Jay Daniels

Since the beginning of time, Indian tribes and individually-owned Indian lands have been treated much like open range laws in the early years of ranching.

In the Western United States and Canada, open range is rangeland where cattle roam freely regardless of land ownership. Where there are "open range" laws, those wanting to keep animals off their property must erect a fence to keep animals out. This applies to public roads as well.

Trespass is defined as any unauthorized occupancy, use of, or action on any Indian land or government land. If an individual or entity takes possession of, or uses, Indian land without a lease or permit and it is required, the unauthorized possession or use is a trespass.

Railroads use the Railroads Act to take possession of Indian lands without owner consent. Many acts stipulated that if the right-of-way was inactive for two or more years, ownership could revert back to the landowner. Trails that have been “railbanked” right-of ways using the federal process of preserving former railway corridors for potential future railway service by converting them to multi-use trails in the interim (Rails to Trails Act). This allowed rails to retain their right to "hold" the right-of-way.

Roads popped up everywhere in the early 1900's without any consent from Indian landowners by local municipalities, counties and states. Tribes didn't have a legal department in those days and didn't really understand their rights because it seemed as if they didn't have any rights. Whenever some non-tribal entity wanted anything tribes and individual Indians owned, they took it and didn't look back.

Homesites would spring up everywhere and without a valid survey it could be nearly impossible to know if trespass was involved. Farmers, when preparing their own or leased lands adjacent to Indian lands have plowed portions of those adjacent Indian lands slowly as to increase their farmed acreage.

Today, the Bureau of Indian Affairs has designated many roads, access to non-Indian homesites and businesses access as "undocumented" rights-of-ways. This means it is believed that there was a a right-of-way, but no legal documents can be produced. Could you imagine going to court and not having documentation to prove your allegation or wrong? Is it really a right-of-way if it is undocumented?

Yet these rights-of-ways are determined by the courts to be valid even without consensual documentation. To make things worse, the courts, when assessing damage, valued the property at the time of the taking, not today's fair market value. landowners were compensated sometimes for $1.00 an acre or less, or no compensation at all if the court determined that the trespass enhanced the value of the trespassed land (i.e. infrastructure, access to lands).

A terrible mistake was made in the Cobell Settlement when the class-action members consented to not file a claim for "any" past Indian land claims prior to September 30, 2009, by their mere acceptance of the settlement payment. It's buried in the agreement language and most folks didn't really understand what was agreed to entirely.

Various caselaw and Interior Board of Indian Appeals have firmly established that Indian agriculture lands aren't determined by what it is being used for, but rather what it could be used for. You can convert Indian agricultural lands into a homesite or a business, but it's still defined as Indian agricultural land.

The BIA's trespass policy requires they will investigate accidental, willful, and/or incidental trespass on Indian agricultural land and respond to alleged trespass in a prompt, efficient manner and notify the alleged trespasser.

In too many instances, the BIA does not investigate, or does not issue a "10 Day Show Cause" letter to the alleged trespasser to dispute the trespass allegation, or cure the violation. There have been trespass cases which have gone on for years, if not decades. Trespass allegations are reviewed but if it can't resolve it quickly, it sometimes was passed on to someone else through the years.

Complicated trespass allegations can legitimately take longer to resolve. Some cases require certified surveys, search of title records and appraisals to determine the value of the taking, or unauthorized use.

The BIA is responsible to take immediate action to recover possession from trespassers operating without an agricultural lease or permits, and take other emergency action as needed to preserve the value of the land.

Unless otherwise provided in an agricultural lease, the Indian landowners will be entitled to receive any settlement funds or damage payments arising from certain actions that diminish the value of the land or the improvements thereon.

If a tenant remains in possession after the expiration or cancellation of an agricultural lease or permit, BIA must treat the unauthorized use as a trespass, unless BIA believes that the holdover tenant is actively engaged in negotiations with the Indian landowners to obtain a new lease or permit. A "holdover" means they are like squatters who won't leave when the lease or permit expires.

If you feel the BIA is dragging their feet in addressing your allegation, you have the right to appeal a "Notice of Inaction" to the BIA Regional Director. A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, can make the official’s inaction the subject of appeal (25 CFR§ 2.8). This forces the BIA to act promptly.

Most things never change and some things don't get better. Indian lands are still being taking away because it has value that someone else wants.

Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at Round House Talk.