Bulletin: SLS2015013

Dear Associates:

Recent developments in the states of New Mexico and Wisconsin have raised concerns when insuring access by means of a right of way that traverses Native American land. In these states, certain tribes have challenged the legitimacy of some of these roads as public rights of way. This has led to heightened scrutiny of all title insurance transactions involving access by roads that cross Native American lands in these states.

This bulletin briefly summarizes the circumstances in these states and is intended to highlight this issue should you have a transaction involving similar facts.

New Mexico

New Mexico is home to nineteen pueblos and three reservations. In late 2013 the Pueblo of San Ildefonso, which is one of the five pueblos located north of Santa Fe, New Mexico, formally claimed that six different county roads and portions of a seventh road trespass on Pueblo of San Ildefonso lands. The pueblo, acting by and through the U.S. Department of the Interior, Bureau of Indian Affairs, claims that Santa Fe County does not have easements with the Pueblo for these county roads or any other basis to lawfully claim these roads as public rights of way. The BIA, Santa Fe County, the Pueblo, as well as certain members of the New Mexico congressional delegation have been involved in discussions for almost a year and a half without any measurable progress to resolution.  

It is not clear if this issue is limited to the Pueblo of San Ildefonso or whether it extends to the four other Northern Pueblos (or even to other pueblos or reservations). The five Northern Pueblos are in close proximity to each other and some of the county roads cross more than one pueblo’s land. The legal basis for various different county roads includes easements, treaties, adjudications, and tribal resolutions, but the records are incomplete, and some of the records may be susceptible to differing interpretations. Although none of the other four Northern Pueblos have alleged trespass against the county, as did the Pueblo of San Ildefonso, at the same time none of them has confirmed that the roads crossing their respective lands are considered by the particular pueblo to be public rights of way.

The status of these county roads as public rights of way for purposes of insuring access has not historically been considered risky, and private property owners and lenders have long obtained title insurance policies in the affected areas without exception for legal access. The Pueblo of San Ildefonso claim together with the uncertainty of the other pueblos’ position, however, has had a substantial chilling effect on new title policies that rely on any of the disputed roads for access. Some title insurers have declined to insure in these affected areas and all have increased their underwriting requirements.

As discussed below in more detail, Stewart continues to evaluate each new matter on a case-by-case basis and determines insurability based on a comprehensive review of the information available for the subject roadway.

Wisconsin

In Wisconsin, the Lac du Flambeau Band of Lake Superior Chippewa Indians has raised access questions as to certain fee properties owned by non-Indians on its reservation. The area of Lac du Flambeau is somewhat of a checkerboard reservation, where taxable fee land regulated by the town is interspersed with tribal land regulated by the tribe. What were once thought to be easements granted by the tribe over roads on tribal land now allegedly have expired after 50 years. The tribe (through the BIA) sent demand letters in 2013 to specific fee owners on certain roads (some of them previously thought to be owned by the township). In the letter, the tribe had asked for compensation to renew permitted access to the road. It is not clear whether anyone has paid the tribe for continued access or whether access for anyone has been interrupted. Title insurance is involved for at least some of the parcels and defense provided for owners that live on two of the roads. At this time, it is believed that approximately ten roads may be affected. The town, tribe, and landowners are currently in a period of repose while they evaluate evidence and consider next steps.  

Guidelines 

Stewart recognizes that this issue cannot be painted with a broad brush and that each transaction where legal access is provided by means of a potentially disputed road needs to be evaluated on its own merits. Whenever you are dealing with this type of situation, please apply the following guidelines:  

1. Insuring Native American lands is considered an extrahazardous risk requiring Senior Underwriter approval and state counsel review. Insuring private property where the legal right of access is by means of a road that traverses Native American land is an extrahazardous risk requiring Senior Underwriter approval and state counsel review. 

2. If you are in an area where this bulletin specifically applies, you will need to examine the title to the public right of way on which access is premised. This may include finding and evaluating conveyances, easements, dedications, tribal resolutions, BIA consents or authorizations, and adjudications.

3. If you are in an area where this bulletin specifically applies, you will also need to locate any underlying owner’s or lender’s title policies. As part of the underwriting evaluation, the Company will consider its potential exposure, if any, under any existing Company issued policies.

INSURING INDIAN LANDS IS AN EXTRAHAZARDOUS RISK AND MUST BE APPROVED BY A SENIOR UNDERWRITER.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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