JurisdictionUnited States
Rights-of-Way How Right is Your Right-of-Way?
(May 1998)


Thomas H. Shipps
Maynes, Bradford, Shipps & Sheftel, LLP
Durango, Colorado

Table of Contents



I. Introduction

II. Indian Land and the Federal Trust Responsibility

III. Federal Statutory Authorization

a. Early Enactments

b. Indian Reorganization Act of 1934

c. The 1948 Indian Right-of-Way Act

IV. The Secretary of the Interior's Right-of-Way Regulations

V. Tribal Consent

a. Purpose

b. Compensation

c. Duration

d. Assignability

e. Civil Jurisdiction

VI. Other Statutes and Situations Affecting Surface Use

a. Other Statutes

b. Other Situations (Dry Creek Lodge)



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I. Introduction.

The desirability of crossing Indian lands may arise in a wide variety of contexts. For example, an electric power generating and transmission company may determine that the shortest and best route for connecting interstate transmission facilities lies across tribal lands. A local telephone company may find that the only way to supply requested service to a tribal member residing on an Indian reservation is by crossing tribal land. Or access by a non-Indian to private landholdings within the boundaries of an Indian reservation may depend upon his ability to cross tribal lands surrounding his property.

This paper discusses the legal basis upon which rights-of-way across Indian lands1 may be acquired. Additionally, this paper considers matters that may be of importance to tribal governments in their evaluation of right-of-way proposals, including: purpose; compensation; duration; assignability; and civil jurisdiction. As with all subjects involving Indian tribes and their lands, a general understanding of the relationship between Indian tribes and the United States of America provides a necessary starting-point for more detailed analysis of right-of-way issues.

II. Indian Lands and the Federal Trust Responsibility.

A brief historical review of the unique relationship between Indian tribes and the United States is not simply an exercise in academic interest.2 Without some understanding of that relationship and

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its evolution, one cannot appreciate the importance of federal statutes, regulations and policies that may significantly affect how one obtains rights and privileges to use Indian lands. While federal policy toward Indians has not been consistent over the last two centuries, many statutes passed in different eras have survived the episodic context in which they were born and remain applicable to current situations.

The Constitution vests in the Congress the power "to regulate commerce ... with the Indian Tribes."3 Congressional power over Indian tribes and their lands is extremely broad, and, in fact, has been characterized as "plenary."4 Early decisions of the Supreme Court, however, recognized that, with the power, Congress also assumed a corresponding duty toward Indians resembling "that of a ward to his guardian."5 The federal trust responsibility was reflected in legislation regulating trade and intercourse with Indian tribes commencing as early as the Act of July 22, 1790. Portions of the original act, which remain valid today, are set forth in 25 U.S.C. § 177:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from an Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

This provision has been consistently interpreted as requiring the authorization of the United States

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either by treaty or congressional enactment consenting to a conveyance of land occupied by or reserved for Indian tribes in order for the conveyance to be valid.6 Failure to obtain that authorization renders the conveyance void.7 Moreover, under principles of federal preemption, state statutes of limitation and adverse possession have been held not directly applicable to defeat tribal assertions of ownership, even after long periods of use by claimants adverse to a tribe.8 Given the harsh consequences that may result from application of the Intercourse Acts as currently codified and construed, the practitioner is well-advised to ascertain the existence of congressional authorization, not only for rights-of-way, but also for other uses of Indian land proposed to be undertaken by clients.9

III. Federal Statutory Authorization.

a. Early Enactments

In the absence of treaty language or authorization by Congress for rights-of-way across Indian lands, under the provisions of 25 U.S.C. § 177, any purported conveyance of such rights by an Indian tribe would be invalid. Prior to the turn of the century, Congress passed a number of special statutes authorizing the issuance of specific rights-of-way, including rights-of-way for particular railways.10

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Commencing with the Act of March 2, 1899,11 Congress passed a series of general statutes authorizing the Secretary of the Interior to grant rights-of-way for specific purposes across any lands owned by an Indian tribe or across restricted lands allotted to individual Indians.12 The Act of March 2, 1899, for example, authorized issuance of rights-of-way to railway companies for purposes of constructing and operating railways, telegraph and telephone lines.13 While the act delegated broad authority to the Secretary of the Interior to develop implementing regulations,14 it also conditioned any right-of-way grant upon the prior filing and Secretarial approval of maps depicting the routes of the line or roadway and prior payment of "full compensation" to the Secretary for the benefit of the tribe or allottee.15 The act did not specify any durational limitations to the grant other than a three year period for completion of construction associated with the right-of-way.16

Pursuant to an Act of March 3, 1901, Congress again delegated broad discretion to the Secretary of the Interior to "grant the proper State or local authorities for the opening and establishment of public highways," in accordance with state law, through any Indian reservation or restricted allotment.17 Section 3 of the 1901 Act also authorized the condemnation of allotted lands for any public purpose under state law upon the filing of formal condemnation

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proceedings in federal courts.18 The 1901 Act further provided general authority for the Secretary to grant rights-of-way for installation and operation of telephone and telegraph lines (by parties other than railway companies) across tribal or allotted lands.19 Again, the filing and approval of maps and the payment of compensation as determined by the Secretary, were statutory requirements for Secretarial permission issued under the 1901 Act.20 The 1901 Act also contained provisions authorizing the Secretary to impose an annual tax for the benefit of tribes on the use of the telegraph or telephone lines where such lines were not otherwise subject to state taxation and to regulate the transmission charges associated with their use.21

In 1904, Congress authorized the Secretary of the Interior to grant rights-of-way across Indian land for the purpose of constructing and operating oil and gas pipelines.22 The duration of pipeline rights-of-way was statutorily limited to a term of twenty years, renewable in the discretion of the Secretary for an additional twenty year term. Like the other right-of-way statutes, the pipeline right-of-way act delegated broad rule-making authority to the Secretary of the Interior, but required the filing of maps and payment of compensation for the benefit of tribes or allottees.23 With respect to lateral lines extending from main lines to wells located on allotted tracts, the filing of maps was unnecessary so long as the consent of all allottees through whose lands the line would run had been obtained.24 Like the telegraph right-of-way act of 1901, the 1904 act authorized the Secretary to

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impose an annual tax on the use of the pipelines in instances in which such lines were not subject to state taxation.25

Pursuant to the Act of March 4, 1911, Congress authorized the "head of the department having jurisdiction" over affected lands to grant rights-of-way for periods not to exceed fifty years across public land, national forests, and other federally reserved lands, including tribal lands, for the purpose of constructing electric transmission and distribution facilities, telegraph and telephone lines.26 With respect to tribal lands, the 1911 Act required issuance of a finding that the contemplated use was "not incompatible with the public interest."27

In 1920, Congress created the Federal Power Commission (subsequently the Federal Energy Regulatory Commission) and authorized the FPC to grant licenses for construction of dams and other project facilities found necessary or convenient to improve power supplies, water supplies or navigation along waters or lands subject to federal jurisdiction.28 The Federal Power Act specifically authorized the issuance of licenses for use of water or lands within federal reservations, including Indian reservations,29 but only after the Commission had found that such issuance was not inconsistent with the purpose of the reservation and subject to protective conditions imposed by the Secretary of the department with primary jurisdiction over the reservation.30

b. Indian Reorganization Act of 1934.

Between enactment of early Indian right-of-way statutes and later passage of the general

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right-of-way statute of 1948,31 Congress significantly altered federal Indian policy toward Indian tribes. Passage of the Indian Reorganization Act in 193432 signaled a major shift in federal treatment of Indians from one of forced assimilation and erosion of tribal institutions to one in which Congress encouraged the re-emergence of...

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