Abandoning the Iron Horse: Railroad Rights-of-Way and the Implied Doctrine of Reverter on Indian Reservations

Land title issues on Indian Reservations are notoriously but unnecessarily complex. Unsettled land titles and the resulting fragile land ownership status on Indian Reservations are well-known factors impeding productive land uses, the cure of environmental degradation, and Indian sovereignty, ownership, and control over sustainable land uses. Some lawsuits even question the existence of a Reservation itself. Land titles to many parcels on Indian Reservations have been split into thousands of owners. Using existing law and principles of equity, abandoned Reservation rights-of-way of many types do not have to sit unused and economically unproductive. Future lawsuits and other wasteful societal friction between trust lands users, landowners, and other users can be avoided, and local tribal action can lessen their dependence on the federal power by initiating cleanup of land titles on their Reservations. Today, there are seven Indian Reservations in Montana and four in Idaho. Old Reservation railroad, pipeline, power, canal, and wagon road rights-of-way, to name a few, have been abandoned or relinquished to the United States, Tribes, and individual allottees, but some of those transactions remain incomplete or unaddressed, entangling landowners in expensive but avoidable disputes. This article will define pertinent terms and discuss reversionary interests of the United States in Montana and Idaho for railroad rights-of-way across Indian Reservations, and the effect of those two States’ laws on such federal grants to railroads. Finally, this article will discuss how current law and historical principles of equity may assist Tribes in addressing and curing unsettled or disrupted land titles related to railroad rights-of-way on Indian Reservations using an example from the Schitsu’umsh Reservation in Idaho.