In some of these  conflicts, electric utilities and other holders of rights-of-way have had their  rights-of-way across Native allotments invalidated. 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. 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. 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. Interior Does Not Recognize Copper Valley’s State Issued Rights-of-way within Certain Federally Granted Highway Easements

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. Existing Remedies Available to Resolve Disputes over the Validity of Copper Valley Rights-of-way within Native Allotments Have Produced Limited Results

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. 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 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. 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. 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. 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. 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. The allotment was issued in 1975.
Why GAO Did This Study

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.

What GAO Found

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.