New Right-of-Way Regulations on Indian Lands

Every once in a while, infrastructure projects we're working on involve traversing Indian lands.  For those of you involved in such projects, you should take a look at the Final Rule published by the Department of the Interior, which went into effect last month.  The Federal Register summarizes the Final Rule as follows:

This final rule comprehensively updates and streamlines the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land, while supporting tribal self-determination and self-governance.  This final rule further implements the policy decisions and approaches established in the leasing regulations, which BIA finalized in December 2012, by applying them to the rights-of-way context where applicable.

Some highlights include:

  • Simplifying requirements by relying on general statutory authority to grant right-of-way;
  • Clarifying BIA review of right-of-way requirements;
  • Streamlining the process for obtaining a right-of-way on Indian land by (i) eliminating the need for BIA consent for surveying activities; (ii) establishing timelines for BIA review of right-of-way requests; and (iii) requiring compelling reasons for the BIA to disapprove an application; and
  • Clarifying tribal jurisdiction over lands subject to a right-of-way.

The goal is to provide a uniform system for granting rights-of-way over Indian land, while allowing Indian landowners as much flexibility and control as possible.  The Department of the Interior is even preparing a template grant form with placeholders for conditions and restrictions agreed to by landowners.  While no ceiling is established on compensation,   the Final Rule is meant to ensure that the compensation is "just" for Indian landowners.  The revisions should help modernize and streamline the right-of-way approval process while better supporting Tribal self-determination.

For those of you involved in the potential condemnation or use of eminent domain over Indian lands, this Final Rule does not affect individual property rights protected by the Fifth Amendment.  While the Department was asked to include provisions regarding when Indian land may be condemned for a right-of-way, the Department concluded that the current rule does not provide guidance for condemnation of Indian land, and instead the statutory provisions at 25 U.S.C. 357 govern this process.

While each situation is unique and requires further analysis, generally:  (i) lands allotted in severalty to Indians may be condemned for any public purpose in the same manner as land owned in fee may be condemned, and the money awarded as damages are to be paid to the allottee (see 25 U.S.C. 357); (ii) lands belonging to a tribe cannot be acquired without the consent of the proper tribal officials, and tribes possess the right to prevent the sale of land without the consent of the tribe (25 U.S.C. 324; 25 U.S.C. 476); and (iii) lands may be acquired subject to approval of the Secretary of the Interior (25 U.S.C. 353).  If you have questions when dealing with Native American land, take a look at the new rule or feel free to let me know.

  • Bradford B. Kuhn

    Brad Kuhn, Chair of Nossaman's Eminent Domain & Valuation Group, guides property owners, developers, businesses, utilities, and public agencies through complex real estate development and infrastructure projects – ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain. We cover all aspects of eminent domain, including condemnation, inverse condemnation and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts and report on all major eminent domain conferences and seminars in the Western United States.

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