Rights of Way II:
Negotiating and Renegotiating Rights of Way Over Indian Land
Law

Many significant rights of ways through Indian lands are expiring or are subject to renegotiation, due either to a change of use or to a determination that the holder of the right of way is in trespass. Recent Supreme Court decisions have changed the rules, and tribes must be prepared to leverage their bargaining strengths to maximize the potential benefits that still exist.

This advanced rights of way course was designed to help tribes identify what will be required to assess the current status of existing rights of ways and to determine whether to assume control over them or to negotiate for their renewal or change of use. The course offers fundamental negotiation techniques that apply to rights of ways, utilizing hands-on examples to help tribal negotiators seek the best deals.

Topics that will be covered include:

Fundamentals of Rights of Way Legal terms Background Constitutional protections Rights of Way — An Overview Terminology Traditional rights of way Historical legal requirements under the Constitution Current applicability of statutes from the 1800s Current applicability of statutes from the early 1900s Comprehensive statutes from 1948: Federal regulations — 25 CFR, Part 169 BIA policies How treaty rights apply Existing or Proposed Rights of Way Assessing status General rules of real property law that apply or do not apply Condemnation for rights of way Trespass implications Effects of recent Supreme Court decisions Real-life examples and case studies Tribal Assumption of Rights of Way Balancing considerations for possible tribal assumption of rights of way Assessing existing and future infrastructure costs necessary to assume control Evaluating service history and future needs Regulatory solutions as an alternative Hands-On Exercises Examining case studies and applying strategies

Determining Proper Compensation Constitutional requirements Appraisal fundamentals Leveraging costs of alternative routes Case studies Setting Terms Duration considerations Scope of use considerations Right of way vs. lease Asserting regulatory, taxation-monitoring control Regulatory Concerns National Environmental Policy Act (NEPA) and other environmental regulations National Historic Preservation Act (NHPA) compliance Tribal regulations Graves and cultural resources protection Negotiation Process Choosing and empowering negotiators Setting parameters and timetables Assessing and maximizing bargaining positions Preparing for successful negotiations Seizing and maintaining control of negotiations Renegotiation Closing the deal The Future of Rights of Way Power lines Telecommunications Roadways Other *Topics subject to change.