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

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

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