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

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NCHRP LRD 76 53 2. Tribal Transportation Program (Formerly Indian Reservation Road Program) a. History of the Program The federal government’s role with respect to road projects on Indian lands originates from a 1928 Act583 now codified in Title 25.584 This Act authorized the Secretary of Agriculture (that had responsibility for federal roads at that time) to survey, construct, reconstruct, and maintain Indian reservation roads serving In- dian lands.585 The Federal-Aid Highway Act of 1944586 required the Public Roads Administration to approve the location, type, and design of all Indian Reservation Road roads and bridges before any expenditure was made and generally to supervise all such construction. In 1946, the predecessor agencies of BIA and FHWA (the Office of Indian Affairs and the Public Roads Administration) entered into their first agreement to jointly administer the statutory requirements for the Indian Reserva- tion Roads (IRR) program. In 1958, the laws related to highways were revised, codified, and reenacted as Title 23, U.S.C.587 Since that time, there have been other interagency agreements to car- ry out FHWA and BIA duties and responsibilities.588 In 1973, BIA and FHWA entered into an agreement for an “Indian Roads Needs Study”; FHWA was to assist BIA in identifying roads that were identified as the BIA’s responsibility, or should have been identified as the BIA’s responsibility. In 1974, BIA and FHWA entered into two separate agreements that set out the joint and individual statutory responsibilities of FHWA and BIA for con- structing and improving Indian reservation roads and bridges. The intent of both agreements was to establish a federal-aid In- dian road system consisting of public Indian reservation roads and bridges for which no other federal-aid funds were available. Both BIA and FHWA jointly designated those roads, but FHWA was responsible for approving the location, type, and design of IRR and bridge projects and supervising construction of these projects. At that time, IRR projects were authorized under the Federal-Aid Highway Act of 1973, 589 but constructed with DOI appropriations. In 1979, BIA and FHWA entered into another agreement that explicitly recognized the role of individual tribes in defining overall transportation needs. This agreement pro- vided that the Indian road system was to consist of: [t]hose Indian reservations roads and bridges which are important to overall public transportation needs of the reservations as recom- mended by the tribal governing body. These are public roads for which BIA has primary responsibility for maintenance and improve- ment. Roads included on the Indian Road System shall not be on any 583 An Act to Authorize an Appropriation for Roads on Indian Res- ervations, Pub. L. No. 70-520, 45 Stat. 750 (May 26, 1928); (codified at 25 U.S.C. § 318a). 584 25 U.S.C. § 318a. 585 Id. 586 Pub. L. No. 521, 58 Stat. 838, § 10(c). 587 Pub. L. No. 85-767, 72 Stat. 885 (Aug. 27, 1958). 588 23 Surface Transportation Act of 1982, Pub L. No. 97-424, 96 Stat. 2115, tit. 1, § 126 (d) (Jan. 6, 1983). 589 Pub. L. No. 93-87, 87 Stat. 250. that § 357 does not authorize condemnation of allotted lands once a tribe obtains an interest in the land.576 I. FEDERAL HIGHWAY PROGRAMS INVOLVING INDIAN LANDS 1. The Federal-Aid Highway Program The Federal-Aid Highway Program is a federally assisted state program. The state highway agency (SHA) is the recipient of federal funds and is responsible for administering the pro- gram. The role of the Federal Highway Administration (FHWA) is to administer the Federal-Aid Highway Program in partner- ship with the SHA. To participate in the Federal-Aid Highway Program, each state is required to have a SHA that has the power, and is equipped and organized, to discharge the duties required by Title 23.577 States typically select and develop spe- cific transportation projects, award construction contracts, and are responsible for maintenance. With the receipt of federal-aid dollars, states take on numerous responsibilities with regard to tribes. For example, and as discussed later, states with tribal lands within the state’s boundaries are required to consult with tribal governments and the Secretary of the Interior in the plan- ning process.578 Similar tribal government and Department of the Interior consultation is required in the preparation of the State Transportation Improvement Program (STIP).579 It is not uncommon for states to use Federal-Aid Highway Program funds for state and county owned roads running near, through, or entirely on, a reservation. States constructing roads totally within a reservation are not constrained by federal-aid matching requirements; 100 percent federal funding is permit- ted.580 However, should a state wish to construct a project within a reservation without the 100 percent funding, a tribe is permit- ted to use funds provided under a self-determination contract to meet any cost sharing requirements should additional funds be needed.581 Although these are federal funds, they represent an exception to the rule that federal funds cannot be used to match other federal funds. This is because the ISDEAA pro- vides express statutory authority to use funds provided under a self-determination contract to meet the non-federal matching share.582 576 Public Service Co. of New Mexico v.  Barboan, 857 F.3d 1101 (10th Cir. 2017); Nebraska Public Power Dist. v. 100.95 Acre of Land in County of Thurston, Nebraska, 719 F.2d 956 (8th Cir. 1983); Public Ser- vice Company of New Mexico v. Approx. 15.49 Acres of Land in McKinley County, 167 F. Supp. 3d 1248 (D.N.M 2016). 577 23 U.S.C. § 302. 578 23 U.S.C. § 135. 579 Id. 580 23 U.S.C. § 120(f). 581 Section 5325(j) of the ISDEAA (25 U.S.C. § 5325 j–l (j) pro- vides as follows: “(n) notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determina- tion contract to meet matching or cost participation under other Federal and non-Federal programs.” 582 25 U.S.C. § 5325(j).

54 NCHRP LRD 76 to 1991, the program could still rely on long-term funding. A large jump in IRR funding occurred with the passage of the 1991 highway reauthorization, commonly known as ISTEA.596 This six-year transportation bill placed a significant emphasis on state transportation planning and the involve- ment of tribal governments via consultation.597 IRR funding increased to $159 million for the 1992 fiscal year and $191 million for fiscal years 1993 to 1997.598 ISTEA made changes to the IRR bridge program599 to require an inventory, clas- sification, and prioritization of replacement of IRR bridges, and required that a percentage of state funds be used for IRR bridge projects.600 In addition, ISTEA allowed tribes to use their planning funds pursuant to the ISDEAA.601 In 1998, the new highway reauthorization, the Transporta- tion Equity Act for the 21st Century (TEA-21), again addressed the IRR program.602 It provided that an Indian tribal govern- ment could enter into contracts or agreements with the BIA pursuant to the ISDEAA for IRR program roads and bridges.603 It established an Indian Reservation Roads Bridge Program (IR- RBP), under which a minimum of $13 million of IRR program funds was set aside for a nationwide priority program for im- proving deficient IRR bridges.604 The IRR funding level was in- creased to $1.6 billion for fiscal years 1998 to 2003 ($275 million per year).605 Following TEA-21, the U.S. DOT issued an order to ensure that programs, policies, and procedures administered by DOT were responsive to the needs and concerns of American Indians, Alaska Natives, and tribes.606 Finally, TEA-21 required that the federal government (with representatives from DOI and DOT) enter into negotiated rulemaking with tribal gov- ernments to develop IRR program procedures and a funding formula to allocate IRR funds.607 The Negotiated Rulemaking Committee was required to develop proposed regulations for the IRR program to implement the applicable portions of TEA- 21 and established a funding formula for the fiscal year 2000 and subsequent years based on factors that reflect the relative needs of the Indian tribes, and reservations or tribal communities, for transportation assistance; the relative administrative capacities of, and challenges faced by, various Indian tribes, including the cost of road construction in each BIA area; geographic isolation; 596 Pub. L. No. 102-240, 105 Stat. 1914 (Dec. 18, 1991). 597 Id. § 1025. 598 Id. § 1003. 599 Id. § 1028. 600 Id. 601 Id. now codified at 23 U.S.C. § 202. 602 TEA-21, Pub. L. No. 105-178, 112 Stat. 107 (June 9, 1998). 603 Id. § 1115. 604 Id., now codified at 23 U.S.C. § 202(d)3(B). See also FHWA’s final rule for the IRRBP at 68 Fed. Reg. 24642, now found at 23 C.F.R. § 661. 605 Id. § 1101(a)(8). 606 DOT Order 5301.1, Nov. 16, 1999. 607 TEA-21, § 1115. The Rule was negotiated pursuant to 5 U.S.C. § 561, The Negotiated Rulemaking Act of 1990, Pub. L. No. 101- 648, 104 Stat. 4969. Federal-aid system for which financial aid is available under 23 U.S.C. 104.590 It was not until 1982 that the IRR program became a multi- year reauthorization, similar to the Federal-Aid Highway Pro- gram. Until then, the Indian road system was funded under the DOI’s general appropriations and administered by the BIA. Since funding varied from year to year with no multiyear fund- ing assurances, it was difficult to develop the type of long-range transportation planning that the states had come to rely upon through the highway reauthorization bills. In 1982, under the Surface Transportation Assistance Act (STAA),591 Congress cre- ated the Federal Lands Highway Program (FLHP). This coor- dinated program addressed access needs to, and within, Indian and other federal lands. The IRR program was a funding cate- gory within the FLHP. In addition, the STAA expanded the IRR system to include tribally owned public roads as well as state and county owned roads. After STAA’s enactment, BIA and FHWA entered into a new 1983 Memorandum of Agreement that set forth the respective duties and responsibilities of each agency for the IRR program. Under the interagency agreement, BIA, working with each tribe, was to develop an annual prior- ity program of construction projects and submit it to FHWA for review, concurrence, and allocation of funds. This 1983 agreement also specifically referenced the Buy Indian Act592 in response to a new Title 23 provision593 that provided an ex- emption, if in the public interest, to the competitive bidding requirements with respect to all funds appropriated for the construction and improvements of IRRs that the Secretary administers. The 1983 interagency agreement also recog- nized that, although FHWA’s assistance and oversight would continue, both FHWA and BIA would be responsible for the implementation and success of the IRR program. As a result of Section 1028 of Intermodal Surface Transportation Effi- ciency Act of 1991 (ISTEA), which provided for the Highway Bridge Replacement and Rehabilitation Program, BIA and FHWA amended their 1983 agreement to provide for their respective responsibilities for that program. STAA changed the way BIA could do business with re- spect to IRRs. The 1982 STAA authorized IRR funding from the Highway Trust Fund in the amount of $75 million for FY 1983 and $100 million for fiscal years 1984 to 1986.594 In 1986, the Surface Transportation and Uniform Relocation Assistance Act (STURAA) was passed.595 While the level of funding dropped to $80 million per year for fiscal years 1987 590 See, CRS Highways and Highway Safety on Indian Lands, R44359, p. 2, (Feb. 2, 2016), https://www.everycrsreport. com/files/20160202_R44359_38af583fdef681edc7b5d4daeeeb5bc5 06a4f919.pdf 591 Pub. L. No. 97-424, 96 Stat. 2097 (1983). 592 Act of June 25, 1910, 25 U.S.C. § 47 (2005), Pub. L. No. 60-104, 35 Stat. 71; see also 25 U.S.C. § 13. 593 23 U.S.C. § 204(a)(5)(b). 594 Pub. L. No. 97-424, 96 Stat. 2097, 2099, §105(a)(3) (1993). 595 Pub. L. No. 100-17, 101 Stat. 132 (Apr. 2, 1987).

NCHRP LRD 76 55 and maintenance relating to the IRR program or project. In ad- dition, SAFETEA-LU codified existing policy, namely that IRR funds shall only be expended on projects identified in a trans- portation improvement program approved by the Secretary of Transportation.614 However, it also provided that tribal govern- ments could approve plans, specifications, and estimates and commence construction with IRR funds if certifications were provided that applicable health and safety standards were met.615 Because the Tribal Transportation Allocation Method (tribal shares funding formula) is in large part driven by the IRR inven- tory, SAFETEA-LU required a comprehensive National Tribal Transportation Facility Inventory within two years of enact- ment.616 Finally, although BIA retained primary responsibility for IRR maintenance programs through DOI appropriations, SAFETEA-LU provided that up to 25 percent of a tribe’s IRR funds could be used for the purpose of road and bridge main- tenance.617 In addition, the legislation provided that an Indian tribe could enter into a road maintenance agreement with a state to assume the state’s responsibilities for roads in, and providing access to, Indian reservations. SAFETEA-LU also required that these maintenance agreements be tracked and reported on to Congress.618 In 2012, Moving Ahead for Progress in the 21st Century Act (MAP-21)619 replaced the Indian Reservation Roads program with the Tribal Transportation Program (TTP).620 MAP-21 pro- vided a new funding formula based on tribal population, road mileage, and average tribal shares of funding under SAFETEA- LU IRR funding. This new funding formula was to be phased in over four years. MAP-21 provided that TTP and Federal Lands Transportation Program funds could be used for the non-fed- eral share of projects funded under Title 23 of the U.S. Code if the project provides access to, or is within, federal or tribal land. MAP-21 also set aside funding for tribes for specific safety activities and projects as part of a new Tribal Safety Program. Additionally, MAP-21 included a new Tribal High Priority Pro- gram (THPP) which was similar to the already existing Indian Reservation Roads High Priority Program.621 In 2014, the Fixing America’s Surface Transportation (FAST) Act622 continued the Tribal Transportation Program with few changes. It continued the funding formula included in MAP- 21 without change and included provisions permitting TTP and Federal Lands Transportation Program funds to be used for the non-federal share of projects funded under Title 23 of the U.S. Code if the project provides access to, or is within, federal or tribal land. However, it did not provide funding for the MAP- 21 Tribal High Priority Projects Program. The FAST Act also 614 SAFETEA-LU § 1119. 615 Id. § 1119(e). 616 Id. § 1119(f). 617 Id. § 1119(i). 618 Id. § 1119(k). 619 Pub. L. No. 112-141, 126 Stat. 405 (2012). 620 MAP-21 §1119. 621 Id. 622 Pub. L. No. 114-94, 129 Stat. 1312 (2015). and difficulty in maintaining all-weather access to employment, commerce, health, safety, and educational resources.608 In short, the Secretary of the Interior was required to develop this rule in a manner that reflects the unique government-to-government relationship between Indian tribes and the United States.609 The committee arrived at a new distribution formula, known as the Tribal Transportation Allocation Methodology.610 The new distribution formula for IRR funds was essentially a tribal shares program with each federally recognized tribe receiving a por- tion of the future allocated IRR funds based on a defined meth- odology. The negotiated rule provided for an IRR Coordinating Committee to address ongoing issues in tribal transportation. The 2005 highway reauthorization, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), contained many new provisions affecting the IRR program as well as other transportation issues and needs in Indian country. However, the IRR program remained a program jointly administered by BIA and FHWA’s Federal Lands High- way with the duties and responsibilities of each described in a Memorandum of Agreement between the two agencies. Each fiscal year FHWA determined the amount of funds available for construction which were then allocated to the BIA. Prior to the implementation of the new Final Rule on IRR Funding, Policies, and Procedures in November 2004,611 BIA worked with tribal governments and tribal organizations to develop an annual pri- ority program of construction projects that was submitted to FHWA for approval based on available funding. The BIA then distributed the allocated funds to the IRR regions according to the annual approved priority program of projects based on a relative-need formula. Because of the new rule discussed above, the procedure and distribution of funds changed markedly. The 2005 highway legislation, SAFETEA-LU, made signifi- cant changes to the IRR program.612 While TEA-21 had a level $275 million per year for the IRR program, SAFETEA-LU pro- vided greatly increased funding, from $300 million in fiscal year 2005 with steady increases up to $450 million for fiscal year 2009. An additional $14 million per year of contract authority was provided for the IRRBP. Prior to SAFETEA-LU, FHWA had stewardship and oversight responsibilities, but no direct agreements with tribes, as the BIA had administered the IRR program. The new highway legislation significantly changed the administration of the IRR program. It provided for FHWA to fund IRR directly at the request of an Indian tribal govern- ment or consortium (two or more tribes) that has satisfactorily demonstrated financial stability and financial management to the Secretary of Transportation. The IRR funds could be used to carry out, in accordance with ISDEA,613 contracts and agree- ments for planning, research, design, engineering, construction, 608 Id. 609 Id. 610 Indian Reservation Program Roads, 69 Fed. Reg. 43,090, subpt. C at 43,115 (July 19, 2004). 611 Id. 612 See SAFETEA-LU §§ 110l(a)(9) and 1119(e). 613 25 U.S.C. § 5304-5421.

56 NCHRP LRD 76 by the Secretary.630 SAFETEA-LU, provided an additional $14 million from the Highway Trust Fund for fiscal years 2005 to 2009 for IRRBP. Unlike TEA-21, where IRRBP funds were a set- aside from the program, these funds were in addition to the an- nual IRR program funding level. In addition, SAFETEA-LU ex- plicitly allowed these funds to be used for planning and design in addition to engineering and construction activities.631 MAP-21632 added requirements for the inspection of public bridges—including tribal bridges—and required that data on these bridge inspections be reported to FHWA for inclusion in its National Bridge Inspection System. Under MAP-21, two percent of funding was set aside for a tribal bridge program. The IRR Bridge Program continued to operate as established under SAFETEA-LU with the same regulations in place. The FAST Act633 included a three percent set-aside for bridges. The federal regulations governing the IRR Bridge Program can be found at 23 C.F.R. Part 661. 4. Emergency Relief Program for Federally Owned Roads FHWA operates the Emergency Relief for Federally Owned Roads (ERFO) program.634 The Office of Federal Lands Highways is responsible for management oversight and accountability of the ERFO program.635 This program provides disaster assistance for federal roads and tribal trans- portation facilities.636 “‘Tribal transportation facility’ means a public highway, road, bridge, trail, or transit system that is lo- cated on or provides access to tribal land and appears on the national tribal transportation facility inventory.”637 Tribal trans- portation facilities are eligible for a 100 percent federal share.638 The U.S. Department of Transportation’s Emergency Relief for Federally Owned Roads Disaster Assistance Manual provides more details on this program. 5. Federal Lands Highway Program (23 U.S.C. § 204) MAP-21639 established the Federal Lands Access Program which was continued under the FAST Act.640 The purpose of the program is “to improve transportation facilities that provide ac- cess to, are adjacent to, or are located within Federal lands.” In- dian tribes can apply for funding through this program for roads 630 Id. 631 SAFETEA-LU §. 1119(g). 632 Pub. L. No. 112-141, 126 Stat. 405 (2012). 633 Pub. L. No. 114-94, 129 Stat. 1312 (2015). 634 23 U.S.C. §§ 120 and 125. See also 23 C.F.R. § 668.201-.215. 635 Fed. Highway Admin., Emergency Relief For Federally Owned Roads, Disaster Assistance Manual (Publication No.: FHWA-FLH-15-001) (2014), : https://flh.fhwa.dot.gov/programs/ erfo/documents/erfo-2015.pdf (accessed July 7, 2018). 636 23 U.S.C. § 125. 637 Id. § 101(a)(31). 638 Id. § 120(e)(2). 639 Pub. L. No. 112-141, 126 Stat. 405 (2012). 640 Pub. L. No. 114-94, 129 Stat. 1312 (2015). required entities carrying out TTP projects to provide certain information to the DOT and DOI including the name, descrip- tion, and status of the project along with an estimate of the num- ber of jobs created or retained by the project.623 b. Tribal Transportation Program (TTP) Today The Tribal Transportation Program provides funding for tribes for transportation planning, safety, and bridge projects. The amount of funding a tribe receives under the program is based on tribal population, road mileage, and tribal shares of SAFETEA-LU IRR funding.624 The program is administered by FHWA through its Office of Federal Lands Highway and by the BIA as described in a memorandum of understanding between the two agencies. Tribes have the option of working directly with the FHWA to administer their program rather than work- ing through the BIA; tribe’s that want to exercise this option enter into a Tribal Transportation Program Agreement (TTPA) with FHWA. Two or more tribes may choose to pool TTP funds as a “consortium” and enter into a TTPA with FHWA. Tribes may use TTP funds for specified planning and design and con- struction and maintenance activities identified in the FHWA- approved Transportation Improvement Program (TIP).625 The federal regulations for the TTP are located at 25 C.F.R. Part 170. FHWA has also issued a Tribal Transportation Program Delivery Guide to provide guidance to tribes with a TTPA.626 3. The IRR Bridge Program Prior to TEA-21, IRR bridges were part of the highway bridge replacement and rehabilitation program.627 Under this program, a small percentage of bridge funds from each of the 50 states was used for IRR bridge repair. The IRRBP authorized under TEA-21628 was a national priority program designed to improve deficient IRR bridges. Both the IRRBP statute and its legislative history629 envision a national program to address the large number of deficient IRR bridges. TEA-21 directed the Sec- retary to establish a nationwide priority program for improving deficient IRR bridges, and provided that, in cooperation with the Secretary of the Interior, not less than $13 million in IRR funds shall be set aside for projects to replace or rehabilitate eligible deficient IRR bridges recorded in the National Bridge Inven- tory; and, that funds to carry out IRR bridge projects would be available only on approval of plans, specifications, and estimates 623 Id. The annual reports compiling this information can be found here: https://flh.fhwa.dot.gov/programs/ttp/port/ (accessed July 7, 2018). 624 23 USC § 202(b). 625 25 CFR §§ 170.111, 170.112, 170.204. 626 FHWA Tribal Transportation Program Delivery Guide, https://flh.fhwa.dot.gov/programs/ttp/guide/documents/full-guide.pdf (accessed July 7, 2018). 627 23 U.S.C. § 144. 628 Id. § 202 was amended by § 1115(b)(4) of TEA-21, Pub. L. No. 105-178, 112 Stat. 107 (June 9, 1998). 629 S. REP. No. 105-95, at 13, Summary, § 1122; H. R. REP. No. 105-550, at 416–17.