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11 2.3.1.10 Tribal Employment Rights Ordinances Laws 2.3.2 State Level Initiatives Tribal Employment Rights Ordinances (TERO) are Native Transportation improvements affecting tribes and tribal American programs to provide preference for hiring either lands require collaboration among state, federal, and tribal gov- tribes or individual tribal members. This includes hiring ernments. Following a succession of Presidential Executive for transportation projects. TERO laws govern the con- Orders from 1994 to 2009, states developed formal agreements, tracting provisions between a tribe and any contractors. created organizations to conform to the new requirements, and Because of internal sovereignty rights, requirements for strengthened relationships with tribal governments. Increas- employers conducting business on reservations lands were ingly, MOUs have been developed, which detail the tribal established (3). consultation process with federal and state agencies on trans- TERO was upheld by the US Supreme Court in Morton v. portation planning, development, and maintenance of projects. Mancari, 417 U.S.535 (1974), as the term "Indian" was rec- These agreements provide practical frameworks and codify ognized as a political classification and not a racial classifica- these government-to-government relations to define mutual tion. Tribal internal sovereignty includes the right to make areas of responsibility, communication, and cooperation. their own laws and be governed by those laws (19). In collaborating on tribal transportation projects, it is often necessary for states and local governments to consult with 2.3.1.11 Supreme Court Cases tribes. From a tribal perspective, any relationship should be government-to-government which can be difficult when a Many court cases in the Self-Determination Era involved state (rather than the federal government) wants to enter an tribe-state jurisdictional issues. Some cases could have a direct intergovernmental agreement. Jurisdictional issues in tribal- impact on state DOTs. state relations are the most significant challenge in law today In Strate v. A-1 Contractors, 520 U.S. 438 (1997), the Supreme (4). The majority of the 28 Supreme Court tribal law deci- Court found that the state's federally granted right-of-way over sions between 1991 and 2002 focused on tribal-state relations. tribal trust land was the "equivalent, for nonmember gover- "With the growing costs of litigation and the politically sen- nance purposes, to alienated, non-Indian land," rejecting tribal sitive nature of many conflicts, both tribes and states are rec- court jurisdiction over tort litigation involving nonmembers. ognizing that negotiation is the only viable alternative putting This Supreme Court decision resulted from a collision between aside jurisdictional debates in favor of cooperative government- two non-Indians on a North Dakota state highway running to-government relations" (4). through a tribal reservation (4). In order to enable a direct, government-to-government relationship between affected parties, many states have taken In this ruling, the Court considered following factors concern- the initiative in establishing and recognizing a government- ing right-of-way: the legislation that created the right-of-way; the right-of-way was acquired by the state with the consent of the to-government relationship between the state and tribes. tribe; the tribe had reserved the right to exercise dominion and Many states have enacted legislation authorizing state-tribal control over the right-of-way; the land was open to the public; cooperative agreements. These agreements provide a policy and the right-of-way was under state control. framework for direct consultation between the tribe and state or local governments. These agreements do not mean that the The Court held that the tribe's loss of the right of "absolute tribe or state is foregoing jurisdiction, sovereignty, or the abil- and exclusive use and occupation" implied the loss of regula- ity to litigate over these issues. tory jurisdiction over the use of the land by others (4). Tribal involvement in transportation project planning has Another Supreme Court case relevant to state DOTs is the increased as efforts for establishing intergovernmental rela- decision in Montana Department of Transportation v. King, tionships have increased. Transportation planning efforts 191 F.3d 1108 (1999), which held that the State and its offi- through Metropolitan Planning Organizations (MPOs) and cials were outside the regulatory reach of the TERO in tribal Regional Planning Organizations (RPOs) formalize work- land for work performed on the right-of-way owned by the ing relationships between tribes and local governments in State (4). The recent Supreme Court decision in Nevada v. regional and long-range transportation planning. These for- Hicks, 533 U.S. 353 (2001), is the culmination of a series of mal relationships and agreements significantly improve com- cases that has limited tribal sovereign power by deciding that munication and cooperation on transportation planning and tribes do not have jurisdiction over the conduct of non-Indi- construction projects located on tribal lands. ans within tribal land. The Supreme Court decision holds that Tribal involvement in the decision-making process and in tribal courts may not exercise jurisdiction over state law regional programming for transportation infrastructure is enforcement officials who allegedly violated the civil rights of evolving. Government-to-government agreements establish a tribal member within the reservation (4). frameworks for mutually beneficial working relationships

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12 and formalize the tribal involvement process. These efforts Alaska Native Claims Settlement Act. The history of toward collaboration improve the prospects for success by tribal policymaking in Alaska differs considerably from that of identifying and addressing issues through practical strategies the contiguous 48 states. In Alaska, there was not a clear recog- prior to the execution of a transportation project. nition of aboriginal Natives4 during the territorial period or after 1959 when Alaska became a state. No treaties had been signed by the federal government with Alaska Natives, and land 2.3.2.1 Contiguous 48 ownership was not clear. With the discovery of oil in 1968, Through a patchwork of laws, tribal-state relations vary there was significant pressure to resolve Alaska Natives' land from jurisdiction to jurisdiction. Laws relative to a state or claims (22). The passage of the Alaska Native Claims Settle- local transportation agency's ability to conduct business with ment Act (ANCSA) in 1971 resulted in lands transferred to, a tribe do not exist in all states. An overlay of federal law, and controlled by, Alaska Native Corporations with Native sometimes conflicting, affects the rights and tribal reserva- American stockholders. These ANCSA corporations were not tions. There are many issues, however, that require the states, linked to tribal governments. local governments, and tribes to work together. In addition ANCSA reserved 44 million acres for Alaska's Natives and to MOUs and other formal agreement, states have initiated a offered $962 million in payments for lands that were conveyed number of strategies to better coordinate transportation indirectly to Alaska Natives through ownership of Alaska State planning and construction with tribes (3): Corporations. These Corporations are not sovereign tribal governments but rather are for-profit corporations. The Tribal liaisons in state DOTs provide a central point of 44 million acres were transferred to thirteen regional and 255 contact, establish a long term relationship and serve as the village corporations (22). These corporations were required to cultural competent link between tribal representatives and be chartered in Alaska. The ANCSA generated an economic multiple departments within a state DOT (Arizona, Cali- base and managed the surface and subsurface land. This law fornia, Minnesota, Montana, and Washington State). also extinguished 300 million acres of land and tribal village Tribal summits provide a means for state and tribal gov- royalty claims of the state's Natives (22). ernmental stakeholders to communicate best practices, Issues concerning sovereignty are complex and not issues, and needs concerning tribal transportation proj- addressed in the ANCSA. Some feel that "the legislation has ects (Idaho, Iowa, Minnesota, New Mexico, Pennsylva- attempted to replace tribal governments, Indian reservations, nia, Washington State, and Wisconsin). and the trust relationship in the lower 48 (states) with native Transportation resource guides, either printed or online, corporations, taxable and alienable ANCSA and individual help Native Americans and agencies understand a tribe's free-market competition in Alaska" (22). role in transportation issues (California, Minnesota, and Millennium Agreement. The Millennium Agreement Washington State). between Federally Recognized Sovereign Tribes of Alaska Advisory committees meet regularly to address tribal trans- and the State of Alaska was signed in 2001 (24). This Agree- portation issues between states and tribes (Arizona and ment affirmed tribal sovereignty and recognized tribal self- California) (3). governance and self-determination rights. However, this Agreement is an Administrative Order and does not have the 2.3.2.2 Alaska force of law. In addition, not all tribes signed the document, which indicates that not all tribes support the Agreement. In Alaska, the majority of Native American tribes existing The following excerpt from the State of Alaska website as governments have no land base, unlike the reservation sys- summarizes the singularity of tribal land ownership issues in tem in the contiguous 48 states.2 In this state, there are 227 Alaska. federally recognized tribes and two land-based regional tribes, which have sovereignty rights and government-to- WHAT IS THE DIFFERENCE BETWEEN ALASKA TRIBES government relations with the state.3 However, with the lack AND TRIBES IN OTHER STATES? of political boundaries, tribal sovereignty can be a difficult In most other states, there are reservations created by treaty, issue. In this context, sovereignty primarily involves internal federal statute, or executive order over which Congress has plenary tribal matters such as civil and criminal jurisdictional author- (overriding) power. State governance is generally not permitted on ity and tribal subsistence issues. federal reservations. In other states the lands encompassed by the reservation are designated Indian country and delineated by 2Alaska's only exception is the Metlakatla/Annette Island Indian Reservation in Southeast Alaska. 4The term "Alaska Native" is a legal definition that is intended to include all indige- 3Alaska Department of Transportation. ADOT & PF Tribal Consultation Training. nous people from Alaska.