Alaska Native Allotments: Conflicts with Utility Rights-of-way Have Not Been Resolved through Existing Remedies
Published: 2004-09-07T00:00:00

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 allotees and holders of rights-of-way. 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. In most of these cases, Copper Valley has been found by Interior to be in trespass because its rights-of-way have been determined to be invalid. The root of some of these conflicts is Interior's application of the so-called "relation back" doctrine. In these instances, Interior invalidated Copper Valley rights-of-way because it found that allottees' rights to the land began when they first used or occupied the land, predating when Copper Valley obtained its right-of-way and when the allotment application was made. Federal courts have dismissed legal challenges to the relation back doctrine because the U.S. government has not allowed itself to be sued with regard to this issue. In other cases, conflict exists because Interior does not recognize state issued rights-of-way that fall within certain highway easements granted to the state by the federal government. There are another 4 cases where a BIA realty service provider has requested that Copper Valley obtain rights-of-way even though GAO believes it lacks evidence that the electric lines are in trespass. While BIA has recognized the need to provide realty training, its March 2004 training course did not include information on the types of evidence that should be developed before pursuing an alleged trespass involving rights-of-way. While a resolution to a number of these conflicts has been intermittently pursued since the mid-1990s, only a few cases have been resolved using existing remedies. Copper Valley has three remedies to resolve these conflicts: (1) negotiating rights-of-way with Native allottees in conjunction with BIA; (2) relocating its electric lines outside of the allotment; or (3) exercising the power of eminent domain, also known as condemnation, to acquire the land. Copper Valley has ceased 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 GAO 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. Several legislative remedies have been identified to resolve these conflicts, including legislation to: (1) change Interior's application of the relation back doctrine so that the date an allotment application is 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; (2) allow the U.S. government to be sued regarding Alaska Native allotments so that legal challenges can be heard in federal court; (3) ratify the rights-of-way granted by the State of Alaska within federally granted highway easements; or (4) establish a federal fund to pay for rights-of-way across Native allotments. While GAO 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, the costs and legal ramifications would need to be assessed.

section_title: Letter
paragraphs: For over a century, there have been continuing issues regarding the status  and use of lands involving Alaska Natives (Native). 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. The 160 acres could be composed of multiple parcels of  land. Initially, the Native Allotment Act was little used by Alaska Natives. It  was primarily in the early 1970s that roughly 10,000 Alaska Natives applied  for over 16,000 parcels of land. The Department of the Interior’s Bureau of  Land Management (BLM) is still processing many of these applications. As  these allotment applications have been processed over the last three  decades, conflicts have arisen between the property rights of Alaska  Natives and the holders of certain types of 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 utilities frequently  claim that they 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)—as well as the Interior Board of Land  Appeals (IBLA) have key responsibilities with regard to Native allotments  in Alaska. These responsibilities include adjudicating applications for  Native allotments, granting rights-of-way on federal lands, and handling  disputes between Native allottees and holders of rights-of-way. BLM is  responsible for adjudicating applications for Native allotments and  granting rights-of-way on BLM lands. BLM’s decisions concerning Native  allotments and rights-of-way can be appealed administratively to the IBLA.  The IBLA, among other things, decides appeals by Natives whose allotment  applications have been denied and disputes concerning the validity of  rights-of-way within Native allotments. Once BLM passes title to an Alaska  Native allottee, BIA assumes some management responsibility for the  allotment, including approving any rights-of-way through Native  allotments. 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. Federal courts have dismissed legal challenges to Interior’s use  of the relation back doctrine because the U.S. government has not allowed  itself to be sued with regard to Alaska Native allotments.
One holder of rights-of-way within Native allotments is the Copper Valley  Electric Association (Copper Valley), a rural nonprofit electric cooperative  that was formed in 1955, and currently 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. Conflicts exist where Interior and/or Alaska Realty have  determined that Copper Valley is trespassing or allegedly trespassing  across Native allotments. In this context, we determined (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 address 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  conducted our work between November 2003 and June 2004 in accordance  with generally accepted government auditing standards. Appendix I  provides further details about the scope and methodology of our review.
subsections: section_title: Background
paragraphs: For over a century, there have been controversies surrounding the status  and use of lands involving Alaska Natives. For generations, Alaska Natives  have used the land to hunt, fish, and gather wild plants for food. Land use  was seasonal, and the intensity of its use depended on the availability of  these subsistence resources. The 1867 Treaty of Cession transferred all of  the lands and waters of Alaska from Russia to the United States and made  them public domain. However, the treaty failed to clearly define the status  of Alaska Natives, their rights, or their ownership of land. “That the Secretary of the Interior is hereby authorized and empowered, in his discretion  and under such rules as he may prescribe, to allot not to exceed one hundred and sixty acres  of nonmineral land in the district of Alaska to any Indian or Eskimo of full or mixed blood  who resides in and is a native of said district, and who is the head of a family, or is  twenty-one years of age; and the land so allotted shall be deemed the homestead of the  allottee and his heirs in perpetuity, and shall be inalienable and nontaxable until otherwise  provided by Congress. Any person qualified for an allotment as aforesaid shall have the  preference right to secure by allotment the nonmineral land occupied by him not exceeding  one hundred and sixty acres.”
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. This case also slowed down the allotment  adjudication process, because BLM had to recover land from the state and  other entities so it could be reconveyed as Native allotments. Also, BLM  reopened and readjusted cases that had been denied in the past due to  conflicts with other land selections.
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). Section 905(a)(1) of ANILCA states that,  “Subject to valid existing rights, all Alaska Native allotment applications  made pursuant to the  which were  pending before the Department of the Interior on or before December  18,1971… are hereby approved…” 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.
subsections: section_title: Process for Awarding Allotments, Adjudicating Disputes, and Granting Rights-of-way
paragraphs: Two agencies within Interior—BLM and BIA—as well as the IBLA have key  responsibilities with regard to Native allotments in Alaska. These  responsibilities include adjudicating applications for Native allotments,  granting rights-of-way on federal lands, and handling disputes between  Native allottees and holders of rights-of-way. BIA is responsible for the  administration and management of Alaska Native allotments on behalf of  the United States. BLM is responsible for adjudicating applications for  Native allotments and granting rights-of-way on BLM lands. BLM’s  decisions concerning Native allotments and rights-of-way can be appealed  to the 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.
The allotment adjudication process begins when an Alaska Native files an  application with BLM. The allotment application requires the applicant to  designate the land’s location, state his or her age or head of household  status, and specify how and when the land was used. BIA then certifies that  the applicant is an Alaska Native and is qualified to make an application  under the provisions of the 1906 Native Allotment Act. Following BIA  certification, BLM is responsible for the remainder of the application  review process. BLM’s basic responsibilities are to (1) determine whether  the lands were available for selection at the time use and occupancy began;  (2) perform a field examination to locate the claimed land and collect  information to determine whether the applicant meets the eligibility  requirements; (3) approve or disapprove the application; (4) if the  application is approved, survey the land; and (5) issue a certificate of  allotment. For allotments legislatively approved under ANILCA, BLM does  not need to perform the field examination and verify the Native’s use and  occupancy of the allotment. But BLM would still have to determine  whether the allotment is qualified for legislative approval. Until it has  surveyed an allotment, BLM cannot transfer legal title to the applicant.
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. As  authorized by the Indian Self-Determination and Education Assistance Act,  as amended, BIA also contracts with regional nonprofit corporations or  other Native entities to perform realty services for owners of Native  allotments. Under the act, as amended, BIA’s ability to impose specific  performance standards is limited and, in some cases, prohibited. The  Aleutian/Pribilof Islands Association, Inc.; Chugachmiut, Inc.; and the  Copper River Native Association, Inc.; are three Native regional nonprofits  in Alaska that have assumed management of the realty function from BIA  for selected villages within their respective regions. In 1995, these three  regional nonprofits formed Alaska Realty to provide realty services. Alaska  Realty is responsible for about 260 Native allotments across the three  regions, including over 160 allotments in the Copper River area.
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. The application includes  maps, survey field notes, the landowner’s written consent, and requests for  the appraisal report. Other requirements such as timber permits and other  regulatory permits may be necessary. 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. Under federal  regulations, the BIA may not approve or grant a right-of-way for less than  the fair market value unless when waived in writing by the allotment owner  and approved by Interior. 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.
section_title: Conflicts Have Emerged Over the Status of Utility Rights-of-way within Native Allotments
paragraphs: As allotment applications have been processed over the last three decades,  conflicts have arisen between the property rights of Alaska Natives and the  holders of rights-of-way. 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, which in many cases are utilities. In some of these  conflicts, electric utilities and other holders of rights-of-way have had their  rights-of-way across Native allotments invalidated.
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. Appendix II provides further analysis  of the relation back doctrine.
section_title: Copper Valley Electric Association’s Rights-of-way and Native Allotments
paragraphs: One holder of rights-of-way within Native allotments is Copper Valley, a  rural nonprofit electric cooperative that was formed in 1955 and currently  provides electricity to about 4,000 members in Alaska’s Valdez and Copper  River Basin areas via 500 miles of distribution and transmission lines.  There are dozens of Native allotments within Copper Valley’s service area.  (See fig.1.) 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 power lines. Copper Valley built some of these transmission lines in  the 1960s. Some conflicts later arose when BLM approved some Native  allotments containing Copper Valley’s transmission lines. Historically,  cooperative utilities in Alaska, as in much of the United States, do not  purchase easements from cooperative members and, in the case of Copper  Valley, its bylaws prohibit the utility from doing so. Rural electric  cooperatives, like Copper Valley, are nonprofit, member-owned utilities  that provide electric service to predominantly rural areas and were  originally formed solely to provide electricity to their members at cost.  Currently, possible conflicts exist regarding the validity of Copper Valley’s  rights-of-way within Native allotments.
section_title: Conflicts Exist in 14 Cases and Alaska Realty Is Pursuing Four Other Cases without Evidence of a Trespass
paragraphs: There are 14 cases where conflict exists regarding the validity of Copper  Valley’s rights-of-way within Native allotments. (See table 1 and fig. 2.) 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. Second, conflict exists in 6 cases because Interior  does not recognize rights-of-way to install electric lines granted by the  State of Alaska to Copper Valley within certain highway easements that  were issued by the federal government to the state. Third, conflict exists in  3 cases because Copper Valley constructed electric lines across Native  allotments even though they were never issued a right-of-way. Additionally,  there are 4 other cases where Alaska Realty is requesting that Copper  Valley obtain rights-of-way without evidence that Copper Valley is in  trespass.
subsections: section_title: BLM and Alaska Realty Have Applied the Relation Back Doctrine
paragraphs: Conflict exists in five cases where 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. (See table 2.)
In two of these cases, conflict exists between Native allotments and  Copper Valley because BLM has applied the relation back doctrine to  declare Copper Valley rights-of-way null and void. 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. 3.)
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. 4.)
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.
In three other cases conflict exists where Alaska Realty considers Copper  Valley’s rights-of-way invalid because it has applied the relation back  doctrine to grant priority to Native allottees whose use and occupancy of  the land began before the right-of-way was issued. In these three cases, the  allotments were certified prior to the IBLA’s introduction of the relation  back doctrine in 1987. Additionally, the applications for these allotments  were adjudicated under the 1906 Act; they were not legislatively approved  under ANILCA. To date, BLM has only used the relation back doctrine to  invalidate rights-of-way within Native allotments that were certified after  1987 and has not gone back to re-examine rights-of-way across allotments  that already have been certified. However, in these cases, a BIA official told  us that because the allottees’ use and occupancy of the land predated  Copper Valley’s right-of-way, Alaska Realty does not recognize the  right-of-way across Markle Ewan and Tazlina Joe’s allotments as valid. In  the case of Peter Ewan’s allotment, a 1988 letter from BIA to Copper Valley  stated the following, “While  was granted a   across the subject lands in 1958, this office believes it was granted  erroneously, since Mr. Ewan had by this time already established his use  and occupancy.” (See fig. 5.) Alaska Realty is requesting that Copper Valley  obtain a new right-of-way across these allotments. However, according to  Interior’s Alaska Office of the Solicitor, Alaska Realty does not have the  authority to require utility companies to obtain a new right-of-way until  Interior has taken the administrative action to declare an existing  right-of-way null and void. Interior has yet to take this action.
In addition to the five cases with conflicts discussed earlier, BLM has also  applied the relation back doctrine to declare Copper Valley’s rights-of-way  within two other Native allotments null and void. However, the conflicts  created by BLM’s actions in these two additional cases have been resolved  by actions taken by Native allottees and Copper Valley. In one case, in 1992,  BLM voided Copper Valley’s right-of-way across Jack Tenas’ allotment that  it held for 34 years. Six years after BLM’s decision, Jack Tenas’ allotment  was deeded to a non-Native, therefore ending the dispute between Copper  Valley and the Native allottee. According to BIA officials, when a Native  allotment is sold to a non-Native, BIA no longer has a fiduciary  responsibility; including pursuing damages for past trespass actions. In the  second case, BLM declared Copper Valley’s right-of-way across Howard  Adams’ allotment null and void 7 years after it was granted. However,  following BLM’s decision, Copper Valley used BIA procedures to negotiate  a valid right-of-way with the Native allottee. In contrast to the Evelyn Hash  Koonuk and Carol Holt allotments, where BLM also applied the relation  back doctrine, the Jack Tenas and Howard Adams allotments were  adjudicated under the 1906 Act, because they did not meet the criteria for  legislative approval under ANLICA.
Finally, while conflicts created by using the relation back doctrine to  declare Copper Valley rights-of-way null and void are relatively few, the  possibility exists that future applications of the doctrine will create  additional conflicts. First, approximately 3,000 Native allotment  applications are still pending. Some of these pending allotments may give  rise to additional conflicts in the Copper River area. Second, Interior has  not systematically re-examined all the allotments certified before 1987, to  determine if the relation back doctrine is applicable. Although a few cases  have been identified so far in the Copper River area, others may exist.  Officials we spoke with at the Office of the Solicitor in Alaska stated that  Interior is not precluded from taking action under the relation back  doctrine to void rights-of-way for allotments certified prior to 1987.
section_title: Interior Does Not Recognize Copper Valley’s State Issued Rights-of-way within Certain Federally Granted Highway Easements
paragraphs: There are six cases where 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. (See table 3.) 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. (See fig. 6.) 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.  The Solicitor relied on a decision of the Court of Appeals for the Ninth Circuit, holding that a right-of-way issued under Revised Statute 2477  does not include the right to install utility lines. The Solicitor’s opinion  stated that the utility must apply for a federal right-of-way—in this case  from BIA because the power lines crossed a Native allotment.
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.
section_title: Copper Valley Constructed Electric Lines Even Though They Were Never Issued a Right-of-way
paragraphs: In three cases conflict exists because Copper Valley built an electric line  across Native allotments where a right-of-way had not been issued. (See  table 4.) 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. Following BLM’s 1982 decision, the  applications for the three Native allotments were approved by BLM. Since  BLM never granted Copper Valley a right-of-way through these allotments,  Alaska Realty is requesting that Copper Valley obtain a valid utility  right-of-way for these electric lines.
Copper Valley officials noted that even if BLM had promptly granted the  right-of-way prior to the filing of the Native allotment applications, the  relation back doctrine could presumably now have been applied to  invalidate their right-of-way. The claimed use and occupancy for the three  allotments all predate Copper Valley’s 1965 right-of-way application.  However, since Copper Valley was not granted a right-of-way across these  allotments they are not examples of the relation back doctrine. In 1982,  BLM told Copper Valley to obtain BIA concurrence to cross the pending  Native allotments. Over 20 years later, that is still essentially what Copper  Valley needs to do. Alaska Realty maintains that Copper Valley needs to  obtain a right-of-way for its electric lines across these allotments in  accordance with BLM and BIA regulations and policies.
section_title: Alaska Realty Is Pursuing Four Other Cases Against Copper Valley without Evidence of a Trespass
paragraphs: In four cases, Alaska Realty has requested that Copper Valley obtain  rights-of-way even though we believe Alaska Realty lacks evidence that the  company’s electric lines cross a Native allotment. Since 1996, through  correspondence and in-person meetings, Alaska Realty has requested that  Copper Valley resolve conflicts over four allotments despite having  insufficient evidence that a Copper Valley right-of-way was in conflict with  a Native allotment. (See table 5.) Over the years, Alaska Realty contractors  developed a list of Native allotments where it maintains that Copper Valley  needs to negotiate rights-of-way. Representatives from Alaska Realty told  us that they did not know what criteria were used to place allotments on  the list; however, some of the allotments were added to the list because  Copper Valley had requested a right-of-way.
Without proper surveys of Copper Valley electric lines, Native allotment  boundaries, and highway rights-of-way it is impossible to determine  whether Copper Valley is in trespass. In all four cases, Alaska Realty was  unable to demonstrate that it had investigated and documented the  location of electric lines and relevant allotment boundaries. For example,  Alaska Reality has pursued Copper Valley to obtain a right-of-way across  Derira George’s allotment even though Alaska Realty cannot document that  it performed an investigation to determine if Copper Valley’s rights-of-way  conflict with the Native allotment. Based on our review of the Master Title  Plat, discussions with BLM, and an inspection of the land, it appears that an  electric line does not cross this allotment and, therefore, that a conflict  does not exist. A professional survey would be required to confirm our  preliminary determination.
In two other cases, Alaska Realty is requesting that Copper Valley obtain  rights-of-way even though electric lines do not cross Native allotments.  Although Copper Valley first initiated the effort to obtain rights-of-way  across Adam Bell and Verina Estes’s Native allotments, Alaska Realty did  not investigate to determine if Copper Valley was in trespass. We reviewed  the BLM’s adjudication file for Adam Bell’s allotment and found a 1999 BLM  decision concluding that the boundary of Adam Bell’s allotment ended at  the highway right-of-way; therefore, the highway right-of-way does not  cross the allotment. In addition, our examination of the allotment found  that Copper Valley’s electric lines appeared to be within the highway  right-of-way. A similar review of Verina Estes’ BLM adjudication file found  that Copper Valley’s electric lines do not cross the Native allotment.  Evidently, the original Master Title Plat for this allotment shows Copper  Valley’s electric lines traversing a portion of the allotment. However, in  1989, BLM realized that the Master Title Plat for this Native allotment was  inaccurate and that the electric lines do not conflict with Verina Estes’  allotment.
In the final case, Alaska Realty has requested that Copper Valley obtain a  right-of-way across Caroline Mackey’s allotment without evidence of the  electric line’s exact location. Alaska Realty’s file has a 1987 BIA appraisal  report that adequately documents an electric line within the allotment  without a valid right-of-way. However, in 1996, the Native allotment was  partitioned in half and divided equally between a Native heir and a  non-Native heir. The east side of the allotment belongs to a Native heir and  remains under BIA oversight, while the west side of the allotment was  transferred into private ownership and is not under BIA oversight. Alaska  Realty is currently requesting Copper Valley to obtain a right-of-way for this  allotment even though there is no evidence, such as a survey, to show the  precise location of the electric line within the former Caroline Mackey  Native allotment. This type of documentation is important because if the  electric line is within the unrestricted side of the allotment, Alaska Realty  has no authority to pursue Copper Valley for trespass.
Due to the frequent turnover of staff among its realty service providers in  Alaska and the specialized nature of Native land transactions, BIA has  recognized the need to provide realty training and technical assistance for  its realty service providers. In March 2004, BIA’s Alaska Region Realty  Office held a basic realty training course for its realty service providers in  the state. The agenda for the training course covered the basic processes  and procedures of realty transactions, such as sales, mortgages,  rights-of-way, leases, and trespass. According to the BIA’s Alaska Regional  Realty Office, this was the first year that BIA offered the basic realty  training course. The course’s section on trespass included a discussion of  the types of trespass, how to conduct a site visit and investigation of the  alleged trespass, a field examination checklist, and notices to the  trespasser about the unauthorized use of the land. While BIA’s training  materials provided general information on trespass, the materials did not  provide specific information on trespasses involving rights-of-way. For  example, the training materials did not include information on the types of  evidence that should be obtained to determine if a conflict exists involving  rights-of-way, such as the exact location of electric lines, and the  boundaries of Native allotments and highway easements.
section_title: Existing Remedies Available to Resolve Disputes over the Validity of Copper Valley Rights-of-way within Native Allotments Have Produced Limited Results
paragraphs: While the resolution of a number of these conflicts has been intermittently  pursued since the mid-1990s, only a 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. Since  the mid-1990s, Copper Valley has negotiated rights-of-way for three Native  allotments; however, it has not relocated any of its electric lines outside of  allotments and has been reluctant to exercise eminent domain to resolve  other conflicts. Finally, in addition to remedies available to Copper Valley,  the federal government could force the resolution of these conflicts by  bringing trespass actions against Copper Valley.
subsections: section_title: Since the mid-1990s, Few Cases Have Been Resolved Using Existing Remedies
paragraphs: While there are several options currently available to resolve conflicts  between Native allotments and Copper Valley rights-of-way, these remedies  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. Using this remedy, Copper Valley was able to negotiate and  reach an agreement for rights-of-way across 3 of 13 Native allotments on which it had begun negotiations. Copper Valley officials noted that  historically, cooperative utilities in Alaska do not purchase rights-of-way or  easements from members. According to Copper Valley’s bylaws and tariffs,  as a condition of service, members or the legal property owner shall  without charge to Copper Valley “execute an easement providing for a  suitable right-of-way for the Association distribution lines crossing the  owner’s property and providing service to the consumer.”
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 for two reasons. First,  officials maintain that Copper Valley does not have the funds to  compensate the allottees for the land condemned. Second, Copper Valley  believes 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: Federal Government Is Unlikely to Bring Trespass Actions against Copper Valley
paragraphs: In addition to remedies available to Copper Valley, the federal government  has the option of resolving these conflicts by bringing trespass actions  against Copper Valley to require that it relocate its electric lines and pay  damages to Native allottees. For example, for the Evelyn Hash Koonuk  allotment, the Interior Alaska Office of the Solicitor could recommend to  the Justice Department that the federal government bring a trespass action  against Copper Valley because it has not yet negotiated a valid right-of-way.  In this case, BLM declared null and void Copper Valley’s 1965 right-of-way  through Ms. Koonuk’s allotment, even though Copper Valley had obtained  its right-of-way 7 years before Ms. Koonuk filed her allotment application.  According to the Interior Alaska Office of the Solicitor, the federal  government is unlikely to pursue this course of action because it would  provide Copper Valley the opportunity to raise its concerns about the  relation back doctrine and other legal issues in federal court. For this  reason, the Department of Justice is generally unwilling to bring trespass  cases against electric companies.
section_title: Legislative Alternatives to Resolve Conflicts between Native Allotments and Copper Valley Rights-of-way Have Been Identified
paragraphs: Several legislative alternatives to resolve conflicts over Copper Valley  rights-of-way within Alaska Native allotments have been identified. Copper  Valley representatives, Alaska Native advocates, and GAO have identified  alternatives including legislation to: (1) change Interior’s application of the  relation back doctrine with respect to Alaska Native allotments, (2) allow  the U.S. government to be sued with regard to Alaska Native allotments so  that legal challenges to the relation back doctrine can be heard in federal  court, (3) ratify the rights-of-way granted by the State of Alaska within its  highway easements, and (4) establish a federal fund to pay for  rights-of-way across Native allotments. These alternatives may be  combined, and we do not hold an opinion as to which, if any, of these  alternatives might be preferable. We also note that some of these individual  legislative remedies would address only one specific cause of the conflicts  between Native allottees and Copper Valley rights-of-way. 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, such costs and legal ramifications would need to be assessed.
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.
section_title: Conclusion
paragraphs: 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. We have identified several legislative alternatives to  address the issues at the root of these conflicts. While we did find a number  of cases where conflicts currently exist over the validity of Copper Valley  rights-of-way within Native allotments, we also found cases where Alaska  Realty is requesting Copper Valley to obtain valid rights-of-way without  sufficient proof that a trespass actually exists. In these cases, we believe  Alaska Realty has created unnecessary conflict by requesting that Copper  Valley obtain rights-of-way without adequately investigating and  documenting the boundaries of Native allotments and the location of  electric lines and highway rights-of-way. BIA’s ability to prescribe specific  performance standards for Alaska Realty is limited and, in some cases,  prohibited under the Indian Self-Determination and Education Assistance  Act, as amended. While BIA can and does provide training and technical  assistance to its realty service providers in Alaska, the March 2004 training  materials did not include information on the types of evidence that should  be developed before pursuing an alleged trespass involving rights-of-way,  such as the exact location of electric lines, and the boundaries of Native  allotments and highway rights-of-way.
section_title: Recommendations for Executive Action
paragraphs: To ensure that potential conflicts over the validity of rights-of-way within   Alaska Native allotments are not escalated unnecessarily, we are  recommending that the Secretary of the Interior direct the Assistant  Secretary for Indian Affairs to develop, as part of BIA’s training and  technical assistance provided to its realty service providers in Alaska, a  training module identifying the types of evidence that should be developed  before pursuing an alleged trespass involving rights-of-way.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided copies of our draft report to Interior, the State of Alaska, and  Copper Valley. Interior, the State of Alaska, and Copper Valley provided  written comments. (See appendixes IV through VI, respectively, for the full  text of the comments received from these three entities and our  responses.) Interior and Copper Valley specifically commented on and  agreed with our recommendation. The State of Alaska did not specifically  comment on our recommendation, but did comment on our four legislative  alternatives. Interior and Copper Valley also provided technical comments  that we incorporated where appropriate.
Interior agreed with our recommendation that BIA develop a training  module identifying the types of evidence that should be developed before  pursuing an alleged trespass involving rights-of-way. Interior noted that  BIA’s Alaska Region Realty Office in conjunction with Interior’s Alaska  Office of the Solicitor would include evidentiary standards that should be  developed before pursuing an alleged trespass involving rights-of-way.  Interior did not comment on any of the four legislative alternatives.
The State of Alaska commented that the GAO report was laudable in its  breadth of analysis of conflicts between Alaska Native allotments and  rights-of-ways. The state commented on each of the alternatives,  emphasizing the benefits and limitations of each alternative. In particular,  the state expressed support for alternative three—a legislative solution that  would include a clarification by Congress that third party rights-of-way  granted by the state within federal highway easements are valid. The State  of Alaska also noted that it is prepared to work cooperatively with the  federal government, allotment advocates, and utility companies on a  comprehensive legislative solution that recognizes the valid existing rights  of all parties.
Copper Valley agreed with our recommendation and most of the  alternatives. In its comments, Copper Valley congratulated GAO for  assembling information on all 34 Native allotments in controversy. They  noted that this section is the heart of the report and provides a cogent  summary of these cases. Copper Valley commented on each of the  alternatives and specifically noted that alternative one—changing the  application of the relation back doctrine—and alternative three should be  adopted to resolve the problems. In addition, Copper Valley also expressed  support for the establishment of a fund (alternative four), as long as the  federal government covers all costs and administrative burdens.
As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies of this report to the Secretary  of the Interior, the Governor of the State of Alaska, the Chief Executive  Officer of Copper Valley, as well as to appropriate Congressional  Committees, and other interested Members of Congress. We also will make  copies available to others upon request. In addition, the report will be  available at no charge on the GAO Web site at http://www.gao.gov.
If you or your staff have questions about this report, please contact me at  (202) 512-3841. Key contributors to this report are listed in appendix VII.
section_title: Objectives, Scope, and Methodology
paragraphs: Based on an August 25, 2003, request from the Chairman, Senate  Committee on Appropriations, and subsequent discussions with the  Chairman’s staff, we reviewed conflicts concerning the validity of the  rights-of-way of Copper Valley Electric Association within Alaska Native  (Native) allotments. Copper Valley, a rural nonprofit electric cooperative,  operates in south-central Alaska, north and east of Anchorage. Specifically  we determined (1) the number of conflicts that exist between Alaska  Native allotments and Copper Valley Electric Association’s 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.
To determine the number of conflicts that exist between Alaska Native  allotments and Copper Valley Electric Association’s rights-of-way and the  factors that contributed to these conflicts, we reviewed 34 Native  allotments identified by Copper Valley and the Alaska Realty Consortium, a  Bureau of Indian Affairs (BIA) contractor providing realty services for  Native allotments in south-central Alaska, where either party suggested a  conflict existed. To determine whether there was an actual conflict  between Native allotments and Copper Valley’s rights-of-way, we examined  the Department of the Interior’s Bureau of Land Management (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, and the State of Alaska,  including the Departments of Law, Transportation and Public Facilities,  and Natural Resources. In May 2004, we met with 15 Alaska Native  allottees, or their representatives, at group meetings in Glennallen and  Anchorage, Alaska. We also spoke by telephone with several other allottees  that were not able to attend the meetings.
To determine the extent to which existing remedies have been used to  resolve conflicts between Alaska Native allotments and Copper Valley  Electric Association’s rights-of-way, we met with representatives from  Copper Valley, Alaska Realty, and Native allottees. We also visited some  Native allotments in question and several electric line rights-of-way to  obtain a better understanding of the physical features of various land  allotments. In addition, we reviewed records at Copper Valley and Alaska  Realty to obtain information on when Copper Valley first initiated the right- of-way process, whether Copper Valley had conducted a survey of the  allotment, and if BIA performed any appraisal.
To determine what legislative alternatives, if any, could be considered to  resolve these conflicts, we developed legislative alternatives based on our  analysis of federal laws and regulations, federal court rulings, and  decisions of Interior’s Board of Land Appeals. In addition, we discussed  possible legislative options with federal officials in Alaska and Copper  Valley Electric Association representatives.
We conducted our work between November 2003 and June 2004 in  accordance with generally accepted government auditing standards.
section_title: Legal Appendix on the Relation Back Doctrine
paragraphs: Relation back is a legal doctrine that considers an act performed at one  time to have taken place at an earlier time. In the context of Alaska Native  (Native) allotments, relation back refers to relating an Alaska Native’s  rights back to the date the Native first initiated use and occupancy rather  than the date the allotment application was filed. Under this doctrine, when  a Native allotment application is filed, the Native allotment relates back to  the time the Alaska Native began (or claims he/she began) use and  occupancy. When use and occupancy of available land began before the  granting of a highway or utility right-of-way, the Native allotment is given  priority, and the right-of-way is deemed to be invalid. The doctrine has been  applied to Native allotments by federal courts and the Department of the  Interior’s Board of Land Appeals (IBLA).
subsections: section_title: Federal District Court Cases Applying Relation Back Doctrine
paragraphs: Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979)
Alaska Natives had applied for an allotment under the Alaska Native  Allotment Act of 1906. The Department of the Interior rejected their  application because the land they claimed for the allotment had already  been conveyed to the State of Alaska. In challenging the rejection of their  allotment, the Alaska Natives claimed that the use and occupancy upon  which their allotment was based began before the conveyance of the land  to Alaska. The District Court for the District of Alaska ruled that the fact  that the Natives did not file an application for an allotment until after the  land was selected by and conveyed to Alaska did not eliminate their  preference right in the land. The court ordered the Department of the  Interior to hold a hearing to determine the facts concerning the existence  and sufficiency of the Alaska Natives’ use and occupancy. The court stated  that based on the facts determined at the hearing, if the Department of the  Interior had mistakenly or wrongfully conveyed land to the State of Alaska  to which the Alaska Natives had a superior claim, then the Department of  the Interior was responsible to recover the land.
Alaska v. 13.90 Acres of Land, 625 F. Supp. 1315 (D. Alaska 1985), aff’d sub  nom., Etalook v. Exxon Pipeline Co., 831 F.2d 1440 (9th Cir. 1987)
An Alaska Native began to occupy the allotment at issue in 1946 and  applied for a Native allotment in 1971. The allotment was issued in 1975. In  1969, Alyeska Pipeline Company applied for rights-of-way for the Trans- Alaska oil pipeline, including across lands occupied by the Alaska Native.  Alyeska’s rights-of-way were granted in 1974, resulting in a conflict with the  Alaska Native’s allotment. Alyeska subsequently obtained rights-of-way for  portions of the pipeline that crossed the allotment from the Alaska Native  and for the other portions of the pipeline that crossed the allotment  through a formal condemnation action. In adjudicating the amount of  compensation to be awarded to the Alaska Native in the condemnation  action, the District Court for the District of Alaska disagreed with Alyeska’s  argument that its right-of-way application had priority over the Alaska  Native’s allotment application. The court applied the relation back  doctrine, ruling that the use and occupancy of the allotment by the Alaska  Native created an inchoate preference right that became vested upon the  filing of a timely application. Once vested, the preference relates back to  the initiation of occupancy and takes preference over competing  applications filed prior to the Native allotment application.
section_title: Selected IBLA Cases Applying the Relation Back Doctrine
paragraphs: Golden Valley Electric Association (On Reconsideration) (Jennie K.  Irwin Allotment), 98 IBLA 203 (1987)
In this decision, the IBLA reconsidered its 1985 decision in which it had  reversed a BLM decision declaring a portion of a right-of-way for a power  transmission line null and void. In its 1985 decision, the IBLA had held that  the Alaska Native’s allotment was subject to the utility’s right-of-way.  Golden Valley Electric Ass’n, 85 IBLA 363 (1985). The IBLA reconsidered  its decision in light of the Alaska district court’s decisions applying the  relation back doctrine in Aguilar v. United States, 474 F. Supp. 840 (D.  Alaska 1979) and Alaska v. 13.90 Acres of Land, 625 F. Supp. 1315 (D.  Alaska 1985).
The IBLA held that an Alaska Native had a preference right to an allotment  of land commencing with the first use and occupancy of the land. This  preference right was not barred by the fact that a Native allotment  application was not filed for the land until after a right-of-way had been  granted across the land. Once the preference right becomes vested, the  preference relates back to the initiation of occupancy and takes preference  over rights-of-way or other uses of the land filed subsequent to the  commencement of use and occupancy by the Native. Thus, in this case,  where a Native allotment application was filed after a highway right-of-way  was issued, the Native allotment related back and nullified the right-of-way  that had already been granted.
State of Alaska, Golden Valley Electric Association (Dinah Albert  Allotment), 110 IBLA 224 (1989)
Alaska and Golden Valley were granted highway and transmission rights-of- way in the mid-1960s. Subsequently, an Alaska Native filed Native allotment  applications in 1967 and 1968, asserting use and occupancy that initiated in  1938. The application was legislatively approved under the Alaska National  Interest Lands Conservation Act (ANILCA) in 1980. In a 1987 decision, the  Bureau of Land Management (BLM) declared the portions of the rights-of- way that crossed the allotment null and void. In their appeal, Alaska and  Golden Valley contended that the allotment should be made subject to their  rights-of-way because the Native’s use and occupancy was not open and  notorious and, therefore, was insufficient to provide notice of her claim.
The IBLA affirmed BLM’s decision and held that, where an allotment was  legislatively approved, the legislative approval precluded any additional  inquiry into the facts of the Native’s use and occupancy of the land,  including whether the use had been open and notorious. The IBLA stated  that although the legislative approval of the allotment was subject to valid  existing rights, the rights-of-way, approved in the mid-1960s, cannot be  considered valid existing rights since they did not come into existence until  after initiation of Albert’s allotment, which was stated in the record as 1938.  The IBLA concluded that the rights-of-way approved after the reported  initiation of the Native’s use and occupancy are not valid and existing  rights, and BLM, therefore, was correct in declaring the rights-of-way null  and void.
State of Alaska Department of Transportation & Public Facilities (Irene  Johnson and Jack Craig Allotments), 133 IBLA 281 (1995)
In this decision, the IBLA consolidated appeals from two separate BLM  decisions. Native allotment applications were filed by Johnson and Craig in  the early 1970s. Johnson claimed use and occupancy of the land beginning  in 1940, and Craig claimed use and occupancy beginning in 1937. A  materials site right-of-way application was filed with BLM by the State of  Alaska Department of Highways in 1965, after the date claimed for the  initiation of use and occupancy of the allotments, but before the filing of  the allotment applications. The right-of-way was granted in 1965. BLM later  approved the allotment applications of Johnson and Craig but did not issue  a certificate of allotment. Subsequently, ANILCA was enacted, and BLM  held that the applications were legislatively approved by section 905(a)(1)  of ANILCA. BLM did not state that the allotments would be subject to  Alaska’s materials site right-of-way.
Alaska appealed BLM’s decisions, contending that the allotments should be  subject to the right-of-way. The IBLA agreed with the state. In its decision,  the IBLA considered whether the allottees had a preference right that  related back to the initiation of use and occupancy that preempted the  right-of-way and concluded that they did not. The IBLA stated that the  authority to allot federal lands under the 1906 Native Allotment Act is  limited to vacant, unappropriated, and unreserved nonmineral land. The  IBLA ruled that, in the cases of Johnson and Craig, the land applied for was  mineral in character and thus not available for Native allotment during the  period of use and occupancy prior to the creation of the state’s right-of- way. The IBLA concluded that the state right-of-way is a valid existing right  to which the legislative approval of the allotment was subject under section  905(a)(1) of ANILCA.
In its decision, the IBLA noted that its 1987 decision in Golden Valley (On  Reconsideration) “marked a departure from the approach espoused by the  Board in [its 1985 Golden Valley decision] and other cases, holding that an  allotment was subject to a right-of-way granted during the period of use  and occupancy, but prior to the filing of the allotment application.” 133  IBLA at 287 n.8, citing State of Alaska v. Albert, 90 IBLA 14, 21-22 (1985).
State of Alaska Department of Transportation & Public Facilities  (Goodlataw Allotment), 140 IBLA 205 (1997)
Land was withdrawn in 1953 and 1956 for power projects. In 1965, Alaska  filed an application for a channel change right-of-way using some of these  lands. BLM issued the right-of-way in 1966, subject to all valid rights  existing on the date of the grant.
In 1971, BIA filed an amended application for a Native Allotment on behalf  of Goodlataw, claiming use and occupancy commencing in 1954. In 1974,  BLM advised Goodlataw that the lands embraced by his amended  application were not vacant and unreserved on the date he filed his  application or on the date he initiated use and occupancy because they had  been withdrawn by the power projects. Subsequently, BLM informed  Goodlataw that the power site withdrawal was no longer an obstacle to  ultimate approval of his application and in 1991 and 1992 issued decisions  to confirm legislative approval of his allotment application and to declare  Alaska’s right-of-way null and void, respectively. In its 1992 decision, BLM  noted that the right-of-way had been issued subject to all valid rights  existing on its 1966 issuance date. BLM stated that Goodlataw’s application,  which claimed use and occupancy beginning in 1954, had begun prior to the  1965 filing of the state’s right-of-way. Since the right-of-way had been issued  subject to valid and existing rights, BLM held that the channel change right- of-way was null and void as to lands within the Native allotment.
Alaska appealed, asserting that its right-of-way is a valid existing right to  which Goodlataw’s Native allotment is subject. The IBLA agreed with  Alaska and held that, because Goodlataw’s occupancy of the land began  after the land had been withdrawn, his occupancy did not constitute a valid  existing right when the right-of-way was issued to the state. Accordingly,  Goodlataw’s allotment application could only properly be approved subject  to Alaska’s right-of-way, and the decision canceling the right-of-way was in  error.
State of Alaska Department of Transportation & Public Facilities (Sabon  Allotment), 154 IBLA 57 (2000)
This case involved Alaska’s appeal from a BLM decision declaring Alaska’s  highway right-of-way null and void to the extent that it embraced lands  within a Native allotment.
In 1966, BLM issued a right-of-way to Alaska for highway purposes  (realignment of a highway), subject to “all valid rights existing on the date  of the grant.” The Alaska Native, Florence Sabon, applied for an allotment  in 1971 and claimed use and occupancy starting in 1954. In 1983, BLM  determined that Sabon’s application had been legislatively approved under  section 905(a)(1) of ANILCA. BLM’s decision also stated that the land was  valuable for oil and gas and that the allotment would be subject to a  highway easement transferred to Alaska under the Alaska Omnibus Act.  Subsequently, in a 1998 decision, BLM applied the relation back doctrine  and concluded that part of Alaska’s right-of-way was null and void due to  Sabon’s allotment.
In considering the state’s appeal, the IBLA concluded that Alaska’s right-of- way is a valid existing right to which the Sabon allotment is subject. The  IBLA found that, at the time Sabon claimed she commenced her use and  occupancy, the land had been withdrawn from all forms of appropriation  and reserved for highway purposes by the Department of the Interior’s  Public Land Order (PLO) No. 601 (14 Fed. Reg. 5048 (August 16, 1949)).  Thus, her allotment could not relate back to that time, as the land was not  available. Subsequently, in 1958, PLO No. 1613 revoked PLO No. 601 and  made the lands available for settlement claims but provided an easement  for highway purposes on these previously withdrawn lands. PLO No. 1613  also prohibited the use of the lands within the easements for other than the  highways except with the permission of the Secretary of the Interior.
The IBLA concluded that the legislative approval of Sabon’s claim  constituted permission under PLO No. 1613. However, while PLO No. 1613  permitted Sabon to commence use and occupancy in 1958, it also made  that use and occupancy subject to the highway easement. Accordingly, the  IBLA reversed BLM’s decision as to the portions of the right-of-way that  were located within the easement established by PLO No. 1613 and ruled  that the Sabon allotment must be subject to any portion of the state’s right- of-way within the easement.
section_title: Cases Analyzing Whether the Quiet Title Act Precludes Judicial Review of IBLA Decisions Concerning the Relation Back Doctrine
paragraphs: The IBLA decisions concerning the relation back doctrine generally cannot  be appealed in the federal courts because the courts lack jurisdiction under  the Quiet Title Act. The Quiet Title Act waives the sovereign immunity of  the United States in actions to adjudicate title disputes involving real  property in which the United States claims an interest. However, the Quiet  Title Act does not apply to “trust or restricted Indian lands.” Federal courts  have ruled that, under this exception, federal courts do not have  jurisdiction to review the IBLA’s decisions concerning application of the  relation back doctrine to rights-of-way over Native allotments.
Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068 (9th Cir. 1994)
The State of Alaska brought suit against the Department of the Interior  seeking judicial review of the IBLA’s decision, applying the relation back  doctrine, that Alaska’s rights-of-way over a Native allotment were null and  void. The Court of Appeals for the Ninth Circuit affirmed the district court’s  dismissal of the lawsuit and held that sovereign immunity was not waived  under the Quiet Title Act. The appeals court also addressed the IBLA’s  application of the relation back doctrine and stated that the IBLA’s analysis  of relation back in its adjudication of the Albert allotment was not arbitrary  or frivolous.
Alaska v. Babbitt (Foster I), 67 F.3d 864 (9th Cir. 1995) (amended and  superseded by 75 F.3d 449 (9th Cir. 1996))
The State of Alaska brought suit against the Department of the Interior  seeking judicial review of an IBLA decision that a Native allotment  applicant’s right to land took preference over the state’s highway right-of- way. The Court of Appeals for the Ninth Circuit held that the government  was immune from suit under the Quiet Title Act. In addition, the court  rejected the state’s assertion that the IBLA had restricted the relation back  doctrine.
Alaska v. Babbitt (Foster II), 75 F.3d 449 (9th Cir. 1996) (amended and  superseded Foster I decision)
The State of Alaska brought action against the Department of the Interior,  seeking judicial review of an IBLA decision that a Native allotment  applicant’s preference right to land took preference over the state’s  highway right-of-way. The Court of Appeals for the Ninth Circuit affirmed  the district court’s dismissal of the lawsuit, holding that the Quiet Title Act  renders the government immune from suit. The court stated that its  decision was based primarily on the authority of its earlier decision in  Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068 (9th Cir. 1994). The court  did not address the merits of the action, focusing solely on whether the  United States had waived its sovereign immunity to allow an appeal from  an IBLA decision. In the reissued opinion, the court deleted language  contained in its earlier opinion concerning the IBLA’s use of the relation  back doctrine.
Alaska v. Babbitt (Bryant Allotment), 182 F.3d 672 (9th Cir. 1999)
The Court of Appeals for the Ninth Circuit held that, under the facts of this  case, sovereign immunity was waived under the Quiet Title Act and judicial  review of an IBLA decision concerning a state materials site right-of-way  over a Native allotment was permitted. In 1961, the United States granted a  material site right-of-way to the State of Alaska. The grant was amended in  1969. In 1970, Bryant, an Alaska Native, filed an application for an  allotment, based on use beginning in 1964 (3 years after the initial grant of  the right-of-way to Alaska). BLM approved the allotment. The state’s  challenge to the allotment was dismissed by the IBLA, and the state  appealed. The district court dismissed the action for lack of jurisdiction  under the Quiet Title Act. The Ninth Circuit reversed. The appeals court  observed that, subsequent to the IBLA’s decision in Bryant’s case, the IBLA  changed its interpretation of the law. Specifically, in the 1997 Goodlataw  case, the IBLA had held that commencement of the use and occupancy  period for a Native allotment is without “color of law” if the state already  has a right-of-way at the time. The Ninth Circuit determined that, under  Goodlataw, the IBLA would now find that Bryant was not occupying the  land under “color of law” because the state’s right-of-way was in effect  when he began using the land. Since the allottee did not have a colorable  claim that the land at issue was Indian land, the Indian lands exception  under the Quiet Title Act did not apply.
section_title: Other Applications of Relation Back Doctrine
paragraphs: The doctrine of relation back is not unique to Native allotment cases and,  for over a century, has been applied in other contexts, in particular civil and  criminal forfeiture. As with holders of rights-of-way that cross Native  allotments, application of the relation back doctrine in forfeiture cases can  adversely affect the rights of third parties.
For example, in an 1889 case concerning forfeiture of property used in a  crime, the Supreme Court stated: “By the settled doctrine of this Court,  whenever a statute  that upon the commission of a certain act  specific property used in or connected with that act shall be forfeited, the  forfeiture takes effect immediately upon the commission of the act . . . and  the condemnation, when obtained, relates back to that time, and avoids all  intermediate sales and alienations, even to purchasers in good faith.”  United States v. Stowell, 133 U.S. 1, 16-17 (1889).
One hundred years later, in United States v. 92 Buena Vista Avenue, 507  U.S. 111 (1993), the Supreme Court discussed the relation back doctrine in  a drug trafficking case. In Buena Vista, the government sought to require a  homeowner to forfeit a house that had allegedly been purchased with drug  trafficking proceeds. The issues before the Court were whether ownership  vested in the government at the time the house was purchased with the  drug trafficking proceeds, and whether the homeowner could assert an  innocent owner defense. In analyzing these issues, the Court stated that the  relation back doctrine is not self-executing and does not make the  government an owner of property before forfeiture has been decreed, thus  allowing the purchaser to assert an innocent owner defense. However, if  the government obtains a decree of forfeiture, the decree establishes the  government’s title to the property as of the date of the underlying offense  and supersedes all subsequent transfers to third parties. “By the doctrine of relation is meant that principle by which an act done at one time is  considered by a fiction of law to have been done at some antecedent period. It is usually  applied where several proceedings are essential to complete a particular transaction, such  as a conveyance or deed. The last proceeding which consummates the conveyance is held  for certain purposes to take effect by relation as of the day when the first proceeding was  had. 237 U.S. at 167, quoting Gibson v. Chouteau, 13 Wall. 92, 100-101 (1871).”
The above are examples of application of the relation back doctrine by  courts under common law principles. The doctrine also has been  incorporated in statutes, including those dealing with drug trafficking and  money laundering. For example, 18 U.S.C. § 981(f) and 21 U.S.C. § 881(h)  codify the relation back doctrine, providing that “all right, title, and interest  in property . . . shall vest in the United States upon the commission of the  act giving rise to forfeiture. . . .” Under these statutes, although a judgment  resulting in civil forfeiture takes place some period of time after the  commission of the illegal act, title to the property passes to the government  when the illegal act was committed. However, in these cases, another  statute, the Civil Asset Forfeiture Act, provides an innocent owner defense.  The act states that “an innocent owner’s interest in property shall not be  forfeited under any civil forfeiture statute.” 18 U.S.C. § 983(d). Accordingly,  for example, a bona fide purchaser for value may have a defense to  forfeiture of the property.
section_title: Status of the 34 Native Allotments Identified by Alaska Realty and Copper Valley Where Conflicts Were Suspected to Exist
paragraphs: This appendix contains two tables on the universe of 34 Alaska Native  (Native) allotments identified by Alaska Realty and Copper Valley where  conflicts were suspected to exist. Table 6 shows each of the 34 Native  allotments categorized by its current status.
Table 7 shows the list of the 34 Native allotments categorized by the date  the Native allotment was certified. Half of the Native allotments, 17 out of  34, were certified prior to the IBLA’s 1987 decision on the relation back  doctrine, including 6 that were certified prior to ANILCA in 1980. Also,  about half of the Native allotments were approved under the 1906 Native  Allotment Act, and about half were legislative approved under ANILCA.
section_title: Comments from the Department of the Interior
section_title: Comments from the State of Alaska
section_title: Comments from the Copper Valley Electrical Association
paragraphs: The following are GAO’s comments on the Copper Valley Electrical  Association’s letter dated August 13, 2004.
subsections: section_title: GAO Comments
paragraphs: Copper Valley commented on our recommendation and the legislative  options, both of which are discussed in the Agency Comments and Our  Evaluation section of this report. Copper Valley also provided technical  comments, which we incorporated as appropriate. In addition, discussed  below are GAO’s corresponding detailed responses to some of Copper  Valley’s comments. 1. GAO has not concluded that Copper Valley is trespassing on allotments,  rather, our report states that Interior and/or Alaska Realty have  determined that Copper Valley is trespassing or allegedly trespassing  across Native allotments. 2. We acknowledge Copper Valley’s goal of serving all potentially eligible  customers in its service area and its requirement that customers agree  to a blanket easement across their property without cost to Copper  Valley. However, Copper Valley has been inconsistent in how it has  dealt with securing rights-of-way across Native allotments. For  example, as stated in our report Copper Valley has negotiated a right-of- way and compensated Native allottees for use of the land in the  following cases: Howard Adams (1998 right-of-way), Delores Lausen  (1997 right-of-way), and Nicolas Tyone (1996 right-of-way).  3. Yes, as noted in our report, we state that while several relation back  cases have been identified so far in the Copper River area, other cases  may exist. 4. Yes, we agree that in these cases the relation back doctrine could  presumably have been applied to invalidate Copper Valley’s right-of- way, if Copper Valley had obtained a right-of-way. As our report notes,  because Copper Valley did not obtain BIA approval and was not granted  a right-of-way through these Native allotments, they are not examples  of the relation back doctrine. BLM’s 1982 right-of-way decision  affecting these Native allotments was 5 years before Interior started  applying the relation back doctrine to Native allotments. The decision  was based on a 1979 Memorandum of Understanding between BLM and  BIA and not on the relation back doctrine. 5. GAO has no position on this case and did not intend to comment on the  merits of this case. We have revised the footnote by deleting the phrase  “in error” and we have noted Copper Valley’s appeal to the IBLA.
section_title: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: In addition to those individuals named above, John Delicath, Doreen  Stolzenberg Feldman, José Alfredo Gómez, Paul Staley, Carrie Wilks, and  Arvin Wu made key contributions to this report.
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