The BIA Right-of-Way Process for Broadband New

Read this first: general information, not legal advice

What the rule says a right-of-way is

Under 25 CFR 169.2, a right-of-way (ROW) is "a legal right to go over or across tribal land, individually owned Indian land, or BIA land for a specific purpose." Tribal land and individually owned Indian land mean the surface held in trust or restricted status, including undivided shares. Telecommunications and fiber lines are covered uses (169.5).

A right-of-way does not include service lines, the short drops to a home or building. Those use a simpler service line agreement (169.51 to 169.56), covered in Part 4.

The current rule was published in the Federal Register in November 2015 (80 FR 72492) and took effect April 21, 2016 (81 FR 14976). Its only change of substance since then added a bond exemption for governments, 169.103(k), effective September 18, 2019 (84 FR 42806).

Which land does Part 169 cover?

A state highway or county road usually sits in a right-of-way someone else already holds. Ask the road owner and your BIA Agency what you need to place fiber along it.

Which permission fits which piece of the network?

Tribal authority carries through

Getting consent, step by step

1. 1
   Get consent to survey

   You need the landowners' consent to survey, but not BIA approval (25 CFR 169.101).

2. 2
   Ask BIA for owner information

   Send BIA a written request. BIA will give you the owners' names, addresses, and ownership shares so you can negotiate (169.106).

3. 3
   Tribal land: get a tribal authorization

   The tribe consents by tribal authorization, plus a written agreement if the tribe requires one. The tribe's conditions become grant conditions (169.107(a)).

4. 4
   Allotted land: notify everyone, then count shares

   Give notice to all owners and get written consent from the owners of the majority interest, meaning more than half of the shares, not more than half of the people (169.107(b)). BIA counts owners from its records as of your application date (169.107(c)).

5. 5
   Check who may sign

   The rules say who may consent for an owner (169.108) and how life estates are handled (169.109). Ask the Agency about minors, estates in probate, and owners who cannot be found.

6. 6
   Know the no-consent exception

   BIA may grant a right-of-way across allotted land without consent only if four conditions are all met, including 60 days' notice to owners and a 30-day window to object (169.107(b)(1)). Consent counts as impracticable when there are 50 or more co-owners (169.107(b)(2)).

Compensation: what the rules allow

Bonds, security, and insurance (25 CFR 169.103)

• Plan for security (a bond or similar). It is required unless waived or exempt (169.103).
• Do not plan on a cash bond. Cash bonds are not accepted (169.103(j)).
• Carry insurance that names the landowners and the United States as additional insureds (169.103(b)).
• On tribal land, BIA defers to the tribe on waivers (169.103(f)).
• On allotted land, ask about a waiver if the majority owners request one, or if you are a tribal utility or a utility cooperative (169.103(f)).
• If your government is barred by law from posting security, ask about the exemption in 169.103(k).

A tribal utility has extra options

What goes in the application (25 CFR 169.102)

There is no required form (169.102(c)). BIA publishes an optional form (OMB 1076-0181, an Office of Management and Budget control number) and a checklist. A complete package includes:

• The tracts the right-of-way crosses
• The purpose (for example, a buried fiber line)
• The duration you are asking for
• A legal description of the right-of-way
• A map of definite location (the surveyed route)
• Security: a bond or other security, or a waiver or exemption
• Proof that you gave notice to the landowners
• The consents (tribal authorization, owners' written consents)
• A valuation, or a waiver of valuation
• Environmental and archaeological reports
• A tribal conformance statement, if the tribe requires one

Environmental and cultural review

BIA's clocks, and what to do if one runs out

1. 1
   BIA checks the package

   BIA must promptly tell you whether the package is complete (169.123(b)). Write down the date you get that answer.

2. 2
   60 days to decide

   Within 60 days of a complete package, BIA must grant, deny, return the package, or ask for more time (169.123(b)).

3. 3
   30 more days, only in writing

   If BIA asks for more time, it must decide within 30 days of that letter (169.123(b)).

4. 4
   A strong standard

   BIA must grant the right-of-way unless it finds a compelling reason not to (169.124).

5. 5
   Silence is not approval

   A missed deadline does not mean the right-of-way is deemed approved. Do not start building.

6. 6
   Escalate in writing

   Send a written notice to compel to the Regional Director, who has 15 days to act. If there is still no decision, send one to the BIA Director, who has 15 days. Then you may appeal to the IBIA (Interior Board of Indian Appeals) (169.304).

7. 7
   Grant recorded

   The grant takes effect on the date BIA approves it and is recorded in the LTRO (Land Title and Records Office) (169.301 to 169.302).

Mail or email? Ask first

Grant terms and later changes

Service lines: home drops done right

1. 1
   Sign before you build

   The utility and the landowners sign the agreement (169.52). Before construction, get signatures from the tribe or the authorized occupants or users on tribal land (the tribe must also sign if it asks), or from the owners or the authorized occupants or users on allotted land (169.54).

2. 2
   Cover the basics

   Say what services you will provide, how you will prevent damage, and how you will restore the land (169.53). No valuation is required (169.55).

3. 3
   Draw a plat

   Attach a plat or drawing that shows the parcel boundary and the connection point (169.56).

4. 4
   File within 30 days

   File the signed copy with BIA within 30 days so it can be recorded in the LTRO (169.56). Filing, not BIA approval, is what keeps a drop outside the full right-of-way process (169.4(b)(3)). To be safe, count the 30 days from the day the agreement is signed.

Compliance and enforcement

Speeding things up

BIA issued NPM-TRUS-48 (a National Policy Memorandum) on September 3, 2025. It tells BIA staff to encode (enter) a broadband package within 3 business days and finish the completeness review within 7 business days. It sends approved grants to the LTRO, and it says one application can cover several tracts that touch each other. An earlier memo, NPM-TRUS-44 (April 15, 2022, revised April 4, 2024), set a 5-business-day completeness review.

The memo says it expires September 3, 2026. We could not confirm whether it has been renewed or replaced. Ask your Agency whether NPM-TRUS-48 or a newer memo is in effect, and name it in your cover letter if it is.

Delays are real. The GAO (Government Accountability Office) found in 2023 that only 5% of processed rights-of-way it reviewed (52 of 1,146) had all key dates recorded, that BIA had 95 Realty vacancies, that 28% of LTRO examiner positions were vacant, and that survey reviews can back up. One tribe told GAO that slow right-of-way communication held back broadband upgrades. An earlier GAO report found there is no national tribal broadband strategy.

Common pitfalls to avoid

• Starting construction before the grant is approved, or treating a missed deadline as approval
• Forgetting fee land, which sits outside the BIA process, and state or county roads, where you must also ask the road owner
• Counting owners instead of shares when you tally consent
• Using an old owner list; BIA counts owners as of your application date
• Sending an incomplete package, so the 60-day clock never starts
• Planning on a cash bond, which is not accepted
• Treating a copper-to-fiber upgrade as routine maintenance
• Putting a tower site in a right-of-way instead of asking about a business lease
• Missing the 30-day filing for service line agreements
• Not keeping your own dated record of every letter and request

Questions to ask your BIA Agency realty office

• How do you want the package submitted: mail, email, or both? Who is our contact?
• Is NPM-TRUS-48 still in effect, or has a newer memo replaced it?
• Can one application cover all the tracts on this route that touch each other?
• How do we get current Title Status Reports and owner lists for each tract?
• Which environmental and cultural reviews will you need for this route, and can an existing categorical exclusion be used?
• What bond, insurance, or waiver will you accept for our project?
• How should we file service line agreements, and how do we get proof of filing?

One more reminder