United States Government Accountability Office

GAO Testimony 

Before the Committee on Resources, 

House of Representatives 

ALASKA NATIVE 

ALLOTMENTS 

Alternatives to Address 

Conflicts with Utility 

Rights-of-way 

Statement of Robin M. Nazzaro, Director 

Natural Resources and Environment 

For Release on Delivery

Expected at 2:00 p.m. EDT

Wednesday, September 13, 2006

 

GAO-06-1107T 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

September 13, 2006

ALASKA NATIVE ALLOTMENTS

Alternatives to Address Conflicts with 

Highlights of GAO-06-1107T, a testimony Utility Rights-of-way 

before the Committee on Resources, 

House of Representatives

In 1906, the Alaska Native

Allotment Act authorized the 

Secretary of the Interior to allot 

individual Alaska Natives (Native) 

a homestead of up to 160 acres. 

The validity of some of Copper

Valley Electric Association’s 

(Copper Valley) rights-of-way 

within Alaska Native allotments is 

the subject of ongoing dispute; in

some cases the allottees assert that 

Copper Valley’s electric lines 

trespass on their land. The 

Department of the Interior’s 

(Interior) Bureau of Land 

Management (BLM) and Bureau of

Indian Affairs (BIA) are responsible 

for granting rights-of-way and 

handling disputes between allotees

and holders of rights-of-way. 

This testimony is based on GAO’s 

report, Alaska Native Allotments: 

Conflicts with Utility Rights-ofway Have Not Been Resolved 

through Existing Remedies (GAO04-923, September 7, 2004). 

Specifically GAO determined (1) 

the number of conflicts between

Native allotments and Copper

Valley rights-of-way and the factors 

that contributed to these conflicts, 

(2) the extent to which existing

remedies have been used to resolve

these conflicts, and (3) what 

legislative alternatives, if any, could 

be considered to resolve these 

conflicts. 

There are 14 cases where conflict exists regarding Copper Valley’s rights-ofway within Native allotments. These conflicts stem from three principal 

sources. First, BLM and a BIA realty service provider have applied the 

relation back doctrine to invalidate or question Copper Valley’s rights-of-way 

in cases where the Native allottee’s use and occupancy of the land predates 

the right-of-way. In these instances, Copper Valley obtained rights-of-way 

and built electric lines before the land was awarded as an allotment. Second, 

Interior does not recognize rights-of-way granted by the State of Alaska to 

Copper Valley to install electric lines within certain highway easements 

granted to the state by the federal government. Interior’s Alaska Office of the 

Solicitor has taken the position that the federal government did not convey 

to the State of Alaska the authority to grant rights-of-way for utilities within 

certain highway easements. Third, Copper Valley constructed electric lines 

even though they were never issued a right-of-way. 

Few cases have been resolved using existing remedies. Copper Valley 

currently has three remedies available to it to resolve conflicts. It could (1) 

negotiate rights-of-way with Native allottees in conjunction with BIA; (2)

relocate its electric lines outside of the allotment; or (3) exercise the power

of eminent domain, also known as condemnation, to acquire the land. Since 

the mid-1990s, Copper Valley has negotiated rights-of-way for 3 Native 

allotments; however, it has not relocated any of its electric lines and has 

been reluctant to exercise eminent domain to resolve other conflicts. Copper 

Valley has stopped trying to resolve these conflicts because it maintains that 

the existing remedies are too costly, impractical, and/or potentially 

damaging to relationships with the community. Copper Valley officials told 

GAO that they should not have to bear the cost of resolving conflicts that 

they believe the federal government caused by applying the relation back 

doctrine and by not recognizing their state issued rights-of-way.

Copper Valley representatives, Alaska Native advocates, and GAO identified 

four legislative alternatives that could be considered to resolve these 

conflicts. 

• Change Interior’s application of the relation back doctrine to Alaska 

Native allotments so that the date an allotment was filed, rather than the 

date an allottee claimed initial use and occupancy of the land, is used to 

determine the rights of allottees and holders of rights-of-way. 

• Allow the U.S. government to be sued with regard to Alaska Native 

allotments so that legal challenges to the relation back doctrine and 

other legal issues can be heard in federal court. 

• Ratify the rights-of-way granted by the State of Alaska within federally 

granted highway easements, to provide for a valid right-of-way dating 

back to the time the state right-of-way was granted.

• Establish a federal fund to pay for rights-of-way across Alaska Native 

allotments.

www.gao.gov/cgi-bin/getrpt?GAO-06-1107T.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Robin M. 

Nazzaro at (202) 512-3841 or 

nazzaror@gao.gov. 
Mr. Chairman and Members of the Committee: 

Thank you for the opportunity to discuss our work on conflicts between 

Alaska Native allotments and utility rights-of-way. The Department of the 

Interior (Interior) and the State of Alaska have granted rights-of-way in 

Alaska for a variety of uses such as electrical transmission lines, oil and 

gas pipelines, and highways.1

 Some of these rights-of-way cross Native 

allotments giving rise to conflicts between Alaska Natives and holders of 

rights-of-way. In these conflicts, some Native allottees claim that utility 

companies’ rights-of-way are invalid and that the utility is trespassing on 

the allotment. Conversely, the utility companies claim that their utilities 

are not in trespass and that they have a valid right-of-way to use the land.

The issue of whether utility companies hold valid rights-of-way within 

Native allotments is important because it raises fundamental questions 

about equity and fairness for owners of Native allotments who may not be

receiving just compensation for use of their land and for utility companies 

that believe they constructed facilities in good faith under valid rights-ofway. 

Two agencies within Interior—the Bureau of Land Management (BLM) 

and the Bureau of Indian Affairs (BIA)—have key responsibilities with 

regard to Native allotments in Alaska. These responsibilities include 

adjudicating applications for Native allotments and granting rights-of-way 

on federal lands. BIA also contracts with regional nonprofit corporations 

or other Native entities to perform realty services for owners of Native 

allotments such as sales, leases, mortgages, and rights-of-way. The Alaska 

Realty Consortium (Alaska Realty) provides realty services for over 160

Native allotments in south-central Alaska. 

Since 1987, when addressing disputes concerning the validity of rights-ofway within Native allotments, Interior has applied the “relation back” 

doctrine and invalidated utility companies’ rights-of-way across certain 

Native allotments. Under this legal principle, Interior grants priority to 

allottees if the date of the allottee’s claimed initial use and occupancy of 

available land predates other uses and rights-of-way, even if the allotment 

application was submitted after the right-of-way was issued. The rights of 

Alaska Native allottees relate back to when they first started using the 

 1

The terms right-of-way and easement are used interchangeably to describe the right of one

party to use a specific part of the land of another for certain designated purposes, such as

building, using, or maintaining a road or utility line. 

Page 1 GAO-06-1107T 
land, not when the allotment was filed or granted. Prior to 1987, Alaska

Native allotments generally were subject to rights-of-way existing when 

they were approved.2

In September 2004, we reported on conflicts between Alaska Native 

allotments and Copper Valley Electric Association’s (Copper Valley) 

electric lines.

 3 Copper Valley is a rural nonprofit electric cooperative that

was formed in 1955 and provides electricity to about 4,000 members in 

Alaska’s Valdez and Copper River Basin areas. As early as 1958, Copper 

Valley obtained rights-of-way permits from Interior, and later from the 

State of Alaska, to construct and maintain electric lines. The validity of

some Copper Valley rights-of-way within Native Allotments is the subject

of ongoing dispute. Our testimony today is based on that report and 

focuses on (1) the number of conflicts that exist between Copper Valley 

rights-of-way and Alaska Native allotments and the factors that 

contributed to these conflicts, (2) the extent to which existing remedies 

have been used to resolve these conflicts, and (3) what legislative 

alternatives, if any, could be considered to resolve these conflicts. 

To meet these objectives, we reviewed all 34 Native allotments identified 

by Copper Valley and Alaska Realty where conflicts were suspected to 

exist. To determine whether there was an actual conflict between a Native

allotment and Copper Valley’s right-of-way, we examined BLM allotment 

adjudication files and all of the rights-of-way permits (seven federal and 

two State of Alaska) issued to Copper Valley for these allotments. We 

interviewed representatives from BLM, BIA, and Interior’s Alaska Office of 

the Solicitor. We also met with officials and reviewed records from Alaska

Realty, Copper Valley, the State of Alaska, and Alaska Natives. We did not 

conduct any follow-up audit work in conjunction with this testimony. Our 

September 2004 report, on which this testimony is based, was prepared in 

accordance with generally accepted government auditing standards. 

In summary, we reported the following: 

There are 14 cases where conflict exists regarding Copper Valley’s rightsof-way within Native allotments. In most of these cases, Interior has found 

that Copper Valley is currently trespassing because either its rights-of-way 

 2

See, e.g., Golden Valley Electric Ass’n, 85 IBLA 363 (1985), vacated, 98 IBLA 203 (1987). 

3

GAO, Alaska Native Allotments: Conflicts with Utility Rights-of-way Have Not Been 

Resolved through Existing Remedies, GAO-04-923 (Washington, D.C.: Sept. 7, 2004).

Page 2 GAO-06-1107T 
have been determined to be invalid or it never obtained a right-of-way. 

These conflicts stem from three principal sources. 

• BLM and Alaska Realty have applied the relation back doctrine to 

invalidate or question Copper Valley’s rights-of-way in cases where the 

Native allottee’s use and occupancy of the land predates the right-ofway. In these instances, Copper Valley obtained rights-of-way and built 

electric lines before the land was awarded as an allotment. 

• Interior does not recognize rights-of-way granted by the State of Alaska 

to Copper Valley to install electric lines within certain highway 

easements granted to the state by the federal government. Interior’s 

Alaska Office of the Solicitor has taken the position that the federal 

government did not convey to the State of Alaska the authority to grant 

rights-of-way for utilities within certain highway easements. 

• Copper Valley constructed electric lines even though they were never 

issued a right-of-way. 

Few cases have been resolved using existing remedies. Copper Valley 

currently has three remedies available to it to resolve conflicts. It could (1) 

negotiate rights-of-way with Native allottees in conjunction with BIA; (2) 

relocate its electric lines outside of the allotment; or (3) exercise the 

power of eminent domain, also known as condemnation, to acquire the 

land. Since the mid-1990s, Copper Valley has negotiated rights-of-way for 3 

Native allotments; however, it has not relocated any of its electric lines 

and has been reluctant to exercise eminent domain to resolve other 

conflicts. Copper Valley has stopped trying to resolve these conflicts 

because it maintains that the existing remedies are too costly, impractical, 

and/or potentially damaging to relationships with the community. More 

importantly, Copper Valley officials told us that on principle they should 

not have to bear the cost of resolving conflicts that they believe the federal 

government caused by applying the relation back doctrine and by not 

recognizing their state issued rights-of-way. 

Copper Valley representatives, Alaska Native advocates, and GAO 

identified four legislative alternatives that could be considered to resolve 

conflicts over the validity of Copper Valley rights-of-way within Alaska 

Native allotments. 

• Alternative 1: Change Interior’s application of the relation back 

doctrine to Alaska Native allotments so that the date an allotment was 

filed, rather than the date an allottee claimed initial use and occupancy 

Page 3 GAO-06-1107T 
of the land, is used to determine the rights of allottees and holders of 

rights-of-way. 

• Alternative 2: Allow the U.S. government to be sued with regard to 

Alaska Native allotments so that legal challenges to the relation back 

doctrine and other legal issues can be heard in federal court. 

• Alternative 3: Ratify the rights-of-way granted by the State of Alaska 

within federally granted highway easements, to provide for a valid 

right-of-way dating back to the time the state right-of-way was granted. 

• Alternative 4: Establish a federal fund to pay for rights-of-way across 

Alaska Native allotments. 

In commenting on our report, Interior, the State of Alaska and Copper 

Valley generally agreed with the report’s contents. The State of Alaska 

commented on each of the alternatives, and expressed its support for 

alternative three. Copper Valley also commented on each of the 

alternatives and specifically expressed support for alternatives one and 

three. 

In 1906, Congress passed the Alaska Native Allotment Act, which 

authorized the Secretary of the Interior to allot individual Alaska Natives a 

homestead of up to 160 acres of land.

 4 Under Interior’s regulations, the 160 

acres may be in separate parcels that need not be contiguous, but each 

separate tract should be in reasonably compact form.5

 In a 1956 

amendment to the act, Congress required that “[n]o allotment shall be 

made to any person under [the 1906] Act until said person has made proof 

satisfactory to the Secretary of the Interior of substantially continuous use 

and occupancy of the land for a period of five years.”6

 Initially, the Native 

Allotment Act was little used by Alaska Natives. However, before the law’s 

repeal with passage of the Alaska Native Claims Settlement Act on 

December 18, 1971, roughly 10,000 Alaska Natives applied for over 16,000

Background 

 4

Act of May 17, 1906, ch. 2469, 34 Stat. 197 (1906). Repealed by Pub. L. No. 92-203, § 18(a),

85 Stat. 688, 710 (1971). 

5

43 C.F.R. § 2561.0-8. 

6

Act of August 2, 1956, ch. 891, 70 Stat. 954 (1956). The 1956 Act also authorized Native 

allotees, or their heirs, to sell their allotments. 

Page 4 GAO-06-1107T 
parcels of land. 7 The provision that repealed the Native Allotment Act 

preserved any pending Native allotment applications “before” Interior as 

of December 18, 1971. While Interior has processed most of the Native 

allotment applications, as of March 2004, applications for about 3,000 

parcels remain to be processed. 

Interior’s policies in the early 1970s required clear, physical evidence to 

support a Native’s use and occupancy of an allotment claim. Since 

traditional Native land uses, such as hunting, fishing, and gathering, did 

not leave much physical evidence, Interior questioned the legitimacy of 

many allotment applications and eliminated or reduced the size of many 

allotments. In response, many Natives appealed Interior’s decisions 

regarding their allotment applications. In 1976, Interior was compelled by

a federal appeals court decision to provide hearings before denying any 

allotment application for factual reasons.8

 In addition to providing 

hearings for pending applications, Interior, as a result of this decision, 

reopened cases for applicants that had been denied a hearing in the past, 

slowing the allotment adjudication process. Also, in 1979, an Alaska 

district court ruled that a Native’s right to the land was deemed to have

vested as of the date of first use and occupancy, rather than at the time the 

allotment was approved.9

 Therefore, a Native’s use of an allotment took 

priority over other land selections made by the State of Alaska under the 

Alaska Statehood Act of 1958.10

In 1980, in an attempt to get the allotment adjudication process moving 

forward again, Congress legislatively approved all pending allotment 

applications (with certain exceptions) without regard to the applicant’s 

actual use of the land, as part of the Alaska National Interest Lands 

Conservation Act (ANILCA).11 Although ANILCA reduced the need for 

factual investigations and hearings regarding a Native’s use and occupancy 

of an allotment approved under the act, conflicting interpretations of the 

wording and intent of the statute continued to hamper the allotment 

adjudication process. In particular, differing interpretations of the phrase 

 7

Pub. L. No 92-203, § 18(a), 85 Stat. 688, 710 (1971). 

8

Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976). 

9

Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979). 

10Pub. L. No. 85-508, § 6(a)-(b), 72 Stat. 339, 340 (1958). 

11Pub. L. No. 96-487, § 905(a), 94 Stat. 2371, 2435-36 (1980). 

Page 5 GAO-06-1107T 
“valid existing rights” with regard to rights-of-way, set the stage for 

conflicts between Native allotees and holders of rights-of-way and resulted

in numerous legal appeals. 

BLM is responsible for adjudicating applications for Native allotments and 

granting rights-of-way on BLM lands. Once BLM approves an allotment 

and passes title to an Alaska Native, BIA, which has a fiduciary 

responsibility for Native lands, assumes some management responsibility 

for Native allotments. BIA is generally the first point of contact for an 

Alaska Native regarding the administration of their allotment. They 

provide realty services such as providing advice regarding sales, leases, 

granting rights-of-way, and investigating trespass claims. 

Since BIA grants or approves actions affecting Native title on Native 

allotments, an applicant must work with BIA or its contractor (realty 

service provider) to obtain a right-of-way through an approved Native 

allotment. BIA’s right-of-way application process generally takes at least 

24 months to complete and begins when the applicant contacts the BIA, or 

its realty service provider, for permission to survey the Native allotment. 

The BIA, or its realty service provider, would then contact the owners of 

the allotment to obtain consent to survey. After surveying the allotment, 

the applicant submits the right-of-way application. After the appraisal is 

conducted, the BIA, or its realty service provider, will negotiate with the 

allottees and the right-of-way applicant to discuss the settlement terms. A 

right-of-way is issued after BIA had concurred with and approved the 

settlement agreement. For rights-of-way applications within pending 

Native allotments, BLM grants the right-of-way after coordinating with 

BIA. Since BLM has administrative jurisdiction while the Native allotment

is under adjudication, the applicant would apply through BLM in the 

survey and appraisal process to obtain a right-of-way. Under a 1979 

Memorandum of Understanding between BLM and BIA, BLM coordinates 

with BIA when processing right-of-way applications for pending Native 

allotments, and BIA assumes responsibility for Native allotments once 

BLM approves the allotment. BLM’s decisions concerning Native 

allotments and rights-of-way can be appealed to the Interior Board of Land 

Appeals (IBLA). The IBLA makes decisions for Interior on appeals related 

to actions taken by Interior officials relating to the use and disposition of 

public lands. In Alaska, hundreds of BLM’s Native allotment decisions 

have been appealed to the IBLA, including those concerning the validity of 

rights-of-way within Native allotments. 

Prior to 1987, Alaska Native allotments were generally subject to rights-ofway existing when they were approved. However, in 1987, the IBLA began

Page 6 GAO-06-1107T 
applying the relation back doctrine to declare certain existing rights-ofway null and void. Under the relation back doctrine, the IBLA gives 

priority to an allottee if the allottee’s claimed initial use and occupancy of 

the land predated other uses and rights-of-way, even if the allotment 

application was submitted after the right-of-way was issued.12 Legal 

challenges to Interior’s use of the relation back doctrine in federal court 

have been dismissed because the U.S. government has not waived its 

sovereign immunity and allowed itself to be sued with regard to Alaska 

Native allotments.13 Sovereign immunity is a legal doctrine that precludes 

bringing suit against the government without its consent. Congress has 

enacted various statutes setting out the circumstances under which the 

U.S. government has consented to be sued. Under the Quiet Title Act, the 

U.S. government has waived its sovereign immunity for certain land issues; 

however, the waiver in the act does not apply to “trust or restricted Indian

lands.” Since Alaska Native allotments are “restricted Indian lands,” 

federal courts have ruled that they do not have jurisdiction to review the

IBLA’s decisions concerning the application of the relation back doctrine 

to rights-of-way over Native allotments. 

There are 14 cases where conflict exists regarding the validity of Copper 

Valley’s rights-of-way within Native allotments. (See appendix I.) In each 

of these cases, BIA and/or the allottee believes that Copper Valley has 

failed to obtain permission for electric lines on Native property. These 

conflicts exist for three reasons. First, in 5 cases BLM and Alaska Realty 

have applied the relation back doctrine to invalidate or question Copper 

Valley’s rights-of-way. In each of these cases BLM and Alaska Realty have 

invalided or questioned Copper Valley rights-of-way because a Native 

allottee’s use and occupancy of the land predated the right-of-way. For 

example, 

Conflicts Exist in 14 

Cases 

 12See, e.g., Golden Valley Electric Ass’n (On Reconsideration), 98 IBLA 203, 207 (1987); 

State of Alaska, Golden Valley Electric Ass’n, 110 IBLA 224 (1989). 

13See, e.g., Alaska v. Babbit (Foster), 75 F.3d 449 (9th Cir. 1995); Alaska v. Babbit (Albert), 

38 F.3d 1068 (9th Cir. 1994). 

Page 7 GAO-06-1107T 
• In 1992, BLM voided Copper Valley’s right-of-way across Evelyn Hash 

Koonuk’s allotment that Copper Valley held for over 27 years. BLM 

determined that even though her application for the allotment was not 

filed until almost 7 years after the right-of-way was issued her use and 

occupancy predated the right-of-way. (See fig. 1.)

• In 1995, BLM voided Copper Valley’s right-of-way across Carol Holt’s 

allotment that it held for 19 years. Based on the date of use and 

occupancy claimed in Carol Holt’s application, BLM determined that 

she had rights prior to Copper Valley. (See fig. 2.)

Both of these allotments were legislatively approved under ANILCA. In 

these two cases, officials from Copper Valley stated that they believe that 

the relation back doctrine has, in effect, voided the requirement in 

ANILCA that Native allotments are to be approved subject to valid existing 

rights. In Copper Valley’s view, their rights-of-way are valid rights, existing 

at the time the Native allotment applications were approved. Copper 

Valley also believes that the relation back doctrine should be repealed, or 

at the very least, that an allottee’s claimed date of use and occupancy 

should not be used to declare their rights-of-way null and void. 

Page 8 GAO-06-1107T 
Figure 1: Key Milestones for Evelyn Hash Koonuk’s Native Allotment and Copper Valley’s Right-of-way

Page 9 GAO-06-1107T 
Figure 2: Key Milestones for Carol J. Gurtler Holt’s Native Allotment and Copper Valley’s Right-of-way 

Second, in six cases conflict exists regarding the status of Copper Valley’s 

rights-of-way within Native allotments because Copper Valley has a 

state—but not a federal—right-of-way within a highway easement granted 

by the federal government to Alaska. The federal government transferred 

the easements for the Richardson and Old Edgerton Highways to the State 

of Alaska under the 1959 Alaska Omnibus Act.14 In 1962 and 1983, the State

of Alaska granted Copper Valley utility rights-of-way within these federally 

granted highway easements. For example, in 1983, the State of Alaska 

granted Copper Valley a utility right-of-way within the Old Edgerton 

Highway easement that crosses Howard Jerue’s allotment. Then in 1989, 

30 years after Alaska became a state and was granted the highway 

easements from the federal government, Interior’s Alaska Office of the 

Solicitor issued an opinion concerning whether a federal grant of a 

highway easement to the State of Alaska authorized the state to grant a 

 14Pub. L. No. 86-70, 73 Stat. 141 (1959). 

Page 10 GAO-06-1107T 
right-of-way within the highway easement to a utility. The Solicitor 

concluded that federal, not state, law governed the issue and that under

federal law, certain federally granted highway easements did not convey to

the state the authority to grant rights-of-way for utility lines because they 

are not structures necessary for the use of highway easements but are new

uses being imposed on the land. 

Relying on the Solicitor’s opinion, Alaska Realty is now requesting that 

Copper Valley apply for rights-of-way from BIA on behalf of the allottee 

where their electric lines are located within highway easements that cross 

Native allotments. Alaska Realty has taken the position, supported by 

Interior, that Copper Valley is trespassing on the allotment because it 

installed electric lines without acquiring a federal right-of-way across 

these allotments. Copper Valley, however, maintains that its state issued 

utility easements are sufficient. Officials from Copper Valley told us that 

they believe that their rights-of-way across these six allotments are 

adequate, pointing to a 1983 Alaska Supreme Court decision that found 

electric line construction was an incidental and subordinate use of a 

highway easement and that an additional right-of-way from the landowner

was not necessary.15

Third, in three cases conflict exists because Copper Valley built an electric 

line across Native allotments where a right-of-way had not been issued. In 

1965, Copper Valley filed a right-of-way application with BLM for an 

electric distribution line, which was built 2 years later. However, it took 

BLM until 1982, or 17 years, to act on Copper Valley’s application. In the 

meantime, several Native allotment applications were filed where Copper 

Valley had constructed its electric lines. BLM received Native allotment 

applications from Frank Gurtler, Mary Ann Gurtler, and Florence Sabon in

1972, and they were subsequently approved in 1983 and 1984. In addition, 

in 1979, BLM and BIA signed a Memorandum of Understanding that 

clarified jurisdictional responsibilities for granting rights-of-way across 

pending Native allotments. Under this memorandum and in accordance 

with BLM state director policy, Copper Valley was to have obtained BIA 

concurrence before BLM could grant a right-of-way across a pending 

Native allotment. As such, in 1982 when BLM acted on Copper Valley’s 

right-of-way application it determined that Copper Valley’s right-of-way 

application for the existing electric line would be held for rejection where 

it crossed the land of Frank Gurtler, Mary Ann Gurtler, and Florence 

 15Fisher v. Golden Valley Electric Ass’n, Inc., 658 P.2d 127 (Alaska 1983). 

Page 11 GAO-06-1107T 
Sabon unless Copper Valley received BIA approval to cross lands that 

were, at the time, pending approval as Native allotments. According to BIA 

officials and Interior records, Copper Valley did not obtain BIA approval 

for a right-of-way across these pending allotments. Because Copper Valley 

did not obtain BIA approval, BLM’s decision to reject Copper Valley’s 

application where the right-of-way crossed the three Native allotments 

took effect.

Few cases have been resolved using existing remedies. Copper Valley 

currently has three remedies available to it to resolve conflicts. It could (1) 

negotiate rights-of-way with Native allottees in conjunction with BIA or its 

realty service provider; (2) relocate its electric lines outside of the Native

allotment; or (3) exercise the power of eminent domain, also known as 

condemnation, to acquire the land. 

Exiting Remedies to 

Resolve Disputes 

Have Produced 

Limited Results

Under the first option, Copper Valley can negotiate with Alaska Realty to

secure a right-of-way across a Native allotment. Since the mid-1990s, 

Copper Valley began discussions with Alaska Realty to obtain rights-ofway within 13 Native allotments. Copper Valley had 9 of these Native 

allotments surveyed, the first step in obtaining a right-of-way grant. 

Ultimately, BIA appraised 7 of these allotments, and Copper Valley was 

able to reach an agreement for rights-of-way across only 3 Native 

allotments. The other 4 cases that were appraised remain in conflict, and

Copper Valley and the Native allottees have been unable to agree on the 

terms of the proposed right-of-way. For example, we spoke with heirs or 

allottees from Mary Ann Gurtler’s and Carol Holt’s allotments who said 

that for several years they had been negotiating with BIA, Alaska Realty,

and Copper Valley in an attempt to get electric service to their homes and 

a right-of-way for the electric lines that cross their allotments. The 

allottees claim that Copper Valley is denying them electric service because

of all of the unresolved conflicts with the rights-of-way in the area. They 

also noted that, at this point in time, all they want is to get electric service

and that they are willing to waive compensation for a right-of-way. Copper 

Valley in its comments to us disagreed with the allottees’ statements and 

noted that the association has the goal of servicing all potentially eligible

customers in its service area. 

While the amount paid to an allottee for the use of the land in a right-ofway is generally a couple of thousand dollars, the process for obtaining a 

right-of-way can be costly and time consuming. Copper Valley claims that 

the cost of negotiating rights-of-way and compensating the allottees ranges

from $10,000 to $30,000 in surveying, legal, and other administrative costs 

Page 12 GAO-06-1107T 
per allotment and may take several years to complete. Copper Valley is 

concerned that purchasing rights-of-way across Native allotments will, 

over time, increase electric rates for members. It is also concerned that 

purchasing rights-of-way from select members would alienate members 

who are not compensated yet have to pay a higher electric bill for those 

who do. 

Under the second option—relocating its electric lines outside of Native 

allotments—Copper Valley officials noted that they had not removed 

electric lines from Native allotments as a way to resolve conflicts over 

rights-of-way. Removing electric power lines from a Native allotment and 

relocating them elsewhere raises cost and environmental concerns. 

Relocating electric lines would scar the land and possibly damage the 

surrounding areas due to heavy equipment traversing through the 

allotment. Copper Valley does not view this option as very practical given

that, in many areas, Native allotments border the highway on both sides, 

leaving few options for where to relocate the lines. 

Under the third option, Copper Valley has the authority to resolve conflicts 

through condemnation pursuant to 25 U.S.C. § 357, in conjunction with 

Alaska Stat. § 42.05.631.16 Copper Valley is opposed to condemnation and 

is reluctant to secure a right-of-way in this manner because they maintain

they do not have the funds to compensate the allottees for the land 

condemned, and because they believe that condemnation is not politically 

feasible and may damage relationships with the community they serve. 

In summary, Copper Valley officials maintain that the options currently 

available to resolve conflicts over rights-of-way within Native allotments 

are too costly, impractical, and/or potentially damaging to relationships 

with the community. Furthermore, Copper Valley takes the position that 

on principle they should not have to bear the cost of resolving conflicts 

that they believe the federal government caused by applying the relation 

back doctrine and by failing to recognize state issued rights-of-way within 

federally granted highway easements. Copper Valley has stopped trying to

settle these disputes and is now seeking legislation to resolve the conflicts. 

 16Lands allotted in severalty to Indians may be condemned for any public purpose under

the laws of the State or Territory where they are located in the same manner as land owned 

in fee may be condemned, and the money awarded as damages shall be paid to the allottee 

(25 U.S.C. § 357). Under Alaska state law a public utility may exercise the power of eminent

domain for public utility uses (Alaska Stat. § 42.05.631). 

Page 13 GAO-06-1107T 
Legislative 

Alternatives to 

Resolve Conflicts 

between Native 

Allotments and 

Copper Valley Rightsof-way Have Been 

Identified 

Copper Valley representatives, Alaska Native advocates, and GAO have 

identified four legislative alternatives to resolve conflicts over Copper 

Valley rights-of-way within Alaska Native allotments. These alternatives 

may be combined. Also, some of these individual legislative remedies 

would address only one specific cause of the conflicts between Native 

allottees and Copper Valley rights-of-way. 

Alternative 1: Change Interior’s Application of the Relation Back Doctrine

to Alaska Native Allotments 

Congress could enact legislation directing Interior to use the date an 

allotment application is filed, rather than the date an allottee claimed 

initial use and occupancy of the land, to determine the rights of allottees 

and holders of rights-of-way. This option, which would rescind application 

of the relation back doctrine to Native allotments, would allow Copper 

Valley to keep its federal rights-of-way as long as the right-of-way was 

issued before the allotment application was filed. Implementing this 

option would likely benefit Copper Valley by favoring the holders of rightsof-way and might result in legal challenges by Native allottees claiming 

that this action constitutes a taking of their property. If such challenges 

were successful, the federal government would have to compensate Native 

allottees. 

Alternative 2: Allow the U.S. Government to be Sued with Regard to 

Alaska Native Allotments 

A second option is for Congress to allow the U.S. government to be sued 

with regard to Alaska Native allotments by waiving the U.S. government’s 

sovereign immunity so that legal challenges involving the relation back

doctrine can be heard in federal court. Under this option, IBLA decisions 

regarding the relation back doctrine could be appealed to the courts, 

providing an opportunity for judicial review of these administrative 

decisions. While this option would allow Copper Valley and others to 

challenge Interior’s administrative decisions, the courts may well uphold 

Interior’s decisions. Moreover, appeals would entail legal costs to Copper 

Valley and the federal government. In addition, even if Copper Valley were

to prevail, a solution to the conflict may take years to achieve as these 

cases make their way through the courts. Also, a decision would need to

be made regarding whether this alternative would only apply to future 

IBLA decisions or whether old cases could also be refiled. For this 

alternative to apply to old cases, like the Copper Valley relation back cases 

from the 1990s, a special exemption would need to be crafted that waived

the statute of limitations for these older cases. 

Page 14 GAO-06-1107T 
Alternative 3: Ratify Rights-of-way Granted by the State of Alaska within 

Certain Federally Granted Highway Easements 

Congress could ratify the rights-of-way granted by the State of Alaska 

within certain federally granted highway easements. This option could 

provide Copper Valley with a valid right-of-way across the allotments 

dating back to the time the state right-of-way was granted. Legislation 

providing a right-of-way across Native allotments would have legal and 

financial implications. For example, such legislation might constitute a 

taking, for which compensation is required. 

Alternative 4: Establish a Federal Fund to Pay for Rights-of-Way 

A fourth option is to establish a federal fund to pay for rights-of-way 

across Native allotments. This option would benefit both Native allottees 

and Copper Valley by compensating allottees for use of their land and by

not requiring Copper Valley to pay for the right-of-way across a Native 

allotment. Under this option, the federal government and taxpayers would 

bear the entire cost of resolving the conflicts. However, the cost of 

alternative four would be similar to the combined cost of alternatives one 

and three if they are determined to be takings that require federal 

compensation. 

In conclusion, some of the conflicts over the validity of Copper Valley’s 

rights-of-way within Native allotments date back over 30 years. Since the 

mid-1990s, Alaska Realty, as the new realty service provider for BIA, has 

been pursuing Copper Valley to resolve these conflicts. Despite trying to 

resolve these conflicts intermittently over the past 9 years, existing 

remedies have generally been unsuccessful in settling disputes between 

Native allottees and Copper Valley. While we have identified several 

legislative alternatives to address the issues at the root of these conflicts, 

we do not hold an opinion as to which, if any, of these alternatives might 

be preferable. Further, while we did not determine the financial costs or 

the legal ramifications on the property rights of the Alaska Native allottees 

associated with any of these options, these costs and legal ramifications 

would need to be assessed. 

Mr. Chairman, this completes my prepared statement. I would be happy to

respond to any questions you or other Members of the Committee may 

have at this time. 

Page 15 GAO-06-1107T 
For further information, please contact Robin M. Nazzaro on (202) 512-

3841 or nazzaror@gao.gov. Individuals making key contributions to this 

testimony and the report on which it was based are Doreen Stolzenberg 

Feldman, José Alfredo Gómez, Roy Judy, Mark Keenan, Jeffery D. 

Malcolm, Paul Staley, Carrie Wilks, and Arvin Wu. 

Contacts and 

Acknowledgments 

Page 16 GAO-06-1107T 
Page 17 GAO-06-1107T 

Appendix I: Cases Where Conflict Exists 

between Native Allotments and Copper 

Valley’s Electric Lines 

Name of Native allotment applicant 

Native allotment 

serial number

BLM and Alaska Realty have applied the relation back doctrine 

 Markle F. Ewan, Sr. A-046337 

 Peter Ewana AA-5896-A 

 Evelyn Hash Koonuk AA-7242-B 

 Carol J. Gurtler Holt AA-7552 

 Tazlina Joe A-031653 

State issued utility rights-of-way within federally granted highway easements 

 Etta Bell AA-6014-B 

 Bacille George A-043380 

 Howard J. Jerue AA-7059 

 Bernice E. Mai AA-7600 

 Harvey B. Seversen AA-8032 

 Roxy Venner AA-6034 

Copper Valley was never issued a right-of-way 

 Frank Gurtler AA-7553 

 Mary Ann Gurtler AA-7554 

 Florence Sabon AA-7336 

Sources: GAO analysis of BLM, BIA, Copper Valley, and Alaska Realty data. 

a

This parcel encompasses 29.02 acres. In 1992, BLM reinstated a claim by Peter Ewan for an 

adjoining 130 acres, designated as Parcel B (AA-5896-B). As of April 2004, BLM was working with 

the State of Alaska for a reconveyance of this property. Depending on the specific terms of the 

reconveyance from the state, Parcel B may eventually have the same right-of-way conflict as Parcel 

A. 

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