Laura Toledo’s father Robert took pride in his land—a share of the 640-acre “allotment” property just outside Gallup, NM, that’s been in the Toledo family since the 19th century.
“He was really protective of his land. He always wanted us to stay here, and told us to take care of the land—value this,” she tells SFR. “You can’t just get something like this, you know.”
It’s a message Toledo hasn’t forgotten, which is why she’s joined a group of 42 Navajo property owners in challenging how Public Service Company of New Mexico and other utility companies gain access to energy right of ways on their land.
Toledo and her fellow allottees contend that appraisals accepted by the Bureau of Indian Affairs have allowed power companies to consistently undervalue their land while paying private landowners, as well as the Navajo Nation, many times more for the same access.
“We feel like we’re being taken advantage of,” Toledo says.
For decades, PNM and other utilities including El Paso Natural Gas (purchased by Kinder Morgan, Inc. in 2012) have operated miles of power lines and pipelines over, under and through New Mexico’s “checkerboard” region—a patchwork of federal, state, reservation and private land that includes allotments.
Although allotments, which date back to the Dawes Act of 1887, are private property beyond the Navajo reservation, the BIA holds the land in trust and approves any sale, construction or lease.
Many allottees, such as Larry King, doubt the BIA’s stewardship.
Back in July 2011, King received a letter notifying him that the allotment he owns interest in was on the verge of finalizing a deal with PNM to renew the lease of its “AY” transmission line, which cuts through his property. It was the first he’d heard of the renewal.
“Nobody talked to me. Nobody came around. The BIA did not call us in or anything,” King says. “It’s just done behind closed doors.”
Such a deal is possible, in part, because an allotment can have hundreds, even thousands of owners. When an allottee dies, his or her share is passed on to heirs, and ownership can splinter, or “fractionate.” In that case, those representing just 51 percent of ownership are required to sign off on a right of way like PNM’s.
This is “probably the most negative aspect of the allotment process that for far too long went under the radar and then really blew up,” says Cris Stainbrook, president of the Indian Land Tenure Foundation, a national organization based in Minnesota that helps to consolidate tribal land, including allotments. Getting owners to agree on a deal is difficult, he says, and fractionation can be “an impediment to economic development on these allotments.”
Yet, apart from closed doors, King is concerned about fairness. He lives full-time on the Navajo reservation, raising a few head of Angus cattle on the allotment he inherited from his father in 2004. The same AY power line stretches over his home on the reservation where—he and his fellow 42 allottees argue—the lease is much more generous.
“The BIA should say: ‘You have a fence line that just divides the tribal trust lands and the allotment, and just across the fence, the tribal government is getting thousands of dollars per rod, compared to the allotment just on the other side—$40 per rod,’” King says. “Why? I just don’t understand why.” PNM would not disclose the rate paid to the Navajo Nation and declined a request to be interviewed for this story.
“PNM as a matter of practice does not comment on pending litigation. We are working through the legal process to try to resolve any outstanding issues regarding this complaint,” spokesperson Valerie Smith wrote SFR in an email.
Allottees point to a fiercely negotiated lease the Navajo Nation hammered out with El Paso Natural Gas in 2009 as an example of inconsistency. El Paso doled out $350 million over 20 years, or roughly $20,000 a year per mile for access on the reservation. At $30 per rod over a 20-year lease, allottees calculate, they are receiving $480 a year per mile for the same access.
That El Paso pipeline is buried below Laura Toledo’s allotment. Her grandmother signed the most recent lease decades ago, when she was in her 80s. Many elderly Navajo like her had trouble interpreting the contracts, Toledo says. Some signed with their thumbprints.
“Our elderly don’t have a lot of money,” she says. “You just show them a little bit of money and they’ll go, ‘Yeah, I’ll sign.’ It shouldn’t be that way.”
To be sure, many Navajo living in New Mexico struggle to support themselves financially, with 63 percent living below the poverty line. That’s nearly three times higher than the state as whole, according to City-Data.com.
And this isn’t the first time the BIA’s relationship with energy companies has been called into question. Cobell vs. Salazar—one of the largest class action suits ever filed against the federal government—awarded a group of allottees $3.4 billion back in 2009 for “breaches of trust” and the historical mismanagement of allottee land.
Alan Balaran, the court-appointed special master assigned to the case, stepped down from his post long before that landmark decision, though. He explained the departure in a 2004 resignation letter: “I soon began to uncover evidence that [the US Department of the] Interior was putting the interests of private energy companies ahead of the interests of individual Indian beneficiaries.”
DOI never disclosed his findings because, he went on, they “could cost the very companies, [with] which senior Interior officials maintain close ties, millions of dollars.”
For the BIA’s part, spokesperson Nedra Darling explains, “There are many different types of right of ways crossing allottee tribal and private lands. These various ROWs do not all run along the same line nor are there formal corridors reserved for private or public utility use.” She went on in an email to SFR: “Landowners have the right to negotiate a higher rate with the ROW applicant. The regulations allow allottees to authorize the BIA to negotiate for them but the BIA cannot step in and act for landowners without first receiving the express authorization and consent of the allottees.”
Darling refused to comment on next steps, but according to lawyers representing the allottees, the department has recently agreed to review the original appraisals of these allotments, which assigned value to the land primarily as lower-valued grazing land, not an energy corridor.
Laura Toledo is willing to wait, but not for long.
“I’m here. Even though there are no jobs, I’m here,” she says, before adding, “but it’s time for a change.”