General Support for Bureau of Indian Affairs Rights-of-Way on Indian Land Proposed Regulations

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TITLE: General Support for Bureau of Indian Affairs Rights-of-Way on Indian Land Proposed Regulations

WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and

WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and

WHEREAS, on June 17, 2014, the Department of the Interior (DOI) published its proposed rule for Rights-of-Way on Indian Land, compiled at 25 C.F.R. Part 169, which would provide a comprehensive update and streamline of the process for obtaining grants of rights-of-way on Indian land from the Bureau of Indian Affairs (BIA); and

WHEREAS, NCAI recognizes and commends the substantial effort of DOI and BIA in drafting these regulations to strengthen tribal sovereignty and provide much needed updates and clarification to the out-of-date right-of-way process; and

WHEREAS, NCAI generally supports the proposed regulations as it finds that the major changes are beneficial in that they serve to promote and protect tribal interests; and

WHEREAS, the members of NCAI wish to inform the BIA of the importance of getting these regulations right and taking into consideration and review the comments submitted on behalf of American Indian Tribes, which NCAI supports; and

WHEREAS, in addition to the tribal comments, NCAI requests that DOI modify the proposed regulations to accommodate NCAI’s written comments on the Department’s proposed rule addressing the issue areas listed on Attachment A, including concerns that state law should not apply to rights-of-way on Indian Land and that the rights-of-way regulations should not apply retroactively as that would undermine bargained for exchanges and frustrate continued development in Indian Country; and

WHEREAS, the proposed regulations, including section 169.008, provides for the application of state law to Indian land under circumstances such as where individual Indians provide written consent; and

WHEREAS, applying state law to a right-of-way within the exterior boundaries of a reservation compromises tribal efforts to ensure that these lands continue to receive the federal protections of reservation status, it undermines tribal sovereignty and jurisdiction, as well as provides an improper intrusion of state law on tribal land that undermines stability in Indian Country; and

WHEREAS, the Indian Civil Rights Act of 1968 and other federal laws limit the application of state laws within Indian Country; and

WHEREAS, current language applies the proposed regulations retroactively to all pending and previously granted rights-of-way unless the explicit terms of existing grants conflict with the proposed regulations; and

WHEREAS, this retroactivity will greatly impact existing grants and ultimately compromise the ability of energy producing Tribes to continue receiving mineral revenue income for infrastructure, economic development, jobs and income from the development of their mineral resources; and

WHEREAS, the final regulations should be limited to future rights-of-way where applicants and Indian landowners may freely negotiate around and bargain for certain provisions contained in the proposed regulations in exchange for less or more compensation.

NOW THEREFORE BE IT RESOLVED, NCAI supports DOI’s proposed regulations on rights-of-way on Indian land provided that the issues set forth in this resolution are addressed in the final regulations; and

BE IT FURTHER RESOLVED, that NCAI requests that the regulations are modified to address the written comments of NCAI calling for the modifications listed on Attachment A, including the removal of any provisions or references to the application of state law to rights-of-way in Indian Country in their entirety; and

BE IT FURTHER RESOLVED, that the proposed regulations are further modified so that they apply only to future rights-of-way and do not apply retroactively, unless and except to the extent the Indian tribe elects to have the regulations apply retroactively; and

BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution.


The foregoing resolution was adopted by the General Assembly at the 2014 Annual Session of the National Congress of American Indians, held at the Hyatt Regency Atlanta, October 26-31, 2014 in Atlanta, Georgia, with a quorum present.


NCAI’s comments urge pro-tribal changes to the Department of the Interior’s
Proposed Rule on Rights-of-Way over Indian land in the following sections of the
Proposed Rule:


  • When a right-of-way over or across Indian land is required—tribal uses of
  • tribal land (169.004)
  • Retroactive application of the rule (section 169.006)
  • What laws apply to rights-of-way approved under the rule (section 169.008)
  • What taxes apply to rights-of-way approved under the rule (section 169.009)
  • If and when a beneficial owner of the land must consent to a proposed rightof-
  • way (sections 169.106 and 169.107)
  • Conditions and restrictions in the right-of-way grant (section 169.121)
  • “Piggybacking” of new uses on an existing right-of-way (section 169.123)
  • The duration and renewal of a right-of-way (sections 169.201-169.203)
  • Investigation of compliance with right-of-way (169.402)
  • Cancellation of a right-of-way (section 169.408)