A Guidebook for Successful Communication, Cooperation, and Coordination Strategies Between Transportation Agencies and Tribal Communities (2011)

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3This chapter provides an assessment of legal and policy requirements that support or detract from successful collab- oration between tribes and governmental agencies on trans- portation initiatives. 2.1 Overview Many intergovernmental programs have been implemented to facilitate practical collaboration strategies for communi- cation, cooperation, and coordination. By their nature, trans- portation projects are complex as stakeholders often include multiple government entities from federal, tribal, state, and/or local governments. Tribal transportation projects require working within an intergovernmental framework between sovereign nations. To have a context for current issues in U.S. tribal policymaking, understanding these issues in a historical perspective of past U.S. tribal policymaking is necessary. Collaboration on transportation initiatives is impacted by complex issues which arise from tribal-state sovereignty, inter- governmental agreements, jurisdictional matters, regional planning efforts, land ownership, and/or funding issues. Even when there are common interests, the planning, design, and implementation of transportation projects requires coordina- tion and cooperation among tribal governments and federal and state transportation agencies. The concept of tribal sovereignty has been established by the U.S. Constitution, treaties, trust relationships, and plenary power doctrines (1). Six periods of U.S. tribal policymaking have been identified. Each policymaking period took promi- nence at different times, resulting in shifting U.S. tribal policies (2). Sovereignty and the principle of tribal consent are basic principles, which guide relations between the federal govern- ment and Native American tribes. Treaties, trust relationships, and plenary powers of Congress are the framework for sover- eignty and intergovernmental relations (3). Each is defined as follows: • Sovereignty is the legal power of a Native American nation to manage its own internal affairs as a domestic dependent nation within the United States. Court decisions and legis- lation have changed the boundaries of what constitute sov- ereignty. Sovereignty includes tribal rights to self-govern, self-determination, and economic self-sufficiency (2). • Trust relationship is the special historic relationship between the federal government and Native American tribes, with the assumption that the federal government will protect tribes and act in the tribe’s best interests (1). • Plenary powers means that tribal sovereignty may be altered by Congress, which has the power to legislate laws govern- ing Native American tribes and limit tribal sovereignty (1). The federal government’s relationship is based upon unique trust obligations as domestic dependent nations that are sub- ject to federal—but not state—law. From a broad perspective, tribal sovereignty has been upheld by the U.S. Constitution, tribal laws, tribal institutions, federal courts, federal acts and legal decisions (3). Tribes have retained inherent sovereignty over their lands except to the extent that they have been with- drawn by treaty or federal statute (4). Issues of sovereignty affect all aspects of tribal transportation programs. Current issues impacting tribal transportation projects include cultural competency, protection and preservation of tribal-sensitive resources, confidentiality of tribal sensitive matters, sovereignty, land ownership, and monetary issues. These issues are complex and steeped in history. Since the early 1820s, the federal judiciary has significantly reduced tribal sovereignty. In contrast, since the 1960s Congress and the Executive Branch have broadened and strengthened tribal self-determination, which guides contemporary strategies to address tribal-specific issues on transportation initiatives. C H A P T E R 2 Assessment of Legal and Policy Requirements

2.2 U.S. Policies Affecting Native American Tribes Intergovernmental collaboration on transportation projects is impacted by tribal sovereignty, tribal–state relations, inter- governmental agreements, and jurisdictional issues. Native American tribes recognized by the federal government have a unique legal and political relationship with the federal govern- ment which continues to be defined by history, treaties, statutes, court decisions, and the U.S. Constitution. Historically, three areas of Congressional action have affected Native Americans, their rights, and property: establishing the laws under which tribes relate to the federal government; appropriating and over- seeing the expenditure of funds; and dealing with the rights and property of states and citizens that have some relationship to the rights and property of tribes (7). On the other hand, the judiciary through the Supreme Court has addressed tribal sovereignty matters including civil, crim- inal, and other jurisdictional issues. Jurisdictional issues are important in the planning, design, construction, operation, and maintenance of tribal transportation projects (4). Six major issues impact communication, cooperation, and coordination between tribes and other government entities on tribal transportation projects. Project coordination and collab- oration are impacted by cultural competency; protection and preservation of tribal sensitive resources; confidentiality of tribal sensitive matters; sovereignty; land ownership; and mon- etary issues. Insights gained from history and changing tribal legal policies are important for understanding these complex intergovernmental relationships and their impact on trans- portation projects. U.S. tribal policymaking initiatives have been categorized into six historical periods, which will be examined in subse- quent sections. These periods are: • Agreements between Equals (1787 to 1828) • Relocation of the Indians (1828 to 1887) • Allotment and Assimilation (1887 to 1934) • Indian Reorganization (1934 to 1945) • Termination (1945 to 1968) • Tribal Self-Determination (1968 to Present) (1). Exhibit A.1 in Appendix A includes a summary of legislative actions, Supreme Court decisions, and executive initiatives as they relate to current tribal transportation issues. 2.2.1 Agreements Between Equals (1787-1828) The “Agreements between Equals” period primarily focused on sovereignty and land ownership issues. Early recognition of Native American tribes as separate and sovereign governments exists in the U.S. Constitution, Article 1. The clause in the Con- stitution identifying tribes as sovereign governments gives Congress the authority to regulate commerce with States, foreign nations, and Native American tribes. The U.S. Consti- tution formed the initial framework for these government-to- government relations (3). When the U.S. Constitution was signed in 1787, Native American tribes were considered to be foreign governments. As a result, agreements between the federal government and tribal nations were considered to be nation-to-nation and required the consent of part of the tribes. Federal policy, not state policy, governed the relationships with tribes. The United States had nearly 400 treaties with tribes from 1785 to 1871 (3). 2.2.2 Relocation of Native Americans (1828-1887) The relocation period was a time when the federal govern- ment adopted policies including the Indian Removal Act (1830), which forced tribes in the east to surrender their land by treaty in exchange for reserved land in the west. Congress recognized the treaty “reserved” lands as permanent areas under tribal jurisdiction known as reservations (4). In 1881, Congress passed 21 U.S. 543 that prohibited any additional treaties with tribes. As a result, tribes were no longer consid- ered to be independent nations, and Congress could limit tribal powers including the ability to take tribal lands (1). Currently, there are about 300 tribal reservations in the United States and 562 federally recognized tribes meaning that many tribes have no land. Reservations are lands owned by the federal government that are held in “trust” for use by tribes. The federal government has the responsibility to protect the reservations, but the federal government can, and has, termi- nated and removed tribes from reservations (5). The judiciary branch became involved in tribal matters in three U.S. Supreme Court cases known as the Marshall Trilogy. These cases provided the framework for the status of tribes by defining their relationship with the federal government and the concept of tribal sovereignty, and established the doctrine of federal trust responsibility. The Marshall Trilogy set prece- dence for many Supreme Court cases since that time (5). • In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), the Supreme Court held that Native Americans had only a right of possession of tribal lands, and only the federal govern- ment had the power to transfer land ownership (3). • In Cherokee Nation v. Georgia, 30 U.S. 1 (1831), the Supreme Court clarified that tribes are neither states nor foreign nations, but “domestic dependent nations.” This case estab- lished the trust relationship in which the federal govern- ment has the duty to protect Native American tribes and their lands (3). 4

• In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Supreme Court decided that states do not have authority on tribal lands and tribes did not lose their sovereign powers by becoming subject to the federal government. Only Congress has plenary (or overriding) power over tribal affairs. The Supreme Court has consistently upheld that Congress may exercise plenary power over Native American tribes (3). 2.2.3 Allotment and Assimilation (1887-1934) In this period, tribal sovereignty was limited and land ownership altered by promoting assimilation of tribes into American society through the federal government’s policy of subdividing and selling tribal lands. The General Allotment Act of 1887 (also known as the Dawes Act) limited tribal sovereignty and broke up communal tribal lands into smaller pieces that were given to individual landowners, including non-Native Americans. The resulting checkerboard pattern of land owner- ship, occupancy of reservation lands by non-Native Americans, and non-tribal authority over those lands led to overlapping and conflicting policies. These checkerboard tribal lands still have lingering negative impacts on the development and imple- mentation of current transportation projects (3). Two noteworthy Supreme Court cases occurred during this time. In Talton v. Mayes, 163 U.S. 376 (1896), the Supreme Court upheld that tribal sovereignty was not limited by the con- straints imposed in the U.S. Constitution. Tribes have internal sovereignty and are free to govern their internal relations (4). In Buster v. Wright, 135 F. 947 (CA8 1905), the Supreme Court upheld Tribes’ permit tax on nonmembers for the priv- ilege of conducting business within Tribes’ borders. The Court characterized as ‘inherent’ the Tribe’s “authority . . . to pre- scribe the terms upon which noncitizens may transact business within its borders” (21). 2.2.4 Reorganization Period (1934-1945) The Reorganization Period reversed the federal allotment and assimilation policies. This was initiated by the findings of the Merriam Report (1928) which documented the failure of the allotment policies. The resulting Indian Reorganization Act (IRA) was passed in 1934. It prohibited future allotments of tribal lands and enabled tribes to assert powers of self- government. For the first time, the IRA recognized tribal governments as viable political entities. It also established mechanisms for tribal business enterprises and provided for the adoption of tribal constitutions. These tribal constitutions had to be ratified by the Secretary of the Interior. The IRA also provided that tribal, rather than federal, authority gave tribal courts legitimacy (4, 5). However, under the IRA, the Bureau of Indian Affairs, rather than tribes, had final decision-making power over the use of tribal funds or tribal lands (3). This Act not only stopped further reduction of the tribal land base but also permitted federal funds to be spent for the first time for on-reservation tribal projects, including irrigation works, roads, homes, and community schools (4). Also during this period, the federal government’s trust responsibility was clarified in the Seminole Nation v. U.S, 316 U.S. 286, 62 S. Ct. 1049 (1942) Supreme Court case. Treaty pro- visions from the 1840s stated that interests from a trust fund would be paid directly to individuals. The federal government paid the tribal treasurer instead. The Court found that the fed- eral government’s trust relationship with tribes had a fiduciary responsibility as well (4). This fiduciary responsibility was re- affirmed in the U.S. v. Mitchell, 445 U.S. 535, Supreme Court (1980 and 1984) case when the Court determined that the federal government had the responsibility to manage tribal resources and land for the benefit of tribes (4). 2.2.5 Termination Period (1945-1968) In 1953, Congress adopted House Concurrent Resolution No. 108 which reversed federal tribal self-determination poli- cies and, as a result, ended the trust relationship between federal and tribal governments (4). More than 109 tribal gov- ernments were terminated resulting in the federal government no longer recognizing them as sovereign nations (5). Upon ter- mination, tribes lost their powers of self-government, were ineligible for government services, and were subject to taxation on their land. Unilaterally, tribal members became subject to state criminal and civil laws (4). This termination policy also resulted in the passage of Pub- lic Law 83-280 (1953) by Congress, which generally extended state jurisdiction on tribal reservations by mandating the dele- gation of substantial civil and criminal jurisdiction over reser- vations in certain states (4). Public Law 280 gave six states mandatory and substantial criminal and civil jurisdiction over tribes: Alaska (except for Metlakatla Reservation), California, Minnesota (except for Red Lake Reservation), Nebraska, and Oregon (except for Warm Springs Reservation). Ten other states also opted to accept some degree of Public Law 280 juris- diction: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. Where Public Law 83-280 applies, tribes and states both share jurisdiction over criminal and civil matters (5). This left tribes with a greatly diminished role and was contrary to the Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Supreme Court case, which stated that “laws of the state can have no force of law on tribal land” (4). A significant factor in the return to self-determination and respect of sovereignty was the Williams v. Lee, 358 U.S. 217 (1959) Supreme Court case (4). The Court decided that tribal courts rather than state courts had jurisdiction in a lawsuit aris- 5

ing out of on-reservation sales transactions between a non- member plaintiff and tribal defendants. This case affirmed tribal internal sovereignty (8). 2.2.6 Self-Determination Era (1968 to present) Over the last 40 years, a great deal has changed since the fed- eral government has embraced tribal self-determination poli- cies and no longer pursues assimilation policies. The severe problems resulting from the Termination Period led to reforms that expanded the recognition of the powers of tribal self-government. This policy shift strengthened the tribal sense of autonomy, permitted tribes to manage their own affairs, and produced a significant number of legislative actions that vali- dated and advanced the self-determination principle (4). As a result, tribal-state-federal relationships regarding transporta- tion planning, program management, and operations issues are relatively recent phenomena. 2.2.6.1 Legislative Actions President Richard Nixon is credited with changing the direc- tion of the federal government and its treatment of tribes by calling for a policy of “self-determination” (4). In 1968, Presi- dent Lyndon Johnson described Native Americans as the ‘for- gotten’ Americans and affirmed the rights of Native Americans to remain Native Americans while exercising their rights as Americans. This led to the passage of the Indian Civil Rights Act (1968), which entitled Native Americans to provisions of the Bill of Rights and mandated that tribal consent be required for states to assume civil and criminal jurisdiction over tribal lands (4). Many of the pieces of legislation enacted during the Self- Determination Era impacted cultural competency, protection/ preservation of tribal resources, and confidentiality of tribal sensitive matters. Tribal lands have unique historical, cultural and religious meaning to a tribe and must be respected. Tribal self-determination policies are reflected in legislation, including the National Historic Preservation Act (NHPA) (1966), National Environmental Protection Act (NEPA) (1969), Amer- ican Indian Religious Freedom Act (AIRFA) (1978), Archae- ological Resources Protection Act (ARPA) (1979), Native American Graves Protection and Repatriation Act (NAGPRA) (1990), and the National Historic Preservation Act amended (1992). The NHPA (1966) required federal agencies to consult with any Native American tribe that attaches historical, religious, or cultural significance to historic properties that may be affected by a project (3). Through establishing programmatic agree- ments and state or tribal historic preservation officer positions, states and tribes have increased their capacity to address envi- ronmental evaluations and historic preservation issues in tribal transportation projects. Some states have formalized consul- tation processes through memorandums of understanding (MOUs) (4). In 1992, the NHPA was amended to enhance the tribal role in historic preservation and created the Tribal His- toric Preservation Officer program (6). The NEPA (1969) established a national policy for the pro- tection and enhancement of the “human environment to pre- serve important historic, cultural, and natural aspects of our national heritage” (4). It requires that an agency prepare an Environmental Impact Statement for all “proposals for legis- lation and other major federal actions significantly affecting the quality of the human environment” (4). The AIRFA (1978) was passed by Congress to “protect and preserve for tribes the right to believe, express, and exercise their traditional religions, including access to religious sites, use and possession of sacred objects, and freedom to worship through ceremonies and traditional rites” (4). The ARPA (1979) provided for the protection and manage- ment of archaeological resources and sites that are on public or tribal lands, and requires tribal notification if archaeologi- cal investigations would result in harm to any location consid- ered by the tribe to have religious or cultural importance. Permits are required for excavation or removal of any archae- ological resource located on tribal lands and requires consent of the tribe owning or having jurisdiction over the land (4). The NAGPRA (1990) safeguards the rights of Native Amer- icans by protecting tribal burial sites and rights to items of cul- tural significance to tribes. Protected cultural items include Native American human remains, funerary objects, sacred objects, and objects of cultural heritage (4). Another significant piece of legislation during this period was the passage in 1975 of the Indian Self-Determination and Education Assistance Act (ISDEAA), which gave tribal govern- ments the authority to assume federal actions and make those actions tribal functions. Previously, these functions were largely a federal responsibility handled through the Bureau of Indian Affairs (BIA). It also gave tribes the authority to per- form transportation planning, which had previously been done by the federal government. However, because many tribes at the time did not have the resources to do such planning, the BIA did the planning on their behalf (4).1 Legislation concerning business transactions that relate to tribal lands was first enacted in 1872, and is now codified in 25 U.S.C. § 81 (2005), which is entitled: “Contracts with Indian Tribes or Indians.” It specified that no agreement or contract with a tribe lasting more than seven years is valid unless it has the approval of the Secretary of the Interior (4). The Secretary 6 1The lack of resources is still a current issue that endangers many tribes’ ability to develop and/or maintain a transportation planning program.

will not sign a contract or agreement if “the agreement or con- tract violates federal law, does not include remedies for a breach of agreements or contracts, or includes an express waiver of immunity as a defense in an action; or includes an express waiver of the right of the tribe to assert sovereign immunity as a defense in an action brought against the tribe.” In addition, the Secretarial approval is required for any contract that lim- its tribal control of Native American land or transfers posses- sion or control to a non-tribal party (4). 2.2.6.2 Supreme Court Cases During the Self-Determination Era there was much litigation that reached the Supreme Court concerning tribal jurisdiction over non-Native Americans on tribal lands. From the 1960s to the 1980s, the Supreme Court recognized tribal sovereignty, the trust relationship, and tribal jurisdiction over nonmembers. However, that changed in the 1990s as the Supreme Court sig- nificantly impacted tribal sovereignty by limiting the ability of Native Americans to regulate the civil or criminal conduct of non-Native Americans (5). “In the 1990s, tribes lost 23 of 28 cases in which they appeared before the Supreme Court” (5). In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Supreme Court determined that tribes have “impliedly lost certain sovereign powers due to the incorporation of tribal nations into the United States.” As a result, tribal courts do not have criminal jurisdiction over non-tribal members (4). In Washington v. Confederated Tribes of the Colville Reserva- tion, 447 U.S. 134, 100 S. Ct. 2069, 65 L.Ed.2d 10 (1980), the Supreme Court determined that states cannot interfere with tribal nations’ sovereignty and that tribal sovereignty is dependent on, and subordinate to, only the federal govern- ment, not states (4). Montana v. United States, 450 U.S. 544 (1981) is considered a decisive case in which the Supreme Court denied tribal juris- diction over non-Native Americans engaged in conduct on their own land within the reservation. “Montana exceptions” would be allowed if the tribe has a contractual relationship with the non-tribal member or if the non-member’s activities have a substantial impact on significant tribal interest (1). In Merrion v. Jicarilla Apache Tribe, 455, U.S. 103 (1983), the Supreme Court recognized that Native American tribes have the inherent right to tax activities occurring on tribal lands, including activities by non-tribal members (1). In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over non-member Native Americans. In response to this decision, Congress, using its plenary power, passed the ‘Duro fix,’ which recognized the sovereign power of tribes to exer- cise criminal jurisdiction within their reservation over all Native Americans, including non-members. This decision was upheld by the Supreme Court in 2004 (3). 2.2.6.3 Executive Initiatives on Government- to-Government Relations Executive initiatives during this period established require- ments for government-to-government relationships that rec- ognized and respected tribal sovereignty and consultation with tribes prior to taking actions impacting them. Other actions that furthered tribal self-determination included legislation designed to protect natural, religious, and cultural assets impor- tant to Native Americans and Native American tribes. Presidential Indian Policy Statement of January 24, 1983, pledged a government-to-government relationship between the U.S. Government and Indian tribes (4). Presidential Memo, Government-to-Government Relations with Native American Tribal Governments (May 4, 1994), directed all executive departments and agencies to implement activities affecting tribal rights or trust resources “in a knowl- edgeable, sensitive manner respectful of tribal sovereignty” (4). Presidential guiding principles included: operating within a government-to-government relationship with federally recog- nized tribal governments; consulting with tribal governments before taking actions that affect federally recognized tribes; assessing the impact of activities on tribal trust resources and assuring that tribal interests are considered before activities are undertaken; and removing procedural impediments to work- ing directly with tribal governments (4). Presidential Executive Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, directed each federal agency to make environmental justice part of its mission by identifying and addressing disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations including Native Americans (9). Presidential Executive Order No. 13007, Indian Sacred Sites (May 24, 1996), directed federal agencies to accommodate access to tribal ceremonial use of sacred sites by tribal religious practitioners and protect the physical integrity of such sacred sites. This Executive Order addressed a problem in the AIRFA by requiring federal agencies to avoid harming the physical integrity of such sacred sites (4). The FHWA Indian Task Force Report (February 4, 1998) was issued to provide guidance to FHWA regarding its rela- tionship with federally recognized tribal governments with the Federal Lands Highway and Federal-Aid Highway Pro- grams. Environmental issues and processes had already been a part of project development through the FHWA’s NEPA process. However, tribal environmental issues were to be incorporated to a greater degree into the tribal transportation planning process as well as during the project development and implementation processes in federally funded state trans- portation projects that impact tribal trust resources or tribal communities (4). 7

The first tribal consultation and coordination Executive Order, Presidential Executive Order 13084 of May 14, 1998– Consultation and Coordination with Indian Tribal Governments–recognized that the federal government works with tribes on a government-to-government basis to address issues concerning tribal self-government, trust resources, and Native American tribal treaties. Regular and meaningful con- sultation and collaboration with tribal governments is to be maintained in the development of federal regulatory practices that affect tribal communities (4). Presidential Executive Order No. 13175, Consultation and Coordination with Indian Tribal Governments (November 6, 2000) revoked and replaced Executive Order 13084. Execu- tive Order 13175 recognized Native American tribes’ sover- eignty. With sovereign powers, tribes are to be consulted with on a government-to-government basis. This consultation also requires working with tribes within the Statewide/ Metropolitan Transportation Planning processes. Tribal offi- cials are to be involved in regular and meaningful consulta- tion and collaboration in the development of federal policies that have tribal implications. Because many transportation projects on tribal lands are federally funded, state govern- ments and other local entities had to implement these strate- gies for consultation in tribal transportation matters (4, 37). Dated September 23, 2004, Presidential Executive Order 13336 and Memorandum to Heads of Executive Departments and Agencies–Government-to-Government Relationships with Tribal Governments–adopted a national policy of self- determination for Native American tribes and committed the federal government to work with federally recognized tribal governments on a government-to-government basis (10). Presidential Memorandum for Heads of Executive Depart- ments and Agencies on Tribal Consultations, November 5, 2009, reaffirmed the federal government’s commitment to regular and meaningful consultation and collaboration with tribal officials in policy decisions and accountability for the implementation of Executive Order 13175. Each agency head was directed to submit plans for implementing the policies and directives of Executive Order 13175 to the Director of the Office of Management and Budget (OMB) within 90 days. Tribes are to be consulted in the development of the imple- mentation plans. Within 270 days, each agency is to submit a progress/status report on the status of each planned action to the OMB and annually thereafter (11). As required by President Obama’s Memorandum, the U.S.DOT issued its Tribal Consultation Plan, “to develop, improve, and maintain partnerships with Indian tribes by using agreed-upon processes when the Department develops, changes, or implements policies, programs, or services with tribal implications” (12). The U.S.DOT Plan reaffirmed its commitment to the principles of tribal self-government, self- determination, and tribal sovereignty. The Plan includes spe- cific goals, actions, and accountability measures. These goals include: fostering meaningful government-to-government relations, improving existing tribal programs, ensuring mean- ingful tribal input into future tribal transportation programs, ensuring the uniform and effective delivery of tribal pro- grams as well as assisting in implementing tribal infrastruc- ture projects, building tribal transportation capacities, and coordinating national tribal infrastructure policy and pro- grams within the federal government (12). 2.2.7 Summary The importance of the history of tribal-federal govern- ment-to-government relations lies in understanding how the past has impacted (in many negative ways) these relation- ships by the lack of consistency in U.S. policymaking. Tribes were given authority over their own matters only in the early 1960s during the Self-Determination Era. The advent of this new policy period together with the enactment of several leg- islative and executive actions codified the consultation process and affirmed the government-to-government relationship between tribes and the federal government. 2.3 Transportation-Specific Policies Impacting Native American Tribes The creation of the Indian Reservation Roads (IRR) pro- gram in 1928 marked the beginning of the federal govern- ment role in tribal transportation programs. Since then, transportation-specific tribal policies have been enacted by Congress that have authorized the formation of tribal trans- portation programs and funding for federally recognized tribal governments. A listing of FHWA’s federal resources for tribal transportation funding and planning can be found in Exhibits A.2 to A.5. The following sections discuss federal and state level funding programs that have evolved to address cur- rent tribal transportation issues. 2.3.1 Federal Level Through the Act of February 5, 1948 (i.e., Public Law 407), the Secretary of the Interior was given the authority to grant permission to state or local authorities to establish public high- ways through any tribal reservation. However, tribal trust land cannot be condemned without a specific act of Congress (4). 2.3.1.1 Federal Lands Highway Program The Federal Lands Highway Program (FLHP) provides funding and services in cooperation with federal land man- agement agencies, such as the Bureau of Land Management, 8

U.S. Department of Agriculture Forest Service, and the BIA. The FLHP program specifically includes the IRR program, which is jointly managed by FHWA and BIA (3). IRR proj- ects are selected by tribal governments and approved by FHWA. Each project is to be listed in the IRR Transportation Improvement Program (IRR TIP) (13). 2.3.1.2 Federal-Aid Highway Program States use Federal-Aid Highway funds for state- and county-owned roads running near, through, or entirely on tribal lands. Tribal governments can be direct recipients of federal-aid funds from FHWA. Previously, these funds were apportioned to states, with the states having responsibility to consult with tribal governments and the Secretary of the Inte- rior in the transportation planning process, including the preparation of the State Transportation Improvement Pro- gram (STIP) (3). FHWA division offices are responsible for establishing and maintaining working relationships with tribes and ensuring that tribal governments are part of the state DOTs’ Federal- Aid Highway Program for planning, environment, and tech- nology transfer. If a state wants to construct a project within a reservation without the requisite 100% funding, a tribe can use its own IRR funds for cost sharing requirements. States constructing roads totally within tribal lands are not con- strained by federal-aid matching requirements and 100% fed- eral funding is permitted [23 U.S.C. 120(f)] (4). 2.3.1.3 Indian Reservation Roads Program (IRR) IRR permitted cooperation between state DOTs and the Interior Department to survey, construct, reconstruct, and maintain Native American reservation roads (13). In 1982, under the Surface Transportation Assistance Act (STAA), the IRR became a program in the FLHP. STAA expanded the IRR system to include BIA roads, tribally owned public roads as well as state and county roads (13). Indian reservation roads are public roads to and within reservations, trust lands, restricted lands, and Alaska Native Villages, and IRR is the primary mechanism for federal assis- tance in tribal transportation projects for federally recognized tribes. IRR also contributes to tribal economic development, self-determination, and employment (13). IRR provides funds for the planning, design, construction, and maintenance activ- ities to address tribal transportation needs including bridges of over 562 federally recognized Native American tribes and Alaska Native Villages. The program is jointly administered by the FHWA’s Federal Lands Highway Office and the BIA in accordance with an interagency agreement (14). The IRR system includes approximately 27,800 miles of public roads on tribal reservations owned by the BIA, and 31,000 miles of State and local public roads that provide access to and within tribal reservations. There are approxi- mately 1,700 miles of tribal owned roads (13). Any one road project could involve multiple jurisdictions resulting in con- flicting laws regarding contract negotiations and employee rights. Because FHWA is providing funding, both BIA and FHWA regulations, such as environmental reviews and rights-of-way, apply to the IRR program (15). Funding for IRR projects must be included in the appropriate STIP (15). 2.3.1.4 Surface Transportation Assistance With the passage of the STAA in 1982, the IRR was incor- porated into the FLHP under FHWA, which also has jurisdic- tion over roads on national parks and other federal lands. The BIA implemented the IRR program through a 1983 memo- randum of understanding with FHWA. The STAA expanded the IRR system to include BIA roads, tribally owned public roads, and state and county roads (13). The BIA was also required to work with each tribe to develop an annual prior- ity program of construction projects and submit the program to FHWA for review, agreement, and allocation of funds (3). 2.3.1.5 Intermodal Surface Transportation Efficiency Act The passage of the Intermodal Surface Transportation Effi- ciency Act (ISTEA) in 1991 mandated that statewide planning requirements include consultation, cooperation, and coordi- nation with tribal governments on a government-to-govern- ment basis. Tribes and tribal concerns are to be included in the regional and statewide transportation planning processes. Through ISTEA, tribes realized a significant increase in IRR funding including a 2% set aside for tribal transportation planning. This enabled tribes to begin to oversee their own transportation programs. ISTEA also assigned oversight of the IRR program to FHWA. In addition, ISTEA authorized tribal preference in construction projects on and/or near reserva- tions. Lastly, ISTEA authorized the establishment of the Tribal Transportation Assistance Program (TTAP) for tribal govern- ments which evolved from the Local Technical Assistance Program (4). 2.3.1.6 Transportation Equity Act-21 The Transportation Equity Act-21 (TEA-21), passed by Congress in 1998, mandated that the IRR program include tribal government consultation in state, regional, and metro- politan planning. The Federal Lands Highway Program man- agement systems was required to include tribal pavement, congestion, bridge, and safety management programs similar to those required for state programs. A new allocation formula 9

was developed using the Federal Negotiated Rulemaking process (4). TEA-21 also authorized a new funding formula that reflected the relative needs of Native American tribes and reservations or tribal communities for transportation assistance. “Considera- tion was given to the challenges faced by tribes, including the cost of road construction and geographic isolation; and the dif- ficulty in maintaining all-weather access to employment, com- merce, health, safety, and educational resources.” This Tribal Transportation Allocation Methodology determines IRR allo- cations to federally recognized tribes (4). The inclusion of tribal transportation in the ISTEA and TEA-21 legislation required that tribes be included in the transportation planning, design, construction, and delivery processes. With the more funding available to tribes through ISTEA and TEA-21 came increased tribal capacity and partic- ipation in transportation planning and programs (4). 2.3.1.7 U.S.DOT Order 5301.1 On November 16, 1999, U.S.DOT issued Order 5301.1: Department of Transportation Programs, Policies, and Pro- cedures Affecting American Indians, Alaska Natives, and Tribes. The purpose of Order 5301.1 was to affirm the depart- ment’s unique legal relationship with tribes and established its consultation and coordination process with Native Amer- ican tribes. The Order’s requirements were designed to, “rec- ognize Indian statutory preferences in employment, Federal financial assistance arrangements, and contracting; respond to the transportation concerns of Indian tribes related to environmental justice, children’s safety and environmental health risks, occupational health and safety, and environmen- tal matters; foster opportunities for hiring tribal members and increasing participation in Federal training activities; include tribal colleges and universities in Departmental edu- cational, research, and program activities; and treat corre- spondence from leaders of Indian tribes in the same manner as Congressional correspondence” (12). 2.3.1.8 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) SAFETEA-LU, passed by Congress in 2005, strengthened the direct relationship between FHWA and tribes. This included the authority to enter into direct funding agreements with tribes and the requirement for FHWA to develop a National Indian Reservation Road Inventory to assess the true need and cost for tribal transportation (17). SAFETEA-LU reemphasized the importance of requiring consultation with tribal governments for not only statewide planning but also long-range transportation planning. Tribes meeting certain eligibility requirements may have direct agreements with FHWA rather than through BIA for IRR funding (15). Tribes may also assume maintenance responsibilities on state IRR roads through a road maintenance agreement in which 25% of IRR funds may be used by a tribe for maintenance. A bridge funding category was also established within IRR monies (16). Under SAFETEA-LU, eligible tribes can enter into Refer- enced Funding Agreements directly with FHWA for their share of IRR Program funding (17). While the BIA retains its program management and oversight role on a national and regional level, these agreements have strengthened the FHWA-Tribal government relationship on both a program and project level (17). A tribe is eligible to participate in direct funding agreements if it can provide evidence of financial sta- bility and management capability (17). As of September 2009, 42 tribes have entered into those Agreements (15). 2.3.1.9 Tribal Technical Assistance Program The ISDEAA (1975) gave tribes authority to assume some functions previously done by the federal government, includ- ing transportation planning. At that time, most tribes lacked the resources to develop transportation plans and the BIA did this planning on their behalf. To address this need, ISTEA authorized the formation of the TTAP, which is a network of regional centers funded through IRR. TTAPs training pro- grams includes multi-jurisdictional collaboration, develop- ing tools to make grassroots-level management easier, and teaching tribes how to write and manage MOUs, contracts, and agreements. TTAP also serves as an information clearing- house, provides technology updates and technical assistance, and publishes newsletters (15, 18). There are seven TTAP centers based in Alaska, California, Colorado, Michigan, North Dakota, Oklahoma, and Wash- ington State. The Michigan Tech TTAP is hosted at Michigan Tech University in Houghton, MI, and serves tribes in states from the Mississippi River to the Atlantic Coast and the Gulf of Mexico. The Colorado TTAP is hosted at Colorado State University in Fort Collins, CO, and serves tribes in Arizona, Colorado, New Mexico, and Utah. The Oklahoma TTAP is hosted at Oklahoma State University in Stillwater, OK, and serves tribes in Kansas, Southern Nebraska, Oklahoma, and Texas. The California TTAP is hosted at the National Indian Justice Center in Santa Rosa, CA, and serves tribes in Califor- nia and Nevada. The Northern Plains TTAP is hosted at the United Tribes Technical College in Bismark, ND, and serves tribes in Eastern Montana, Northern Nebraska, North Dakota, South Dakota, and Wyoming. The Northwest TTAP is hosted at Eastern Washington University in Cheney, WA, and serves tribes in Idaho, Oregon, Washington, and West- ern Montana. The Alaska TTAP is hosted at the University of Alaska in Fairbanks, AK, and serves tribes in Alaska. 10

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

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

boundaries that are under the sovereign jurisdiction of the tribe. Before Alaska Native Claims Settlement Act (ANCSA), Public Law (PL) 83-280, enacted in 1953 and amended in 1958 to add Alaska, extended state police jurisdiction over certain crimes into Alaska tribal territory. WHAT IS INDIAN COUNTRY IN ALASKA? ANCSA extinguished reservations in Alaska, except the Annette Island Reservation (Metlakatla Indian Community), and instead instituted corporations established under state law. ANCSA did not extinguish tribal status. ANCSA took the land that would in other cases constitute the nexus of the tribe and put it into pri- vate corporation ownership. As a result of ANCSA, most of the land previously recognized as tribal is not considered Indian country. This was confirmed by the U.S. Supreme Court in Alaska v Native Village of Venetie (1998), which found that in order to satisfy the test for designation as Indian country, certain criteria must be met. These are: 1) the land must have been set aside by the federal government for the use of Indians as Indian land; and 2) the land must be under federal superintendence. Since ANCSA land is owned by corporations formed under state law, the land is not set aside exclusively for the use of the tribes, nor is it under federal superintendence. It does not, therefore, meet these criteria for Indian country designation. There are still some categories of tribal land in Alaska that are considered Indian country. Indian Land is generally considered to be land held in trust by the United States for the benefit of a tribe or Native individual. The basic types of Indian Land in Alaska are: the Metlakatla Indian Community Federal Reserva- tion on Annette Island; individual Native Allotments obtained under the Alaska Allotment Act; and Townsite Lots conveyed to tribal governments under the Native Townsite Act. Land con- veyed to an ANCSA corporation under ANCSA, then conveyed to a tribal government, does not become Indian Land because of tribal government ownership.5 2.3.3 Summary Federal funding for tribal transportation projects was not made available until 1928 through the IRR. Congress passed comprehensive transportation initiatives – ISTEA (1991), TEA- 21 (1998), and SAFETEA (2005) – which, over time, increased IRR funding, mandated tribal consultation in state and regional transportation planning, established the TTAP program, pro- vided assistance in developing tribal transportation planning capacity, and strengthened the direct relationship between tribes and the FHWA. Acquisitioning right-of-way and obtaining project clear- ances to construct highway improvements on tribal lands is an on-going issue for state DOTs. The BIA has specific requirements and interpretations of environmental and his- toric preservation regulations and laws that can be different from FHWA rules that DOTs must comply with. Also envi- ronmental law compliance can at time conflict with tribal sovereign immunity. Tribal sovereignty and government-to-government rela- tions impact all aspects of tribal transportation initiatives and government-to-government relations. There are many types of federal, state, and tribal jurisdictional issues, and recent judicial decisions have limited tribal sovereignty. Jurisdiction and legal issues vary from state to state, and mutually agreeable procedures for addressing issues need to be established. Increasingly, tribal consultation processes with federal and state agencies on transportation planning, develop- ment, and maintenance of projects have been formalized in MOUs. These agreements provide practical frameworks and codify these government-to-government relations to define mutual areas of responsibility, communication, and cooperation. 13 5http://commerce.state.ak.us/dca/LOGON/muni/muni-govtoverview.htm <accessed on April 12, 2010>