Greg Argel, Regional Realty Officer
Northwest Regional Office, BIA
Telephone : (503) 231-6787
greg.argel@bia.gov
Trust Lands Location
Acreages
Tribes
BIA Organization
Northwest
Region Bureau of Indian
Affairs
Total Acreages Northwest Region
 Tribal Trust
 Individual Trust
 Government
4,287,421.41 Acres
2,536,486.75 Acres
45,816.19 Acres
Total: 6,869,724.34 Acres
Land and Interests in Land
1. Fee Simple Absolute
2. Tribal Trust Lands
3. Allotted Lands
a) Individual Trust Land Patent
b) Restricted Fee Patent
Tribal Trust Lands
 Reservations established under Treaty: by a provision
of the Treaty the Tribe cedes territory to the United
States; another provision reserves land for the use and
benefit of the Tribe, for examples, the Coeur d’Alene
Tribe and the Makah Tribe
 Reservations established by Executive Order:
Examples: Spokane Reservation and Shoalwater
Reservation
 Lands Outside the Boundaries of a Reservation taken
into trust by the U.S. under general authority of the
Secretary (Section 5 of the Indian Reorganization Act)
or special congressional acts
Definition
 Tribal Trust Land
Tribal land in which title is in the U.S. in trust for a tribe.
For the purpose of this discussion, an Indian tribe is group of
Indians recognized by the Federal Government as a distinct
entity to which Federal Indian laws are applicable.
“Ownership” for our purposes means all of the attributes of
property ownership, or an equitable interest in land with the
title being held by the Government as trustee. The members of
a tribe do not have individual ownership interests in tribal
land. Rather, their interests resemble those a stockholder has
in the assets of a corporation.
Definition
 Allotted Lands
 Allotted lands are those which have been removed
from tribal ownership (generally) and given to
individual members of the tribe. The tribe loses all
property interests in the land which becomes the
private property of the allottee.
As early as 1798, tribal lands were divided into small
tracts and distributed to the tribe’s members. Until
1887 allotments were made under laws dealing with
specific reservations. In that year, the General
Allotment Act provided for the allotment of lands to
individual Indians on Indian reservations and, in
some situations, from the public lands of the United
States (i.e., from the Public Domain).
Usually, the allotment process consisted of the five
following elements:
Definition cont.
1)
2)
The allotment of the tribe’s land to its members.
The issuance of a patent to the allottee which
provided that the land would be held in trust for him
by the Government for a specified period of years
(usually 25). In some cases, the allottee received a
deed or patent which conveyed fee title but
contained restrictions against alienation and
encumbrance without the permission of the U.S.
Government.
3) The land and the income from it could not be taxed
by a state, sold, leased or otherwise contracted for by
the allottee during the trust period, unless
specifically authorized by the Congress.
Definition cont.
4) The issuance of the fee or absolute title to the Indian owner
or his heirs at the end of the trust period, or the removal of
restrictions, as was appropriate. After receiving the fee title
or removal of restrictions, the owner could sell, lease, or
otherwise use the lands as he saw fit. The land was also
subject to state taxes after the fee title was issued.
5) The granting of U.S. citizenship to the allottee. Although
many Indians were made United States citizens under the
allotment acts, it was not until,1924 that a general act was
passed conferring citizenship on all Indians born within the
territorial limits of the Untied States. The same act specified
that Indians would also be citizens of the states in which they
resided.
Allotments continued:
 In 1884 the federal government established the Indian
Homestead Act. The Act stated that if tribal members
surrendered their tribal status and became U.S.
citizens, they could receive a 160-acre homestead,
provided that they settled on the homestead and
improved the tract of land.
 Fortunately, “surrender of tribal status” as a condition
was not rigorously required.
Trust Patent for Allotment and Restricted Fee
Patent Subject to Restrictions - Distinction
 Trust Patent for Allotment: “in trust for the sole use
and benefit of the said Indian”
 Fee Patent Subject to Restrictions: “that the title
hereby conveyed shall not be subject to alienation
or encumbrance, either by voluntary conveyance
or by judgment, decree, or order of any court, or
subject to taxation of any character, but shall
remain inalienable and not subject to taxation for
the period of twenty years .”
Allotments continued
 For most “realty transaction” purposes, (including the
granting of easements) trust allotments and restricted
fee allotments are treated the same.
 The main difference is in the method for conversion of
the trust allotment to fee status and the “lifting of the
restrictions” from a restricted fee allotment.
Northwest Region Title Plant
Fax (503) 231-6715
Agency Realty Records
National Archives and Records Centers
If Renewal, Applicant’s Records
County Records
Former Program: Land Record Information
System (LRIS)
Agencies are responsible for entering
easements into TAAMS.
EASEMENT
An interest in land owned by
another person, consisting in the
right to use or control the land, or
an area above or below it, for a
specific, limited purpose.
A Right-of-Way is a type of
easement.
AUTHORITIES FOR GRANTS OF EASEMENTS
Act of March 3, 1901 (25 U.S.C. § 311) authorized the
Secretary to grant rights-of-way to a State or local authority
for the opening an establishment of public highways in
accordance with State law through Indian reservations and
allotted lands.
Act of February 5, 1948 (25 U.S.C. § 323 et seq.)
authorizes the Secretary to grant rights-of-way over tribal
and allotted lands for all purposes; requires use of right-ofway be specifically identified in application. Requires
consent of IRA Tribe (25 CFR Part 169 applies consent
requirement to all tribes). Requires majority consent of
allotment owners.
DURATION
 Unlike a lease or license, an easement
may last FOREVER, but it does not give
the holder the right to possess, take
from, improve, or sell the land.
 ROWs granted under part 169 shall be
for a period not to exceed 50 years. 25
CFR sec. 169.18
 ROWs longer than 50 years should be
sent to the NWRO for review.
TYPES OF EASEMENTS
 1) RIGHT-OF-WAY: The right to pass
through the property owned by
another.
 2) RIGHT TO LIGHT OR AIR.
 3) RIGHT TO ACCESS WATER.
 4) RIGHT TO KEEP SOMETHING ON
THE SERVIENT ESTATE. (e.g.,
CONSERVATION EASEMENT FOR
WILDLIFE HABITAT OR SIGNAGE)
EASEMENT APPURTENANT
An easement created to benefit
another tract of land.
Examples – Access road rights of
ways (ROWs), Water line ROWs,
sewer line ROWs, and electrical
line ROWs.
DOMINANT ESTATE
The land benefiting from an
easement.
SERVIENT ESTATE
The land burdened by an
easement.
PRESCRIPTIVE EASEMENT
An easement created from an open,
adverse, and continuous use over a
statutory period.
There are NO Prescriptive
Easements on ANY Federal
Property, including tribal or
individual trust property.
Implied Easements (A Theory)
 Applies to former allotments on a reservation
 Requires following factors:
a) A fee parcel was formerly part of the reservation and
was severed from Federal ownership by allotment
process;
b) No feasible, alternative route to the property that
does not cross trust land; and
c) The road was built prior to the 1948 enactment
providing for the Secretary to grant rights-of-way
across Indian land.
SUBDIVIDING AN ALLOTMENT
When an allotment is subdivided
into separate tracts or lots, there
MUST be access easements for all
utilities (water, sewer, & electric)
and ingress and egress for each new
tract or lot.
EASEMENT IN GROSS
An easement benefiting a
particular person or entity, but not
a particular piece of land.
Example – Bonneville Power
Administration (BPA) transmission
line, public highways, railroads, oil
and gas pipelines.
PROCEDURES
How to Process a Request for Grant
of Easement for Right-of-Way.
APPLICATION REQUIREMENTS
 1) Application for Grant of Easement
for ROW (in DUPLICATE).
 2) Consents of Landowners (ROW
Form 94-7).
 3) Map of definite location (2 original
mylars & 2 copies, See 25 CFR
169.6,7,8,9,10 &11) CONTINUED
APPLICATION REQUIREMENTS
 4) Deposit of estimated damages or
compensation (See 169.4 & 169.14)
 5) Evidence of Authority of Officers to
Execute Papers (ROW Form 94-4)
 6) Permission to Survey for ROW.
 CONTINUED
APPLICATION REQUIREMENTS
7) FOR CORPORATIONS: 169.4&5
a) State certified Articles of
Incorporation.
b) Certified Corporate Resolution,
By-Laws, Articles of Partnership or
Association authorizing signatory
to file the application.
TITLE STATUS REPORT
Request a TSR from LTRO.
Under ILCA sec. 2216(e) – Names,
address, and ownership interest
may be disclosed to prospective
users for a specific tract. ID
numbers and other “personal”
information should be redacted.
CONSENT FOR PERMISSION TO SURVEY
1) Application for Permission to
Survey Should Include:
a) Purpose
b) General Location
c) Written Consents for permission
to survey required by 25 CFR sec.
169.3
CONSENT FOR INDIVIDUALS
 The Secretary may issue permission to survey and may
grant ROW for individual owners when:
 1) owners are minors or non compos mentis.
 2) The majority ownership consents.
 3) owners whereabouts are unknown.
 4) heirs of an estate have not been determined.
 5) owners are so numerous it would be impracticable
to obtain their consent.
MAPS/PLATS (IN DUPLICATE)
1) Width and Length of ROW
should be clearly shown with
center-line.
2) Scale should be 2,000 ft. to inch
or larger.
3) Map should show allotment
numbers, together with sections,
townships, and ranges.
AFFIDAVIT AND CERTIFICATE
Maps require an affidavit executed
by the engineer who made the
survey and a certificate executed by
the applicant, certifying to the
accuracy of the survey.
APPRAISAL REQUEST
 Submit request directly to the
Regional Office of Appraisal Services
with the following attachments:
 1) TSR
 2) Survey Plats & Maps
 3) Partition Plan
CONTINUED
APPRAISAL REQUESTS
4) Letter of Intent
5) Letter of Consent
6) Copy of ROW Agreement or
Application.
7) Proposed Leases & Permits &
Water Rights (if any).
CONSIDERATION FOR ROW
Consideration shall not be less
than fair market value (FMV), plus
severance damages (if any). 25 CFR
Section 169.12
Consideration can be more than
FMV. 25 CFR Section 169.12
STATEMENT OF FAIR MARKET VALUE
Trust land owners must be
informed of the appraisal
information prior to giving their
consent for a ROW.
Trust land owners may request
Superintendent to negotiate
consideration on their behalf.
CONSENTS TO GRANTS OF ROW
1) Written Consent of Tribe for
ROWs on Tribal Trust Land is
required.
2) Written Consent of Individual
Indian owners for ROWs on
Individual Trust Land is required.
See 25 CFR sec. 169.3
ILCA PERCENT REQUIREMENTS
NOT APPLICABLE TO ROW’S
Majority Requirement of 25 CFR Part 169
Regulation Supersedes the Percent
Requirements of the Indian Land Consolidation
Act.
EMINENT DOMAIN
The inherent power of a
government to take privately
owned property and convert it to
public use, subject to reasonable
compensation.
CONDEMNATION
 The determination and declaration that certain
property is assigned to public use, subject to
reasonable compensation; the exercise of eminent
domain.
 Condemnation is allowed against Individually-owned
trust land, but condemnation is NOT allowed against
Tribally owned trust land.
 Any attempt to take action to condemn
individually-owned lands for a ROW must be
reported immediately to the BIA office having
administrative jurisdiction over the lands. 25 CFR
sec. 169.21
NEPA
 NATIONAL ENVIRONMENTAL POLICY ACT of 1969
(NEPA). Section 102(2) of NEPA established
procedures that are binding on all Federal agencies.
The primary requirement is that an Environmental
Impact Statement (EIS) be prepared for every major
Federal action significantly affecting the quality of the
human environment.
Environmental Assessment
 ENVIRONMENTAL ASSESSMENT (EA) – An EA is a
concise public document, for which a federal agency is
responsible, that provides sufficient analysis for
determining whether a proposed action may or will
have a significant impact on the quality of the human
environment.
CATEGORICAL EXCLUSION
 CATEGORICAL EXCLUSIONS – Actions listed in 516
DM 2, Appendix 1 and 516 DM 10.5 have been
determined not to individually or cumulatively affect
the quality of the human environment.
DAMAGE DEPOSIT
 Applicant must deposit into a “special deposit”
account the total estimated consideration for the
ROW, severance damages caused during the survey,
and estimated damages to result from construction.
25 CFR sec. 169.14
 Indemnification for Government Agencies may be
waived if applicant agrees in writing to pay damages
promptly when they are sustained.
ARCHAEOLOGICAL CLEARANCE
 An Archaeological Clearance is required for
Archaeological Sensitive Areas. The following clause
should be in all ROWs:
GRANTEE agrees that during the term of this Grant of
Easement, if any previously unidentified cultural
resources are discovered within the easement area, work
should be halted immediately and the BIA and/or Tribal
Contractor should be contacted immediately.
PERMISSION TO CROSS AN
EXISTING ROW
Permission may be required if the
proposed ROW crosses an existing
ROW. For example: a railroad
right of way
ACTION ON APPLICATION
 A duplicate original copy of the
conveyance instrument, permanent
and reproducible maps, the
application, with any other pertinent
documents shall be transmitted to the
Land Titles and Records Office for
recordation. 25 CFR sec. 169.15
AFFIDAVIT OF COMPLETION
 An Affidavit of Completion, shall be
promptly filed with the Secretary
upon completion of the ROW, in
duplicate, executed by the engineer
and certified by the applicant. One
copy shall be sent to the Land Titles
and Records Office for recording. 25
CFR sec. 169.16
FINAL INSPECTION REPORT
 After receiving the Affidavit of
Completion, the ROW must be
inspected to determine whether there
have been damages caused during the
survey or during construction. Any
part of the Damage Deposit not
required to cover damages shall be
refunded to the applicant.
PROCEDURAL HANDBOOK
The March 6, 2006, “Bureau of
Indian Affairs, Procedural
Handbook, Grants of Easement for
Right-of-Way on Indian Lands” can
be e-mailed to you upon request.
E-mail to: greg.argel@bia.gov