Examining the Rights-of-Way Process for Indian Allotment Lands - - PowerPoint PPT Presentation

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 Analysis Conclusion & Recommendation

Secretary Ken Salazar and Bernadette Fontenelle, 2012 Groundbreaking Ceremony Twin Lakes, NM

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 Executive Order

• f 1880 (red letter ’J’)

(Walden, 2013)

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

Each type of land has its own ROW process

Example of Hoodoo Rock, near Whiterock, NM

Reach Number of Allotments Impacted Number of Allottees (Share Interest holders) 12.1 7 8 200 12.2 4 50 22 14 13 273/358 400 TOTAL 25 477/647 650 204/289 Per Reclamation’s Realty Specialist, all allotment land acquired (ROW approvals from BIA) for the Water Supply Project, data retrieved 05.15.18 One allotment pending due to realignment

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

• f Easement for Right-of-way
• n 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

1. Recorded answers collected at meetings with past ROW applicants 2. Compare other ROW applicants’ experience 3. Includes Federal sister Agencies input (BIA & Reclamation) 4. Bottom row, researcher’s own responses

Four Questions

1. Q1- For allotment lands, what is the current ROW process? 2. Q2- What are the impacts for the Water Supply Project pertaining to the ROW process? 3. Q3- What other problems are found in the current ROW process for allotment lands 4. Q4- How can the current ROW process be improved for allotment lands?

ROW Applicants Q1 Q2 Q3 Q4 BIA, Eastern Agency, Real Estate Division Crownpoint, NM 25 CFR Part 169 Fractionalized Allotment and allottee consent Fractional Allotment Amending federal regulations Reclamation, Four Corners Construction Office, Realty Specialist 25 CFR Part 169 Delay of Water Supply Project No clear ROW process for Navajo allotment lands Acknowledging the ROW process for allotment lands in future projects Continental Divide Electric Company 25 CFR Part 169 plus ROW consent Delay of Water Supply Project Numerous Heirs part

• f Fractional Allotment

Streamline the current ROW process City of Gallup- DePauli Engineering 25 CFR Part 169 two processes ROW consent by Navajo allottees Better procedures for ROW process that all can use Set clear ROW procedures and re- submittals Indian Health Service 25 CFR Part 169 plus ROW consent ROW consent by Navajo allottees Gathering allottee ROW consent Better collaboration with BIA and allotment lands

• wners for Row

consent Indian Land Tenure Foundation The ROW process for tribal allotments is based

• n utility service

After comparison, Navajo has a poor ROW process ROW process for Indian allotments are unclear Tribes to follow their existing ROW process My Comparative Analysis Scattered process, many loopholes No step by step ROW process for Navajo allotment land ROW process for Navajo allotments are unclear Create a better ROW process for Navajo Nation and BIA administrative 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