Rights of Way Over Indian Land

Rights of way over Indian lands are not like other rights of way. Recent U.S. Supreme Court rulings illustrate how they are granted as well as determine whether a tribe will be able to retain its jurisdiction to regulate and tax activities. Understanding the recent court decisions, as well as legislative and regulatory changes like the Hearth Act and BIA’s 2015 Final Rule on Rights-of-Way on Indian Land, is crucial to maintaining control of your land and resources. Come learn what the recent changes to 25 CFR 169 say about tribal jurisdiction over lands subject to a right-of-way and how BIA’s process for obtaining a right-of-way on Indian land has been streamlined.

This class provides an historical overview of rights of way on reservation lands. It covers the laws that govern their creation, including condemnation, and provides solutions for situations when proper rights of way requirements are not followed. It also discusses remedies for addressing trespassing issues. In addition, it explores how tribes can regulate and tax activities on rights of way.

Rights of way are one of the most important, but often least understood, facets of managing and protecting tribal real estate. You can’t afford to rely on someone else. This issue is too critical. Register now. Get ready to unlock the mystery surrounding rights of way over Indian lands.

T O P I C S   I N C L U D E
Overview of Federal Indian Land Law
  • Historical perspective
  • Territorial powers of tribes
  • Aboriginal title
  • Recognized title
  • Trust, restricted fee and fee title
Rights of Way Fundamentals
  • Overview of real property interests
  • Discussion of terminology
  • Traditional rights of way:
    • Railroads
    • Highways
    • Utilities
Recent Legislative and Regulatory Changes
  • Hearth Act
  • Updates to 25 CFR 162
  • BIA’s 2015 Final Rule on Rights-of-Way on Indian Land (25 CFR 169)
Rights of Way Over Reservation Lands
  • Statutes:
    • 25 USC, Sec. 312 and Sec. 319 (e.g., railway, telegraph and telephone lines)
    • 25 USC, Sec. 323-28 (e.g., all purposes, consent, compensation, rules and regulations)
    • 43 USC, Sec. 961 (e.g., power and communications facilities)
  • Regulations:
    • 25 CFR, Part 169 (rights of way over Indian lands)
  • Treaty rights
Condemnation for Rights of Way
  • When is condemnation used?
  • Condemnation process
  • Condemnation of Indian lands:
    • State authority
    • Federal authority
    • Tribal authority
Remedies for Trespass
  • Proper rights of way procedures
  • Damages:
    • United States v. Navajo Nation
    • United States v. White Mountain Apache Tribe
  • Ejectment
  • Injunction
Regulation and Taxation
  • Tribes’ rights and jurisdiction
  • U.S. Supreme Court cases:
    • Strate v. A-1 Contractors
    • Atkinson Trading v. Shirley
    • Nevada v. Hicks
  • Other taxation and regulation issues
Practical Issues
  • Strategies for negotiation/renegotiation of rights of way
  • Working with outside entities
  • Issues of current interest
  • Learning the value of your tribe’s rights of way
  • State road and utility negotiations

*Topics subject to change.

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