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August 07, 2020

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New Right-of-Way Regulations Take Effect

The first major overhaul of regulations governing rights-of-way (ROWs) over Indian lands since 1968 took effect April 21. The regulations modernize 25 C.F.R. Part 169 to conform to the policy of tribal self-determination. Although federal statutes still require Bureau of Indian Affairs (BIA) approval of ROWs, the new rules give much greater deference to tribal decisions and support tribes’ right to freely negotiate compensation and exercise governmental authority over the ROWs. Predictably, a group of utilities, Western Energy Alliance, sued, arguing that the new rule “is contrary to law because the rule alters property rights, expands tribal jurisdiction, authorizes tribal taxation of rights-of-way, and conflicts with well-established United States Supreme Court precedent.” On April 24, a South Dakota federal court denied Western Alliance’s motion to enjoin implementation of the regulations but the litigation continued.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume VI, Number 130

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About this Author

Brian Pierson Tribal Lawyer Godfrey Kahn Law Firm
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Brian Pierson leads Godfrey & Kahn's Indian Nations Law Team. Brian clerked for federal district judge Myron L. Gordon before entering private practice. Brian has more than 20 years experience representing Indian tribes, beginning with his successful representation of Chippewa Indians in federal court litigation to prevent racially-motivated interference with treaty-reserved, off-reservation fishing rights.

As leader of the firm's Indian Nations team, Brian's primary objective is to draw on the knowledge and experience of G&K's attorneys to assist tribes in formulating and...

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