Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Developing, Enhancing, and Sustaining Tribal Transit Services: Final Research Report Page 95 CHAPTER 5 Policy Issues INTRODUCTION A number of policy issues and questions have been identified as part of the research effort. These issues were recognized through the data collection and particularly from the interviews with participating tribes. LEVEL OF FUNDING FOR TRIBAL TRANSIT The number of tribal transit programs has grown dramatically over the past 10 years. Growing from less than 20 tribal transit systems throughout the country to well over 100 has increased the need for funding. While the number of tribal transit programs has increased, there are many more tribes that remain without access to transit services with significant transportation needs among their people. While not all of the 565 federally recognized tribes may need to operate a transit system, there are many which have unmet trans- portation needs. The American Indian and Alaska Native population is approximately 4.7 million people. The US Census shows that the poverty rate among the native population is about 23 percent com- pared with 14 percent for the nation (2007-2009 American Community Survey). Unemployment among the native population has been about double that of the nation (2007-2009 American Community Survey). The data collected as part of this research showed that 43 responding tribes have a total annual operating cost of $18.5 million to operate transit systems. The tribes that provided financial data are less than half of the tribes which operate transit and only eight percent of all tribes. Each year as new tribal transit programs are begun, there is a need for additional funding. SAFETEA-LU established the Public Transportation on Indian Reservations Program and authorized fund- ing at $8 million in Fiscal Year 2006 with increases to $15 million in Fiscal Year 2009. Funding for the program has been based on con- tinuing resolutions for more recent years. Each year applications for funding have exceeded the available levels. More tribes are recog- nizing the transportation needs of their people and the ability to meet those needs with local transit service. Although an assessment of the level of funding needed for tribal transit programs was beyond the scope of this research effort, the research findings indicate a growing need that exceeds the current
Policy Issues Chapter 5 Page 96 Developing, Enhancing, and Sustaining Tribal Transit Services: Final Research Report levels of funds available. The need for funding will have to be addressed at the national, state, and local tribal levels. Chapter 4 describes some of the challenges faced by tribes to fund transit programs. Tribes are recognized by the federal government as sovereign nations. As such, funding for tribal transit is a national policy issue. At the same time, tribes have social and economic interaction with the states in which they are located. This interaction leads to questions of policy in funding at the state level. Finally, tribal governments have a responsibility to their people which leads to policy decisions at the local tribal level. Two significant areas of funding policy will need to be addressed. The first is the level of funding for tribal transit and the sources of that funding. The research findings indicate that current levels of funding are inadequate to meet the transportation needs of the native popu- lation. Additional sources of funding will be needed to meet those needs. The second area which will need to be addressed is continuity of funding. The current FTA tribal transit program does not neces- sarily provide for continuity in the level of funding from one year to the next. Tribes may initiate or expand service based on funding obtained through the tribal transit program, but not be able to sustain the service because funding is not received in a subsequent year. This has been the experience of several tribes. An option would be to give priority to sustaining existing transit services before new services are funded so that tribes can expect continuity of funding from one year to another and sustain the service which is provided. GRANT AWARD CRITERIA Interviews held with tribes, both by telephone and in person, indi- cated concerns regarding feedback and understanding of the criteria used to award grants under the FTA tribal transit program. Some tribes reported that they have failed to receive funding through the program, but have not been able to receive feedback on their grant applications and the reasons for not being funded. In at least one case, a tribe submitted an application with minimal changes in a subsequent year and received funding. Understanding the criteria for evaluation of the applications would help tribes determine whether they should seek funding, how to support the request for funding, and ways to improve the quality of the grant application. Tribes have reported that the uncertainty in funding has affected their ability to sustain service. Understanding
Chapter 5 Policy Issues Research Report for Developing, Enhancing, and Sustaining Tribal Transit Services Page 97 the criteria would also support sustainability of tribal transit programs as tribes become aware of and know the standards by which their systems will be evaluated for future funding. TRAINING AND TECHNICAL ASSISTANCE The growth in tribal transit programs is new. The new funding pro- gram has helped many tribes plan and start transit service. The rapid growth that has occurred has left many tribes with a lack of expertise in transit planning, transit management, financial management, and grant management. While there are many training programs avail- able, most are not targeted toward tribes. Many of the training pro- grams oriented toward rural transit would be helpful, but tribes are not always aware of these programs and the opportunities. Some tribes have failed to properly report grant activity or to draw grant funds because of the lack of expertise. Overall, tribal transit programs could be strengthened by providing additional training opportunities, but more importantly, by helping tribes become aware of the need for training and the opportunities that are available. In some cases, it might be helpful if grant awards included funding for attendance at specific training programs. Completion of specific training programs might be considered as a requirement for receipt of grant funds. The increased training and level of expertise among tribes would improve grant management and grant reporting. Oversight of tribal transit programs should be easier with increased expertise among the grant recipients. INDIAN RESERVATION ROADS (IRR) FUNDING FORMULA The Indian Reservation Roads program provides funding for trans- portation infrastructure for federally recognized tribal governments. Transit facilities and services are eligible activities under the IRR program. In addition, the IRR funds may be used as local matching funds for federal aid highway or transit projects. The funding formula for the IRR program was developed under negotiated rule making with tribal governments. The formula is based on an inventory of public roads that serve the reservation, regardless of jurisdiction. Roads may be under the jurisdiction of the Bureau of Indian Affairs, states, local governments, or tribes. Transit service and facilities are not considered in the funding formula. Although the funds may be used to support transit, the level of transit service and facilities are not considered in the formula. As transit becomes more important for individual tribes, consideration of the transit services as
Policy Issues Chapter 5 Page 98 Developing, Enhancing, and Sustaining Tribal Transit Services: Final Research Report part of the funding formula may become more critical. Provision for inclusion of an inventory of transit services and facilities could be considered to reflect the importance of transit in meeting the trans- portation needs of tribal members. COORDINATION OF TRANSPORTATION SERVICES The research findings showed that coordination of transportation services is a strong indicator of long-term sustainability of a tribal transit program. Those transit programs that coordinated internally within the tribe or externally with other transportation services are stronger financially and have a greater probability of long-term success. At the same time, the information from the tribes indicated the coordination with other transportation programs is a challenge that must be overcome. Coordination of transportation services has been emphasized at the federal and state levels in recent years. However, the research find- ings indicate that the same level of emphasis has not taken place within tribal governments or within the federal programs which fund transportation services for tribes and tribal members. Many of the tribes interviewed continue to have multiple transportation programs with duplication of services and functions. At the tribal level, there is no indication that transportation programs funded by departments other than the Department of Transportation emphasize the need to coordinate services or encourage coordination at the local tribal level. Because coordination with other transportation programs was found to be a significant factor in the success of tribal transit systems, it would help support tribal transit if coordination of services was emphasized by all agencies which fund transportation services for tribes. Existing specialized transportation programs would be encouraged to coordinate with new transit programs as they are planned and developed, helping to ensure better cost-effectiveness, less duplication of services, and long-term sustainability. CONSOLIDATION OF FEDERAL FUNDS The 477 Program through the Department of Interior is a program that allows tribes that receive funds from more than one federal pro- gram to consolidate the different reporting structures into a single reporting structure. This program allows tribes to combine funds into a single program and then create a single plan to implement service toward employment education and training programs. The research findings showed that tribes are faced with administrative burdens of
Chapter 5 Policy Issues Research Report for Developing, Enhancing, and Sustaining Tribal Transit Services Page 99 having different reporting requirements for different funding sources, so it would be helpful to encourage programs such as these to stream- line the federally funded program reporting requirements. TRIBAL EMPLOYMENT RIGHTS Unemployment rates on Native American reservations and in tribal communities remain high in spite of large scale state and federal planning and construction projects on and near tribal lands. In an effort to improve employment opportunities, tribes have adopted tribal laws applicable to contractors working on tribal lands that may include requirements for the contractor to pay fees or hire from qualified tribal workers. These laws are known as Tribal Employment Rights Ordinances (TERO). According to the National Indian Justice Center, Tribal Employment Rights Ordinance (TERO) is defined as a legislative act adopted by the governing body of a federally recognized tribe. While each tribe has the sovereign right to adopt any language that it chooses, a TERO generally governs the contracting provisions between a tribe and any contractor and may include provisions concerning: Announce- ment and advertising of jobs; Tribal preference (preference to a person from a certain tribe) in hiring goals; Indian preference (preference to a person who is Indian) in hiring goals; Permits to do business on tribal lands; TERO tax; Training and/or skill requirements; Discrimination; Fees; Personnel policies; Inspections; Dismissal/layoffs; and Non-compliance. A construction project on tribal lands that is funded by a state or federal department of transportation will trigger a battle of the laws of multiple jurisdictions. The project activities, if on tribal lands will be subject to tribal laws including the TERO if adopted by the tribe. In addition, the contractor for the project is subject to state or federal laws governing the contract. The state may have put the project out for competitive bid and the winning contractor may not know of the applicable TERO laws, particularly fees, taxes, hiring requirements which may affect the budget for the project. If the existence of a TERO is not known to the contractor, the project will be put on hold while the jurisdictions battle over applicable law. The best approach is to improve communications among the DOTs, the tribes and contractors specifically over the location of projects, scope of activities, application of tribal laws and to engage in Memorandum of Agreements that explain and govern the roles involved in concurrent jurisdiction. One provision that is consistently disputed in TEROs is the tribal preference in hiring (preferring one tribe over another). For the state and federal DOT, tribal preference in hiring resembles discrimination
Policy Issues Chapter 5 Page 100 Developing, Enhancing, and Sustaining Tribal Transit Services: Final Research Report in hiring which is prohibited by Title VI of the Civil Rights Act of 1964. Tribes that use strictly tribal funds in transportation projects on tribal lands are governed solely by their own laws and may employ a tribal preference in hiring practice; however, if state or federal funds are used in that project, those funds may not be used for activities that would be discriminatory under state or federal law. In the case when the tribe uses tribal funds for the position, Title VI exempts tribes from discrimination in employment based on national origin. Also, the Indian Self- Determination Act has an exemption as long as the salary and benefits for a position are solely funded by Self-Determination Act funds (see 25 U.S.C 450e (b-c)). However, if the funds used for the position are non-Self-Determination Act funds/contracts, the Self- Determination Act requires Indian preference (preference for a person who is a member of any federally recognized tribe) and not tribal preference (preference for a person who is a member of a specific federally recognized tribe). The number of TEROs adopted by tribes has grown in recent years. Some tribal and state DOTs have a great deal of experience working together on projects on tribal lands. Positive working experience has led to inclusion of TERO provisions for projects near tribal lands and development of tribal transportation workforces hired for off- reservation projects. Some tribes and states are developing MOUs to govern the relationship both on long-term and short-term bases. Communication channels between state and tribal DOTs is essential to resolving the various issues of conducting projects on tribal lands.
