Build on the HEARTH Act: Reform Indian Country Right-of-Way Laws

Brian L. Pierson
September 17, 2013


Indian people ceded their means of subsistence, their lands, in treaties during the 18th and 19th centuries. The federal government is consequently obligated to meet the basic needs of Indian people. This obligation is known as the federal trust doctrine.

The trust doctrine also has a paternalistic component. The federal government’s relationship with tribes has been compared with the relationship between a guardian and a ward. Guardians are typically appointed to protect the interests of children and incompetent adults unable to manager their affairs. Thus, historically, tribes have been unable to sell, rent, encumber, or grant rights of way through, their own lands without the approval of the BIA, the federal agency primarily responsible for carrying out the federal government’s trust responsibilities. Yet, tribes today are as capable as other governments of similar size.

Last year, the federal government took important steps toward returning control of Indian lands to tribes. The Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH), amends the 1955 law governing Indian country leases. The Act prescribes certain requirements for tribal leasing ordinances. Once a tribe enacts a conforming ordinance and the BIA approves it, the Act provides that the tribe will no longer need to seek BIA approval for leases. For tribes continuing to submit leases to BIA for approval, revised Part 162 regulations require increased BIA deference to tribal decisions.

The 2012 leasing reforms effectively modernize the federal trust doctrine by reducing paternalistic oversight based on outdated notions of tribal incompetence on the one hand, while increasing tribes’ rights of self-determination over their territories on the other. They also facilitate economic development by reducing bureaucratic delays.

The modernized trust principles underlying the new leasing laws should be extended to other areas of federal oversight. The federal laws and regulations governing rights of way over Indian lands, including the 1948 all-purpose right of way law and the Part 169 BIA regulations, are prime candidates for modernization.

The Part 169 regulations provide the framework for BIA approvals of rights of way for roads, rail, telecommunications, oil and gas pipelines, electricity transmission, water and sewer lines and any other purpose requiring the right to cross tribal lands. Like the leasing regulations, the approval process includes an application, submission of information about the applicant, site maps, determination of fair market value, environmental protection provisions and mandatory terms.

Just as tribes should have control over occupancy of tribal lands through leases, they should also have control over rights of way. Just as the federal government now acknowledges tribes’ ability to protect their own interest in negotiating fair lease rental payments, the government should acknowledge tribes’ ability to negotiate fair right of way payments. Just as recent leasing reforms will encourage Indian country economic development by eliminating or reducing costs and delays associated with lease approvals, reforms of the right of way process will too.

Reform of the Indian country rights of way should follow the leasing reform model. The 1948 right of way law should be amended to permit tribes to adopt ordinances addressing rights of way, with appropriate valuation and environmental review provisions. Tribes that adopt conforming ordinances and obtain BIA approval would thereafter be free of the federal approval requirements. At the same time, regardless whether Congress amends the 1948 law, BIA should amend the Part 169 regulations to provide greater deference to, and less federal review of, tribal decisions relating to rights of way.

The tension between the trust responsibility and the Self-Determination Policy is unavoidable. As long as the federal government holds or restricts titles to Indian lands, it will exercise some form of oversight. The modernized trust doctrine reflected in the new leasing laws acknowledges tribes’ ability to protect their own interests and the need for reduced federal oversight to promote economic development. This new thinking should be applied to rights of ways too.

Brian Pierson leads the Indian Nations law team at Godfrey & Kahn, S.C. in Milwaukee. He can be reached at [email protected] or (414) 287 9456.