Alaska Native Allotments: Alternatives to Address Conflicts with Utility Rights-of-way
Published: 2006-09-13T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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 allottees and holders of rights-of-way. This testimony is based on GAO's report, Alaska Native Allotments: Conflicts with Utility Rights-of-way Have Not Been Resolved through Existing Remedies ( GAO-04-923 , 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.
section_title: What GAO Found
paragraphs: There are 14 cases where conflict exists regarding Copper Valley's rights-of-way 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.

section_title: Letter
paragraphs: 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. 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-of- way.
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-of- way 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  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.
In September 2004, we reported on conflicts between Alaska Native  allotments and Copper Valley Electric Association’s (Copper Valley)  electric lines. 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 rights- of-way within Native allotments. In most of these cases, Interior has found  that Copper Valley is currently trespassing because either its rights-of-way  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-of- way. 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  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.
subsections: section_title: Background
paragraphs: 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. 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. In a 1956  amendment to the act, Congress required that “o allotment shall be  made to any person under  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.” 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  parcels of land. 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. 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. 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.
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). 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  “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-of- way existing when they were approved. However, in 1987, the IBLA began  applying the relation back doctrine to declare certain existing rights-of- way 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. 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. 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.
section_title: Conflicts Exist in 14 Cases
paragraphs: 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,  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.
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. 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  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.
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  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.
section_title: Exiting Remedies to Resolve Disputes Have Produced Limited Results
paragraphs: 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.
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-of- way 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-of- way 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  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. 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.
section_title: Legislative Alternatives to Resolve Conflicts between Native Allotments and Copper Valley Rights- of-way Have Been Identified
paragraphs: 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 rights- of-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.
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.
section_title: Contacts and Acknowledgments
paragraphs: 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.
section_title: Appendix I: Cases Where Conflict Exists between Native Allotments and Copper Valley’s Electric Lines
paragraphs: Name of Native allotment applicant   BLM and Alaska Realty have applied the relation back doctrine   Markle F. Ewan, Sr.
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