EDMONDS, Wash. - The Affiliated Tribes of Northwest Indians Economic
Development Corporation (ATNI-EDC) and the Indian Land Tenure Foundation
are coordinating an effort to assist Indian country with a difficult issue
- the negotiation and management of utility easements, rights of ways and
permits that criss-cross reservations.
The bulk of high voltage power lines, telecommunications facilities and gas
pipelines were constructed throughout the Western United States 40 to 50
years ago on easements that were to last for 40 to 50 years. Many existing
utility easements are therefore now coming up for re-negotiation. Both
tribes and Indian allottees face significant negotiations for these land
Allottees are especially confused with management of these rights since
many individuals often own each parcel of land, making the hiring of
experts and the agreement on terms close to impossible without a BIA
resolution of the matter, often to the displeasure of all involved.
Other new facilities, such as fiber optics are being constructed throughout
the United States. New rights of ways are being requested from tribes and
Sometimes new facilities attempt to use old land rights granted by the
Bureau of Indian Affairs, or even by states or counties on road easements.
Tribes are questioning the propriety of the new facilities on old land
rights. The old land rights may or may not be broad enough to cover new
"When these land rights were granted years ago, the BIA often used very
broad language to define the purposes of the grants," said Margaret Schaff,
a consultant specializing in energy and real property matters. "Without
tribal rules in place regarding the interpretation of the old language, a
legal grey area exists that opens all parties to litigation and questions
about the value of the land rights."
To make matters worse, most of the old long term land rights were granted
with little compensation or for no compensation at all. Commercial
companies have used Indian lands for many years, often resulting in large
The issues raised by requests for new real property rights, or construction
of new facilities are often not within the expertise of tribal governments
or their counselors. Few tribes have regulations or ordinances addressing a
process for negotiations. Few tribal representatives understand these
appraisal and negotiation processes and the possibilities of condemnation
of certain types of rights.
The land rights are a potential source of revenue for tribes and are an
important aspect of land and environmental management and sovereignty
Federal law requires that easements granted across tribal and allotted
lands be granted for not less than fair market value. There is no guidance
to tribal or utility decision-makers about how fair market value should be
decided. Depending on the type of facility, industry practices vary
regarding the determination of fair market values. Most utility companies
therefore propose their definition of fair market values, using non-tribal
lands as comparable examples.
"The trouble with this approach is that Indian reservations were usually
created by treaty or other federal decree for specific purposes that are
not necessarily consistent with land uses on non-Indian lands," Schaff
ATNI-EDC and the Indian Land Tenure Foundation are addressing easement and
right-of-way concerns by sponsoring a Tribal Real Property Regulatory
Permitting, Easement and Right-of-Way Negotiation Program. The program
consists of a training session where an independent consultant with
experience in such matters will go over relevant issues that arise in such
circumstances. The training session is designed for any tribe with a land
base to educate tribal leaders regarding their rights and opportunities for
the institution of tribal processes to be used when Indian lands are to be
crossed by utility, telecom or other industry companies. The program will
provide tribes with language useful in adopting tribal regulations to
address existing and new rights-of-ways, negotiation procedures, valuation
procedures, trespass rules and penalties, interpretation of existing
rights, protection of tribal sovereign rights on easements, condemnation
authorities on tribal lands, standards for negotiations with allottees
within reservations, and documentation obligations of persons holding real
property rights on tribal lands. Example forms for easements, permits and
other real property rights will be addressed.
The cost for attendance by a tribal member is $599, and the cost for
non-tribal representatives is $699. However, scholarships will be available
on an as-needed basis.
"We look forward to providing a needed service to Indian country by
offering easy-to-follow procedures for tribes faced with utility company
requests," said Dave Tovey, ATNI-EDC president. ATNI-EDC has provided
energy policy advice and assistance to member tribes since 1998.
The Tribal Easement and Right-of-Way Regulation and Negotiation Education
Training is for educational purposes only. It will provide information and
material to tribal officials and other participants to develop negotiation
options. Participants are reminded that the information is general
information that may not be applicable to their reservation. Each situation
requires independent legal analysis and advice by their own legal advisor.
The first Tribal Real Property Regulatory Permitting, Easement and
Right-of-Way Negotiation Program will be held June 21 - 22 at the Airport
Sheraton, Portland, Ore. For more information, contact Margaret Schaff at
(303) 443-0182 or email@example.com, or visit