Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

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NCHRP LRD 76 47 eral statutory law,525 and all questions with respect to rights of occupancy in land, and the manner, time, and conditions of extinguishment of Indian title are solely for consideration of the federal government.526 As a corollary to this, third parties such as states and political subdivisions acquire only such rights and interests in Indian lands as may be specifically granted to them by the federal government. To assure the utmost fairness in transactions between the United States and Indian tribes, any intent to deprive a tribe of its rights in land, or otherwise bring about the extinguishment of Indian title, either by grants in ab- rogation of existing treaties or through other congressional leg- islation, must be clearly and unequivocally stated, and language appearing in such grants and statutes is not to be construed to the prejudice of the Indians.527 The Act of March 3, 1901, 31 Stat. 1058, was one of an amalgam of special purpose access statutes dating back as far as 1875, each limiting the nature of rights-of-way to be obtained and creating a complex procedure.528 Two meth- ods were provided for acquiring right-of-way for highways through lands allotted in severalty: (1) by grant of permis- sion by the Secretary of the Interior529 and (2) by condem- 525 Bennett County S.D. v. United States, 394 F.2d 8, 11 (8th Cir. 1968). Cf. Mo.-Kan.-Tex. Ry. Co. v. United States, 235 U.S. 37, 35 S. Ct. 6, 59 L. Ed. 116 (1914); N. Pac. Ry. Co. v. United States, 227 U.S. 355, 33 S. Ct. 368, 57 L. Ed. 544 (1913); Putnam v. United States, 248 F.2d 292 (8th Cir. 1957). 526 Bennett County, 394 F.2d at 11, Cf. United States v. Santa Fe Pac. Ry. Co., 314 U.S. 339, 62 S. Ct. 248, 86 L. Ed. 260 (1941). 527 Id. at 11 and 12. See United States v. Santa Fe Pac. Ry. Co., 314 U.S. 339, 62 S. Ct. 248, 86 L. Ed. 260 (1941); N. Pac. Ry. Co. v. United States, 227 U.S. 355, 35 S. Ct. 368, 57 L. Ed. 544 (1913). Leavenworth, R.R Co. v. United States, 92 U.S. 733, 23 L. Ed. 634 (1875); United States v. Shoshone Tribe, 304 U.S. 111, 58 S. Ct. 794, 82 L. Ed. 1213 (1938). 528 See, e.g., 31 Stat. 1058, 1084 (1901) (codified at 25 U.S.C. § 311) (opening highways); 30 Stat. 990 (1899) (codified at 25 U.S.C. §312) (rights-of-way for railway, telegraph, and telephone lines); Pub. L. No. 70-520, 45 Stat. 750 (1928) (codified at 25 U.S.C. § 318a( (roads on Indian reservations); 31 Stat. 1058, 1083 (1901) (codified at 25 U.S.C. §319) (rights-of-way for telephone and telegraph lines); Pub. L. No. 60-316, 35 Stat. 781(1909) (codified at 25 U.S.C. § 320) (acquisition of lands for reservoirs or materials); Pub. L. No. 58-45, 33 Stat. 65 (1904) (codified at 25 USC § 321) (rights-of-way for pipe lines); 31 Stat. 790 (1901), (codified at 43 U.S.C. § 959) (rights-of- way for electrical plants); Pub. L. No. 61-478, 36 Stat. 1253 (1911) ( codified at 25 U.S.C. § 961) (rights-of-way for power and communi- cations facilities). 529 See 25 U.S.C. § 311. Ch. 832, § 4, 31 Stat. 1058, 1084 (codified at 25 U.S.C. § 311), provides: The Secretary of the Interior is authorized to grant permis- sion, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accor- dance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any indi- vidual Indian under any laws or treaties but which have not been conveyed to the allottee with full power of alienation. (1) violates Federal law; or (2) does not include a provision that- (A) provides for remedies in the case of a breach of the agree- ment or contract; (B) references a tribal code, ordinance, or ruling of a court of competent jurisdiction that discloses the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe; or (C) includes an express waiver of the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe (including a waiver that lim- its the nature of relief that may be provided or the jurisdiction of a court with respect to such an action). Federal regulations implementing 25 U.S.C. § 81 provide ad- ditional guidance and can be found at 25 C.F.R. Part 84. Out of an abundance of caution, and in consideration of the fact that failure to obtain approval under Section 81 invalidates the agreement, the prudent “course of action is to assume that Section 81 applies…until you have ruled out the possibility that approval is required.”521 Vetter states that “it is probably safe to say that Secretarial approval is required for any con- tract that limits tribal control of Indian land or transfers pos- session or control (even for limited period) to a non-Indian party.”522 O’Connell notes that “the uncertain boundaries of Section 81 often lead parties to seek BIA ‘accommodation approval’ of agreements where the need for Section 81 ap- proval is unclear[,]” but cautions that such approvals “trigger review under NEPA, NHPA and ESA.”523 He recommends consideration of “belt and suspenders” clauses “making all agreements with tribal governments and tribal business enti- ties conditional to receipt of Section 81 approval.”524 H. ACQUISITION OF INDIAN LAND FOR PUBLIC TRANSPORTATION PURPOSES 1. General As a general rule, Indian lands are not included in the term “public lands,” which are subject to sale or disposal under gen- 521 Petoskey, supra note 464, at 443, citing two cases that estab- lish guidelines in applying § 81: Capitan Grande Band of Mission Indians v. Amer. Mgmt. & Amusement, 840 F.2d 1394 (9th Cir. 1987); Altheimer v. Sioux Mfg. Corp., 983 F.2d 803 (7th Cir. 1993). 522 Vetter, supra note 464, at 171, citing at n.5: Barona Group of Capital Grande Band of Mission Indians v. Amer. Mgmt. & Amuse- ment, 840 F.2d 1394 (9th Cir. 1987); A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir. 1986); Wisc. Winnebago Bus. Comm. v. Koberstein, 762 F.2d 613 (7th Cir. 1985); United States ex rel. Shakopee Mdewakanton Sioux Cmty. v. Pan Amer. Mgmt. Co., 616 F. Supp. 1200 (D. Minn. 1985). 523 O’Connell, supra note 464, at 29. 524 Id.

48 NCHRP LRD 76 dian lands” was not repealed. Thus, 25 U.S.C §§ 311 and 357 remain unchanged.534 • § 327, Rights-of-way for federal departments and agencies. Permits federal departments and agencies to use the process described in § 323-328 to obtain a grant of right-of-way. • § 328, Regulations. Permits the Secretary of the Inte- rior to promulgate regulations to administer the grants of right-of-way. The BIA has promulgated regulations found at 25 C.F.R. Part 169 to “streamline the procedures and conditions under which BIA will consider a request to approve (i.e., grant) rights- of-way over and across tribal lands, individually owned Indian lands, and BIA lands, by providing for the use of the broad authority under 25 U.S.C. §§ 323-328, rather than the limited authorities under other statutes.”535 25 C.F.R. Part 169 expressly covers BIA grants of rights-of- way for public roads and highways536 and applies to BIA land,” which the regulations define as, “any tract, or interest therein, in which the surface estate is owned and administered by the BIA, not including Indian land” and to “Indian land,” which the regulations define as “individually owned Indian land and/ or tribal land.”537 The regulations further define “individually owned Indian land” as “any tract in which the surface estate, or an undivided interest in the surface estate, is owned by one or more individual Indians in trust or restricted status.” 538 “Tribal Land” is defined as “any tract in which the surface estate, or an undivided interest in the surface estate, is owned by one or more tribes in trust or restricted status. The term also includes the surface estate of lands held in trust for a tribe but reserved for BIA administrative purposes and includes the surface estate of lands held in trust for an Indian corporation chartered under Section 17 of the Indian Reorganization Act of 1934 (25 U.S.C. 477).”539 In essence, these regulations apply to BIA grants of right-of-way for BIA land, allotted trust land, restricted allot- 534 25 U.S.C. § 326, provides: “Sections 323 to 328 of this title shall not in any manner amend or repeal the provisions of the Fed- eral Water Power Act of June 10, 1920…nor shall any existing statu- tory authority empowering the Secretary of the Interior to grant rights-of-way over Indian lands be repealed hereby.” See also, Neb. Pub. Power Dist. v. 100.95 Acres of Land in County of Thurston, Neb., 719 F.2d 956, 959 (1983), holding that: “The 1948 Act does not, by its express terms, amend or repeal any existing legislation con- cerning rights-of-way across Indian lands.” 535 25 C.F.R. § 169.1(a). See Bureau of Indian Affairs Chart, Rights-of-Way on Indian Land (25 CFR) Comparison of Cur- rent Rule and New Rule, March 2016, https://www.bia.gov/sites/bia. gov/files/assets/as-ia/raca/pdf/idc1-033607.pdf (accessed July 7, 2018); U. S. Department of interior. Asst. Sec- Indian Affairs/ Office of Regulatory Affairs and Collaborative Action/ Rights-of- Way, (25 CFR 169), https://www.bia.gov/as-ia/raca/rights-way-25- cfr-169 (accessed July 7, 2018). 536 25 C.F.R. § 169.5(a)(2). 537 Id. §§ 169.2, 169.3. 538 Id. § 169.2. 539 Id. C.F.R. § 169.2. nation.530 The following sections will address both grants of right-of-way and condemnation involving Indian lands. 2. Bureau of Indian Affairs (BIA) Grants of Right-of- Way In 1948, Congress enacted a general statute entitled “Indian Right of Way Act of 1948.”531 The purpose of this Act was to sim- plify and facilitate the process for granting rights-of-way across Indian lands.532 25 U.S.C. §323 provides the Secretary of the In- terior authority to grant rights-of-way for any purpose across Indian lands. A summary of 25 U.S.C § 324-328 follows below. • § 324, Consent requirements. The consent of any tribe organized under the IRA is required for grants of right- of-way across the tribe’s lands. Rights-of-way over lands of individual Indians requires consent of the individual Indian owners unless the land is owned by more than one person and the owner(s) of the majority interests consent, the owner is unknown and any known owners have given consent, the heirs or devisees of a deceased owner have not been determined and the Secretary of the Interior finds that the grant of right-of-way will not cause substantial injury to the land or owner, or there are so many owners that the Secretary of the Interior finds it would be impracticable to obtain their consent and that the grant of right-of-way will not cause sub- stantial injury to the land or owner. • § 325, Compensation. Grants of right-of-way require the payment of just compensation as determined by the Secretary of the Interior.533 • § 326, Other authority unaffected. The statute provides that “any existing statutory authority empowering the Secretary of the Interior to grant rights-of-way over In- 530 See 25 U.S.C. § 357. Chap. 832, § 3, 31 Stat. 1058, 1084 (codi- fied at 25 U.S.C. § 357) provides: “Lands allotted in severalty to Indi- ans may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.” 531 Act of Feb. 5, 1948, ch. 45, Pub. L. No. 80-407, 62 Stat. 17 (codified at 25 U.S.C. §§ 323–28). 532 Neb. Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956, 958 (8th Cir. 1983). For example, the court noted that frequently, “many individual Indians, often widely scattered, owned undivided interests in a single tract of land. Obtaining the signatures of all the owners was a time-consuming and burdensome process, both for the party seeking the right-of-way and for the Interior Department.” Id. at 959. 533 Information on how the Secretary of Interior determines “just compensation” can be found at 25 C.F.R. §§ 169.110-169.122.

NCHRP LRD 76 49 C.F.R. §§ 169.207-169.209. A new user may use part or all of an existing grant of right-of-way for a use not within the scope of the original grant of right-of-way only if the new user requests a new right-of-way within or overlapping the existing right-of- way.548 State transportation agencies should consider the impact these requirements may have on third-party activities that the state authorizes on its rights-of-way. Both the BIA and tribe may investigate non-compliance with right-of-way requirements.549 Possession or use of Indian land or BIA land without a right-of-way where right-of-way is required, or unauthorized use of a right-of-way, may result in the BIA taking action to recover possession, including eviction and other available remedies under the law. Indian landowners may also pursue available remedies under the law.550 Additional information about enforcement of right-of-way requirements can be found at 25 C.F.R. §§ 169.401-169.415. An application to obtain a grant of right-of-way is submit- ted to the BIA Office with jurisdiction over the land where the right-of-way is desired. Practitioners should be sure to deter- mine whether a tribe is administering portions of this process by contacting the BIA. While there is not a standard application form, the application must identify all of these things: (1) The applicant; (2) The tract(s) or parcel(s) affected by the right-of-way; (3) The general location of the right-of-way; (4) The purpose of the right-of-way; (5) The duration of the right-of-way: and (6) The ownership of permanent improvements associated with the right-of-way and the responsibility for con- structing, operating, maintaining, and managing per- manent improvements under §169.105.551 The following must be submitted with the application: (1) An accurate legal description of the right-of-way, its boundaries, and parcels associated with the right-of-way; (2) A map of definite location of the right-of-way (this re- quirement does not apply to easements covering the en- tire tract of land); (3) Bond(s), insurance, and/or other security meeting the requirements of §169.103; (4) Record that notice of the right-of-way was provided to all Indian landowners; (5) Record of consent for the right-of-way meeting the re- quirements of §169.107, or a statement requesting a right-of-way without consent under §169.107(b); 548 Id. § 169.127. 549 Id. § 169.402. 550 Id. § 169.413. 551 Id. §169.102(a). ments, tribal trust land, and restricted fee land owned by tribes; the regulations collectively refer to these lands as BIA land and Indian land.540 The regulations specify that the BIA will not take any action regarding unrestricted fee lands.541 It is important to note that the regulations state that the procedural provisions of 25 C.F.R. Part 169 even apply to BIA grants of right-of-way prior to April 21, 2016.542 The BIA has issued guidance describ- ing which provisions of 25 C.F.R. Part 169 it views as procedural and therefore applicable to BIA grants of right-of-way prior to April 21, 2016. This guidance can be found on the BIA’s web- site.543 Practitioners may be surprised to which provisions the BIA views as procedural and should review BIA guidance on this topic carefully. Generally, to obtain a grant of right-of-way across Indian land, any person or entity (including government entities) who is not an owner of the Indian land needs BIA approval, “with the consent of the owners of the majority interest in the land, and the tribe for tribal land, before crossing the land or any portion thereof.”544 Specific exceptions to this general requirement—in- cluding instances where authorization is provided by certain leases and permits—can be found at 25 C.F.R. § 169.4(b). The regulations also provide for tribes or tribal organizations to enter a contract or compact under the ISDEAA “to adminis- ter on BIA’s behalf any portion of 25 C.F.R. Part 169 that is not a grant, approval, or disapproval of a right-of-way document, waiver of a requirement for right-of-way grant or approval (in- cluding but not limited to waivers of fair market value and valu- ation), cancellation of a right-of-way, or an appeal.”545 To find out if a tribe has entered such a compact or contract, the BIA instructs applicants to inquire with the tribe or BIA.546 A right-of-way grantee must request a new right-of-way if the grantee intends to use all or part of the existing right-of-way for a purpose not within the scope of the original grant of right- of-way and the new use requires ground disturbance. If the new use is not within the scope of the existing grant of right-of-way, but does not require ground disturbance, then the grantee can request an amendment to the right-of-way using the process outlined in 25 C.F.R. §§ 169.204-169.206.547 For grants of right-of-way that allow assignment, a new user may obtain assignment to use an existing grant of right-of-way for a use specified in the original grant or within the scope of the specified use. Information on assignments can be found at 25 540 See Section C.1.c of this digest entitled “What is Indian Coun- try?” for a discussion of land ownership in Indian country. 541 25 C.F.R. § 169.3(a). 542 Id. C.F.R. § 169.7(b). 543 See BIA, What Are Procedural Provisions Of The Rights- Of-Way On Indian Land Final Rule?, https://www.bia.gov/sites/bia. gov/files/assets/as-ia/raca/pdf/idc1-033661.pdf (accessed August 25, 2018). 544 25 C.F.R. § 169.4. More detailed information about consent requirements and obtaining consent can be found at Id.. §§ 169.106-169.109. 545 Id. § 169.8. 546 Id. 547 Id. § 169.127.

50 NCHRP LRD 76 (3) Require any modifications or mitigation measures necessary to satisfy any requirements including any other Federal or tribal land use requirements. (b) Upon receiving a right-of-way application, we will promptly notify the applicant whether the package is complete. A complete package includes all of the infor- mation and supporting documents required under [sub- part C of 25 C.F.R. Part 169], including but not limited to, an accurate legal description for each affected tract, documentation of landowner consent, NEPA review documentation and valuation documentation, where applicable. (1) If the right-of-way application package is not com- plete, our letter will identify the missing information or documents required for a complete package. If we do not respond to the submission of an application package, the parties may take action under §169.304. (2) If the right-of-way application package is complete, we will notify the applicant of the date of our receipt of the complete package. Within 60 days of our re- ceipt of a complete package, we will grant or deny the right-of-way, return the package for revision, or in- form the applicant in writing that we need additional review time. If we inform the applicant in writing that we need additional time, then: (i) Our letter informing the applicant that we need additional review time must identify our initial concerns and invite the applicant to respond within 15 days of the date of the letter; and (ii) We will issue a written determination granting or denying the right-of-way within 30 days from sending the letter informing the applicant that we need additional time. (c) If we do not meet the deadlines in this section, then the applicant may take appropriate action under §169.304. (d) We will provide any right-of-way denial and the basis for the determination, along with notification of any appeal rights under part 2 of this chapter to the parties to the right-of-way. If the right-of-way is granted, we will pro- vide a copy of the right-of-way to the tribal landowner and, upon written request, make copies available to the individual Indian landowners, and provide notice under §169.12.555 The BIA will grant or deny the right-of-way in writing and will grant the right-of-way unless the requirements of subpart C of 25 C.F.R. Part 169 have not been met or there is “a compelling reason to withhold the grant in order to protect the best inter- ests of the Indian landowners.” In determining the best interest of the Indian landowners, the BIA will “defer, to the maximum extent possible, to the Indian landowners’ determination that 555 Id. § 169.123    (6) If applicable, a valuation meeting the requirements of §169.114; (7) If the applicant is a corporation, limited liability com- pany, partnership, joint venture, or other legal entity, ex- cept a tribal entity, information such as organizational documents, certificates, filing records, and resolutions, demonstrating that: (i) The representative has authority to execute the application; (ii) The right-of-way will be enforceable against the ap- plicant; and (iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located; (8) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements; and (9) A statement from the appropriate tribal authority that the proposed use is in conformance with applicable trib- al law, if required by the tribe.552 If the applicant needs access to the land to prepare the ap- plication materials (e.g., survey), then the applicant needs to obtain consent from the Indian landowners (the BIA’s consent is not necessary at this step). If needed, the BIA can provide infor- mation on the Indian landowners so that they can be contacted to obtain their consent.553 The regulations provide that the BIA can give consent to access the land if the right-of-way will be granted under 25 C.F.R. § 169.107(b) which describes instances in which the owners of interests in the land are so numerous that it would be impracticable to obtain their consent.554 After receiving the application for a grant of right-of-way, the BIA will determine if the right-of-way is in the best interest of the Indian landowners. The BIA describes its review process like this: (a) Before we grant a right-of-way, we must determine that the right-of-way is in the best interest of the Indian land- owners. In making that determination, we will: (1) Review the right-of-way application and supporting documents; (2) Identify potential environmental impacts and ad- verse impacts, and ensure compliance with all appli- cable Federal environmental, land use, historic pres- ervation, and cultural resource laws and ordinances; and 552 Id. § 169.102 (b). 553 Id. § 169.101. 554 Id. § 169.101.

NCHRP LRD 76 51 regulations provide that—subject only to federal law—per- manent improvements in the right-of-way, activities on the right-of-way, and right-of-way interest are not subject to fees, taxes, assessments, levies or other charges imposed by a state or its political subdivisions, but may be subject to taxation by the tribe with jurisdiction.565 The regulations also place certain requirements on the grant- ee including the following: • Constructing and maintaining any improvements in the right-of-way “in a professional manner consistent with industry standards”; • Upon completion of construction restoring the land “as nearly as may be possible to its original condition… to the extent compatible with the purpose for which the right-of-way was granted, or reclaim the land if agreed to by the landowners”; • “Clear and keep clear the land within the right-of-way, to the extent compatible with the purpose of the right- of-way, and dispose of all vegetative and other mate- rial cut, uprooted, or otherwise accumulated during the construction and maintenance of the project”; • “Build and maintain necessary and suitable cross- ings for all roads and trails that intersect the improve- ments constructed, maintained, or operated under the right-of-way”; • “Refrain from interfering with the landowner’s use of the land, provided that the landowner’s use of the land is not inconsistent with the right-of-way”; • “Hold the United States and the Indian landowners harmless from any loss, liability, or damages resulting from the applicant’s use or occupation of the premises” unless the grantee is prohibited by law from doing so; • “Indemnify the United States and the Indian landown- ers against all liabilities or costs relating to the use, han- dling, treatment, removal, storage, transportation, or disposal of hazardous materials, or release or discharge of any hazardous material from the premises that occurs during the term of the grant, regardless of fault, with the exception that the applicant is not required to indem- nify the Indian landowners for liability or cost arising from the Indian landowners’ negligence or willful mis- conduct.” This requirement does not apply if the grantee is prohibited by law from doing this.566 Note also that the regulations at 25 C.F.R. § 169.219 provide a process for instances where engineering or other complications prevent construction in the location identified in the original application and grant of right-of-way. The regulations at Part 169 also specify a process for service lines in the right-of-way. They require the right-of-way grantee 565 Id. § 169.11. 566 Id. § 169.125(c)(5). the right-of-way is in their best interest.”556 Specified decisions of the BIA can be appealed utilizing the process described at 25 C.F.R. Part 2.557 If the application for right-of-way is approved, it will incor- porate any conditions upon which the Indian landowner(s) gave their consent. It will also describe the authorized use, the conditions, if any, upon which assignment and mortgage of the right-of-way are permitted, and who owns permanent improve- ments on the right-of-way. The grant of right-of-way will also reserve the right of the tribe to reasonable access to the land in order to determine compliance with any consent conditions or to protect public health and safety, and will state that the grantee “has no right to any of the products or resources of the land, including but not limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the grant.”558 The grant will also provide that in the event “historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with th[e] grant, all activity in the im- mediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact BIA and the tribe with jurisdiction over the land to determine how to proceed and ap- propriate disposition.”559 If permanent improvements are being constructed on the right-of-way, the grant will include a sched- ule for completion of construction and a process for chang- ing the schedule by mutual consent (the BIA has authority to waive this requirement if it is in the best interest of the Indian landowners).560 The grant of right-of-way will also specify a du- ration. For tribal land, the BIA will defer to the tribe to deter- mine what time period is reasonable. For individually owned Indian lands, the BIA will consider a reasonable duration in light of the purpose of the grant of right-of-way; this will gener- ally be a maximum of 20 years for oil and gas purposes and 50 years for other purposes (this maximum includes any renewals; the process for renewals is outlined at 25 C.F.R. § 169.202 and § 169.203).561 The grant of right-of-way will also address jurisdictional is- sues on the right-of-way. 562 The regulations state that rights- of-way granted under 25 C.F.R. Part 169 are subject to federal law and tribal law that is not inconsistent with federal law and are generally not subject to the laws of the state and its political subdivisions.563 The grant of right-of-way must clar- ify that it does not diminish tribal jurisdiction, taxation or enforcement authority, civil jurisdiction over nonmembers, or the status of the land as Indian country.564 Moreover, the 556 Id. § 169.124. 557 Id. § 169.13. 558 Id. § 169.125. 559 Id. § 169.125(c)(4). 560 Id.. § 169.105. 561 Id. § 169.201. 562 Id. § 169.125. See also, section C.4.b. in this digest entitled “Tribal Court ‘Exhaustion Rule’”. 563 Id. § 169.9. 564 Id. § 169.10.

52 NCHRP LRD 76 3. State Eminent Domain Powers and Indian Land Congress has not provided states with general powers of eminent domain for tribal lands,572 but states may condemn al- lotments as provided in 25 U.S.C. § 357, which states, “Lands al- lotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.” Courts have consistently held that although there are spe- cific provisions for obtaining rights-of-way over allotments that require the consent of the Secretary of the Interior, the provisions of 25 U.S.C. § 357 provide a separate and distinct process for obtaining right-of-way by condemnation of al- lotments.573 Actions to condemn allotments must be brought in federal court and the United States must be named as a de- fendant in the suit.574 Allotments may not be taken by physical occupation; the U.S. Supreme Court has held that § 357 refers to formal condemnation proceedings and does not encompass inverse condemnation.575 Additionally, lower courts have held 572 25 U.S.C. § 177; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 305 n.7, 117 S. Ct. 2028, 2052, 138 L. Ed. 438, 472 (1997). See also, Imperial Granite Company v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. filed Aug. 1, 1991) in which the court held that Indian trust land could not be acquired for a road of necessity by prescription, or adverse possession. It is unclear whether tribal sov- ereign immunity is a bar to in rem suits such as a condemnation action involving fee land owned by a tribe. In Cass County Water Res. Dist. v. 1.43 Acres of Land in Highland Township, Cass County, N.D., 2002 N.D. 83, 643 N.W.2d 685 (N.D. 2002) the court held that an action to condemn fee simple land owned by tribe was an in rem action not barred by tribal sovereign immunity, relying on the Supreme Court’s decision in Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 112 S. Ct. 683, 116 L. Ed. 2d 687(1992). However, a recent U.S. Supreme Court decision over- rules this holding on narrow grounds. In Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 200 L. Ed. 2d 931 (2018), the Court considered a quiet title action invoking the doctrines of adverse possession and mutual acquiesce. The Court held that that lower court erred when it rejected the tribe’s sovereign immunity defense by citing Yakima for the principle that tribal sovereign immunity does not apply to in rem suits. The Court stated that Yakima merely interpreted the Indian General Allotment Act of 1887 and did not resolve anything about tribal sovereign immunity. Id. at 935. 573 U.S. v. Oklahoma Gas and Electric Co., 127 F.2d 349 (10th Cir. 1942) (affirmed by the U.S. Supreme Court which impliedly endorsed the view that the provisions of § 357 provide a separate and distinct process for acquisition of rights-of-way. U.S. v. Okla- homa Gas and Electric Co., 318 U.S. 206, 214, 63 S. Ct. 534, 538, 87 L. Ed. 716, 722 (1943)); Nicodemus v. Washington Water Power Company, 264 F.2d 614 (9th Cir. 1959); Transok Pipeline Co. v. Darks, 565 F.2d 1150 (10th Cir. filed Nov. 14,1977); Yellowfish v. City of Still- water, 691 F.2d 926 (10th Cir. 1982), cert denied, 103 S.Ct. 2087 (1983); Southern California Edison Company v. Rice, 685 F.2d 354 (9th Cir. 1982); Nebraska Public Power District v. 100.95 Acres, 719 F.2d 956 (8th Cir. 1983). 574 State of Minnesota v. United States, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235 (1939); U.S. v. City of McAlester, 604 F.2d 42 (10th Cir. 1979). 575 United States v. Clarke, 445 U.S. 253, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980). to file a service line agreement with the BIA to obtain access to Indian lands for service lines. Service lines are defined as “a util- ity line running from a main line, transmission line, or distribu- tion line that is used only for supplying telephone, water, elec- tricity, gas, internet service, or other utility service to a house, business, or other structure. In the case of a power line, a service line is limited to a voltage of 14.5 kv or less, or a voltage of 34.5 kv or less if serving irrigation pumps and commercial and in- dustrial uses.”567 The service line agreement is signed by the utility provider and landowners “for the purpose of providing limited access to supply the owners (or authorized occupants or users) of one tract of tribal or individually owned Indian land with utilities for use by such owners (or occupants or users) on the premises.”568 For service lines across tribal land, the utility provider and tribe (or the legally authorized occupants or users of the trib- al land and upon request, the tribe) must execute the service agreement before work begins. For individually owned land, the utility provider (or the legally authorized occupants or users) must execute a service line agreement before work begins.569 The service line agreement should describe the utility services being supplied, who the utilities are being provided to, “and other ap- propriate details.” The agreement should also address how any damages incurred during construction and restoration (or rec- lamation, if agreed to by the owners or authorized occupants or users) will be mitigated.570 The fully executed service line agree- ment along with a plat or diagram showing the ownership parcel and point of connection of the service line with the distribution line must be filed with the BIA’s Land Titles and Records Of- fice within 30 days of execution of the agreement. If the plat or diagram is on a separate sheet, it must include the signatures of the parties to the service line agreement.571 Practitioners should note how narrow the definition of “service line” is in the regula- tions. Uses of right-of-way that fall outside this definition need to be analyzed in accordance with the broader provisions of the regulations covering new uses of the right-of-way (25 C.F.R. §§ 169.127-128, 169.204-209) by the grantee or a third party which were discussed earlier in this section. Practitioners should carefully analyze these regulations to determine which rights-of-way they apply to, including how these regulations might apply to BIA grants of right-of-way is- sued both prior to, and after, April 21, 2016. Practitioners should consider how the regulations might impact current practice, particularly with regard to how rights-of-way are used by both the entity with a right-of-way and by third parties pursuant to the permission of a right-of-way grantee. Practitioners should also take efforts to stay abreast of any future court decisions ad- dressing these regulations as this has the potential to be a devel- oping area of law with a substantial impact for transportation agencies. 567 Id. § 169.51. 568 Id. § 169.52. 569 Id. 169.54. 570 Id. § 169.53. 571 Id. § 169.56.