2011 IRR RightOfWAY Jim Brophy

7/27/2019 2011 IRR RightOfWAY Jim Brophy

1/31

RIGHT-of-WAY

in

and the

IRR PROGRAM


2/31

What is a Right-of-Way?

right of way also right-of-way (rtv-w) n. pl.

1. a. The right to pass over property owned.

b. The path or thoroughfare on which suchassa e is made.

2. The strip of land over which facilities suchas highways, railroads, or power lines are

built.

3. The customary or legal right of a person,vessel, or vehicle to pass in front of

another.


3/31

Easement

n. the right to use the real property of anotherfor a s ecific ur ose. The easement is itselfa real property interest, but legal title to the

underlying land is retained by the originalowner or a o er purposes. yp caeasements are for access to another property

"egress," since entry and exit are over thesame path).


4/31

e n ons o erms common o n an

Country


5/31

Indian lands that were alienated as a result of the

transferred to non-Indian parties but remainedwithin reservation boundaries. As a result, trustan s, ee an s, an an s owne y r es,individual Indians and non-Indians are mixed

together on the reservation.

Lands within reservation boundaries may be in avariety of types of ownershiptribal, individual

, - ,fee lands. The pattern of mixed ownershipresembles a checkerboard.


6/31


7/31


8/31

Alienated LandLand that has had its ownership transferredto another party.

Allotted Land

distributed to individual Indians, generally in

40-, 80-, and 160-acre parcels.

Allottee

n n v ua w o owns an un v e nterestin a parcel of allotted land.


9/31

Beneficial Use

e r g o ene rom ve on, use, profrom) a parcel of land, the legal title to which

.

land, the trustee is the federal government. Chain of Title

A report of the ownership history from the

government allotment ortrust patent to thecurrent owners.

Escheat

The reversion of the property of a deceasedperson to the government when there are noega e rs.


10/31

Fee Simple (Fee Land)

title to and control of the property. The owner maymake decisions about land use or sell the land

.

Fee-to-Trust ConversionWhen original allotted trust lands that wererans erre o ee s mp e s a us are re urne otrust status. Tribes or individual Indians can initiate

the process on fee lands they already own oran s ey acqu re. n genera , s convers on cantake as much as two years.

Forced Fee Patents

A trust-to-fee conversion without the request,consent, or knowledge of the landowner. Forced

through tax foreclosure sales.


11/31

Fractionated Ownership (Fractionation)

one owner as undivided interests.Fractionated ownership results fromowners p n eres s e ng v e aga n anagain when an owner of the interest dieswithout a will rovidin for the distribution ofthe asset.

Trust parcels with fractionated ownershipoften have hundreds, sometimes thousands,

agree to a particular use of the land, makingit difficult for any one of the owners to use the

. . ,

starting a business).


12/31

Indian Land Tenure

hold land.

Indian LandownerAny tribe or individual Indian who owns annterest n n an an n trust orrestr ctestatus.

Interest

interest is an ownership right to the surfaceestate of Indian land that is unlimited or

.


13/31

Off-Reservation Trust Land

is protected by the federal government for Indianuse. For example, these pieces of land could bereligious sites or pieces allotted to individuals outof the public domain.

Patents-in-Fee

government conveys or transfers land to people.In fee refers to the fee simple ownership in land.

- -document issued by the U.S. Federal Governmentto terminate the trust created by the trust patentissued to the allottee.


14/31

Restricted Fee Land

,there are specific government-imposed restrictionson use and/or disposition.

Tenancy in CommonThe most common form of ownership of rights toan e n rus or a ve mer cans. enan s ncommon have unity of possession, which means

that every owner has an equal right with their co-owners to the land as long as they live. A tenant incommon has an undivided interest in the whole

,transfer theirinterest by gift, sale or will. A tenantin common can also decide who will own theirn eres w en ey pass away.


15/31

Title Status Report (TSR)

Also referred to as an Interest ReportSimple or Interest Report, a TSR takes thep ace o a e comm men or an a sheld in trust. The TSR is a necessary

property on trust land.

Tribally-Owned Land

an a s owne y a group o n ansrecognized by the federal government as

.


16/31

Trust Land

Land owned either by an individual Indian or a

tribe, the title to which is held in trust by the

federal government. Most trust land is withinreservation boundaries, but trust land can also

e o -reserva on, or ou s e e oun ar es

of an Indian reservation.

Trust Patent

Individual Indian allottees were issueddocuments called trust patents to verify that

their land was held in trust by the government.


17/31

- - The conversion of lands held in trust b the

U.S. Federal Government to fee simplestatus. With the passage of the Burke Act of1906, Indian lands held in trust were

converted to fee status if the Secretary of the

was competent. Today, trust lands can beconverted to fee status in 30 da s. Onl

individual Indian landowners can request atrust-to-fee conversion.


18/31

aspects of managing a road system


19/31

Tribes

Local Units of Tribal Government Villages

Chapters

Districts Municipalities

State

y County


20/31

Construction

Maintenance

Inventory

Open range

Utilities Vendors

Tort Liability

Utilities and other ROW inhabitants Enhancements

Conservation Easements


21/31

1. A FEDERAL, STATE DOT, LOCAL PUBLIC

,

MAINTAINING AGENCY REQUESTS ARIGHT OF WAY ACROSS TRIBAL, ,

ALLOTTED LAND, AS PART OF A

FEDERAL AID PROJECT.

2. A TRIBE RECEIVES FEDERAL FUNDING

AND RESPONSIBILITY FOR ACQUIRINGRIGHT OF WAY FOR A FEDERAL LANDS

.


22/31


23/31

23 U.S. CODE 204 CHAPTER 2

public roads are to be treated under uniformpolicies similar to the policies that apply to Federal-,

apply to public lands highways and Indianreservation roads (IRR) and bridges.

Funded by FLH; Jointly administered by FHWA andBIA

Developed and constructed by FLH, BIA, Tribe orjointly.

- .

Federal Trust Responsibility


24/31

(12) INDIAN RESERVATION ROAD.. .

provides access to an Indian reservation orIndian trust land or restricted Indian land thatis not subject to fee title alienation without theapproval of the Federal Government, or

, ,communities in which Indians and AlaskanNatives reside, whom the Secretary of the

services generally available to Indians underFederal laws s ecificall a licable toIndians.


25/31

an integral part of the FLH Program

responsibilities

Federal roads treated under uniform policies

Federal Trust Responsibility balanced with


26/31

PROPERTY

INTERE T F R RI HT F WAYTENURE OF RIGHT OF WAY

All ROW shall be easements Term may be without limitation

25 CFR 169.18

ADEQUACY OF REAL PROPERTY INTEREST

Acquire ROW adequate for the construction,

protection of both the facility and the travelingpublic.

23 CFR 1.23 23CFR 710.201


27/31

Request for Easement on Tribal

Trust/Restricted Land

easements across trust lands or otherwiserestricted land under BIA urisdiction

Tribe or allottee must consent to the easement

Each State has an FHWA approved ROW

way easements on tribal trust or restricted


28/31

Tribe or BIA Acquires Right of Way

For a Federally Funded Project

Lands Highway and Programs Run by otherFederal A encies

Same Basic Requirements in each program;

There ma be additional requirements,exceptions or conditions in the ProgramLegislation

Check with Program Agency for guidance Determine Agency with Jurisdictional

Authority


29/31

EASEMENT AUTHORITY ON

TRIBAL LAND

r mary aut or ty or grant ng across

trust and restricted land - 25 USC 323-328

BIA re ulations a ear at 25 CFR 169


30/31

GENERAL APPROVAL

PROCESS1. BIA A roves A raisals

Allottee OwnershipBIA/ State DOT Secures Consent from PropertyOwner

Fractionated ownership of heirs

2. Tribal Ownership

Council

BIA Su erintendent A roves Easement Grant


31/31

IRR Tribal Coordinator, Realty Specialist

ast treet

Vancouver, WA. 98661-3801

- -

2011 IRR RightOfWAY Jim Brophy

Documents

Transcript of 2011 IRR RightOfWAY Jim Brophy