Last year, the federal government took important steps toward returning control of Indian lands to tribes by passing the “Helping Expedite and Advance Responsible Tribal Homeownership” (HEARTH) Act. The HEARTH Act amends the 1955 law governing Indian country leases to permit leasing of Indian lands without Bureau of Indian Affairs (BIA) approval by tribes that have adopted leasing laws that meet prescribed requirements.

The 2012 leasing reforms effectively modernize the federal trust doctrine by reducing paternalistic oversight based on outdated notions of tribal incompetence on the one hand, while increasing tribes’ rights of self-determination over their territories on the other.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 including the 1948 all-purpose right of way law and the Part 169 BIA regulations. 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. 

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. 

For a more detailed argument for right of way reform, see our article here.