Webcast

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

Streams live on Tuesday, April 28, 2020 at 01:00pm EDT

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Course Information

Time 60 Minutes
Difficulty Intermediate

Course Description

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

Credit Information

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Faculty

Troy Eid

Greenberg Traurig LLP

Troy A. Eid is a nationally known legal expert on environmental enforcement, investigations and compliance, energy and natural resource development, and Federal Indian law and Native American and Alaska Native tribal law. A former United States Attorney who has served both Republican and Democratic Presidential administrations, and a past state cabinet officer for the State of Colorado, Troy is a trusted public figure in the Rocky Mountain West and Washington, DC, and a familiar face in many federal, state and tribal courtrooms across the country.

Troy, who first joined the firm in 2003, co-founded and co-chairs Greenberg Traurig’s American Indian Law Practice Group, one of the largest and highest-rated legal teams in the United States. A principal shareholder with Greenberg Traurig's Denver office, Troy practices at the trial and appellate level. He has successfully defended clients in some of the largest and highest-profile environmental enforcement actions ever filed by U.S. Department of Justice under the Clean Water Act and other federal laws, as well as in grand jury proceedings. Troy is also frequently sought as a mediator and arbitrator, especially in cases involving Indian tribes and tribal enterprises.

An experienced legal project manager, Troy has coordinated various inter-disciplinary legal and consulting teams in numerous large-scale energy infrastructure projects, including natural gas pipelines, transmission lines, highways and railroads. He specializes in civil and criminal investigations involving petroleum-related leaks and spills, uranium contamination, hazardous waste pollution, asbestos, and other environmental and workplace safety matters, as well as health care and hospital-related regulatory, permitting and compliance projects. Troy is also a recognized authority on Native American cultural resource protection and related government-to-government consultation between tribes and the federal government under the National Historic Preservation Act, National Environmental Policy Act, and other laws.

Troy is well-respected on both sides of the aisle for his professional knowledge and expertise, especially as it relates to energy, natural resource, criminal justice, and other legal and public policy matters concerning the American West.

He served as Colorado’s United States Attorney from 2006-09, appointed by President George W. Bush. From 2010-14, Troy was elected to chair the Indian Law and Order Commission (ILOC), an independent national advisory board created by the Tribal Law and Order Act to advise President Obama and Congress on public safety improvements for all 566 federally recognized Native American and Alaska Native tribes and nations. The ILOC’s landmark 2013 report, A Roadmap for Making Native America Safer, proposes the most sweeping criminal justice reforms in Federal Indian law and policy since the New Deal. Endorsed by the American Bar Association, the ILOC’s Roadmap helped lead to the enactment of the Violence Against Women Act Amendments recognizing tribes’ criminal jurisdiction to prosecute non-Indian perpetrators in domestic violence cases.

A recipient of the Navajo Nation Bar Association’s Member of the Year Award, Troy grew up in Colorado and graduated from Stanford University and the University of Chicago Law School. He clerked for Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. He has been recognized for distinguished public service by the Federal Bureau of Investigation, the U.S. Secret Service, the Drug Enforcement Administration, and other federal and state law enforcement agencies. He was also recognized by Law Week Colorado as Colorado Lawyer of Year for representing the seller of the HealthOne hospital system in Colorado, the largest hospital-related transaction ever in the Rocky Mountain West. 

A regular contributor to the national edition of Native American Law360 and other Law360 publications, Troy teaches energy, natural resources, environmental and Federal Indian law as an Adjunct Professor of Law at the University of Denver-Sturm College of Law. He currently serves as an At-Large Member on the Tribal Issues Advisory Board of the United States Sentencing Commission, an independent agency within the Federal judiciary that is assessing the impact of the Federal Sentencing Guidelines in criminal convictions involving Native Americans and Alaska Natives.