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Negotiating Rights-Of-Way Over Tribal Land: A Tribal Attorney's Perspective

Reid P. Chambers, Natural Resources Development on Indian Lands (2011)

Two basic legal principles govern the grant of rights-of-way over tribal lands.

First, entities seeking rights-of-way over tribal lands cannot condemn these lands, because since the earliest days of the Republic, federal law has prohibited conveyances of Indian lands except as authorized by Congress.1 And Congress has never authorized condemnation of rights-of-way over tribal lands.2

Second, the law for at least the past six decades has specifically required tribal consent for any right-of-way over tribal lands. The Department of the Interior's rights-of-way regulations promulgated in 19513 and in force ever since it expressly requires all tribes to consent to all rights-of-way over tribal lands.4

A principal consequence of these two factors - the statutory requirement to obtain tribal consent for rights-of-way over tribal lands and the absence of any legal power to condemn rights-of-way over tribal lands - has been that in recent decades entities seeking grants of rights-of-way over tribal lands have usually paid more (indeed, sometimes considerably more) than for rights-of-way over private or public lands administered by the Bureau of Management or Forest Service which they believe are of comparable economic value. In addition, entities that obtained rights-of-way over tribal lands many years in the past have found that when those grants expire, tri