Sept. 10, 2025 – Northern Wisconsin homeowners, who had access to their homes blocked by the Lac du Flambeau Band of the Lake Superior Chippewa Indians (LDF), last month received from the U.S. District Court for the Western District of Wisconsin the solution of implied easements.

The district court decision, United States v. Town of Lac du Flambeau, Nos. 23-cv-355-wmc, 23-cv-777-wmc, 23-cv-541-wmc 2025 WL 2244412 (W.D. Wis., Aug. 6, 2025), available at 2025 WL 2244412, may not necessarily end the dispute, here or elsewhere.

The LDF “argues that this decision overlooks key elements of federal law that protect Tribal lands and the Tribe’s inherent sovereign authority to control access to its Reservation,” the LDF said after the decision’s release.

“[T]he tribe is committed to safeguarding the integrity and jurisdiction of its treaty-defined permanent homeland.”

Rights-of-way over tribal land remain an unresolved matter, especially as 50-year-old grants under the Indian Right-of-Way Act of 1948 (ROW Act), 25 U.S.C. section 323, silently expire.

“For those who live on, or work for a tribe that has, a checkerboard reservation the problem of right-of-way access is commonplace and often insidious,” wrote M. Brent Leonhard in the American Indian Law Journal 13 years ago.^[1]

“It is not unusual for someone to throw up a gate and block road access to various lands claiming that they have not granted a right-of-way to others who regularly use that road.”^[2]

Checkerboard in Play

As Judge William M. Conley described in the district court decision, the LDF reservation’s “checkerboard” means “that there are multiple parcels of land on the Reservation owned in fee simple by non-tribal members, including the [h]omeowners involved in this case.”

The 1854 Treaty with the Chippewas created the reservation and promised each head of an LDF household, including single individuals over 21 years old, the choice of 80 acres of land.

The federal government would grant the individual a patent “as fast as the occupants become capable of transacting their affairs,” the treaty provided.

These terms show an early use of allotments, a means for individual tribal members to obtain land of their own. Beginning with the Dawes Act of 1887, allotments became the standard policy regarding tribal land for about 50 years.

Once individual tribal members received a patent to their land, they could sell it.

Roads for Development

Just as the pattern of land ownership took shape long ago, the 1.3 miles of roads in dispute came from 1960s development companies.

Although each road has its own history, all resulted from one of two developers requesting from the Bureau of Indian Affairs (BIA), with LDF approval, a public right-of-way to become a Town of Lac du Flambeau (Town) road to access residential developments.

In all but one instance, in which the term was undefined, the BIA’s approval was for 50 years, subject to renewal.

The Town treated the rights-of-way as public roads, maintained them, and used them for required fire and ambulance services for more than 50 years.

The rights-of-way looked like public roads. The grants remained recorded only with the BIA, available to those who asked, but never recorded with the Vilas County register of deeds.

“As a result, when many, if not all, of the [h]omeowners took title to their respective properties, they did so without notice of any qualification as to the permanence of the Town’s rights-of-way on the respective [r]oads,” the decision states.

Blocked Roads and Alleged Trespass

The BIA in 2013 and the Town in 2014 each sent a letter to some homeowners, alerting them that the easements they relied upon to get to their homes were expiring.

Negotiations between the Town and the LDF didn’t result in agreement. Individual homeowners then sought their own rights-of-way from the BIA, but it valued access for the next 50 years at $79,000.

The LDF asked for $10-$20 million for a permanent easement.

The LDF enforced its warning that use of the roads was trespassing on Jan. 31, 2023, ​by setting up roadblocks. Homeowners who left to buy groceries could not always return home.

While other litigation was pending, the LDF opened the roads – “at a substantial monthly cost” to the Town. Eventually, the Town could not pay the amount.

Meanwhile, the LDF sought to remove the roads from the National Tribal Transportation Facilities Inventory. The BIA granted the request. The homeowners affected by the decision found no one would listen to their appeal.

Finally, the United States, for itself and as trustee for the LDF, sued the Town for trespass and ejectment under the ROW Act.

Refused Consent

Although the 1854 Treaty said “necessary” rights-of-way “shall” go through the reservation, Native Americans didn’t always consider access through their land as progress, Brian L. Pierson explained in a 2022 Wisconsin Law Review article.^[3]

An undesired road sparked Red Cloud’s War. The 1868 Treaty of Fort Laramie removed the right-of-way from the Great Sioux Reservation.^[4]

As far back as 1888, the LDF “refused to consent to rights-of-way for railroads through their reservation,” seeing them as a nuisance that would “set fire to their timber and kill their horses and cattle without giving them just compensation therefore.”^[5]

A year later, the railroad ran through, with compensation to be “invested ‘in flour and pork, to be issued to the Indians as they may need it.’”^[6]

With the railroad came a government-employed teacher, farmer, and three policemen. Later it “brought speculators and wealthy Chicagoans, who bought up the reservation’s prime lakefront parcels for vacation homes.”^[7]

The ROW Act empowers the Secretary of the Interior “to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across lands now or hereafter … owned, subject to restrictions against alienation, by individual Indians or Indian tribes, communities, bands, or nations.”

Although tribal agreement and compensation are part of the process, that didn’t always happen.

“In the modern era, tribes have chafed at their subordinate role in the granting of rights-of-way across their lands and at their lack of regulatory control,” Pierson explained. “The BIA controlled the process from start to finish.”^[8]

Even in recent years, the BIA “lacks the human resources to respond in a timely manner to broad requests for right-of-way information relative to specific reservations,” Pierson said.^[9]

His review of lands under the 1854 Treaty showed rights-of-way that the BIA never authorized, and, for those it did authorize, little if any compensation, “a significant number” that are “perpetual,” and “a significant number” that have expired.^[10]

Both Sides Are Right

The district court conceded that both sides had valid arguments.

The BIA, the LDF, the developers, and the Town all knew the roads were intended to be permanent public roads, which the Town had valid rights-of-way under the ROW Act.

But, with one exception, the BIA explicitly limited the grants to 50 years.

No authority supported ignoring that time limit, the district court said. Instead, “well-established, controlling precedent requires this court to strictly construe land grants from the United States government.”

The homeowners would lose if the ROW Act provided the only justification.

But “the ROW Act is not the exclusive means by which the Town or [h]omeowners could gain access rights to the [r]oads in this case,” the decision explained.

Public Roads – Unless

Tribal Transportation Roads, 23 U.S.C. sections 201 and 202, are defined as public, federally funded roads, commentary and the district court agree.

One means of tribal control, Leonhard suggested, is that roads could be removed from the national inventory.^[11]

“If there is evidence that a given road was created with private money, maintained by private parties, or has been systematically closed to public travel by way of a locked gate, posted signs, or other regulation, then it is possible that the road is private,” Leonhard said, justifying removal.^[12]

Removal requires agreement with the Secretary of Interior and a tribal resolution “explicitly vacating the public right-of-way,” Leonhard advised.^[13]

He left in a footnote the suggestion that the tribe should develop a procedure “that ensures notice goes to all property owners whose interests may be affected and gives them an avenue to voice their opinion on the matter.”^[14]

Due Process?

The BIA granted the LDF’s request to remove the contested roads from the inventory using 25 C.F.R. section 170.444, the decision explained, but when homeowners sought to challenge the BIA’s approval, no one at the BIA would listen to them.

In finding standing for the homeowners, the district court noted a long list of harms: “decreased property values; interference with the Town’s ability to provide necessary public and emergency services; interference with the [h]omeowners’ right to travel and access their homes and property; and subjecting the Town and [h]omeowners to trespass actions for using the [r]oads.”

The homeowners argued that the BIA’s decision was arbitrary and capricious because it denied them due process – and that it was substantively wrong because the regulation does not remove roads from the inventory.

The district court questioned whether the roads could be removed under section 170.444, a regulation for updating data, which allows only tribal appeals.

In contrast, 25 C.F.R. section 170.114 allows removing roads – for three limited reasons, none of which apply here, the district court explained.

Even if section 170.444 applied, the homeowners had a right to appeal under the default appeal process in 25 C.F.R. Part 2, the district court said.

To read the regulations to deny review, the decision explained, would violate the homeowners’ property and liberty interests protected by the Constitution.

The district court found for the homeowners and vacated the BIA decision to remove the roads from the inventory, “until such time when done properly, if at all.”

Implied Easement

The homeowners’ access relies upon the intent of the federal government, the district court analyzed.

The 1854 Treaty and the Allotment Act of 1903 created an expectation of “reservation land … split up into hundreds of allotments and conveyed to tribal members by way of federal patents, allowing allottees to alienate their lands freely by selling parcels in fee simple to non-tribal members,” the district court explained.

Purchased land contained the expectation of access, as court decisions held, analyzing similar real estate holdings under the Dawes Act allotments and patents granted under the Homestead Act of 1862.

The absence of “reasonable restrictions” by the United States or the LDF also weighed in on the district court’s decision.

“Instead, to date, the Tribe has attempted to block access altogether and demanded that the Town pay an exorbitant, monthly fee to keep the [r]oads open or a one-time $20 million fee for permanent public access.”

The implied easement the district court granted perpetuates that intended access.

Endnotes

[1] M. Brent Leonhard, The Public Nature of Indian Reservation Roads, 0 Am. Indian L.J. 29, 29 (2012).

[2] Id.

[3] Brian L. Pierson, Symposium: The Restatement of Law of American Indians, Right-of-Way Sovereignty, 2022 Wis. L. Rev. 225, 225-27 (2022).

[4] Id. at 233.

[5] Id. at 232.

[6] Id.

[7] Id. at 233.

[8] Id. at 234.

[9] Id. at 235.

[10] Id.

[11] Leonhard, supra note 1, at 38.

[12] Id.

[13] Id. at 40.

[14] Id. at 40 n.63.