Brian L. Pierson, Right-of-Way Sovereignty, 2022 Wis. L. Rev. 225 (2022).
Abstract
Effective April 21, 2016, the Department of the Interior adopted new right-of-way regulations at 25 C.F.R. Part 169 that fundamentally change the Department’s historical approach. While the Right of Way Act still requires that the BIA approve rights-of-way, the new rules reflect a reinterpretation of the federal government’s trust responsibility with respect to rights-of-way. Instead of the federal government continuing to retain virtually all regulatory authority and substituting its judgment for that of tribes, the rules explicitly support tribal decision-making and the exercise of tribal regulatory authority.
This Essay briefly reviews the history of rights-of-way through Indian country, describes the new paradigm adopted under the 2016 regulations, and suggests how tribes can harness that paradigm to strengthen tribal sovereignty and generate revenue.
