CHAPTER 23-1
NECESSITY OF EMINENT DOMAIN

23-1-1 Power to Condemn.

The Nation shall have the power to condemn land within the Prairie Band Potawatomi Nation’s Reservation whenever such land is deemed by the Tribal Council to be necessary for a public or quasi-public purpose as set forth in Section 23-1-3 below.

23-1-2 Definitions.

As used in this Title:

(A)    “Condemnation” means the process of taking property or an interest therein, temporarily or permanently, for public or quasi-public use through the power of eminent domain.

(B)    “Condemnee” means the owner, assignee, lessee, tenant, authorized occupant, or other holder of property or an interest therein taken by condemnation.

(C)    “Eminent domain” means the power of the Nation to condemn property for public or quasi-public use.

(D)    “Property” means all lands, including improvements and fixtures thereon; lands under water; surface and subsurface rights; every estate, interest, and right, legal or equitable, in lands, water, or the subsurface; all rights, interests, privileges, easements, and encumbrances relating thereto, including tenancies and liens of judgment, mortgage, or otherwise; and any portion of these.

(E)    “Fair market value” means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.

23-1-3 Purposes for which Eminent Domain may be exercised.

Subject to the provisions of this Chapter and any other applicable law, the right of eminent domain may be exercised by the Nation for the following uses:

(A)    Buildings and grounds for any public or quasi-public use of the Nation including, but not limited to, economic enterprises of the Nation;

(B)    Reservoirs, canals, aqueducts, flumes, ditches or pipes, whether public, quasi-public or private, for conducting water for the use of the Nation or the inhabitants of the territory of the Nation or for drainage of any area within the territory of the Nation, and for wastewater treatment;

(C)    Raising the banks of streams, removing obstructions therefrom, or widening, deepening, or straightening their channels;

(D)    Highways, roads, streets, alleys, pathways and other roads or ways on the Reservation for the use or benefit of the Nation or its inhabitants;

(E)    Telegraph, cell phone, telephone, two way radio, cable television, and fiber optic lines and towers, and other conduits for public communication;

(F)    Electric light and power transmission and distribution lines, pipe lines used for supplying gas or waste disposal, and all transportation, transmission and intercommunication facilities;

(G)    Aviation fields;

(H)    Recycling facilities;

(I)    Lands used for ceremonial purposes by the Nation’s members; and

(J)    All other public and quasi-public uses.

23-1-4 Property subject to Condemnation.

Property which may be taken includes:

(A)    All property belonging to, assigned to, leased, or occupied by any person or entity;

(B)    Property appropriated to public or quasi-public use;

(C)    All easements and rights of way;

(D)    All rights of use, entry upon, and occupation of property;

(E)    The right to remove or take earth, gravel, stone, trees, and timber from property;

(F)    A use in the water of a stream, river, or spring; and

(G)    All types of and interests, estates, and rights in property, private or otherwise, not enumerated.

23-1-5 Prerequisites to Taking Property by Condemnation.

Before property may be condemned, it shall appear that:

(A)    The use to which the property is to be applied is a use authorized by the laws of the Nation;

(B)    The taking is necessary to such use, provided the word “necessary” as used in this subsection shall not be interpreted to mean the only possible option or alternative, but shall mean a viable solution to a problem or opportunity; and

(C)    If the property is already appropriated to some public or quasi-public use, the public or quasi-public use to which it is to be applied is a more necessary public or quasi-public use.