1. Rights-of-Way Over Indian Lands
25 C.F.R. 169
BIA Procedural Handbook
Introduction

2. What is an Easement vs. Right-of-Way
An easement is a right one has in the land of another created by a grant, reservation, agreement, prescription or necessary implication.
Easement of necessity – granted by a court when it is determined said easement is absolutely necessary for use and enjoyment of land (landlocked parcels, commonly).
Prescriptive easement – granted by a court upon the presumption that a written easement existed after a period of open and continuous use of the land.
A right-of-way is a strip of land (noun) used or the right granted to pass over the land of another (verb).

3. When is an approved grant of easement for right-of-way required?
When a project encumbers restricted trust land (allotments), regardless of who is the applicant.
When a project encumbering Tribal or restricted trust land is funded by a source requiring title evidence of encumbrance.
When the grantee of easement over Tribal land is an entity outside the tribal government.
When NEPA requires Federal action.
When the landowner requires or desires title evidence of encumbrance.
When there is a change in location or status of a previously granted right-of-way.

4. What are the requirements to obtain easement?
Application for Permission to Survey +
Right-of-Way Application (in triplicate) +
Authority of Officers to Execute Documents +
Survey Plat (in triplicate) +
Field Notes +
Land Description Review +
Applicant’s Certificate +
Consent of Landowner For Survey +
Engineer’s Affidavit +
Landowner’s Consent for Right-of-Way +
State Certified Corporate Charter* +
Field Inspection (notes) +
Certified Copy of Resolution or By-Laws* +
Appraisal +
NEPA Document +
Articles of Partnership or Association* +
(Evidence of) Consideration for Rights Granted (compensation) =
State Business License* +
Damage Deposit (double estimated)* +
Grant of Easement for Right-of-Way
Title Status Report +
*if applicable
Required Documents
Pursuant to C.F.R.§169 and national and regional policy and procedure, these documents are required to process an application for right-of-way.

5. Where do I start?

6. Identify land affected by the proposed right-of-way
Where is the land?
Identify land affected by the proposed right-of-way
Step 1: Land title status The Applicant submits the Request for Title Status Report as well as maps of general location to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

7. Who is the applicant? Self-Governance 638 Tribes
Step 2: Evidence of Authority of Officers to Execute Documents
The Applicant will submit the Evidence of Authority form and other applicable documents to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department
Other applicable documents may include State Business License, Double estimated damage deposit, State certified corporate charter, Certified copy of resolution or by-laws, Articles of Partnership or Association

8. Who is the landowner? Land ownership defined:
Allotments (restricted trust land)
Tribal Trust Land
Land held in trust by the United States of America for the Tribe or Band. Tribe or Band consent for its members/constituents.
Usually multiple owners on title, which can include tribal government ownership. Consent must be obtained by majority.

9. How does the landowner give consent?
Allotted (restricted trust land)
Tribal Trust Land
Tribal government grants consent by Tribal Council Resolution.
Individual consent forms obtained by the applicant.
**** Requirements that must be identified in the Resolution:
1.) Term (Length of time)
2.) Compensation
3.) Legal Description

10. 169.3 Consent of landowners:
Please familiarize yourself with …
169.1 – Definitions
169.2 – Purpose and scope of regulations
Consent of landowners:
(a) No right-of-way (or permission to survey) shall be granted across tribal land without prior written consent of the Tribe (Band).
(b) No right-of-way (or permission to survey) shall be granted across individual trust land without prior written consent of the landowners and approval of the Secretary – with the following exceptions:

11. Consent of landowners
continued
(c) The Secretary may issue permission to survey and may grant rights-of way over individually owned lands without consent when:
Owner is a minor or non compos mentis
For non-consent/non-response with majority consent of landowners
Whereabouts unknown
Undetermined heirs (un-probated estate of deceased owner)
Highly fractionated land where grant of right-of-way will cause no substantial injury to land or any owner thereof.

12. How is consent shown? Self-Governance 638 Tribes
Step 3: Evidence of landowner consent
Landowner consents for survey (either individual or by Tribal Resolution or both) are obtained by the Applicant, and are submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

13. Permission to survey for right-of-way is granted.
Step 4: Application for permission to survey
Permission to survey application, accompanied by evidence of landowner permission, damage deposit (where applicable) and other applicable documents, is submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

14. Permission to survey
Anyone desiring to obtain permission to survey for a right-of-way across individually-owned, tribal or Government land must file a written application with the Secretary. The application shall:
Adequately describe the proposed project, including purpose and general location, and
be accompanied by the written consents required by 169.3, and
Demonstrate satisfactory evidence of the good faith and financial responsibility of the applicant, and
Be accompanied by a check or money order for twice the estimated damages as a result of the survey

15. 169.4 Permission to survey The Application shall also contain:
continued
The Application shall also contain:
Indemnification agreement against liability by the US, landowners and occupants of land for injury or loss of life as a result of the survey.
If applicant is an agency or instrumentality of state or Federal Government, damage deposit is waived (per Federal law).
Corporate applicants must provide copy of corporate charter or articles of incorporation, certified copy of resolution or bylaws authorizing application.
If applicant is located in a different State, certificate that Applicant is authorized to do business from applicable State.

16. Permission to survey
BIA Realty reviews materials submitted for permission to survey. If a complete application for permission to survey, with supporting documentation and landowner’s consent, is received, BIA Realty grants Applicant permission to survey. Typically this approval is granted via a letter to the applicant.
BIA Realty recommends that the Applicant also requests permission for appraisal when seeking permission to survey.
Permission to survey is not permission to construct!

17. Application Process – Phase 1
Right-of-Way Proposed
Request Title Status Report
Authority of Officers to Execute Documents*
And supporting documentation/damage deposit
Landowner Consent(s)
SUBMIT AS APPLICATION PACKAGE!
Self-Governance
Tribal Realty Department
Application for Permission to Survey
Start
638 Tribes
BIA Realty
Department
STOP Permission to Survey Granted by BIA

18. Completion of survey Self-Governance 638 Tribes
Step 5: Surveying trust lands
Upon approval of application for permission to survey, the Applicant will perform a survey on the affected land. Completed surveys are submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department
Upon receipt of the survey, it will be submitted to the Bureau Indian Land Surveyor (BILS) for a Legal Description Review (LDR) and approval

19. Surveys
Maps
(a) Maps shall accompany the right-of-way application. Field notes shall also accompany the application. The width of the right-of-way shall be clearly shown on the maps.
A separate map shall be filed for each section of 20 miles of right-of-way. The map of the last section of right-of-way may include any excess of 10 miles or less.
The scale of maps showing the line of route normally should be 2,000 feet to an inch, but can be drawn to a larger scale when necessary.
Maps shall show the allotment number of each allotted tract, and shall clearly designate each tract affected, listing sections, townships and ranges of lands crossed.

20. Field notes of the survey shall appear along the line indicating the right-of-way on the maps, unless the maps would be too crowded to be easily legible, in which event the field notes may be filed separately in such form that they may be folded readily for filing. Where field notes are placed on separate paper, it will be necessary to place on the maps only a sufficient number of station numbers so as to make it convenient to follow the field notes. The field notes shall be typewritten, and be sufficiently complete so as to permit the line indicating the right-of-way to be readily retraced on the ground. They shall show whether the line was run on true or magnetic bearing, and in the latter case, the variation of the needle and the date shall be stated. One or more bearings must be given. The 10-mile sections must be indicated and numbered on all lines of roads submitted.
Field Notes
This is information to be shared with the surveyor. We won’t read it line for line, but it is straight out of the Federal Register, and should be reviewed by Tribal Realty staff and provided to surveyor.

21. Public Survey
The terminal of the line of route shall be fixed by reference of course and distance to the nearest existing corner of the public survey. The maps, as well as the engineer’s affidavit and the applicant’s certificate, shall show these connections.
When either terminal of the line or route is upon unsurveyed land, it must be connected by traverse with an established corner of the public survey if not ore than 6 miles distant from it, and the single bearing and distance from the terminal point to the corner computed and noted on the maps, in the engineer’s affidavit and the applicant’s certificate. The notes and all data for the computation of the traverse must be given.
This is information to be shared with the surveyor. We won’t read it line for line, but it is straight out of the Federal Register, and should be reviewed by Tribal Realty staff and provided to surveyor.

22. 169.9 Connection with natural objects
When the distance to an established corner of the public survey is more than 6 miles, this connection will be made with a natural object or a permanent monument which can be readily found and recognized, and which will fix and perpetuate the position of the terminal point. The maps must show the position of such mark, and course must be given an accurate description of the mark and full data concerning the traverse, and the engineer’s affidavit and the certificate on the maps must state the connections.
Whenever the line of survey crosses a township or section line of the public survey, the distance to the nearest existing corner shall be noted. The maps shall show these distances and the station numbers at the points of intersection. The field notes shall show these distances and the station numbers.
Connection with natural objects
Township and section lines
This is information to be shared with the surveyor. We won’t read it line for line, but it is straight out of the Federal Register, and should be reviewed by Tribal Realty staff and provided to surveyor.

23. Rights-of-Way over Indian Lands
Affidavit and certificate
There shall be subscribed on the maps of definite location an affidavit executed by the engineer who made the survey and a certificate executed by the applicant, both certifying to the accuracy of the survey and maps and both designating by termini and length the line of route for which the right-of-way application is made.
Maps covering roads built by the BIA which are transferred to a county or State government shall contain an affidavit as to the accuracy of the survey executed by BIA; the affidavit is by an authorized county or State officer who certifies acceptance of the transfer and satisfaction with the accuracy of the survey and maps.
Please note the difference between these two required documents and the signatory responsibility for each.

24. Affidavit and Certificate
Step 6: Submit Engineer’s Affidavit and Applicant’s Certificate
If not published within survey maps, these documents are executed separately, and submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

25. Environmental compliance
Step 7: NEPA compliance
The Applicant will complete the National Environmental Policy Act (NEPA) Environmental Assessment Questionnaire and submit to:
638 Tribes
Self-Governance
BIA Realty Department
Tribal Realty Department
BIA Realty will submit the
appropriate completed NEPA document to
BIA Environmental Services for review.

26. NEPA Compliance
Right-of-way renewals require a Categorical Exclusion when there is no change to the trust asset (land).
New rights-of-ways require a Phase I Environmental Assessment (at minimum).
NEPA (National Environmental Policy Act) requires review of proposed actions on Federal Lands (including lands to which the United States is a trustee).
In the Midwest Region, NEPA compliance documents are reviewed by Environmental Services staff. Questions regarding level of environmental assessment required should be addressed with the Agency.
Approved NEPA document must be included with Application for Right-of-Way.

27. Application for right-of-way
Step 8: Application for Grant of Easement for Right-of-Way
Applicant will complete the Application for Grant of Easement with the following information:
Project Name
Authority
Landowner Name
Term
Tract Number
Provisions
Tract Description
Maps
Applicant’s name
Engineer’s Affidavit
Easement description
Applicant’s Certificate
Completed Applications are submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

28. Applicable Authorities
The Act of February 5, 1948 – 25 U.S.C. § – applies to most rights-of-ways; may be made without limitation as to term of years; all other rights-of-ways shall be for a period not to exceed 50 years.
The Act of March 11, 1904 – 33 Stat. 65; March 2, 1917 – 39 Stat. 973 (as referred to in 25 CFR § – applies to Oil and Gas Pipelines, providing that term cannot exceed 20 years, with a 20 year renewal option.
The Act of March 2, 1998 – 30 Stat. 990 – applied to rights-of-ways for railway, telegraph and telephone lines.
The Act of March 3, 1901 – 30 Stat applied to rights-of-ways for telephone and telegraph lines and allowed for piggy-backing.

29. 169.5 Application for right-of-way
Written application shall be filed in duplicate, and shall:
Identify the specific use requested, and
Cite the statute or statutes under which it is filed, and
Define the width and length of desired right-of-way, and
Be accompanied by appropriate documents in regard to corporations, and
Be accompanied by a duly executed stipulation agreeing to 169.5(a)-(k), and
Be accompanied by maps of definite location consisting of an original and two reproductions.
Term

30. Application Process – Phase 2
Completed Survey
Applicant’s Certificate & Engineer’s Affidavit
(often on survey drawing)
NEPA
Compliance
Application for
Right-of-Way
SUBMIT AS APPLICATION PACKAGE!
Self-Governance
Tribal Realty Department
Start
638 Tribes
BIA Realty
Department
STOP

31. Obtaining fair market value
Step 9: Appraisal Request
Upon receipt of the right-of-way application, survey, applicant’s certificate and engineer’s affidavit, a Statement of Work (SOW) request will be written by :
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department
BIA Realty will submit the
Statement of Work request to the
Office of Appraisal Services for completion.

32. Obtaining fair market value
Step 9 continued: Appraisal Report
The Statement of Work (SOW) is determined by the Office of Appraisal Services and will be forwarded to the Applicant, who is responsible for obtaining the appraisal per the standards set out in the SOW.
A completed appraisal is forwarded to the Office of Appraisal Services for review and approval through:
Self-Governance
638 Tribes
BIA Realty Department
If Office of Appraisal Services is not the appraiser, BIA Realty will submit the completed appraisal report to the that office for review.

33. Appraisals
25 CFR § requires that “fair market value” is minimum consideration for the rights granted via a right-of-way. Fair market value is determined by an appraisal. Appraisals are either performed by or reviewed/approved by the Office of Appraisal Services. The Midwest Region’s Office of Appraisal Services is located in Ashland, Wisconsin. OST-Office of Appraisal Services 801 W. Lakeshore Drive, Ste 3 Ashland, WI PH: (715) Fax: (715)
Scope of work, request for appraisal, request for review.
Contracted appraisers must receive a scope of work from OAS in order for that Agency to review an appraisal.
Sample letter in the handouts, requesting scope of work.

34. Acknowledgement of Fair Market Value
Step 10: Statement of Fair Market Value
Upon OAS’s review and approval of the appraisal, the Applicant will submit the Statement of Fair Market Value form with consent for easement form for signature by the landowners.
The completed Statement of Fair Market Value form will be submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

35. Landowner’s consent for right-of-way
Step 11: Evidence of landowner consent
Consent is granted by the landowner(s) after appraised value is known and consideration is agreed upon by landowners; evidence of consent is submitted to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

36. Collection of compensation
Step 12: Consideration for rights-of-way grants
Applicant makes compensation for the right-of-way and for all damages incident to survey. Monetary compensation to landowners is based on the appraised value, and is negotiable. Compensation/consideration can be include non-monetary items, based on negotiated agreements between the landowner and Applicant. Such agreements must be contained within a BIA- approved contract, if the agreement affects a trust asset under jurisdiction of the Bureau of Indian Affairs. Compensation and/or evidence of other consideration should be forwarded to:
Self-Governance
638 Tribes
Tribal Realty Department
BIA Realty Department

37. 169.12 Consideration for rights-of-way grants
Except when waived in writing by the landowners or their representatives as defined in §169.3 and approved by the Secretary, the consideration for any right-of-way granted or renewed under this part 169 shall be for not less but not limited to fair market value of the rights granted, plus severance damages, if any, to the remaining estate.
The Secretary shall obtain and advise the landowners of the appraisal information to assist them (the landowner or land0wners) in negotiations for a right-of-way or renewal.
Under self-governance, you substitute your Band’s name for Secretary in the paragraph above!

38. Other damages
In addition to the consideration for a grant of right-of-way provided for by other provisions of §169.12, the applicant will be required to pay all damages incident to the survey of the right-of-way or incident to the construction or maintenance of the facility for which the right-of-way is granted.

39. Payment and Distribution

40. 169.14 Deposit and disbursement of consideration and damages
At the time of filing an application for right-of-way, the applicant must deposit with the Secretary the total estimated consideration and damages for the right-of-way, severance damages, damages caused by the survey, and estimated damages to result from construction – less any deposit previously made under §169.4.
If the Secretary determines the amount to be inadequate, the applicant shall increase the deposit to an amount determined to be adequate.
Deposits are held in a special deposit account for distribution to landowners; consideration is distributed after right-of-way is approved.
Any part of the deposit not required for disbursement to landowners shall be refunded to applicant after receipt of affidavit of completion.

41. Payment and distribution
Self-governance Bands must reconcile ownership on title (of allotments) in order for distribution of consideration to be accurate. Ideally, this reconciliation will occur immediately upon Applicant’s notice to the Band of their intent to apply for right-of-way.
Repayment of ILCA liens for Band-owned interests on affected allotted tracts will automatically be calculated in TAAMS based on percentage of ownership and consideration deposited for each tract. These amounts will be transferred to TFAS and will be redirected as payments to ILCA, thereby reducing the Band’s compensation – but also reducing the lien against each affected tract.
Self-governance Bands may elect to receive payments directly (‘direct pay’) for rights-of-ways on tribal trust tracts only, but may consider requiring Applicant to deposit with BIA in the interest of record-keeping.
Consideration for rights-of-ways on allotments must be deposited with the Bureau of Indian Affairs.
Payment and distribution

42. Application Process – Phase 3
Office of Appraisal Services Reviews/Approves Appraisal
Landowner Consents for ROW Received
Compensation
Made to Landowners
SUBMIT AS APPLICATION PACKAGE!
Self-Governance
Tribal Realty
Department
Start
638 Tribes
BIA Realty
Department
STOP

43. Approval of right-of-way
Step 13: Prepare the Grant of Easement for approval
BIA Realty will receive and review all documentation submitted for the proposed project.
Upon compliance with all regulations and once all documents are received, Realty will execute and submit the Grant of Easement to the designated official for approval.
After approval, BIA Realty will send the Right-of-Way contract to the Land Titles and Records Office for recording.

44. Approval of right-of-way
Step 14: Approve the Grant of Easement
Once compensation has been collected (if applicable) and if there is no appeal of the decision to approve, the designated approving official signs the grant of easement.
Realty staff will provide approved copies to the Applicant and the Tribe upon approval.
The approved recorded copy will be retained with the Realty case files.

45. Action on application
Upon satisfactory compliance with the regulations of this part, the Secretary is authorized to grant the right-of-way. Upon grant of right-of-way, the Applicant (now Grantee) may proceed with construction. Realty Specialist at the Agency typically notifies both Tribal government and Applicant/Grantee when right-of-way is approved.
Upon grant of right-of-way (grant is signified by review of proposed action and signature by Superintendent, as delegated by the Secretary), appropriate documents will be sent to Land Titles and Records for recording.
Copies of recorded documents will be sent to the Band, with originals retained at the Bureau of Indian Affairs, unless the Band requests and provides a sufficient number of required documents so that they may also retain original documents in their files.

46. Application Process – Phase 4
Grant of Easement for Right-of-Way Processed by BIA Realty
Right-of-Way Contract Submitted to LTRO for Recording by BIA Realty
End of Construction
Affidavit of Completion submitted by Applicant to BIA or Tribal Realty
Start
STOP

47. Completion of the right-of-way project
Step 15: Process the completion of the ROW project
The Applicant will notify Realty when construction is complete on the project.
The Applicant will provide Realty the completed Affidavit of Completion for the Right-of-Way project.
The Applicant will provide Realty the completed the Certificate of Completion for the Right-of-Way project.

48. 169.16 Affidavit of completion
Upon the completion of the construction of any right-of-way, the applicant shall promptly file with the Secretary an affidavit of completion, in duplicate, executed by the engineer and certified by the applicant. The Secretary shall transmit one copy of the affidavit to the office of record mentioned in § Failure to file an affidavit in accordance with this section shall subject the right-of-way to cancellation in accordance with §
Must have an affidavit of completion on file! The affidavit of completion comes from the applicant, with verification from the Band that the project is completed as approved.

49. Change of location
Any change from the location described in the conveyance instrument requires, essentially, a new application for right-of-way (from the beginning). Before the new right-of-way (CFR says ‘revised conveyance instrument’) is issued, the existing right-of-way shall be terminated.
This is change of location for a right-of-way that is granted – for example, planned construction is not possible and change of location decision is made in the midst of construction…

50. 169.18 Tenure of approved right-of-way grants
Rights-of-ways granted under the Act of February 5, 1948 (62 Stat. 17; 25 U.S.C ) for most projects (see CFR for list) may be made without limitation as to term of years; all other rights-of-ways shall be for a period not to exceed 50 years.
On or before the expiration date of any right-of-way granted for a limited term of years, an application shall be submitted for a renewal of the grant. If the renewal involves no change in the location or status of the original right-of-way, the Secretary may extend the grant for a like term of years (with stipulations found in ). Application for a right-of-way that changes the size, type or location of the original right-of-way will be treated as a new application, with all steps prescribed in this 25 CFR 169 required.
Tenure of approved right-of-way grants
Renewal of right-of-way grants
Tenure…more discussion upcoming regarding Acts and Authorities under which rights-of-ways are granted and associated tenures.
Remember! Landowners have the right and responsibility to negotiate terms, including tenure…note the words ‘may be’ granted and ‘not to exceed’…

51. 169.20 Termination of right-of-way grants
All rights-of-ways granted under the regulations in this part may be terminated in whole or in part upon 30 days written notice from the Secretary mailed to the grantee for the following causes:
Non-compliance with term or condition of the grant or applicable regulations;
Non-use for a consecutive 2-year period;
Abandonment of the right-of-way.
The grantee has 30 days after receipt of termination notice to correct the basis of termination; if no response or correction, a termination instrument is issued and recorded.

52. Questions? Reference Panel
Rights-of-ways are complex realty transactions, and can be frustrating!
Please don’t hesitate to contact your Agency or Regional Realty Office for technical assistance while processing a right-of-way.
Reference
25 CFR §169 – Rights-of-Way over Indian Lands
(available electronically at
Panel
Dena Ness – Realty Specialist, Great Lakes Agency
Mary E. DePerry – Realty Specialist, Midwest Regional Office
Ken Roy – Bureau Indian Land Surveyor, Bureau of Land Management
Scott Doig-Acting Regional Environmental Scientist, Midwest Regional Office

53. Midwest Region Realty Contacts
Diane Baker, Realty Officer, Midwest Regional Office
(612)
Anne Garrigan, Acting Realty Officer, Minnesota Agency
(218) Ext. 474
Sandra Dietz, Realty Officer, Great Lakes Agency
(715) Ext. 226
Esther Johnson, Realty Officer, Michigan Agency
Ext. 3128
Dena Ness, Realty Specialist, Great Lakes Agency
(715) Ext. 207
Mary E. DePerry, Realty Specialist, Midwest Regional Office
(612)