Jay Daniels: BIA takes it real slow with rights-of-way regulation

In August 2014, I wrote an article published in the Native Times publication based in Tahlequah, Oklahoma. It was titled “Rights-of-Way Proposed Rule Change: Whats the rush?” Maybe I shouldn’t have wrote the article because someone somewhere took it to heart.

Congress passed the Act of February 5, 1948, ch. 45, 62 Stat. 17, 25 U.S.C. 323 et seq. ("Act") which is the primary statute used presently for rights-of-way. It is also commonly referred to as the 1948 Act. The 25 Code of Federal Regulations Part 169 (“CFR”), Rights of Ways (“ROW”) Across Indian Lands was last revised March 30, 1982.

The Bureau of Indian Affairs (“BIA”) regulatory draft team consisted mostly of who I considered the “Untouchables” when it came to dealing with rights-of-ways. They were extremely knowledgeable field folks who took care of Indian Country on the ground level and were veterans in negotiating and processing ROW directly with Indian landowners and users (“Grantee”). Collectively they experienced every issue that could and did arise in Indian Country and some which may not have quite fit into the box of what was given to us under the current CFR regulations.

Subsequently, the draft Regulation revision was completed in mid 2008. The draft was submitted to the BIA for compliance with regulatory requirements in conducting landowner consultation, considering every comment, and then finalizing the Regulations for submission for a Notice of Final Rulemaking in the Federal Register.