25 C.F.R. § 169.1

What is the purpose of this part?

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(a) This part is intended to streamline the procedures and conditions under which BIA will consider a request to approve (i.e., grant) rights-of-way over and across tribal lands, individually owned Indian lands, and BIA lands, by providing for the use of the broad authority under 25 U.S.C. 323-328, rather than the limited authorities under other statutes. This part is also intended to support tribal self-determination and self-governance by acknowledging and incorporating tribal law and policies in processing a request for a right-of-way across tribal lands and defer to the maximum extent possible to Indian landowner decisions regarding their Indian land.

(b) This part specifies:

(1) Conditions and authorities under which we will consider a request to approve rights-of-way over or across Indian land;

(2) How to obtain a right-of-way;

(3) Terms and conditions required in rights-of-way;

(4) How we administer and enforce rights-of-ways;

(5) How to renew, amend, assign, and mortgage rights-of-way; and

(6) Whether rights-of-way are required for service line agreements.

(c) This part does not cover rights-of-way over or across tribal lands within a reservation for the purpose of Federal Power Act projects, such as constructing, operating, or maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other works which must constitute a part of any project for which a license is required by the Federal Power Act.

(1) The Federal Power Act provides that any license that must be issued to use tribal lands within a reservation must be subject to and contain such conditions as the Secretary deems necessary for the adequate protection and utilization of such lands (16 U.S.C. 797(e)).

(2) In the case of tribal lands belonging to a tribe organized under the Indian Reorganization Act of 1934 (25 U.S.C. 476), the Federal Power Act requires that annual charges for the use of such tribal lands under any license issued by the Federal Energy Regulatory Commission must be subject to the approval of the tribe (16 U.S.C. 803(e)).

(d) This part does not apply to grants of rights-of-way on tribal land under a special act of Congress specifically authorizing rights-of-way on tribal land without our approval.

Notes of Decisions

Cited in 11 cases (2 in the last 5 years), 1983–2023 · leading case: Oneida Tribe of Indians v. Vill. of Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008).

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Oneida Tribe of Indians v. Vill. of Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008). · cites it 3× ““Tribal land,” as defined in 25 C.F.R. § 169.1 (d), means “means land or any interest therein, title to which is held by the United States in trust for a tribe, or title to which is held by any tribe subject to Federal restrictions against alienation or encumbrance.”

N. Border Pipeline Co. v. State, Dep't of Revenue, 772 P.2d 829 (Mont. 1989). · cites it 2× “It is hereby declared to be the policy of Congress to provide capital on a reimbursable basis to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own…”

Pub. Serv. Co. of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017). “” (quoting 25 C.F.R. § 169.1 (d) (1983))); 25 C.F.R.”

Begay v. Pub. Serv. Co. of NM, 710 F. Supp. 2d 1161 (D.N.M. 2010). “§ 325 and 25 C.F.R. §§ 169.1 -.28 with regard to granting rights-of-way over the land of the individual Plaintiffs and of the potential class members.”

JoAnn Chase v. Andeavor Logistics, L.P., 12 F.4th 864 (8th Cir. 2021). “” 25 C.F.R. § 169.1 (a). “The judicial determination of controversies concerning [allotted] lands has been commonly committed exclusively to federal courts.”

Pub. Serv. Co. v. Approximately 15.49 Acres of Land in McKinley, 167 F. Supp. 3d 1248 (D.N.M. 2016). · cites it 2× “In Part II of its opinion, the Eighth Circuit used the definition of tribal lands in 25 C.F.R. § 169.1 (d), a regulation governing consensual grants of rights of way on Indian lands.”

Lyon v. Gila River Indian Cmty., 384 B.R. 263 (D. Ariz. 2008). · cites it 3× “See 25 C.F.R. § 169.1 , et seq. 53. While 25 C.”

Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 228 F. Supp. 3d 1171 (W.D. Wash. 2017). “25 C.F.R. §§ 169.1 , 169.5(a)(1), 169.403.”

Nebraska Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956 (8th Cir. 1983). “” *962 Tribal land is defined in 25 C.F.R. § 169.1 (d): “Tribal land” means land or any interest therein, title to which is held by the United States in trust for a tribe, or title to which is held by any tribe subject to Federal restrictions against alienation or encumbrance *…”

Pub. Serv. Co. v. Approximately 15.49 Acres of Land, 155 F. Supp. 3d 1151 (D.N.M. 2015). · cites it 3× “1(d) defines tribal land as “land or any interest therein, title to which is held by the United States in trust for a tribe, or title to which is held by any tribe subject to Federal restrictions against alienation or encumbrance .”

Shade v. United States Dep't of the Interior (D. Alaska 2023). “]” 25 C.F.R. § 169.1 (a). On the facts of this case as set out above, plaintiff has a plausible easement by necessity claim.”

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