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Right of Way

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Rights of way are agreements allowing one person or entity to cross property that is owned by another party. Examples of rights of way include public and private roads, pipelines, power lines and railroad tracks. Ever since the General Allotment Act of 1887, which transferred the title and oversight of all reservation land to the federal government, thousands of rights of way have been granted across Indian land. The permissions granted by rights of way vary quite a bit, ranging from perpetual easements for transportation or communication routes to short-duration rights of way for construction or servicing of sites. Some rights of way affect one allotment or parcel of tribal land while others cross hundreds of allotments and involve thousands of individual Indian trust land owners, including the tribes.

Steps in the Process
Individuals or companies requesting a right of way across Indian land must comply with all federal regulations and procedures as detailed in Code of Federal Regulations 25 CFR 169. This is a very complex process requiring extensive documentation and reporting. In the end, the tribe and Indian landowners must sign a Consent of Landowners to Grant Right of Way before any right of way across Indian land can be granted. Landowners will be notified of any right of way requests. Initial notification will seek a landowner’s permission to enter the land for survey and mapping purposes.

An appraisal of the land will also be requested. In most cases, the appraisal is paid for by the party seeking the right of way. It provides an opinion of the land’s value and it is used to negotiate the terms and conditions of the right of way, including “just compensation” to the property owner. Just compensation is measured as the difference between the value of the entire property before the taking and the value of the remainder after the taking. Severance damages may also figure into the calculation if there is a decrease in the value of the remainder related to the activities. Landowners are encouraged to accompany the appraiser during the inspection of the property. If a landowner or tribe does not agree with the appraisal’s findings, another appraisal can be requested, but it would be up to the property owner to pay for any additional appraisals.

Before approving a right of way, tribes and landowners should extensively research existing rights of way across their lands as well as the company or entity seeking the right of way. During the negotiation process, landowners should clearly communicate their bottom line financially and in caring for land. Tribal governments should clarify policy considerations such as those regarding taxation, environmental and other land regulations and restrictions, and community needs regarding the utility.

Note: For more detailed information on how to appraise, negotiate and manage a right of way across Indian land, see Message Runner, Vol. 3.

  • Compile a list of all right of way documentation related to their lands.
  • Obtain copies of current rates and agreements that have already been negotiated on the right of way with the tribe and other trust land owners.
  • Be aware of the availability of third party condemnation for individual Indian-owned land.
  • Gather information and data on the acquiring party. What do they want? How far will they be willing to go for the right of way?
  • Share all information collected with other undivided interest holders of the land.
  • Create a journal of every communication, writing down to whom they spoke, the subject of the discussion, and when the discussion took place. Whenever possible, they should include a third party in the discussions and record that person’s name as well.

Establish a Time Limit in the Terms
When granting a right of way, tribes and landowners should insist on setting a time limit as part of the terms. According to the federal laws governing rights of way, unless a time limit is part of the governing document, the right of way will be granted perpetually by default.

Additional Resources:
Rights of Way – Landowner’s Guide
Rights of Way – Easement Request Inquiry

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