Developing, Enhancing, and Sustaining Tribal Transit Services: A Guidebook (2012)

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7 Introduction Although many of the issues facing tribal transit programs are similar to those facing any other rural or small community system, tribes face other issues that are unique to tribal systems. This chapter provides a discussion of the unique issues faced by tribes in developing and sustaining transit programs. Tribal Sovereignty Understanding tribal transit program operation requires familiarity with the nature and scope of the underlying governmental authority. In the United States, tribal governmental authority is encompassed in the concept of tribal sovereignty, which is the inherent power to create and enforce laws within jurisdictional boundaries and apply laws to activities and people within their jurisdiction. The operation of a public transit program produces a complex set of relationships within the tribal government and between the tribe, federal, state, and local agencies; the tribal and non-tribal public; numerous vendors; and consultants. Though tribes may be using federal or state funds and following the requisite regulations and contract terms associated with that funding, they are exercising inherent tribal sovereignty and not delegated power. For this guide- book, opinions of the Supreme Court of the United States have been relied on in describing the parameters of tribal sovereignty. Tribes exercise sovereign powers that predate the Constitution of the United States based on the fact that tribes preceded any foreign presence on the North American continent. Thus, many of the political and cultural traditions of the United States and its political subdivi- sions are not part of the original tribal governance structures. For example, the United States has maintained a strong commitment to a democratic form of governance and the separation of church and state. However, traditional tribal forms of government may have religious and cultural foundations that are integral aspects of day-to-day operations. Leadership may be appointed through religious practice rather than open elections. Tribal government structures have evolved over time in response to internal and external factors, but they have always main- tained separate legal status. The legal status of tribes has been described as follows: Perhaps the most basic principle of all Indian law, supported by a host of decisions . . . is the principle that those powers lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extin- guished. Each tribe begins its relationship with the federal government as a sovereign power, recognized as such in treaty and legislation. (Cohen, 1942, p. 122) C h a p t e r 1 Planning Considerations

8 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Though tribal sovereign powers are extra-Constitutional, tribes are mentioned in the U.S. Constitution. The Constitution lodges broad power in Congress under the Indian Commerce Clause, Article 1, Section 8, Clause 3: “The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This provision asserts federal control over tribes, tribal members, and property to the exclusion of states. The legal interpretation of inherent tribal sovereignty holds that, notwithstanding original sovereignty, tribes today are limited sovereigns. Tribes retain the attributes of sovereignty over their members and territory, but only to the extent that sovereignty has not been lim- ited or withdrawn by act of Congress or by opinion of the U.S. Supreme Court. The Indian Commerce Clause has been interpreted to delegate plenary authority over tribal affairs to the Congress to the exclusion of states. Since the initial session of Congress, tribal affairs have been the subject of substantial debate and legislation based on policies ranging from warfare to assimilation, to reorganization, to termination, and finally to self-determination. Each phase of United States Indian Policy has had significant impacts on tribal land status and the delivery of essential services like health care, education, public safety, and resource development. It is important to note that the scope and nature of any given tribe’s sovereignty is best determined on a tribe-by-tribe basis. Congress has enacted several laws that affect the scope and nature of tribal and/or state authority. Some of these enactments, such as the Indian Self-Determination and Education Assistance Act, Public Law 93-638, affect all tribes. Oth- ers, such as Public Law 280, which initially applied to tribes in six specific states, affect dis- crete groups of tribes. Still others, such as the Menominee Restoration Act, affect a single tribe. Given the plenary power of Congress over tribal affairs and the accumulation since the 1800s of federal laws that affect tribal sovereignty, each tribe must operate from within its own legal context to effectively engage in the numerous relationships required to operate a transit program. Judicial limitations on the sovereignty of tribes have been imposed by the U.S. Supreme Court since some of its earliest decisions. As a result, by 1831 the Court had found that tribes had lost their sovereign authority to convey land title without federal government approval (Johnson v. M’Intosh [1823]) and their power to make treaties with foreign nations (Worcester v. Georgia [1831]). Later judicial pronouncements determined that tribes lack authority to prosecute non-Indians for criminal offenses committed on tribal lands (Oliphant v. Suquamish Indian Tribe [1978]) and to regulate non-Indian hunting and fishing on fee land within the reservation boundary absent threats to important tribal interests (Montana v. United States [1981], generally known as the Montana test). In Strate v. A-1 Contractors (1997), the Court went on to pronounce a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of non- members on non-Indian land within a reservation, subject to two exceptions. The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare. Federal policy encourages tribal operation of public transit agencies and services within tribal lands and beyond. For many tribes, creating a sustainable transit agency entails inviting non- tribal members to pay fares and use their services. Tribes must also enter into various contractual relationships with non-Indian entities to purchase buses and vans, fuel, insurance, construction, other products, and services required to operate the transit program. Note that contractual relationships with tribes are governed by layers of complex federal rules of law and tribal laws concerning jurisdiction over people and activities on tribal lands.

planning Considerations 9 Although tribes are government agencies capable of operating public transit authorities, the legal climate under which they do so differs vastly from that of non-tribal entities. Tribes, like their state and local government counterparts, seek to assert their immunity from suit and man- age their financial risk very closely. (See TCRP Legal Research Digest 24: Transit Bus Stops: Owner- ship, Liability, and Access (2008) for a detailed discussion of transit agency assertion and waiver of sovereign immunity.) These differences must be recognized and incorporated into the busi- ness operation plan for each tribal agency. Several states, as a condition of awarding public transit funds to a tribe, require specific waiv- ers of tribal sovereign immunity and consent to suit in state courts. Several tribes have been unwilling to execute such waivers and decline federal transit funds administered in this manner. There is no easy solution to this clash of sovereign interests. Tribes frequently are frustrated in their attempts to participate in federal transit opportunities that are passed through state agen- cies. Alternative dispute resolution offers a viable alternative that can be structured in a manner respectful of each sovereign’s forums. Role of Governing Bodies An inherent sovereign authority tribes hold is the ability to determine their own governmen- tal structure. As the legislative bodies of sovereign nations, tribal elected officials are responsible for creating and sustaining a wide range of government services. Once elected, tribal officials must make decisions regarding law and order, environmental protection, economic develop- ment, education, health care, and all the other elements of modern life for their citizens. They act to create and modify tribal laws supportive of the tribal transit agency’s operations and approve plans, budgets, grant applications, and intergovernmental agreements. Federal laws and regula- tions affecting many of these areas require tribal government resolutions of support as part of the proposal package. Within this milieu of competing demands, having a governing body that champions its transit agency is essential. A tribal transit agency simply will not exist in the absence of tribal assertion of sovereignty for that purpose. Operating and sustaining a tribal transit agency is a compli- cated endeavor for any tribe. Hiring professional staff does not relieve the elected body from its responsibility to keep informed about a wide range of policy and technical transit issues. In fact, tribal elected officials are expected to make frequent decisions that directly affect the health and effectiveness of their transit programs. From tribe to tribe, elected officials exert varied degrees of control over administrative functions and the day-to-day operations of tribal government. Tribes benefit greatly when those officials maintain a level of core competency through training and education specific to transit. Tribal officials will be required to approve grant applications, agreements, and any contracts related to providing transit service. The grant agreements may be an issue for elected officials. As mentioned earlier, several states require that disputes be resolved in state courts as part of the grant agreement. Many tribes have refused to agree to this condition or have found ways to work around it. The Southern Ute Indian Tribe set up a private nonprofit corporation to be the recipi- ent of grant funds from the state. The nonprofit was chartered to be the transit authority for the tribe, but the tribe was not party to the grant agreements so the issue of sovereignty in legal matters could be avoided. Other tribes have accepted the conditions as being part of an inter- governmental contract between the tribe and the state. Another approach used by some tribes has been to become direct recipients of Federal Transit Administration (FTA) funds. The tribes apply for the grant through the state in which they are located but then receive the grant funds directly from FTA, resulting in an agreement between the tribe and the federal government.

10 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Turnover in Governing Body or Staff Whether tribal leadership is selected by democratic elections or by appointment in religious ceremonies, each election or appointment cycle presents the possibility of change. Turnover of officials is a benefit and challenge at all levels of government. New faces bring fresh perspectives and varied experience to bear on issues of the day. However, departing officials take their knowledge and experience with them, and the new governing body faces a steep learning curve to understand the background, current status, and basic operational procedures of the transit program. Even the best transit administrator will achieve limited results without effective tribal govern- ment support. Given the pressing demands of tribal governance, it is difficult for newly elected or appointed officials to find the necessary time and resources to effectively support a transit program. New officials should be encouraged to seek training and educational resources specific to transit operations through several organizations created for that purpose (See Appendix B). A particular challenge related to tribal governance is that most or all of a tribal governing body may turn over at one time. Following such a change in leadership the support for the transit program may change dramatically and may directly impact the level of funding and stability of the transit program. Although it is important to have local tribal financial support, it is also crucial to have sources of funding that are not subject to sudden changes in the level of support from the tribal government. Another observable outcome of turnover in the tribal leadership is staffing changes based on political decisions. With a change in membership of the governing body, many tribes experience changes in tribal management. Management positions within tribal governments may be politi- cal appointments, in which case personnel will change with the change in leadership. Although personnel decisions based on performance criteria are useful for improving transit agency administration, replacing transit staff for political reasons produces several negative out- comes. The new governing body loses a primary source of institutional knowledge before it can become fully aware of the transit program’s operational requirements. Recruiting experienced tribal transit staff is difficult. Newly hired inexperienced transit administrators face a steep learning curve before they can effectively operate the program. Funding deadlines often are missed, or grant applications are not funded because the new hire lacks the knowledge necessary to complete all of the required documentation. It is best if the transit manager position is not a political appointment. Effective Tribal Government Support Tribal officials participate in the political system while carrying out their duties representing the interests of their constituents. From a transit perspective, this political engagement occurs externally at the national, statewide, regional, and local levels. Tribal political support for transit activities also takes place in internal tribal functions. The challenge is to find the proper balance between the legislative, policy, and political functions of the tribe and effective administration of the tribal transit agency by staff. While tribal government support is an important factor, equally important is the cooperation between various tribal agencies that need to provide transportation for their clients. This is especially important when applying for grants and providing transporta- tion services to make sure that efforts within the tribe are not being duplicated. On a national level, tribes should have resources to initiate and respond to changes in trans- portation policy and legislation. At this highest level of government-to-government dialogue, tribal leaders must be present and prepared to advocate for the transit needs of their tribe. Political leaders lay the groundwork for tribal professional staff to work with federal legisla- tive and agency staff on laws and regulations affecting tribal programs. Without effective tribal

planning Considerations 11 participation in the national transit dialogue, decisions are made without valuable tribal input and perspective. Many federal transit programs and opportunities require coordination and participation at state, regional, and local levels. States pass implementing legislation based on federal laws and funding sources. As they do for federal processes, tribal leaders represent tribal interests in state legislative and administrative venues, and the tribal leader’s knowledge of transit needs and opera- tions also applies to state transit activities. Under federal law, tribes are generally eligible recipients of state-administered federal transit funds. Tribes must compete with non-tribal transit agencies to access these funds, either on their own or in cooperation with other non-tribal agencies. Ongoing, broad political engagement for the purpose of advocating for tribal transit needs is an important role for tribal leadership. Changes to laws and regulations require constant moni- toring by staff and elected or appointed tribal officials. Official engagement in transit program performance also is an ongoing need. The reality that tribal officials have several other respon- sibilities requires effective collaboration and communication with the tribal transit agency staff. One effective means of engaging sustained tribal governing body involvement in transit pro- grams is through the transportation planning process. Officially adopted long-range transpor- tation plans, including transit-specific activities, are a prerequisite for participation in federal funding. Such plans generally provide a description of the transportation infrastructure serving tribal lands and communities, current and projected needs, and articulate tribal policies and strategies for program management. Furthermore, transportation plans articulate the connec- tions between a tribe’s social and economic objectives and the transportation assets required to achieve those goals. While these plans are intended to change and evolve over time, they also provide a basis for continuity of the program priorities. Tribes are required to have public involvement in devel- oping their long-range transportation plans. Public involvement is useful for gathering input regarding needs and priorities, and creates expectations and awareness among constituents for implementation of the plan. Engagement by tribal leadership in the transportation planning process and final approval through tribal resolution helps sustain successful elements of the transit program and change those that are not successful. Another useful strategy for engaging tribal governing bodies in transit issues is to form a transit committee, either on its own or as part of a transportation committee. This level of organization within a tribe provides clear delegation of responsibility for addressing transit issues. Without this specific delegation of transit responsibility within the tribal governing body, it can be dif- ficult to efficiently perform routine business functions like routing mail, ensuring proper tribal representation at meetings, obtaining timely signatures, and maintaining continuity in decisions. Institutional knowledge of tribal transit needs, priorities, opportunities, and challenges is a key factor in the overall success of tribal transit programs. Without such awareness, tribal transit pro- grams fall victim to political neglect or opportunism, both of which hamper the ability of profes- sional staff to properly manage the program. Tribal leadership that fails to recognize the connection between reliable, safe transit services and employment, medical care, education, and other essential elements of the tribal economy will likely assign a low priority to transit funding and support. Relationship with State and Local Governments Cooperative relationships with regional and local governments and non-government entities have been encouraged, and at times required, for transit funding. With limited federal, state, and tribal funds available, proposals featuring cooperative arrangements to serve the transit needs of

12 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook an area are encouraged. Increasingly, funding proposals are evaluated based on the avoidance of duplicative or parallel transit activities. This issue becomes even more acute in rural areas where high operating costs per rider are closely evaluated. Working relationships between tribal and state governments vary from poor to very good. Some tribes have avoided funding through state programs because of poor working relation- ships or issues related to tribal sovereignty. Other tribes and states have very good working rela- tionships. The Confederated Salish and Kootenai Tribes obtained rural transit funding through the Montana Department of Transportation (DOT) to start their transit system. The Fort Peck Transportation Service receives funding from the Montana DOT and decided not to seek fund- ing through the FTA Tribal Transit Program because of the good working relationship with the state and the funding received through the state. Some tribes have been successful by participating in regional planning forums, whether these are associations of government or regional planning commissions. Each state has a different approach, but most have some type of regional planning process. By participating in these regional planning organizations, tribes have developed working relationships with other transit providers and obtained support for funding of transit programs through the state government. Rancherias in Southern California participate in their areas’ Metropolitan Planning Organiza- tions (MPOs) and have obtained funding through the FTA Tribal Transit Program for bus stops served by the local transit systems. The Coeur d’Alene Tribe operates the urban transit system for the city, which is funded through the Kootenai County Metropolitan Planning Organiza- tion (KMPO). The Southern Ute Indian Tribe also is working as part of a coalition to establish a regional transit system. Funding Funding is a challenge for almost every tribal transit system. Many tribes have found funding to be a particular issue in starting and sustaining a transit service, and especially with regard to obtaining local funding to match other grant programs. Tribes have many potential local sources of funding for transit service, but these are not always used to support a transit program. Also, tribes do not have all of the potential funding sources that other local governments may use, such as property taxes. Several tribes have developed casinos and hotels, which are a major source of revenue for the tribe. However, these revenues are not often used to support the transit service. The Leech Lake Band of Ojibwe in Minnesota has a casino that operates a large transportation program for casino employees to travel to work. Services for other trips are provided by the tribal transit program but are not supported by gaming revenues. Other tribes, like the Southern Ute Indian Tribe in Colorado, use gaming revenues to help fund their transit programs. Even though funding may be available to start a service, it is not always a stable, reliable fund- ing stream that will ensure sustainability of the transit program. Some tribes have found this to be an issue with local funding and with FTA Tribal Transit grants. Tribes have received funding from the program in 1 year but had the funding reduced or denied in a subsequent year. Some tribes have had to curtail or cease operation of a service started through the FTA Tribal Transit Program when the funding was subsequently cut. Developing a range of funding sources cannot be overemphasized. Nearly every successful tribal transit program has been established using a variety of funding sources so that, should funding from one source be reduced, the entire program is not severely affected and funding may be tapped from another source to make up for the loss. For example, the Southern Ute Indian Tribe relies on a variety of funding sources for sustainability of their transit service. The The San Diego Associa­ tion of Governments (SANDAG) has an active Tribal Transportation Working Group and has tribal representatives on policy committees. A key to the success of tribal transit initiatives is committed local leadership. Southern Ute Indian Tribe Roadrunner Transit Sources of Funding: • FTA Section 5311 • FTA Tribal Transit Program • Southern Ute Indian Tribe • Town of Ignacio • Town of Bayfield • La Plata County • Advertising • Forest Lakes Metro District • FTA New Freedom Program • Fares

planning Considerations 13 tribe has developed funding partnerships with other local governments to support transit service to those communities. Potential sources of funding for tribal transit programs are described in more detail in Chapter 8. Qualified Employees Tribes often experience difficulty in finding qualified employees. If the transit program requires a driver with a commercial driver’s license (CDL) or a certified mechanic, it may be difficult to find someone locally who meets those requirements. Hiring challenges sometimes relate to the remote rural locations of the tribes and sometimes relate to tribal hiring preferences. Qualifications and hiring must be addressed during implementation, as discussed in Chapter 9. Given that the unemployment rates on Native American reservations and in tribal com- munities remain so high, the Tribal Employment Rights Office (TERO) takes strong actions to protect the employment rights of Native American people. TERO requires that all employ- ers operating within tribal jurisdiction provide qualified Indian/Alaska Native preference in employment, training, contracting, and subcontracting. The Federal Highway Administration (FHWA) Notice 4720.7, Indian Preference in Employment on Federal-Aid Highway Projects on and Near Indian Reservations, dated March 15, 1993, consolidates all previous guidance on Indian employment preference. This notice encourages states to work with tribes and their TERO offices to develop contract provisions that promote employment of Indians on eligible federal-aid highway projects on and near Indian reservations. Qualified employees are essential to the success of a transit program. Qualified drivers are needed to ensure that vehicle operations are safe and that passengers receive good service. Quali- fied mechanics are necessary to ensure that the vehicle fleet is properly maintained so vehicles are available for service and vehicles serve out their useful life. Partnerships with local colleges and training programs are a good way to develop qualified job candidates. The transit agency must prepare good descriptions of the minimum qualifications and consider working with a training program to prepare people to meet those qualifications. Requiring a CDL for drivers and National Institute for Automotive Service Excellence (ASE) certification for lead mechanics will benefit the transit program by helping to ensure that a quali- fied staff is maintained. Internships are another good approach for preparing job candidates and screening possible new hires. Tribal transit managers should encourage senior employees to become qualified as trainers for various courses including CDL, passenger assistance, and customer service. These employees then become a resource for training other employees. Adequate Facilities Tribal transit programs often lack adequate vehicle parking and maintenance facilities. Administrative facilities also may not be adequate. When a new transit program is started, space may be provided in any facility that is available without regard to requirements or functionality. Many tribal transit systems lack parking areas, and vehicle maintenance on gravel parking areas has been observed. For years, Blackfeet Transit operated out of an old gas station and garage that was inadequate for either the vehicle parking or the administrative offices (Figure 1.1). The Eastern Band of Cherokee Indians (EBCI) has operated Cherokee Transit out of tempo- rary modular buildings with a poor area for vehicle parking (Figure 1.2). The Oglala Sioux Tribe were able to obtain funding for a facility in conjunction with starting their program and were Image courtesy of LSC. Figure 1.1. Former location, Blackfeet Transit administrative offices and vehicle storage.

14 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook able to have adequate space for offices, vehicle parking, and vehicle maintenance. Although a transit service may be started in a relatively short period of time, developing an adequate facility can take many years. When starting a transit system, every effort should be made to find a facility that will meet the needs of the transit program for several years, as obtaining a new facility is likely to be a long process from funding to design and construction. Part of the planning effort for any transit sys- tem should include development of a facility, whether through renovation of an existing facility or construction of a new facility. An adequate facility will do much for maintaining the vehicle fleet and for providing quality service. Passenger amenities also should be considered. In some climates, bus shelters may be needed in areas where passengers wait for the bus. Pedestrian facilities like safe paths for people to walk to and from bus stops also are important. Transit service may be forced to provide a door-to- door service where sidewalks are lacking. If sidewalks can be provided, the transit service may be more efficient, stopping primarily at designated bus stops and providing door-to-door service only for individuals who truly need it. For More Information Cohen, F. S. Handbook of Federal Indian Law, 1942. Constitution of the United States, Article 1, Section 8, Clause 3 (the Indian Commerce Clause). FHWA Notice 4720.7: Indian Preference in Employment on Federal-Aid Highway Projects on and Near Indian Reservations (March 15, 1993). Johnson v. M’Intosh, 21 U.S. 543 (1823). Montana v. United States, 450 U.S. 544 (1981). Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Strate v. A-1 Contractors, 520 U.S. 438 (1997). Waite, J. K., and J. B. McDaniel. TCRP Legal Research Digest 24: Transit Bus Stops: Ownership, Liability, and Access. TRB, National Research Council, Washington, D.C., 2008. http://www.trb. org/Main/Blurbs/159823.aspx. Worcester v. Georgia, 31 U.S. 515 (1832). Image courtesy of LSC. Figure 1.2. Admin- istrative buildings, Cherokee Transit.