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Rights-of-way litigation expands in the Northwest

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KAMIAH, Idaho - Marcella Bailey, Nez Perce, stood beneath poles and power lines on her property and talked of the lack of rights of way by the various utilities who own the cables in some cases, gave very low payment for rights of way in other cases, and had no leases at all in still other cases.

''I started getting papers that 50-year leases had expired on the land and I began doing research. I found that a lot of the property didn't have leases to begin with. The ones that did, my ancestors got little. This property here, this allotment, is 80 acres and they were given $25 for a 50-year lease.''

Bailey didn't initially know where to go for help and turned to the BIA: ''They won't just give you information; you either request it or go and talk to them in person.'' She found that all the 50-year leases expired on the Nez Perce Reservation, which has more than 70 allotments; and of those, more than 30 didn't have bona fide leases with either utility, cable or telephone companies. She contacted an attorney in Portland, Ore., Tom Nelson, who had worked on similar cases on the Yakama Reservation. He took her case about two years ago.

Nelson first looked over property owned by another Nez Perce tribal member, Joanna Merak, and found trespass along the Clearwater River. ''We basically filed a lawsuit and now we're in tribal court against Avista [a power company] and Clearwater REA. We're pretty close to settling the Avista side, but Clearwater is still an open issue.

''After that, others on the reservation contacted me and said we've got similar problems. Marcella Bailey is one of those. We looked and found a number of trespass issues. We filed a lawsuit on the trespass issue against Qwest, a phone company. We filed in tribal court, which is allowed under federal law. Qwest has been resisting mightily, so we've been litigating that for some time. That's unlike Avista, the electric company on the reservation, which has been forthcoming and saying, 'Here's where our facilities are and here's what we want to do to clean up this mess.'''

Nelson continued: ''My experience is that there are just countless trespasses going on in Indian country, at least on the three reservations I'm very familiar with: Yakama, Crow and Nez Perce. There are a lot of lost opportunities from the landowner's standpoint and the tribal sovereignty standpoint. Those facilities provide a basis for arguing that the utility and tribe ought to enter into some kind of arrangement whereby they validate the presence of existing facilities and get compensation from past trespasses. The tribe can use that as a basis for asserting or extending its sovereignty into matters like regulations of utilities. In the case of the Yakama Reservation, they started their own electric utility.''

Bailey explained that the first court hearing with Qwest and Cebridge, a cable company, was held earlier this spring but didn't go well. ''They're fighting our sovereignty, saying we don't have the right to try this in tribal court. We hope to be back in court in another month for the judge to make that decision.''

Bailey and her husband have walked every foot of their allotments, photographing and labeling poles and searching for evidence of underground lines. The process has been taking years, rather than months. They are trying to encourage other tribal members to research who and what is on their land and encourage other reservations to do the same.

''I would like to see a fair negotiation. I've never really been in this for the money. I'm in it so my ancestors can rest in peace. They were ripped off and I'd like my own family and other tribal members to get what we deserve. I have children and don't want to see them go through this. I hope it's all settled before they become landowners. I hope there will be a process in place for all the tribes where they can do the right-of-ways without legal resistance. It's my generation that has to deal with it,'' Bailey concluded.