Tribal Transportation Programs (2007)

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33 Tribal transportation programs are not a well-studied subject. This synthesis report is itself the first major TRB study in its field. As a result, one primary purpose for the report is to establish a baseline for further studies, many of which are likely to focus on narrower aspects of the overall topic. It provides the first in-depth set of profiles of individual tribal transportation programs, allowing for some comparisons among users of the problems, circumstances, and solutions that they illustrate. One general observation that must be made at the outset is that, in seeking to understand what works and what does not, context is everything. Each tribe has its own culture, his- tory, geographic considerations, population density and size, and extent of road mileage and other transportation facilities for which it is responsible, among other factors that may enter into its decisions and affect its capabilities. Oversim- plification of trends and issues must be avoided with regard to tribal transportation. There are, however, a few general observations that can be offered. • Certain elements of tribal transportation programs, under the influence of federal requirements for funding or because they simply make sense, are becoming nearly universal, at least among the tribes surveyed. These include the preparation of a long-range transportation plan, a capital budget or capital improvements program, the design and construction of new roads, and the devel- opment of an inventory of transportation facilities. • The appreciation and use of the resources of Tribal Transportation Assistance Programs (TTAPs) is wide- spread, although gaps still exist. Although it remains a challenge for TTAPs to extend assistance effectively to the smallest and most remote tribes, the programs are attempting to fill those gaps. • Tribes differ in their thinking about the desirability of compacting for transportation self-governance directly with FHWA, as is now possible, versus continuing to compact with the Bureau of Indian Affairs (BIA). This is a situation that is likely to evolve as tribes begin to compare the merits of one approach with the other. For now, it is a new option with which no one has any mea- surable experience. In addition to those general observations, the following trends are apparent with regard to tribal operation of trans- portation programs. • Tribes generally fear some diminution of their sover- eignty, and its effects on their programs, as a result of trends in federal judicial opinions such as Wagnon v. Prairie Band Potawatomi Nation, 126 S.Ct. 676 (2005) and City of Sherrill, New York v. Oneida Indian Nation of New York, 544 U.S. 197 (2005). These decisions involve contention over the extent of state authority rel- ative to tribal sovereignty. • On the other hand, state transportation agencies and tribal transportation programs are finding new ways to cooperate, and several states have established liaisons to work with tribes. Tribes want to cooperate with such agencies within an atmosphere of respect for tribal sovereignty. • The broad pattern of increased tribal self-determination begun in the 1970s with the Indian Self-Determination and Education Assistance Act (P.L. 93-638) is rapidly taking hold with regard to transportation. The number of tribes seeking such compacts is increasing. However, this study found little direct correlation, if any, between tribal size and the willingness to seek self-determination. Other factors seem to influence these decisions. • Federal transportation legislation since the Intermodal Surface Transportation Efficiency Act (ISTEA) has steadily added new opportunities for tribes to seek increased autonomy as well as improved funding, including new FTA programs created under SAFETEA- LU in 2005. • The formulas for Indian Reservation Roads funding have been anything but static, and tribal governments have had to adapt to the changes in funding rules and eligibility and the BIA’s new methodology for deter- mining tribal shares. The following needs appear to be the most widespread: • Funding for road maintenance appears to be almost uni- versally inadequate; a problem solved in selected cases only by tribes that were in a position to develop a sub- stantial source of independent funding to supplement the funds available from the BIA. • At least one FHWA study shows a serious problem with pedestrian safety on Indian reservations, and the pro- files suggest numerous situations where dangers could be presumed to exist in this regard. • There is likely to be a growing need for technical assistance with tribes for public transportation of CHAPTER FOUR CONCLUSIONS AND SUGGESTIONS FOR FUTURE RESEARCH

various types, especially as tribes attempt to use recently instituted SAFETEA-LU programs to upgrade their facilities. Despite the challenges faced by tribal transportation pro- grams, many tribes have been innovative in addressing them. Chapter three outlined these innovations and model practices as falling into the following categories: • Innovative relationships with outside entities, such as state transportation agencies and regional councils of government. • Creative fundraising and financing, such as the flexible financing agreement achieved by the Standing Rock Sioux (North and South Dakota). • Context-sensitive design of new roads and highways. • Entrepreneurial and other approaches to expansion of tribal mass transit. • Creative use of enhancements, a category of federal transportation funding first created under ISTEA. • Marketing of technical skills through tribal enterprises that often sell skills and products to non-tribal entities in the state or surrounding region. • Development in one case (Hoopa Valley, northern California) of a completely independent hazard mitiga- tion plan to address natural hazards within the reserva- tion, some of which severely affected tribal roads. • Use of computer technology for planning purposes. • Cultural preservation techniques, such as the Navajo archaeological and ethnographic program. • New approaches to social problems, such as driving under the influence of drugs or alcohol. These include wellness courts and innovative counseling programs. Four primary areas of concern for future research became apparent in the course of this study. These are public trans- portation development, staffing issues for tribal transportation programs, creative financing of such programs, and the build- ing of various kinds of relationships that would facilitate effective connections for tribes. Public Transportation—Although most tribes surveyed for this project reported having some form of public trans- portation, many did not, and many that did have programs were limited to dial-a-ride van service for the elderly or dis- abled rather than full-service mass transit. Tribes build these programs to serve their own unique needs; however, it is probable that many would expand their offerings if the resources were available. The range of resources that tribes have learned to access in building their own transit services is increasing, and some tribes, such as the Eastern Cherokee, have become leaders in their own state or region. Probing what works, where and how those resources can be accessed, and how best to tailor services to the needs of existing or potential clientele are all questions that could benefit from further research. This study, at best, merely scratched the surface of this topic. 34 Moreover, it is important to follow this issue because changes are underway. FTA announced funding availabil- ity in August 2006 for the new Public Transportation on Indian Reservations Program, established under Section 3012 of SAFETEA-LU, amending 49 U.S.C. 5311(c), to authorize direct grants under FTA’s Nonurbanized Area Formula Program. The amount of funding as yet is not large, although it will be increasing from $8 million in FY 2006 to $15 million in FY 2009; however, it does represent a growth in opportunity that would be worth monitoring. The opportunities for creatively funding transit, however, extend well beyond the FTA program. The 2004 BIA Final Rule on the Indian Reservation Roads (IRR) Program iden- tifies several sources for tribal transit grants and assistance, each of which has multiple categories of funding for which tribes may be eligible: • U.S. Department of Agriculture (various rural develop- ment loans and grants). • U.S. Department of Housing and Urban Development (Community Development Block Grants and housing funds). • U.S. Department of Labor (employment training and welfare-to-work grants). • U.S.DOT. • U.S. Department of Health and Human Services (Head Start, medically related services, etc.). Staffing—Exactly how best to staff a tribal transporta- tion program can be in many cases something of a mystery. At what point does a tribe need a professional planner on its staff, or a professional engineer? What should their qualifi- cations be? How is it possible to encourage tribal members to fill such roles, and how can tribes nurture the profes- sional development of their own people? There appears to be relatively little guidance with regard to effective management in this area, and one TTAP representative succinctly stated that there was a need to develop some sort of template for guiding tribal leaders in making such judg- ments. For instance, given a certain land area with a given number of roads, and a particular population (including non-Indians served who are living within reservation boundaries), what is an appropriate staffing level to support the program, and what types of positions should comprise that staff? It is clear that any such template must leave sufficient room for contingencies and unique situations. For starters, differences can arise once a tribe decides to assume respon- sibility for its own program through a self-determination compact or P.L. 93-638 contract. Administrative functions previously handled by the BIA become the tribe’s respon- sibility, with the necessary staffing required to undertake those jobs. According to the final BIA rule for 25 CFR Part 170, dealing with the IRR Program, financial assistance

35 available for building a tribal transportation department can include: • Use of IRR funds; • Use of BIA road maintenance funds; • Use of tribal general funds; • Tribal Priority Allocation; • Tribal permits and license fees; • Federal, state, private, and local transportation grants; • Tribal employment rights ordinance fees; and • Capacity-building grants from the Administration for Native Americans and other organizations. As always, various sources of money may have limita- tions in terms of the precise uses for which they may be employed. Training workshops in this area could be helpful. In many cases, assumption of the responsibilities that accom- pany self-determination is merely the beginning of a long odyssey toward full administrative independence. Following changing rules and evolving opportunities is in itself a seri- ous challenge for some understaffed programs. Tribes overseeing a public transit system must be able to factor in those needs as well; however, there are other special considerations, such as historical and cultural preservation, that may require additional staff. Producing the proposed tem- plate then is no simple issue and it may be worthwhile for some funding entity to underwrite efforts to properly research the assumptions that would underlie such a device and pro- vide a product that is usable by tribal administrators. Creative Financing—As noted earlier in the discussion of innovations, financing of tribal transportation programs is a critical consideration for many tribes seeking to move forward. There may never be enough money in the IRR pro- gram, and certainly there will not be enough for many years to come, even with the current increases, to meet the huge backlog of infrastructure needs on reservations. Other sources need to be explored, and many tribes are demon- strating substantial creativity, such as the Standing Rock Sioux with their flexible financing agreement, Fort Belknap (Montana) with its capital assistance grant, others with tribal fuel taxes, and some with uses of casino revenues. What may be most useful in the near future is a thorough study of these and many other options tribes have explored, how well they have worked, and what other possibilities remain inadequately considered. One key area of explora- tion is the degree to which the building of relationships with state departments of transportation, metropolitan planning organizations, regional planning organizations, and various other transportation providers or planners may uncover real sources of revenue or in-kind transfers of services that will improve the lives of tribal members. Relationships—That last point leads to the final area of exploration that this study will recommend—a comprehen- sive look at the myriad ways in which the building of effec- tive and meaningful relationships between tribal leaders and transportation officials, both with those of other tribes for cooperative efforts and with non-tribal officials at all levels of government and in the private sector. This study could include examinations of: • The functioning of state tribal liaison offices. • Networking among small tribes to reach common goals. • How effective relationships with non-tribal officials have been constructed and maintained under varying circumstances and with various kinds of organizations • How tribal transportation officials determine who to talk to among the different offices and agencies with which they must deal. In short, while this may seem a very sociological, as opposed to transportation-related, type of research endeavor, it often proves critical to achieving the synergistic coopera- tion that benefits all parties. Tribes simply are not in a good position to try to function alone, and few even entertain such an objective. However, building effective relationships involves a particular set of skills, and there are specific issues at play in tribal governance that may require special atten- tion. Research in this area should specifically be designed to include interviews with all of the following: • BIA officials; • State department of transportation officials, including but not limited to tribal liaisons; • FHWA administrators; • Tribal leaders, whether involved in general governance or transportation specifically, who have led the way in building such relationships with other entities; • TTAP directors; and • Regional transportation planners in areas that include Indian tribal lands. Skills with regard to building cooperative relationships can be researched and taught, and this already happens both within tribes and through TTAPs. Using the TTAP network to help further this research could be widely beneficial.