On November 17th the Department of the Interior published a final rule on Rights-of-Way on Indian Lands. The new regulations go into effect on December 21, 2015 and will have a substantial impact throughout Indian Country, particularly in eliminating state taxation, creating opportunity for new revenue streams for tribes, and increasing compensation for “piggybacked” uses. Virtually every reservation has multiple rights-of-way for varied purposes. These regulations contain a great deal of opportunity for tribes, but will require action and attention.
To prepare for the implementation of this final rule, NCAI is hosting a webinar to review the Rights-of-Way regulations, and will include discussion with BIA Realty on how to get started reviewing your rights of way. We will also have a discussion on negotiating. Please join us on December 11, 2015 at 2:00 pm EST. Register here.
David Mullon, former Chief Counsel of Senate Committee on Indian Affairs will offer an overview of the regulations.
Sharlene Roundface, Chief, BIA Division of Real Estate Services will share information on how to find documentation of existing Rights of Way
Stephen LeCuyer, Tribal Attorney for Swinomish Tribe, will related the Swinomish Experience with implementing tax provisions in the similar BIA Leasing regualations.
David Harrison, past Director, BIA Office of Trust Services, will discuss experiences in negotiating rights-of-way.
Highlights of this final rule include:
- “Piggybacked” uses must be compensated, likely increasing values significantly;
- State taxation of Rights of Way preempted;
- Significant opportunity to create new sources of tribal tax revenue;
- Simplified requirements and clarified processes for BIA review;
- Streamlined process for obtaining a right-of-way on Indian land by eliminating the need to obtain BIA consent for surveying and establishing timelines for BIA review;
- BIA disapproval only where there is a stated compelling reason;
- Providing Indian landowners with notice of actions affecting their land;
- Greater deference to individual Indian landowner decisions;
- Promoting tribal self-determination and self-governance by providing greater deference to Tribes on decisions affecting tribal land;
- Clarified tribal jurisdiction over lands subject to a right-of-way; and
- Incorporating tribal land policies in processing.