Rights of Way II: Negotiating and Renegotiating
Rights of Way Over Indian Land

Many significant rights of ways through Indian lands are expiring or are subject to renegotiation, due either to a change of use or to a determination that the holder of the right of way is in trespass. Recent Supreme Court decisions have changed the rules, and tribes must be prepared to leverage their bargaining strengths to maximize the potential benefits that still exist.

This advanced rights of way class was designed to help tribes identify what will be required to assess the current status of existing rights of ways and to determine whether to assume control over them or to negotiate for their renewal or change of use. The class offers fundamental negotiation techniques that apply to rights of ways, utilizing hands-on examples to help tribal negotiators seek the best deals.

T O P I C S   I N C L U D E
Fundamentals of Rights of Way
  • Legal terms
  • Background
  • Federal Statute protections
Rights of Way — An Overview
  • Terminology
  • Traditional rights of way
  • Historical legal requirements under the Federal Statutes
  • Current applicability of statutes from the 1800s
  • Current applicability of statutes from the early 1900s
  • Comprehensive statutes from 1948:
    • Federal regulations — 25 CFR, Part 169
    • BIA policies
  • How treaty rights apply
Existing or Proposed Rights of Way
  • Assessing status
  • General rules of real property law that apply or do not apply
  • Condemnation for rights of way
  • Trespass implications
  • Effects of recent Supreme Court decisions
  • Case studies
  • Examining case studies and applying strategies
Tribal Assumption of Rights of Way
  • Balancing considerations for possible tribal assumption of rights of way
  • Assessing existing and future infrastructure costs necessary to assume control
  • Evaluating service history and future needs
  • Regulatory solutions as an alternative
The Current Federal Rights of Way Application Process
  • Bureau of Indian Affairs' Rights of Way Handbook
  • Bureau of Indian Affairs' Sample Forms
  • Utilizing the Trust Assets & Accounting Management System (TAAMS) to provide ease in managing rights of way
  • Bonding requirements and use
Determining Proper Compensation
  • Appraisal fundamentals
  • Leveraging costs of alternative routes
  • Case studies
Setting Terms
  • Duration considerations
  • Scope of use considerations
  • Right of way vs. lease
  • Asserting regulatory, taxation-monitoring control
Regulatory Concerns
  • National Environmental Policy Act (NEPA) and other environmental regulations
  • National Historic Preservation Act (NHPA) compliance
  • Tribal Historic Preservation Office (THPO) compliance
  • Tribal regulations
  • Graves and cultural resources protection
Negotiation Process
  • Choosing and empowering negotiators
  • Setting parameters and timetables
  • Assessing and maximizing bargaining positions
  • Preparing for successful negotiations
  • Seizing and maintaining control of negotiations
  • Renegotiation
  • Closing the deal
The Future of Rights of Way
  • Power lines
  • Telecommunications
  • Roadways
  • Other

*Topics subject to change.

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