A Handbook for Effective Right-of-Way Negotiations with Native American Tribes

Pipelines, transmission lines, railroads, telecommunications networks, highways and roads, canals, and other infrastructure crossing Federal public lands often require project proponents to obtain a valid right-of-way easement ("ROW") on which to locate their assets and facilities. Indian reservation lands are a little understood category of Federal land. Of the 573 Native American and Alaska Native tribes officially recognized by the United States government, about 325 retain a land base of some kind, often in Federal trust status, meaning the land cannot be sold or transferred to others without Congressional approval. The term "trust land" refers to the U.S. government's responsibility – as trustee for Indian tribes under Federal law – to hold the permanent legal title to tribes' reservation lands, with tribes retaining the beneficial ownership rights to those same lands in perpetuity. As a consequence of the bifurcated ownership system that governs reservation trust lands, tribal governments must give their consent to any ROW granted across those lands. The Federal government, acting through the U.S. Department of the Interior's Bureau of Indian Affairs ("BIA"), grants the actual easement if – and only if – the tribe has first given its consent to the ROW. 

Adding to this already complicated legal framework, most easements on Native American reservation lands are strictly limited under Federal law to a term of years; they cannot be permanent or perpetual as on private property. Nor can a ROW on Indian reservation trust land typically be obtained, when tribal governments refuse to give their consent, through the eminent domain or condemnation process in either the Federal or state courts. Tribal "consent" means bargained-for compensation – what the market will bear – according to applicable Federal law and regulations. This empowers Native American tribes and nations to effectively veto proposed new easements for projects as well as ROW renewals for existing pipelines, transmission lines, telecommunications networks and other infrastructure. Finally, an additional and unique category of Federal trust land – Indian allotted land – carries its own specialized legal framework and also affects projects in much of the United States. 

This lecture, presented by experienced practitioner Troy Eid, will introduce attorneys to the law governing right-of-way easements on Native American trust and allotted lands.

Learning Objectives:

1. Gain introduction to the law governing right-of-way easements on Native American trust and allotted lands
2. Examine case studies for recent ROW negotiations on Indian reservations
3. Develop strategies by which public and private officials can effectively engage Indian tribes in seeking new easements and ROW renewals