BIA and Realty Service Providers have a fiduciary, or trust responsibility to “restricted” Native landowners. A fiduciary is someone who has undertaken to act for, and on behalf of, another person in a particular matter and the resulting relationship is one of trust and confidence. This involves exercising a high standard of care in managing another’s money or property, which means we must ensure that the rights of Native landowners are protected.
The fiduciary or trust principals for trespass abatement are identified in a Secretarial Order issued by the Secretary of the Interior. Including:
- Protect and preserve Indian trust assets from loss, damage, waste, depletion, and unlawful alienation (examples of alienation are selling the land without BIA approval, or letting a squatter occupy the land w/o authorization).
- Enforce the terms of all leases or other agreements, and take appropriate steps to remedy trespass on trust or restricted property.
Trespass
Trespass is an unlawful act committed against the person or property of another; especially wrongful entry on another’s real property. Trespass is usually classified as an intentional, or willful act that is committed by someone acting with general, or specific intent. However, there can be an instance of innocent trespass whereby the trespasser builds or maintains a structure with the assumption that the property belongs to them.
Trespass accusations are a serious matter. After the BIA has confirmed the fact of trespass and identified the trespasser, we work to initiate contact with that person or company in order to resolve the trespass, if possible. If the restricted property owner is deceased, and the property is being probated, we pursue trespass action on behalf of the undetermined heirs.
Trespass resolution can be a lengthy process. It will usually involves a survey, an appraisal, and possible litigation. Resolving a trespass claim nearly always requires a site visit. It is best for the landowner to be present and to accompany BIA staff. Nearly all trespass cases begin with a sworn Affidavit (and photos if available) we use to substantiate the claim.
There are four basic types of Trespass and paths to resolution:
Structural trespass
A structural trespass normally involves buildings, utility lines, airports or other permanent unauthorized intrusions onto Restricted Native parcels.
Examples of structural trespass include the following: Power line, Airport, Phone line, Fiber optic line, Water/sewer, Utility fixture, Piggybacked ROW, Housing, Leases, Businesses, Gravel or sand quarry that is more permanent, or Structure over the property line
Possible solutions: ROW, Removal, Remediation, Business lease, Subdivision, Sale, or a Gift deed
Access trespass
An access trespass normally involves someone needing to get to property by accessing it through Restricted Native land. Examples would include roads, trails, dock, or an airstrip.
Examples of an access trespass include the following: Trails, Roads, Boat landings, Airport buffer zone or access
Possible solutions: ROW, Sale/purchase, Remediation, Signage, Survey, Subdivision, or a Dedication
Please note: land management is the responsibility of the landowner(s). BIA and Service Providers cannot police the land for the landowner(s).
Transient trespass
A transient trespass normally involves one time or short term unauthorized use of the land. Examples include, camping, firewood, hunting, berry picking, or the removal of natural resources.
Examples of a transient trespass include: Camping, Firewood, or a Short term or one time gravel removal
Possible solutions: Putting up signs, Wildlife cameras, Letters, Remediation, Payment for gravel or timber that was removed, or Fencing
Please note: Transient trespass solutions focus on prevention. This is because transient trespass occurrences are usually one-time scenarios and there is often minimal damage to the property. The BIA and Service Providers cannot police land for the landowner(s). Primary responsibility for managing the land is the responsibility of the landowner(s)
Family trespass
A family trespass normally includes one owner (or possibly just a relative) infringing on the rights or benefits of other owners. Examples include disagreements about use or occupancy, businesses that do not benefit all owners, unapproved leasing or rental of the land or other issues. The BIA has a limited authority to intervene in family matters. In most cases, all of owners are represented by the BIA (or Tribe) and cannot favor one over the other and thus take sides.
Examples of a family trespass include: Unauthorized occupancy or use by family members, Ownership dispute, Disagreement about use, a business that does not benefit all owners, or Unapproved leasing of the land or house
Possible solutions: Provide probate documentation, Counseling, Lease, Provide CFRs, Send letters, Gift deeds, Partitions, Subdivisions, or Buying each other’s interest
Please note: BIA cannot favor one landowner over another and take sides. Resolving trespasses requires all parties to actively participate in resolving the conflict. The BIA and Service Providers encourage families to work through their disputes.
NOTE: If a grantee with a BIA approved right-of-way or lease remains in possession after the cancellation, termination, or expiration of that right-of-way or lease without seeking to gain authorization again, it can be treated as a trespass. If a person or entity takes possession of restricted land without proper authorization to do so, it can be treated as a trespass. More information can be found here: 25 CFR § 169.410 - What will BIA do if a grantee remains in possession after a right-of-way expires or is terminated or cancelled? and 25 CFR § 162.023 - What if an individual or entity takes possession of or uses Indian land without an approved lease or other proper authorization?
FOR FURTHER INFORMATION, CONTACT:
Bureau of Indian Affairs Alaska Region
Real Estate Services
3601 C Street, Suite 1200 MC-304
Anchorage, Alaska 99503-5947
(907) 271-4104
