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Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

Chapter: NCHRP LRD 76: Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law

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Suggested Citation:"NCHRP LRD 76: Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Background State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will affect their operations. Foreword This digest examines and updates legal issues arising out of federal, state, and local transportation agencies’ rela- tions with Indian tribes. Government-to-government relations with Indian tribes touch a gamut of legal issues: contracting with tribes, Tribal Employment Rights Ordi- nances (TERO), funding issues, legal issues arising out of rights-of-way through Indian reservations, regional planning issues, compliance with state environmental laws bumping up against Indian sovereign immunity, tort liability issues, etc. The federal government has a relationship with Indian tribes based upon unique trust obligations derived from treaties (which are federal law) and the status of tribes as domestic dependent nations. States and local governments do not have the same relationship and yet interact with tribal governments in a number of ways that can involve legal issues. The authority conferred upon state and local jurisdictions in Indian country, to the extent it exists, is patchwork and varies depending upon the jurisdiction and unique factual situation. In some cases, there are huge gaps in the law relative to a state or local transportation agency’s ability to conduct business with a tribe. Moreover, there is an overlay of federal law that may affect the rights and obligations of state and local agencies. Most of the case law examined in the original doc- ument published in 2007 continues to be good law today; where this is not the case the document has been updated. Since the original version of this Section, fed- eral regulations concerning grants of right-of-way over Indian lands have changed significantly. This section also contains new guidance concerning land acquisi- tion, project development, construction, maintenance, and government-to-government agreements related to Indian Transportation law. Sections on reservation boundary disputes, defining Indian country, and land ownership in Indian country have been added, and the portions of the document addressing jurisdictional issues have been revised significantly. This digest will be useful to transportation lawyers, engineers, and planners who work on reservations and Indian country more broadly. Volume 8: Transportation Law and Government Relations of the Selected Studies in Transportation Law series covers civil rights and transportation agencies, transportation and the United States Consti- tution, Indian transportation law, and motor vehicle law. The complete Volume 8 may be accessed at: http://www.trb.org/Publications/Blurbs/159372.aspx. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law This digest, a part of the TRB Selected Studies in Transportation Law series, was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 23-05, Lindsey Hanson, attorney, Minneapolis, Minnesota, prepared this digest by updating the most recent version written by Richard O. Jones, attorney, Lakewood, Colorado, and Vivian Philbin, FHWA, Denver, Colorado. The responsible program officer is Gwen Chisholm Smith. JULY 2019 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM NCHRPLRD 76 LEGAL RESEARCH DIGEST

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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest (LRD) 76 examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies.

The LRD provides background information on Indians, tribes, and the history of the federal government’s Indian policy and Indian law and explores jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country).

The LRD examines basic terms for land ownership on reservations and in Indian country more generally; provides an overview of criminal jurisdiction in Indian country; explores the law related to reservation boundary disputes; the fee-to-trust process and reservation proclamations; state sovereign immunity in suits involving Indian tribes; contracting with Indian tribes and tribal entities; acquisitions of Indian lands for public transportation purposes; and federal highway and transit programs involving Indian tribes.

In addition, the LRD explores planning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government cooperation between states and Indian tribes.

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