, don’t close your eyes!

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