§ 169.4 When do I need a right-of-way to authorize possession over or across Indian land?

(a) You need an approved right-of-way under this part before crossing Indian land if you meet one of the criteria in the following table:

If you are . . .

then you must obtain a right-of-way under this part . . .

(1) A person or legal entity (including a Federal, State, or local governmental entity) who is not an owner of the Indian land

from us, with the consent of the owners of the majority interest in the land, and the tribe for tribal land, before crossing the land or any portion thereof.

(2) An individual Indian landowner who owns a fractional interest in the land (even if the individual Indian landowner owns a majority of the fractional interests)

from us, with the consent of the owners of other trust and restricted interests in the land, totaling at least a majority interest in the tract, and with the consent of the tribe for tribal land. You do not need to obtain a right-of-way from us if all of the owners (including the tribe, for tribal land) have given you permission to cross without a right-of-way.

(3) An Indian tribe, agency or instrumentality of the tribe, or an independent legal entity wholly owned and operated by the tribe who owns only a fractional interest in the land (even if the tribe, agency, instrumentality or legal entity owns a majority of the fractional interests)

from us, with the consent of the owners of other trust and restricted interests in the land, totaling at least a majority interest in the tract, unless all of the owners have given you permission to cross without a right-of-way.

(b) You do not need a right-of-way to cross Indian land if:

(1) You are an Indian landowner who owns 100 percent of the trust or restricted interests in the land; or

(2) You are authorized by:

sent of the owners of other trust and restricted interests in the land, totaling at least a majority interest in the tract, unless all of the owners have given you permission to cross without a right-of-way.

(b) You do not need a right-of-way to cross Indian land if:

(1) You are an Indian landowner who owns 100 percent of the trust or restricted interests in the land; or

(2) You are authorized by:

(i) A lease under 25 CFR part 162, 211, 212, or 225 or permit under 25 CFR part 166;

(ii) A tribal land assignment or similar instrument authorizing use of the tribal land without Secretarial approval; or

(iii) Other, tribe-specific authority authorizing use of the tribal land without Secretarial approval; or

(iv) Another land use agreement not subject to this part (e.g., under 25 CFR part 84); or

(3) You meet any of the criteria in the following table:

You do not need a right-of-way if you are . . .

but the following conditions apply . . .

(i) A parent or guardian of a minor child who owns 100 percent of the trust or restricted interests in the land

We may require you to provide evidence of a direct benefit to the minor child and when the child is no longer a minor, you must obtain a right-of-way to authorize continued possession.

(ii) Authorized by a service line agreement to cross the land

You must file the agreement with us under § 169.56.

(iii) An independent legal entity wholly owned and operated by the tribe that owns 100 percent of the trust or restricted interests in the land

The tribal governing body must pass a tribal authorization authorizing access without BIA approval and including a legal description, and you must submit both documents to BIA for our records.

(iv) Otherwise authorized by law

You must comply with the requirements of the applicable law.