Examining the Rights-of-Way Process for Indian Allotment Lands Navajo-Gallup Water Supply Project Bernadette Benally Fontenelle June 20, 2018
Introduction Background of Navajo Nation Navajo Gallup Water Supply Project Objectives Methodology Secretary Ken Salazar and Bernadette Fontenelle, 2012 Groundbreaking Ceremony Analysis Twin Lakes, NM Conclusion & Recommendation
Issue: Land access for Navajo Allotment lands is questionable Real live issue: Navajo-Gallup Water Supply Project (Water Supply Project) Define a Right-of-Way (ROW) What is the current ROW Process for Navajo allotment lands? Two sister agencies- U.S. Bureau of Reclamation (Reclamation) and Bureau of Indian Affairs (BIA)
Research Focus Area Reaches: 12.1, 12.2, & 22 Features 280 miles of pipeline 2 treatment plants Several pumping plants 2 Laterals San Juan (red line) Cutter (yellow & green)
In 2009, Navajo Nation San Juan River Water Rights Settlement resolved some claim to the river and authorizes construction of Water Supply Project History plays a major role- past federal Indian allotment history/policy impacts today’s federal water projects San Juan River, 2012 Between Nenahnezad and Upper Fruitland Chapter
Navajo Reservation created through Treaty of 1868 (Naaltsoos Sáni’) First Navajo allotments created through (Walden, 2013) Executive Order of 1880 (red letter ’J’)
Courtesy copy from Navajo Nation Land Department, 2014
1. Indian (Navajo)Allotment Land 2. Private Land 3. State Land 4. Tribal Fee Land 5. Tribal Trust Land 6. Checkerboard Land Example of Hoodoo Rock, near Whiterock, NM Each type of land has its own ROW process
Reach Number of Number of Allotments Allottees (Share Impacted Interest holders) 12.1 7 8 200 204/289 One allotment 12.2 4 50 pending due to realignment 22 14 13 273/358 400 TOTAL 25 477/647 650 Per Reclamation’s Realty Specialist, all allotment land acquired (ROW approvals from BIA) for the Water Supply Project, data retrieved 05.15.18
Examine the ROW process for Navajo Allotments Lands- Navajo Gallup Water Supply Project Public Outreach- Inform the general Navajo community (43 Chapter Houses) and others about the Water Supply Project and outreach to Navajo Allottees (establish contact) Gather the views of Navajo Allottees Identify problems in the current ROW process and how it impacts economic development
Photo credit: M. Smith of Twin Lakes taken at Rocksprings Chapter House
Met with those involved in past ROW experience with BIA Eastern Agency to create a matrix Study the history of Navajo allotments and how it impacts the Water Supply Project and the ROW process Design a conceptual framework to demonstrate and better understand the ROW process
Compare Two Conceptual Framework Matrix- poses 4 questions to Reclamation, BIA, and past ROW applicants Intergenerational Exercise with Navajo Allottees Document Review- how allotments came about
Framework 1- BIA current ROW process- Flow Chart Framework 2- Indian Land Tenure Foundation- ROW Five-Step Process
BIA’s current ROW process (Retrieved www.bia.gov Procedural Handbook Grants of Easement for Right-of-way on Indian Lands, pg. 4)
Encourages Indian tribes to adopt a ROW process: Step 1 Application Step 2 Notification Step 3 Appraisal Step 4 Negotiation Step 5 Closing Courtesy of Indian Land Tenure Foundation www.itfi.org
Matrix Four Questions 1. Recorded answers 1. Q1- For allotment lands, what is collected at meetings the current ROW process? with past ROW 2. Q2- What are the impacts for the applicants Water Supply Project pertaining 2. Compare other ROW to the ROW process? applicants’ experience 3. Q3- What other problems are 3. Includes Federal sister found in the current ROW process Agencies input (BIA & for allotment lands Reclamation) 4. Q4- How can the current ROW 4. Bottom row, process be improved for researcher’s own allotment lands? responses
Q1 Q2 Q3 Q4 ROW Applicants BIA, Eastern Agency, Fractionalized Amending federal Real Estate Division 25 CFR Part 169 Fractional Allotment Allotment and regulations Crownpoint, NM allottee consent Reclamation, Acknowledging the No clear ROW process Four Corners 25 CFR Part 169 Delay of Water ROW process for for Navajo allotment Construction Office, allotment lands in Supply Project lands Realty Specialist future projects Streamline the Continental Divide 25 CFR Part 169 plus ROW Delay of Water Numerous Heirs part current ROW Electric Company consent Supply Project of Fractional Allotment process Better procedures for Set clear ROW City of Gallup- DePauli 25 CFR Part 169 ROW consent by ROW process that all procedures and re- Engineering two processes Navajo allottees can use submittals Better collaboration with BIA and 25 CFR Part 169 plus ROW ROW consent by Gathering allottee allotment lands Indian Health Service consent Navajo allottees ROW consent owners for Row consent The ROW process for After comparison, ROW process for Tribes to follow their Indian Land Tenure tribal allotments is based Navajo has a poor Indian allotments are existing ROW Foundation on utility service ROW process unclear process Create a better ROW No step by step ROW process for process for Navajo My Comparative Scattered process, many ROW process for Navajo allotments are Nation and BIA Navajo allotment Analysis loopholes unclear administrative land regulations
Intentions vs. Gathering ROW Consent Views Allottee Views about the current ROW process Allottee consent doesn’t matter No compensation (Water is Life!) Permission-to-survey (PTS) vs. ROW consent Years of broken promises by past developers Family disputes Navajo language Fractional allotments For decease allottees, new heirs do not have a say in the probated allotment land Lost of mail- poor communication with allottees
Conducted to better understand of why the current ROW process is structured the way it is for Navajo allotments Documents Reviewed: • Navajo Treaty of 1868 • Executive Order of 1880 • General Allotment Act of 1887 • Indian Reorganization Act of 1934 • United States Code Section 323-328 • 25 Code of Federal Regulations, Part 169 • Navajo Nation San Juan Water Settlements
The Indian allotment and its history impacts economic development projects for example the Water Supply Project Current BIA’s ROW process for Navajo allotments lays out the rules and regulations not a step-by-step process Creating an updated ROW process for Navajo allotment lands is necessary Applicable Law • United States Code Section 323-328 (Frye, 2014) • 25 Code of Federal Regulations Part 169
BIA has authority over Navajo allotment lands, not the tribe or state. Decisions in the hands of Secretary of Interior & BIA Eastern Agency Superintendent Defective ROW process for Navajo allotment land. Why? Because of the problems identified in this research, and the cost of time and money Most problematic is retrieving consent for PTS, then the actual ROW
Who represents the Allottees? BIA or Navajo Nation? The Settlement did not address individual Navajo Allottee instead as a tribe, the Navajo Nation; future projects include Allottees The current ROW process for Navajo allotments is a lengthy confusing process and includes retrieving two consents from Navajo Allottees which takes time; future projects address ROW access for Navajo allotment lands For the Water Supply Project, Reclamation applied in 2014, after several application rejections, finally approved in 2018 Without allotment land owner consent and a feasible ROW process, future economic projects will be delayed
This research identified the problems, use it as a tool to improve the ROW process for Navajo allotment lands by adopting Framework 3 For Water Supply Project, little did Reclamation know they had to get two consent: PTS then ROW “Acquiring the Right-of-Way required more effort than designing the water line project” (the Gallup Independent, 2014)
Recommend a framework that pertains to Navajo Allotment Lands only Improve relationship between Navajo Nation government and Navajo Allottees regarding the ROW process, currently, Allottees left out until consent is needed
Reach 12A- the first few pipes installed, 2013 Twin Lakes, NM
Bureau of Reclamation. (2014). Navajo-Gallup Water Supply Project- Project Alignment Map. Retrieved from Bureau of Reclamation: http://www.usbr.gov/uc/rm.Navajo/Navajo-gallup/pdfs/ProjAlignment-map.pdf Davis, F. (2014). Dine Allottee Association. Retrieved from www.navajoallottee.com Department of Interior. (2006) Procedural Handbook Grants of Easement for Right-of-Way on Indian Lands. Washington, D.C. Retrieved from www.bia.gov Frye, P. (2014). Email discussion about what is the applicable law for Navajo allotment lands. Albuquerque, NM. Indian Land Tenure Foundation. (2012). The Right of Way Process. The Message Runner. Retrieved from www.iltf.org Walden, L. (2013). Handout-Navajo Government History: 1846 to 2013. Farmington, NM. Electronic copy of professional project may be found at http: / / wrp.unm.edu/ WRP_professionalproj.html
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