THE PUBLIC NATURE OF INDIAN RESERVATION ROADS (some initial - - PowerPoint PPT Presentation

THE PUBLIC NATURE OF INDIAN RESERVATION ROADS

(some initial thoughts)

ACCESS ISSUES ACCESS ISSUES

• Checker Board Reservation

Checker Board Reservation

• Right

Right-

• of
• f-
• 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 doesn’ ’t fit t fit

• 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

1. 1.

IRR system roads are public IRR system roads are public

• Consequence: IRR = public road

Consequence: IRR = public road

• Example as useful tool to resolve problems

Example as useful tool to resolve problems

2. 2.

Don Don’ ’t need a recorded easement to place on t need a recorded easement to place on IRR IRR inventory inventory

• History of Reservations

History of Reservations

• History of IRR system

History of IRR system

• Definition of

Definition of “ “public road public road” ” under IRR under IRR

• 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 PUBLIC ROAD that is located within or that is located within or 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

Congress’ ’ express reason: express reason: “ “Recognizing the need for all Federal roads Recognizing the need for all Federal roads that are that are public roads public roads to be treated under uniform policies similar to be treated under uniform policies similar to the policies that apply to Federal to the policies that apply to Federal-

• aid highways, there is

aid highways, there is established a coordinated Federal lands highways program established a coordinated Federal lands highways program that shall apply to that shall apply to … … Indian reservation roads Indian reservation roads... ...” ”

• Objection: Doesn

Objection: Doesn’ ’t mean a road becomes public by t mean a road becomes public by putting it on the IRR inventory putting it on the IRR inventory

Example: Example: Brendale Brendale

• Yakama closed reservation to protect grazing,

Yakama closed reservation to protect grazing, wildlife, and natural resources (1954 wildlife, and natural resources (1954 ord

• rd.)

.)

• 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 says implied easement (1978-

• 81)

81) – – no discussion no discussion

• f public nature of IRR system roads
• f public nature of IRR system roads

Example: Example: Brendale Brendale

• 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 Nation’ ’s zoning regulations s zoning regulations

Example: Example: Brendale Brendale

• 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 can’ ’t deny access t deny access

• 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 right-

• of
• f-
• way. Cities and Counties do it all the time.
• way. Cities and Counties do it all the time.

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 access throughout Rez Rez

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

• pen 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 throughout Rez Rez

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 (not just a given individual allottee allottee) )

IRR History IRR History

• BIA partners w/FHWA in 1930. Sec. of Ag. cooperates

BIA partners w/FHWA in 1930. Sec. of Ag. cooperates w/states and DOI in construction and maintenance of w/states and DOI in construction and maintenance of IRR system roads IRR system roads

• 1936, FHWA required to approve IRR system roads

1936, FHWA required to approve IRR system roads

• FHWA

FHWA’ ’s s purpose is to ensure safety, efficiency, and purpose is to ensure safety, efficiency, and economy of the economy of the public public’ ’s s roads roads

• 1982 STAA makes IRR public by definition

1982 STAA makes IRR public by definition

• Reasonable to assume Congressional funding

Reasonable to assume Congressional funding throughout is to meet a throughout is to meet a public public need, not simply for need, not simply for individual trust individual trust allottees allottees

A public road under IRR laws A public road under IRR laws

• 23 U.S.C. 101(a) defines IRR as public roads, and

23 U.S.C. 101(a) defines IRR as public roads, and further defines further defines “ “public roads public roads” ” as: as: “ “[ [A]ny A]ny road or street under the jurisdiction of and road or street under the jurisdiction of and maintained by a public authority and open to public maintained by a public authority and open to public travel.

• travel. “

“

• Elements:

Elements:

1.

• 1. Jurisdiction of Public Authority (Tribe/BIA)

Jurisdiction of Public Authority (Tribe/BIA)

2.

• 2. Maintained by Public Authority

Maintained by Public Authority

3.

• 3. Open to public travel

Open to public travel

• No recorded easement requirement

No recorded easement requirement

A public road under IRR laws A public road under IRR laws

• “

“open to public travel

• pen to public travel”

” defined by regulations; 23 C.F.R. defined by regulations; 23 C.F.R. 460.2(c) states: 460.2(c) states: “ “Open to public travel means that the road section is Open to public travel means that the road section is available, except during scheduled periods, extreme available, except during scheduled periods, extreme weather or emergency conditions, passable by four weather or emergency conditions, passable by four-

• wheel

wheel standard passenger cars, and open to the general public standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or for use without restrictive gates, prohibitive signs, or regulation... regulation...” ”

• Consequence: If a given road was built and maintained

Consequence: If a given road was built and maintained w/BIA or IRR funds and is open, passable, and there are w/BIA or IRR funds and is open, passable, and there are no gates, signs, or regulations restricting access, it is public no gates, signs, or regulations restricting access, it is public

• No recorded easement requirement

No recorded easement requirement

Common Law analysis of public vs. Common Law analysis of public vs. private roads private roads

• Valenzuela v.

Valenzuela v. Sellars Sellars (Alabama Supreme Ct. (Alabama Supreme Ct. 1945): 1945):

• Single owner subdivides and sells leaving alleyway,

Single owner subdivides and sells leaving alleyway, which gives access to two roads and lots which gives access to two roads and lots

• Defendant blocks alley access

Defendant blocks alley access

• Ct. holds it was dedicated to public despite no
• Ct. holds it was dedicated to public despite no

recorded document of dedication because used by recorded document of dedication because used by public for past 20 years despite, limited use: public for past 20 years despite, limited use: character, not amount, of use is controlling factor character, not amount, of use is controlling factor

Common Law analysis of public vs. Common Law analysis of public vs. private roads private roads

• Town of South Hero v. Wood (Vermont Sup. Ct.

Town of South Hero v. Wood (Vermont Sup. Ct. 2006): 2006):

• Road on maps since 1819, which runs along bay; no recorded

Road on maps since 1819, which runs along bay; no recorded easement or formal process to create easement or formal process to create

• Shoreline erosion requires moving it throughout the years;

Shoreline erosion requires moving it throughout the years; 160 ft from original place in 2000 160 ft from original place in 2000

• Private owners complain on their property

Private owners complain on their property – – issue: did they issue: did they dedicate it to public by actions (what was their intent) dedicate it to public by actions (what was their intent)

• Ct. finds public dedication due to use of road and maintained
• Ct. finds public dedication due to use of road and maintained

w/public funds despite seasonal and sporadic use w/public funds despite seasonal and sporadic use

• Good case for determining

Good case for determining BIA BIA’ ’s s intent in creating a intent in creating a road road – – used by public and maintained w/public funds used by public and maintained w/public funds bodes for public road bodes for public road

Common Law analysis of public vs. Common Law analysis of public vs. private roads private roads

• Lovvorn

Lovvorn v. Salisbury (Colo. Ct. of Appeals):

• v. Salisbury (Colo. Ct. of Appeals):

“ “The ultimate distinction between a public road The ultimate distinction between a public road and private easement and private easement… … is that a private is that a private easement easement … … is is… … limited to specific individuals limited to specific individuals and/or specific uses while a public road is open and/or specific uses while a public road is open to all members of the public for any uses to all members of the public for any uses…” …”

• Hood v. Spruill (Georgia Ct. of Appeals):

Hood v. Spruill (Georgia Ct. of Appeals): “ “[ [U]se U]se is the determinative factor in designating (a is the determinative factor in designating (a road) as road) as ‘ ‘private private’ ’ or

• r ‘

‘public public’” ’”

Conclusion Conclusion

• History of development of Indian lands and

History of development of Indian lands and BIA BIA’ ’s s involvement in building and maintaining roads bodes involvement in building and maintaining roads bodes for a road being public so long as for a road being public so long as ev

• ev. suggests built and

. suggests built and maintained by BIA and public access never restricted maintained by BIA and public access never restricted – – no need for a recorded easement no need for a recorded easement

• Can put on IRR inventory

Can put on IRR inventory – – must treat as public must treat as public

• If want it private, remove from IRR inventory through

If want it private, remove from IRR inventory through agreement w/Sec. of Interior, pass resolution vacating agreement w/Sec. of Interior, pass resolution vacating public right public right-

• of
• f-
• way, and treat as private (signs,

way, and treat as private (signs, regulations, gates, etc.) NOTE: will want a procedure regulations, gates, etc.) NOTE: will want a procedure for notice and comment on removal for notice and comment on removal