THE PUBLIC NATURE OF INDIAN RESERVATION ROADS (some initial thoughts)
ACCESS ISSUES ACCESS ISSUES � Checker Board Reservation Checker Board Reservation � � Right Right- -of of- -Way Access Problems: Way Access Problems: � � Private gates Private gates � � Tribes restricting access (for good reason) Tribes restricting access (for good reason) � � Where is the recorded easement? Where is the recorded easement? � � Trying to develop ROW policy Trying to develop ROW policy � � Thinking about role IRR system roads play Thinking about role IRR system roads play �
INDAIN LAW INDAIN LAW � Notoriously difficult Notoriously difficult � � Merges many areas of American law in a context that Merges many areas of American law in a context that � doesn’ ’t fit t fit doesn � Seemingly inherently contradictory Seemingly inherently contradictory � � Different answers from different attorneys Different answers from different attorneys � � This is one of those different opinions This is one of those different opinions �
Public Nature of IRR Public Nature of IRR IRR system roads are public IRR system roads are public 1. 1. Consequence: IRR = public road Consequence: IRR = public road � � Example as useful tool to resolve problems Example as useful tool to resolve problems � � Don’ ’t need a recorded easement to place on t need a recorded easement to place on Don 2. 2. IRR inventory inventory IRR History of Reservations History of Reservations � � History of IRR system History of IRR system � � Definition of “ “public road public road” ” under IRR under IRR Definition of � � Common law and public vs. private road Common law and public vs. private road � �
Indian Reservation Roads are public! Indian Reservation Roads are public! � 1982 Surface Transportation Assistance Act: 1982 Surface Transportation Assistance Act: � “The term The term “ “Indian reservation road Indian reservation road” ” means a means a “ PUBLIC ROAD that is located within or that is located within or PUBLIC ROAD provides access to an Indian reservation or provides access to an Indian reservation or Indian trust land or restricted Indian land…” …” Indian trust land or restricted Indian land (23 U.S.C. 101(a)) (23 U.S.C. 101(a))
Indian Reservation Roads are public! Indian Reservation Roads are public! Congress’ ’ express reason: express reason: � Congress � “Recognizing the need for all Federal roads Recognizing the need for all Federal roads that are that are “ public roads to be treated under uniform policies similar to be treated under uniform policies similar public roads to the policies that apply to Federal- -aid highways, there is aid highways, there is to the policies that apply to Federal established a coordinated Federal lands highways program established a coordinated Federal lands highways program that shall apply to … … Indian reservation roads Indian reservation roads ... ...” ” that shall apply to Objection: Doesn’ ’t mean a road becomes public by t mean a road becomes public by � Objection: Doesn � putting it on the IRR inventory putting it on the IRR inventory
Example: Brendale Brendale Example: � Yakama closed reservation to protect grazing, Yakama closed reservation to protect grazing, � wildlife, and natural resources (1954 ord ord.) .) wildlife, and natural resources (1954 � Brendale Brendale (great aunt was member) inherits fee (great aunt was member) inherits fee � land in closed area land in closed area � 1972 BIA requires permits for all road travel 1972 BIA requires permits for all road travel � (including BIA and IRR); No guns condition (including BIA and IRR); No guns condition � Brendale Brendale/BIA sues (he loses, then wins); court /BIA sues (he loses, then wins); court � says implied easement (1978- -81) 81) – – no discussion no discussion says implied easement (1978 of public nature of IRR system roads of public nature of IRR system roads
Example: Brendale Brendale Example: � Zoning Dispute (1980s) Zoning Dispute (1980s) � � Yakama Nation applies its ordinance to all Yakama Nation applies its ordinance to all Rez Rez � land land � Yakima County applies to fee land on Yakima County applies to fee land on Rez Rez � � Brendale Brendale develops summer cabins through develops summer cabins through � County (viol. Yakama Nation), then seeks road County (viol. Yakama Nation), then seeks road use permit from BIA for new purchasers use permit from BIA for new purchasers � BIA denies in 1985, basis is conflict with BIA denies in 1985, basis is conflict with � Nation’ ’s zoning regulations s zoning regulations Nation
Example: Brendale Brendale Example: � Brendale Brendale appeals denial of access permit to appeals denial of access permit to � Acting Assistant Secretary of BIA Acting Assistant Secretary of BIA � 1988 letter decision: Despite Dist. Court order 1988 letter decision: Despite Dist. Court order � saying implied easement, this is a BIA road on saying implied easement, this is a BIA road on IRR system. Therefore, it is public and BIA IRR system. Therefore, it is public and BIA can’ ’t deny access t deny access can � Finally, BIA gets it right! Finally, BIA gets it right! Brendale Brendale doesn doesn’ ’t need t need � an easement or permit an easement or permit � Seven years after implied easement finding Seven years after implied easement finding �
Cuts Both Ways Cuts Both Ways � Yakama Nation had legit reasons to close roads Yakama Nation had legit reasons to close roads � � Can use IRR system to accomplish this: Can use IRR system to accomplish this: � � IRR system roads owned by tribe or BIA can be IRR system roads owned by tribe or BIA can be � perm. closed w/agreement between tribe and Sec. of perm. closed w/agreement between tribe and Sec. of Interior (25 C.F.R. 170.813(c)) Interior (25 C.F.R. 170.813(c)) � After agreement, pass resolution vacating public After agreement, pass resolution vacating public � right- -of of- -way. Cities and Counties do it all the time. way. Cities and Counties do it all the time. right Why not tribes? Why not tribes? � Treat as private (Post private, put up gate, Treat as private (Post private, put up gate, � regulations, etc.) regulations, etc.)
IRR: No Recorded Easement IRR: No Recorded Easement Required Required � Ideal to have one, but not reality Ideal to have one, but not reality � � Many Many Rez Rez roads have no recorded easements roads have no recorded easements � � Tribes don Tribes don’ ’t have $$ to buy them all to meet t have $$ to buy them all to meet � needs needs � Shouldn Shouldn’ ’t prevent tribes from managing roads t prevent tribes from managing roads � that already exist, are open for general use by that already exist, are open for general use by public, and BIA (no doubt) built to provide public, and BIA (no doubt) built to provide access throughout Rez Rez access throughout
IRR: No Recorded Easement IRR: No Recorded Easement Required (context) Required (context) � History of Reservations and checker board History of Reservations and checker board � � History of IRR system History of IRR system � � “ “open to public travel open to public travel” ” under IRR system laws under IRR system laws � � Common law analysis of public vs. private roads Common law analysis of public vs. private roads �
Allotment Acts Allotment Acts � Pacific NW Treaties (1850s) created initial Pacific NW Treaties (1850s) created initial Rez Rez � boundaries boundaries � US wants more land; General Allotment Act (1887) US wants more land; General Allotment Act (1887) � � Open Open Rez Rez to individual ownership (and occupation) to individual ownership (and occupation) � � Members get small tracts in trust for 25 years Members get small tracts in trust for 25 years – – then fee then fee � � “ “Surplus Surplus” ” sold to settlers sold to settlers � � Massive land loss. 138 million acres in 1887, 48 million Massive land loss. 138 million acres in 1887, 48 million � by 1934 by 1934 � Indian Reorganization Act ends it (1934) Indian Reorganization Act ends it (1934) � � Result = checker board Result = checker board � � Surely, roads built between 1887 Surely, roads built between 1887- -1934 to provide access 1934 to provide access � throughout Rez Rez throughout
IRR History IRR History � Born May 26, 1928 (25 U.S.C. 318a): Born May 26, 1928 (25 U.S.C. 318a): � “Appropriations are hereby authorized Appropriations are hereby authorized… … for for … …the the “ survey, improvement, construction, and maintenance of survey, improvement, construction, and maintenance of Indian reservation roads…” …” Indian reservation roads � Public Money Public Money � � No requirement of documented public easements No requirement of documented public easements � � No doubt $ used to meet access needs throughout No doubt $ used to meet access needs throughout Rez Rez � (not just a given individual allottee allottee) ) (not just a given individual
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