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Indian Nationsl Law Update - December 2015

December 10, 2015

Bureau of Indian Affairs (BIA) overhauls right-of-way regulations, readjusts trust relationship

As part of a broader Department of Interior effort to incorporate self-determination principles into federal law, the BIA has re-written the federal regulations at 25 C.F.R. Part 169 governing rights-of-way (ROW). The new regulations are intended to strengthen tribal sovereignty and promote economic development.

In 2012, Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH Act), whose purpose was essentially to modernize the federal trust doctrine consistent with the federal policy of tribal self-determination by significantly shifting authority over tribal lands from the federal government to tribes. The new Part 169 regulations are intended to accomplish the same goal for ROWs. The principal difference is that, in the connection with ROWs, there is no counterpart to the HEARTH Act providing a mechanism for tribes to grant ROWs without BIA approval. Nonetheless, while retaining the BIA’s approval authority, the new regulations significantly promote tribal sovereignty by: 

  • Establishing timelines for BIA review of rights-of-way requests;
  • Allowing BIA disapproval only where there is a stated compelling reason;
  • Deferring to individual Indian landowner decisions subject to an analysis of whether the decision is in their best interest;
  • Promoting tribal self-determination and self-governance by providing greater deference to tribes on decisions affecting tribal land;
  • Clarifying tribal jurisdiction over lands subject to a right-of-way;
  • Incorporating tribal land policies in processing a request for a right-of-way;
  • Permitting tribes and individual Indian landowners to negotiate the terms of their consent, which BIA incorporates into the ROW grant. 

The issue of compensation for ROWs over Indian lands has been hotly disputed in recent years. Significantly, the BIA rejected demands that tribes’ negotiating authority be limited by a requirement for a third-party determination of fair market value.

In addition to enhancing tribal self-determination, the new ROW regulations, like leasing regulations enacted under the HEARTH Act, should be viewed as an important legal infrastructure to support tribal economic development. Tribes should consider adopting procedures for tribal approval of rights-of-way, either as a stand-alone tribal ordinance or as part of a tribal HEARTH-compliant leasing ordinance.

Godfrey & Kahn works extensively with tribes on real estate issues relating to housing and economic development, including the development of HEARTH-compliant leasing ordinances and ROW ordinances. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

Godfrey & Kahn’s Pierson and Clancy presented on solar, wind and other renewable energy opportunities at NAIHC Legal Symposium Dec. 9 in Las Vegas

By transitioning from reliance on coal-based energy produced by state-regulated utilities to reservation-based renewable energy, tribes enhance their economic independence, promote tribal environmental values and reduce energy costs.

Godfrey & Kahn Indian Nations Practice Group leader Brian Pierson and Environment & Energy Strategies Practice Group leader John Clancy presented “Financing Renewable Energy for Indian Housing” on Wednesday, Dec. 9 at the National American Indian Housing Council’s Legal Symposium at the Venetian Hotel in Las Vegas. Illustrating with real world, Indian country examples, they described how formation of limited liability companies enables tribes and tribally designated housing entities, otherwise unable to take advantage of tax credits, to obtain financing from investors through the federal renewable energy tax credits and they explained the role of power purchase agreements, net metering and other issues relating to the economics of renewable energy.

Godfrey & Kahn works extensively with tribes on the solar, wind and other renewable energy projects. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

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