Tribal Transportation Programs (2007)

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7TRIBAL ORGANIZATION AND AUTHORITY The institutional structures of tribes vary considerably. Tribes are sovereign entities with the inherent authority to determine their own form of government, but remain subject to the plenary authority of the U.S. Congress. Many tribes organize themselves around tribal constitutions modeled on the Indian Reorganization Act (IRA) of 1934, or structures that date back to treaties, executive orders, or congressional actions. Some have developed a combination of several sys- tems. This chapter focuses on the administrative operations of tribes, and less on legislative and judicial functions, because the vast majority of transportation functions are administrative in nature. Tribes may not have all three branches of government (executive, legislative, and judicial), particularly because many small tribes do not have separate judicial institutions. However, the administrative (executive) and legislative branches are essential for tribes to function as independent sovereigns. The involvement of the tribal judicial institutions with transportation is typically limited to traffic violations within the reservation. Where that involvement affects safety programs, it is discussed in the individual tribal profiles in Appendix A. Legislative councils create and authorize administrative departments and establish tribal laws. Their structures are discussed briefly in the opening paragraph of each tribal profile. Tribes base their governing structures on one of four sources of authority: • Written constitutions approved by the U.S. Depart- ment of the Interior according to the IRA of 1934, the Oklahoma Welfare Act of 1936, or the Alaska Native Act of 1936. • Governing documents approved by the U.S. Depart- ment of the Interior, outside of any specific federal statute. • Traditional, unwritten forms of government based on custom. • Interim tribal governments recently restored to federal status (Meredith 1993). Most tribal governments are led by a tribal council con- sisting of elected members and, in some cases, traditional band or clan chiefs. Especially in smaller tribes, the tribal council performs most governmental functions, including executive, legislative, and judicial functions. The tribal executive is often elected from the tribal council member- ship and, in some cases, by the tribal membership (O’Brien 2002). Tribal institutional structures vary depending on the size of the tribe. Larger tribes, such as the Navajo Nation, have very organized and elaborate institutional structures provid- ing a range of social, economic, land-use, and transportation functions [including a department of transportation (DOT)]. In smaller tribes, scarce resources often make it necessary for one tribal employee to perform several functions, transporta- tion being only one. One report listed the following main functions of tribal governments: • Executive actions—similar to the actions of a state gov- ernor or the U.S. president. • Legislative actions—similar to the actions of a state legislature or the U.S. Congress. • General government administration—can include per- sonnel management, budgeting, capital improvement programming, taxing, or intergovernmental affairs. • Public safety—police protection, tribal courts, fire pro- tection, and emergency medical service. • Health care—medical services and environmental health. • Public works, engineering, and infrastructure—trans- portation, water, sewers, and facilities management. • Planning and community development—comprehen- sive planning, zoning, and environmental protection. • Education—K-12 schools, vocational schools, and college. • Social services—day care, recreation, elderly care, and child welfare (Transportation Guide for Native Americans 2002). In addition to these functions, protection (or develop- ment) of the tribe’s natural and cultural resources is also a very important responsibility of tribal government. For example, some tribal governments include their own envi- ronmental protection agency or agency devoted to archaeo- logical and cultural preservation issues. CHAPTER TWO POLITICAL AND INSTITUTIONAL STRUCTURE OF TRIBES

TRIBAL SOVEREIGNTY The issue of tribal sovereignty is critically important to fully understand and appreciate the complex relationships that exist between the tribes and the federal and state governments. Unfortunately, there is considerable misunderstanding, and the legal theories underlying tribal sovereignty have shifted significantly over time, exacerbating the confusion. The Continental Congress declared its jurisdiction over Indian tribes on July 12, 1775 [2 J. Continental Cong. 175 (1775)]. Between 1778 and 1868, when the final treaty was signed with the Nez Perce, 367 Indian treaties were ratified, with the first treaty providing a guarantee to the Delaware Indians of “all their territorial rights in the fullest and most ample manner” [The Delaware Treaty of Fort Pitt (September 17, 1778), 7 Stat. 13–15]. The federal government’s relationship with the Indian tribes is further addressed briefly in the U.S. Constitution. Article I, § 8, cl. 3 gives Congress power “to regulate com- merce with foreign nations, and among the several states, and with the Indian Tribes.” The president is authorized to make treaties with Indian tribes, with Senate consent, by Article II, § 2, cl. 2. Article VI, § 2 recognizes that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The treaties, trust relationship, and plenary power doctrines together establish the concept of tribal sovereignty—that tribes have the right to internal sovereignty, whereas the federal government has a trust responsibility for the tribes. Indian policy is based on these three doctrines, with each period taking prominence at different times, resulting in rules for tribal sovereignty that shift from time to time (Ashley and Hubbard 2004). The tribes retain inherent sovereignty over their lands and activities except to the extent that they have been withdrawn by treaty or federal statute. However, a number of congres- sional enactments over the past 200 years have eroded tribal authority (Pevar 2004). The most obvious example is the General Allotment Act of 1887, also known as the Dawes Act, which provided for allotment of some tribal lands to indi- vidual landowners, including nonindigenous settlers; and laws in the 1950s that provided for termination of tribal sta- tus for certain tribes, including the Menominee in Wisconsin. That termination was later reversed after proving to be a social and economic disaster (Peroff 1982). Despite the debate that continues today concerning the scope and breadth of tribal sovereign powers, the essential elements of tribal sovereignty can be defined. Pevar (2004) identifies nine: • Forming a government, • Defining tribal membership, 8 • Regulating tribal land, • Regulating individual property, • Taxation, • Maintaining law and order, • Excluding nonmembers from tribal territory, • Regulating domestic relations among members, and • Regulating commerce and trade. At the time of the ratification of the U.S. Constitution, tribes were treated as international sovereigns and Indian affairs were handled through treaties. This initial framework provides the basis for the government-to-government rela- tionship that exists today. As the United States expanded west, the “treaty-making relationship” grew increasingly less clear and was gradually replaced by the “trust relationship.” The plenary power doctrine and trust relationship were devel- oped in three U.S. Supreme Court cases, collectively known as the Marshall “Indian trilogy.” In Johnson v. McIntosh, 21 U.S. 543 (1823), the Court held that the Indians had only a right of possession, with legal title and the power to transfer ownership resting in the federal government. In Cherokee Nation v. Georgia, 30 U.S. 1 (1831), the Court clarified that Indian tribes are neither states nor foreign nations, but “domestic dependent nations . . . in a state of pupilage” (30 U.S. at 17). Finally, in Worcester v. Georgia, 31 U.S. 515 (1832), the Court concluded that states have no power in Indian territory, and that the Indian nations are distinct polit- ical communities, having territorial boundaries within which their authority is exclusive, subject to federal plenary power. Chief Justice John Marshall effectively subordinated tribal sovereignty to federal authority, creating the tribes’ dependence on a more powerful nation for protection. The federal government assumed the relationship to the tribes as a guardian to its wards. However, the U.S. Supreme Court continued to uphold the constitutional principle that the fed- eral government had sole authority to regulate commerce and treaty making with the tribes, to the exclusion of the exercise of any such power by the states. The important principles that originated with Marshall’s Indian trilogy are: 1. Indian tribes, because of their original political/territorial status, retain incidents of preexisting sovereignty. 2. The sovereignty may be diminished or dissolved by the United States, but not by the states. 3. The federal government, because of this limited sovereignty and the tribe’s dependence, has a trust responsibility relative to Indians and their lands [American Indian Law Deskbook (1993)]. Over the years, the U.S. Supreme Court has further explained and clarified the government’s trust responsibility. In 1942, the Court stated that: In carrying out its treaty obligations with Indian tribes, the Gov- ernment is something more than a mere contracting party. Under a humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this Court,

9it has charged itself with moral obligations of the highest respon- sibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards [Seminole Nation v. United States, 316 U.S. 286, 296–297 (1942)]. Various scholars have noted that, although the plenary power is cited as a basis for congressional intervention in and authority over tribal governance, it is a problematic notion that embodies several different definitions that are hardly syn- onymous (Wilkins 1997, pp. 25–27). Plenary power can mean “exclusive”—Congress is the only body with such authority. It can mean “preemptive”—displacing other authority such as state law, which may not conflict with federal enactments. Congress can, for example, preempt state efforts to infringe on tribal sovereignty. Plenary power can also mean “unlim- ited” or “absolute.” It is this final definition that opens the door for Congress to enact virtually any law it wishes with respect to tribal governments that, at the time the Constitution was adopted, were presumed to be foreign nations capable of negotiating treaties with the United States, and whose author- ity predated the nation’s birth. Another major shift in tribal–federal government rela- tions arrived with the decisions of the U.S. Supreme Court in U.S. v. Kagama, 118 U.S. 375 (1886) and Lone Wolf v. Hitchcock, 187 U.S. 533 (1903). In this period, the idea of “protection” took on a new meaning. The court established that Congress’s power over tribes went beyond regulating commerce, as specified in the U.S. Constitution. The federal government’s role was defined as complete power over the tribes (Wilkins 2002). According to Yazzie, the plenary power doctrine even gives Congress authority to override Indian Nation treaties (Yazzie 2002, p. 162). One clear result of this expansion of federal power was Congress’s ability, during the New Deal, to impose pre- scribed forms of government on many tribes under the IRA (Wheeler–Howard Act, June 18, 1934), which authorized the BIA to proclaim new Indian reservations and to approve tribal constitutions. The Wheeler–Howard Act was intended in part to restore what had become the eroded capacity for self-governance of many tribes that had been reduced to severe economic dependence on the federal government. In two 2005 opinions, the U.S. Supreme Court ruled against the tribes when presented with questions concerning sovereignty. The Prairie Band Potawatomi Nation chal- lenged the imposition of the Kansas motor fuel excise tax on non-Indian distributors for fuel supplied to a gas station oper- ated by the tribe on reservation property. The tribe has its own fuel tax applied to sales on the reservation, which it uses to fund reservation infrastructure. Writing for the majority, Justice Thomas concluded that the tax was valid and “posed no affront to the tribe’s sovereignty” [Wagnon v. Prairie Band Potawatomi Nation, 126 S.Ct. 676 (2005)]. In another case, the Oneida Indian Nation of New York challenged the city of Sherrill’s taxation of property that the Indian nation purchased. The parcels had originally been part of the his- toric Oneida Reservation, but were sold to a non-Indian in 1807. The Indian nation repurchased the parcels in 1997 and 1998 and claimed that the parcels were tax-exempt, because its ancient sovereignty had been revived. Justice Ginsburg, writing for the majority, held that the Indian nation could not unilaterally revive its ancient sovereignty through an open- market purchase of land that was formerly within the reser- vation [City of Sherrill, New York v. Oneida Indian Nation of New York, 544 U.S. 197 (2005)]. As sovereigns, tribes receive their authority to operate their governments from their tribal members, not from the U.S. Constitution. Although U.S. policy and philosophy toward Indians has changed over time, current federal poli- cies recognize tribes on a government-to-government basis (O’Brien 2002; Wilkins 2002; Ashley and Hubbard 2004). This government-to-government relationship signifies that the federal government no longer views tribes as wards, but as domestic dependent nations that have their own govern- mental powers. Tribes have the authority to structure their own governments, administer a justice system, regulate gov- ernmental affairs, and levy taxes, as well as operate and man- age transportation systems (O’Brien 2002). Particularly with respect to transportation, tribal sover- eignty and the government-to-government relationship between tribes and the federal government has, in the past, been mismanaged or completely overlooked. Tribes do not operate within the same structure of transportation planning decision making as local governments, metro- politan planning organizations (MPOs), and state govern- ments. Guidance and uniform policies in this area have only been developed in recent years, and then primarily by state DOTs. For example, Iowa has developed a tribal consultation process that involves both the Iowa DOT and other agencies (Transportation Guide for Native Ameri- cans 2002). Other states, as noted here, have established various official liaisons between state transportation departments and tribal governments and their transporta- tion programs. Issues of sovereignty affect all parts of tribal trans- portation programs. For example, as Swan, formerly of the Arizona DOT (ADOT), writes, The effect of the sovereignty conflict is evident in how the ADOT and the tribes address issues that concern their respective judicial systems. There is a continuing challenge in determining jurisdiction and then having the other party recognize jurisdic- tion. Whenever sovereignty may be an issue, the ADOT and the tribe in question have looked for ways to avoid conflict (Swan 2002, p. 20). Conflicts over sovereignty issues often arise in areas where states and tribes must coordinate, such as for right-of- way (ROW) improvements for state roads located on tribal lands. As Swan writes,

The sovereignty issue has a direct impact on the issue of high- way ROWs and ADOT’s ability to maintain or construct improvements . . . Without an adequate ROW and the ability to act independently on items within the right-of-way, ADOT faces an assumption of liabilities for the traveling public. The tribes feel that any grant of ROW threatens their sovereignty and land base (Swan 2002, p. 21). As noted previously with regard to the Kansas gas tax, coor- dination on taxation issues can often be contentious, in part because states see gains in tribal taxing power as losses to their own revenue base. TRIBES AND FEDERAL GOVERNMENT The relationship between the tribes and the federal govern- ment has changed over the years. Most recently, federal and tribal relationships have wavered between policies of self- determination and paternalism. Allotment Policies In 1887, Congress passed the General Allotment Act (also known as the Dawes Act) with two purposes: first, to assimi- late tribes into mainstream American society, and second (although unspoken), to fulfill the need for tribal land by American settlers. Through the General Allotment Act, com- munal tribal land was broken up into smaller pieces and given to individual Indians who had to agree to adopt European farming practices on the land. All surplus land that was not granted to Indians was granted to non-Indians. The General Allotment Act had disastrous consequences for tribes, which are still felt today in all areas of tribal governance—including transportation. The Act resulted in the checkerboard pattern of land ownership that is common with many tribes today (Ashley and Hubbard 2004). Indian Reorganization Act Congress passed the IRA in 1934 to reverse the federal gov- ernment’s allotment policies. The IRA prohibited further allotments and established procedures for internal tribal busi- ness, including the adoption of tribal constitutions. The IRA also authorized the Secretary of the Interior to designate new Indian reservations, although in practice tribes still had to petition Congress for recognition of “new” Indian groups (Chaudhuri 1985). Under the IRA, however, Indians still did not have final decision-making power over the use of tribal funds or tribal land. If the BIA disagreed on the decision of a tribal council, the agency could overturn it (Lacy 1985). Public Law 83-280 Enacted in 1953, P.L. 83-280 transferred civil and criminal jurisdiction over Indians living on reservations to five states (California, Minnesota, Nebraska, Oregon, and Wisconsin 10 and, later, Alaska), and allowed for the transfer of jurisdic- tion in the other states as well. Indian Self-Determination and Education Assistance Act In 1975, Congress passed the Indian Self-Determination and Education Assistance Act (ISDEAA) (P.L. 93-638). This Act signifies the beginning of contemporary Native American and tribal policy in the United States and was a significant philo- sophical shift in U.S.–Native American policy. However, some have suggested that affirmations of self-determination will remain symbolic gestures until tribal governments actu- ally replace BIA administration (Chaudhuri 1985; Castle 1992; Esber 1992). The ISDEAA allows tribes to have “meaningful participation” in many federal programs that affect reservations, including transportation programs (Esber 1992). Under the Act, the federal government funds tribal programs, but the tribes now operate the programs. TRIBES, STATES, AND LOCAL GOVERNMENTS The tribes, states, and local governments often have differ- ent perspectives on issues such as environmental regulation, fishing and hunting, gaming, and taxation, as well as reli- gious and cultural practices, which may affect transportation planning and add to the complexity of these intergovern- mental relationships. Some states recognize tribal sover- eignty, whereas others are reluctant to do so. Many states have sought to move their political and economic power into tribal jurisdictions even though these actions violate the doctrine of tribal sovereignty. There are many issues, however, that require the states, local governments, and tribes to work together. States have roads that run through tribal lands and communities, and often find it necessary to coordinate on transportation issues. States have initiated a number of strategies to better coordi- nate transportation planning and construction with the tribes. A report prepared for the Wisconsin DOT (CTC and Associ- ates 2004) identified four common methods within state DOTs for such coordination: • Tribal liaisons, either as designated individuals or offices (Arizona, California, Minnesota, Montana, and Wash- ington State were noted). • Tribal summits, held as communication or coordination meetings (Idaho, Iowa, Minnesota, New Mexico, Penn- sylvania, Washington State, and Wisconsin were noted). • Transportation resource guides, either printed or online, to help Indians and agencies understand a tribes’ role in transportation issues (California, Minnesota, and Washington State were noted). • Advisory committees, which meet regularly to address tribal transportation issues (Arizona and California were noted).

11 Furthermore, federal law requires that states consult with tribes in developing their state transportation improvement plans (STIPs) and with regard to issues arising out of Section 106 of the National Historic Preservation Act of 1966 (P.L. 102-575, 16 U.S.C. 470 et seq.). Case Study In New Mexico, the city of Albuquerque’s 1.6-mile expansion of the Paseo del Norte highway through the Las Imagenes Archaeological District, immediately adjacent to the Petro- glyph National Monument, has been a long-standing point of contention between the state and city on one side and the Indian Pueblos, who believe the area has great spiritual signif- icance, on the other, “The petroglyphs found in the area date back thousands of years and are viewed by the various Pueblo groups as a place to convey messages between ancestor spirits and the living” [see http://www.sacredland.org/endangered_ sites_pages/petroglyph.html (May 28, 2006)]. With the city sprawling to the west, planning for alterna- tive transportation routes and modes of transportation should have occurred years ago to protect the petroglyphs. However, incremental subdivision approvals and housing developments approved by the city foreclosed many alternative routes. Scant attention was paid to the concerns of the Pueblos. The city avoided using federal funds for the project to circumvent any environmental review pursuant to the National Environ- mental Policy Act (NEPA) [42 U.S.C. 4321 et seq.], and New Mexico does not have a mini-NEPA. The National Trust for Historic Preservation, along with the SAGE Council as de facto representative of the tribal concerns (http://www.sagecouncil.org/), and several individ- uals, maintained that the city failed to adequately consider “feasible and prudent” transportation alternatives and to min- imize harm to the historic district as required by the New Mexico Prehistoric and Historic Sites Preservation Act (NMSA § 18-8-7). They also argued that the city failed to consult with the Pueblos about the location and alignment of the new road. The plaintiffs opted not to bring a Religious Land Use and Institutionalized Persons Act (RLUIPA) claim, because it would have required too much exposure and discussion of the Native American belief system and spiritual practices, which are considered sacred and very pri- vate [Religious Land Use and Institutionalized Persons Act of 2000, § 2(a)(2), 42 U.S.C.A. § 2000cc(a)(2)]. Although the District Court ruled against the plaintiffs, an appeal was filed (National Trust for Historic Preservation v. Chavez, New Mexico Court of Appeals, No. 26,408, March 2006). By summer of 2006, injunctive relief was denied and the construction of Paseo del Norte had begun, including blast- ing through the escarpment above the national monument and the relocation of a number of the petroglyphs. The SAGE Council eventually withdrew from the litigation, expressing concerns about the potential impact on the issue of tribal sovereignty. This conflict is a prime example of the need for early and meaningful consultation between the tribes and state and local governments. It also demonstrates that trans- portation planning and land-use decisions on non-tribal lands can have a serious and profound impact on the tribes. There are a number of ways to address meaningful con- sultation and coordination between the states, local govern- ments, and tribal governments. Several states, including Arizona, California, Minnesota, Montana, and Washington, have tribal liaison positions located within their DOTs. Some state DOTs place these liaison positions in their planning or environmental divisions, whereas others are located in the governmental services division. Tribal transportation summits between the tribes and state DOTs are another method of coordination. This strategy is common in state DOTs that do not have tribal liaison persons or offices, although some states use both strategies. The pur- pose of these transportation summits is to focus and coordi- nate on transportation issues common to the states and tribes, and to decide on next steps. Summits have been held in Alaska, Idaho, Iowa, Minnesota, Montana, New Mexico, Pennsylvania, and Washington State. The third method of coordination consists of printed or online transportation resource guides prepared by state DOTs for the tribes. These guides are usually intended to help tribal transportation officials and agencies that work with them better understand the roles of the tribes and the states in transportation programs. California, Minnesota, and Washington State have published such guidebooks (see, e.g., The Minnesota Tribes and Transportation e-Handbook) http://www.dot.state.mn.us/mntribes/handbook. Advisory committees are the fourth method of coordina- tion. Although this is not very common, it has been used by several states, including Arizona, California, and Oklahoma. California’s Native American Advisory Committee was established in 1997, and is composed of representatives from tribes and Native American organizations. The committee advises the California DOT (Caltrans) director on issues of interest to tribes, and includes three subcommittees— environmental, highway landscaping, and legislative. The ADOT Tribal Strategic Partnering Team was created in 1999 to develop a forum for state, tribal, federal, and local agencies to discuss tribal transportation issues (see http:// www.aztribaltransportation.com/atspt/). The group meets quarterly (CTC and Associates, LLC 2004). Although some states have begun to create a foundation for tribal–state rela- tionships in transportation programs, coordination continues to be problematic. Some state DOTs have little experience working with tribes, and many states have chosen to treat tribes as local government or special districts—not as sover- eign governments (Rolland and Winchell 2002).

TRIBAL TRANSPORTATION PROGRAMS Federal-Aid Highway Program Until very recently, tribal governments were not direct recip- ients of federal-aid funds from FHWA. Those funds were apportioned to the states, with the states having responsibil- ity to consult with tribal governments and the Secretary of the Interior in the transportation planning process, including the preparation of the STIP. It is not uncommon for states to use federal-aid highway funds for state- and county-owned roads running near, through, or entirely on tribal lands. States constructing roads totally within tribal lands are not con- strained by federal-aid matching requirements; 100% federal funding is permitted [23 U.S.C. 120(f)]. Indian Reservation Roads Program The IRR program, established by Congress in 1928 by the pas- sage of P.L. 520, 45 Stat. 750 (May 26, 1928), marked the beginning of the federal government’s role with road projects on tribal lands. P.L. 520 is now codified at 25 U.S.C. 318a. It authorized funds for surveys, improvements, construction, and maintenance of roads in the IRR system that were not eligible for funding from federal-aid highway funding. The Federal- Aid Highway Act of 1944 (P.L. 521) required the Public Roads Administration to approve the location, type, and design of all IRR roads and bridges. Before 1979, the BIA and FHWA shared responsibility for planning, designing, building, and improving Indian reservation roads without much input or coordination with the tribes. In 1979, the BIA and FHWA entered into a joint agreement that explicitly recognized the role of individual tribes in defining overall transportation needs. This agree- ment stated that the Indian road system was to consist of: “[t]hose Indian reservation roads and bridges that are impor- tant to overall public transportation needs of the reservations as recommended by the tribal governing body.” Until 1982, Congress appropriated funding for IRR in the Department of Interior appropriation acts, administered by the BIA. Because the funding varied from year to year with no multi-year funding assurances, it was difficult to develop the type of long-range transportation planning upon which the states relied through the highway reautho- rization bills. With the passage of the Surface Transporta- tion Assistance Act in 1982 (P.L. 97-424) the IRR was incorporated into the Federal Lands Highway Program, 23 U.S.C. 204, under FHWA, which also has jurisdiction over roads on national parks and other federal lands. Under this system, IRR funds came from the highway trust fund instead of Department of Interior appropriations. However, this shift resulted in little change to the structure of trans- portation decision making. The BIA implemented the IRR program through a 1983 memorandum of understanding with FHWA that required the BIA to work with each tribe 12 to develop an annual priority program of construction proj- ects and submit the program to FHWA for review, concur- rence, and allocation of funds. The passage of ISTEA [P.L. 102-240, 105 Stat. 1914 (December 18, 1991)] brought significant changes to the structure of tribal transportation planning, first by defining “public authority” to include “Indian tribe,” and second by adding new statewide planning requirements that mandated the development of statewide plans, which “shall, at a mini- mum, consider . . . [t]he concerns of Indian tribal govern- ments having jurisdiction over lands within the boundaries of the State” [P.L. 102-240 (December 18, 1991), Sec. 1025(a), amending 23 U.S.C. 135, Codified at 23 U.S.C. 135(d)(2)]. ISTEA saw a large jump in IRR funding, from $80 million per year for fiscal years 1987–1991 to $159 million for fiscal year 1992 and $191 million per year for fiscal years 1993–1997. ISTEA also assigned oversight of the IRR program to FHWA and required the consideration of tribal concerns in transportation planning. Furthermore, ISTEA authorized Indian preference in construction projects on reservations and allowed states to give Indian employment preference in construction projects near reservations (23 U.S.C. § 140). As of October 2000, the IRR system consisted of approximately 25,700 miles of BIA and tribally owned public roads and 25,600 miles of state, county, and local government public roads. Each fiscal year, FHWA deter- mines the amount of funds available for IRR construction projects and allocates that amount to the BIA. Following passage of TEA-21, P.L. 105-178, 112 Stat. 107 (June 9, 1998), a new funding formula was established that reflects the relative needs of the Indian tribes, and reservations or tribal communities, for transportation assistance; the rela- tive administrative capacities of, and challenges faced by, various Indian tribes, including the cost of road construc- tion and geographic isolation; and the difficulty in main- taining all-weather access to employment, commerce, health, safety, and educational resources. The new distribu- tion formula, known as the Tribal Transportation Alloca- tion Methodology, is essentially a tribal shares program with each federally recognized tribe receiving a portion of the future allocated IRR funds. TEA-21 brought more changes to the IRR program. According to Rolland and Winchell, these changes included: (1) tribal government consultation in state, regional, and metro- politan planning; (2) development of Federal Lands Highway Program management systems for tribal pavement, congestion, bridge, and safety management programs on par with those required for state programs; (3) development of a new allocation formula using the federal Negotiated Rulemaking process; (4) addition of language to clarify the contract for the IRR program under the Indian Self-Determination and Education Assistance Act; and (5) a new National Bridge Program separate from the Highway Bridge Replacement and Rehabilitation program for the states (Rolland and Winchell 2002).

13 According to Rolland and Winchell, the involvement of tribes in the ISTEA and TEA-21 process led to the inclusion of tribes in state transportation planning, design, construc- tion, and delivery. With the increased funding available to tribes through ISTEA and TEA-21 came increased partici- pation and acceptance of transportation planning and pro- grams; “tribes have become aware of transportation policies and programs as a means to improve economic and social well-being in tribal communities” (Rolland and Winchell 2002, p. 144). The IRR program allocates funding from the BIA for transportation planning through IRR transportation planning funds and IRR program funds. IRR program funds are allo- cated to BIA area offices for construction and improvement of transportation facilities, including bridges, roads, and pub- lic transportation systems. These funds are to be used on facilities within or leading to Indian lands. However, a tribe may choose to use a portion of, or its entire share of, these funds for transportation planning activities (Indian Reserva- tion Roads . . . 1999). IRR transportation planning funds are available to tribes for transportation planning on Indian lands; “up to two per- cent of funds made available for IRR for each fiscal year shall be allocated to those Indian Tribal Governments applying for transportation planning pursuant to the provisions of the Indian Self-Determination and Education Assistance Act” [Title 23, U.S.C. § 204(j)]. IRR transportation planning funds are allocated to BIA area offices by the BIA based on relative need, with the approval of the tribe’s IRR Transportation Improvement Plan. Funds are distributed through self-governance com- pacts (P.L. 93-638 contracts), Indian self-determination con- tracts, and travel authorizations for direct service tribes. Each of these mechanisms for allocations has a different procedure for obtaining IRR funds. Listed here are examples of the major transportation plan- ning activities that can be done under the IRR program: • IRR road inventory • IRR bridge inventory • Measurement of traffic • Analysis of transportation need based on current and proposed land use • Trip generation studies • Calculation of capacity • Development and use of management systems • Financial planning • Investment analysis • Development or updating of tribal long-range trans- portation plans • Transportation facility operational and maintenance planning • Priority analysis • Development or updating of transportation improve- ment plan • Special transportation studies (such as bicycle paths, corridor studies, etc.) • Coordination with states, MPOs, or regional planning organizations • Public involvement • Mapping • Transit planning • BIA functional classification of roads (Indian Reserva- tion Roads . . . 1999). Tribal Transit Grant Program In 2005, Congress amended section 3013 of the Safe, Accountable, Flexible and Efficient Transportation Act: A Legacy for Users (SAFETEA-LU), P.L. 109-59, 119 Stat. 1144 (2005) to improve transit services for people traveling within Indian reservations and tribal communities. Follow- ing publication of the proposed grant and eligibility provi- sions for this program in March 2006, 71 Fed. Reg. 14618, a number of concerns were forwarded to the U.S.DOT that the proposed requirements would threaten the success of the transit grant program (Sonosky, Chambers, Sachse, Ender- son, & Perry, LLC 2006). Among those concerns were the following: • FTA has interpreted SAFETEA-LU to prohibit the use of tribal transit funds for transit planning purposes. Most tribal communities lack existing public transit programs or have only small, minimally developed transit pro- grams. If planning is not eligible for funding, few tribes will be able to access tribal transit funds and the public transit needs of these communities will remain unmet. • FTA proposes to limit grant eligibility to tribes that have completed a transit planning process or have already established public transit services. Some esti- mate that only 30–40 tribes (of 562 tribes nationwide) would qualify. • FTA proposes to delay awarding tribal transit grants until tribes ensure that the approved project is included in the STIP. Bureaucratic obstacles and sovereignty concerns have long prevented tribes from accessing Sec. 5311 transit funds in an efficient manner. The Tribal Transit Program was designed to award grants directly to tribal governments to avoid these problems. • Tribal governments currently use model funding agree- ments based on ISDEAA to build roads, operate federal hospitals, and perform law enforcement and other gov- ernmental services. Tribes are required to comply with the Single Agency Audit Act and OMB Circular A-87, not the Common Rule. Rather than use these ISDEAA funding agreements for the Tribal Transit Grant Pro- gram, FTA proposes to require that tribes comply with the Common Rule and other standard federal procure- ment requirements. Requiring compliance with the

potentially inconsistent FTA grant funding requirements will be more costly and administratively burdensome. • FTA proposes to include the following evaluation cri- teria for tribal transit grant proposals—demonstration of need, benefits of the project, adequacy of the proj- ect planning, financial commitment, and coordination. FTA should require planning commensurate with the proposed size of the project and grant, and should recognize that the development of a sound transit grant proposal involves planning, including compiling information that will support the tribe’s statement of need, explaining how the proposed program will meet that need, and gaining approval from the tribe’s governing body. Furthermore, tribes with more avail- able funds may be unfairly advantaged in seeking transit grants if the financial commitment criterion is weighed equally with “demonstrated need” and “ben- efits of the project.” Tribal Technical Assistance Program The ISDEAA (1975) gave tribes authority to assume some functions previously held by the federal government, includ- ing transportation planning. However, most tribes lacked the capacity to exercise these functions because they did not have the resources, experience, or opportunities to develop transportation planning and management departments. Because of the limited capacity of tribes to develop trans- portation programs, the BIA handled such programs on their behalf (Bravo n.d.). In response to suggestions from tribal leaders during Con- gressional committee ISTEA hearings, the bill also provided for the establishment of at least two TTAP centers for tribal governments. The TTAP programs grew out of FHWA’s Local Technical Assistance Program technology transfer centers, which provide services to local governments through technical assistance centers. Seven TTAP centers were established, one 14 each in Alaska, California, Colorado, Michigan, North Dakota, Oklahoma, and Washington State. The TTAP regional centers serve more than 550 tribes and provide training programs, information clearinghouses, new and existing technology updates, personalized technical assistance, and newsletters (Federal Highway Administration 2005). Bravo (n.d.) says that, based on the progress so far, it’s reasonable to expect that an adequately funded TTAP would have several important results: • Steady increase of the tribe’s ability to effectively take on more of the functions formerly administered by the BIA. • Broadening and strengthening of the program personnel’s role as facilitators of mutually beneficial relationships between tribal transportation officials and the highway and transporta- tion community at-large. • Further development and refinement of transportation prod- ucts specific to tribes. This would increase the program’s efficiency and effectiveness. Other Federal Funding Programs Other federal sources of funding for tribal transportation programs include FHWA State Planning and Research and Metropolitan Planning Funds, FTA State Planning and Research and Metropolitan Planning Funds, and Public Lands Highway Discretionary Funds. Tribal Employment Rights Ordinances Laws Tribal Employment Rights Ordinance (TERO) are Indian preference programs established by the tribes to provide Indian or tribal preference in hiring, including hiring for transportation projects. TERO laws are exercised in accor- dance with a tribe’s sovereign right to establish requirements for employers wishing to conduct business on reservations lands (Transportation Guide for Native Americans 2002).