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

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78 NCHRP LRD 76 by one of these entities or one of these entities has agreed to maintain the road. A tribe may also use Tribal Transpor- tation Program (TTP) funds for maintenance of public fa- cilities included on the National Tribal Transportation Facility Inventory (this limitation does not apply to road sealing activi- ties); this is in addition to any DOI funds a tribe may receive for maintenance purposes.863 N. GOVERNMENT-TO-GOVERNMENT COOPERATION864 1. General As earlier sections of this document have made clear, the re- lationship between tribes and states is a complex one. The shar- ing of “adjacent lands, resources and citizens…has historically created conflict and uncertainty, often leading to expensive and lengthy litigation…[which] has not proven the best means to resolve the core uncertainties and distrust between states and tribes.”865 Many commentators view this as a loss to both par- ties, but suggest possible solutions to the problem of uncertainty and litigation: The tribes and states have expended precious resources on continu- ous litigation…. The relationship between the tribes and states has been strained, causing both parties to jealously guard jurisdiction over areas that affect the other. Consequently, it is in the best inter- ests of the tribes and states to direct time and money toward durable solutions to the underlying problems. States and tribes should look to a forum other than the courtroom to address their disagreements and reach solutions that benefit both parties’ objectives. One possible solution to the problem of uncertainty and litigation is a cooperative agreement between an Indian tribe and a state.866 Professor Frank Pommersheim noted in his 1991 article, Tribal–State Relations: Hope For The Future?, that “[d]espite the absence of any readily applicable doctrine for understanding or describing tribal–state relations, there potentially exists a vital zone for creative free-play and mutual governmental respect 863 25 C.F.R. § 170.800. 864 See generally, Frank Pommersheim, Tribal–State Relations: Hope for the Future?, 36 S.D. L. Rev. 239 (1991) (hereinafter Pom- mersheim); Joel H. Mack and Gwyn Goodson Timms, Cooperative Agreements: Government-to-Government Relations to Foster Reser- vation Business Development, 20 Pepp. L. Rev. 1295 (1993)(hereinaf- ter Mackand Timms); Deskbook, supra note 15, at 1009-71, State- Tribal Cooperative Agreements; CTC & Associates, Wisconsin Dot RD&T Program: State Dots And Native American Nations (Jan. 27, 2004) (hereinafter CTC & Associates). 865 Deskbook, supra note 15, at 1083. 866 Mack and Timms, supra note 864, at 1297-98, adding that: Cooperative agreements between an Indian tribe and a state focus on substantive issues with the purpose of solving a par- ticular problem affecting the states and the Indian tribes. Generally, the tribe and state agree to ignore jurisdictional issues for purposes of the agreement. Thus, cooperative agreements are able to frame the issues that need to be addressed and limit the continual jurisdictional disputes that lead to litigation. Furthermore, if conflicts do arise, litigation will be more focused on substantive issues rather than juris- dictional issues. cil was authorized to determine whether to issue a license and to impose a $1 million civil fine for willful violations of the ordinance. Northern States Power Company’s (NSP) Prairie Island plant, in operation since 1974, was located near the reservation, and the only ground access to the plant was provided by a railroad line and a county road, both of which crossed the reservation.856 NSP brought suit for declaratory judgment following a ruling by the Interior Board of Indian Appeals857 that it lacked authority to enjoin a tribe from en- forcing a tribal ordinance.858 The tribe and tribal officials ap- pealed the district court’s grant of a preliminary injunction halting enforcement of the tribal ordinance, arguing that the district court failed to recognize and apply principles of tribal sovereignty, including the tribe’s immunity from suit pend- ing exhaustion of tribal court remedies, which “precludes the suit and protects the tribal officers.”859 The circuit court af- firmed the district court, holding as follows: We conclude that the [HMTA] preempts the tribal ordinance. In re- solving to enforce the ordinance, the member of the Tribal Council were acting to enforce an ordinance that the tribe had no authority to enact. The Council members acted beyond the scope of their author- ity and placed themselves outside the tribe’s sovereign immunity…. Indian tribes are expressly subjected to the Act’s preemption rules…. The Act’s plain language indicates that, sovereign immunity notwith- standing, states and Indian tribes are subject to the preemption rules, including the provision that allows preemption cases to be brought in “any court of competent jurisdiction.” 49 U.S.C. § 1811(c)(2) [now 49 U.S.C. § 5125(d)(3)].860 The U.S. Ninth Circuit Court of Appeals, in Public Service Co. of Colorado v. Shoshone-Bannock Tribes,861 also held that the HMTA abrogates tribal immunity from suit in federal court.862 d. Highway Maintenance Responsibility Maintenance of state highways is a statutory responsibility of the states and political subdivisions of the states not the federal government. 23 U.S.C. § 116, provides as follows: (b) It shall be the duty of the State transportation department or other direct recipient to maintain, or cause to be maintained, any project constructed under the provisions of this chapter [23 U.S.C. §§ 101 et seq.] or constructed under the provisions of prior Acts. . . . (c) Agreement.- In any State in which the State transportation depart- ment or other direct recipient is without legal authority to maintain a project described in subsection (b), the transportation department or direct recipient shall enter into a formal agreement with the ap- propriate officials of the county or municipality in which the project is located to provide for the maintenance of the project. This maintenance responsibility extends to state, county, and municipal roads on Indian lands when the road is owned 856 Id. at 459. 857 An appellate review body that has delegated authority to issue final decisions for the Department of the Interior on Indian matters. 858 Id. at 459–60. 859 Id at 460. 860 Id. at 462–64. 861 30 F.3d 1203 (9th Cir. filed July 27, 1994). 862 Id. at 1207.

NCHRP LRD 76 79 costly and unproductive legal conflicts can be avoided, and many beneficial results can be obtained, through efforts by states and tribes to understand each other and resolve conflict. The NCSL and NCAI, in a later publication, Government to Government: Models of Cooperation Between States and Tribes,870 notes that “of all the state–tribal relationships, institutions and agreements in various states, one particular mechanism does not appear to be inherently better than another…. It is the func- tion that matters, not the specific mechanism that might be used to achieve that function.” The NCSL/NCAI guide suggests these principles as the basis for those functions:871 • A Commitment to Cooperation; • Mutual Understanding and Respect; • Consistent and Early Communication; • Process and Accountability for Addressing Issues; and • Institutionalization of Relationships. The NCSL/NCAI guide provides 10 mechanisms or institu- tions that may facilitate improved intergovernmental relation- ships: • State Legislative Committees • State Commissions and Offices • State–Tribal Government-to-Government Agreements and Protocols • Tribal Delegates in State Legislatures • Dedicated Indian Events at the Legislatures • Individual Legislator Efforts • State Recognition of Native Cultures and Governments • Training for Legislators and Tribal Leaders on Respec- tive Government Processes. • Other Potential Legislative Mechanisms. • Intertribal Organizations (Membership organizations representing some or all tribes in a state or region).872 The NCSL/NCAI report states that at the time approxi- mately 34 states had an office or commission dedicated to Indian affairs established to serve as a liaison between the state and tribes on matters of interest to the state and tribes. For example, in 1976, the Colorado legislature established its Commission of Indian Affairs in the Office of the Lieutenant Governor with this legislative declaration:873 870 Susan Johnson, Jeanne Kaufmann, John Dossett, and Sarah Hicks, National Conference Of State Legislatures And National Congress Of American Indians, Government To Gov- ernment: Models Of Cooperation Between States And Tribes (2002) (hereinafter NCAI/NCSL Models of Cooperation). 871 Id. at 7-10. 872 Id. at 16-57 873 Colo. Rev. Stat. 24-44-101. and advancement.”867 This “vital zone” includes the negotiation of tribal–state cooperative agreements. He concludes his case study of such agreements with this statement: The preceding case studies reflect an array of recent tribal–state ne- gotiations. Success has not always been forthcoming. The importance of these negotiating efforts, however, cannot be sufficiently empha- sized. With the growing costs of litigation and the politically sensitive nature of many conflicts, both tribes and states are recognizing that negotiation is the only viable alternative.868 A joint project between the National Conference of State Legislatures (NCSL) and the National Congress of American Indians (NCAI) published the guide, Government to Govern- ment: Understanding State and Tribal Governments (2000),869 which is intended to help states and tribes understand each other and begin the process of exploring new avenues for improving government services for the citizens of tribes and states. This guide suggests that new intergovernmental insti- tutions, including cooperative agreements, can protect juris- diction and avoid expensive legal conflicts: Many tribes and states are discovering ways to set aside jurisdictional debate in favor of cooperative government-to-government relation- ships that respect the autonomy of both governments. Tribal govern- ments, state governments and local governments are finding innova- tive ways to work together to carry out their governmental functions. New intergovernmental institutions have been developed in many states, and state tribal cooperative agreements on a broad range of issues are becoming commonplace. Cooperation does not mean that either a state or a tribe is giving away jurisdiction or sovereignty. Some areas of disagree- ment may continue to exist, as they may with any neighboring government. Certainly, both states and tribes will preserve their ability to litigate over jurisdictional, legal and constitutional rights when it is in their best interest to do so. However, many 867 Pommersheim, supra note 864, at 251. 868 Id. at 298. Professor Pommersheim noted at p. 266, that infor- mation from the states, together with analysis of available data at that time, 1991, showed that the majority of tribal–state agreements could be broken down into the following subject matter headings and number of agreements: Jurisdiction or PL 280 Agreements. . . . . . . . . . . . . 5 Gaming Compacts. . . . . . . . . . . . . . . . . . . . . 12 Environmental Agreements. . . . . . . . . . . . . . . . 13 Hunting and Fishing . . . . . . . . . . . . . . . . . . . 18 Health and Welfare Programs . . . . . . . . . . . . . . 17 Water Agreements. . . . . . . . . . . . . . . . . . . . . 11 Indian Burial Sites.. . . . . . . . . . . . . . . . . . . . 4 Law Enforcement . . . . . . . . . . . . . . . . . . . . . . 7 Economic or Taxing Agreements. . . . . . . . . . . . . 10 Education Agreements or Awareness Projects. . . . . . 2 869 Susan Johnson, Jeanne Kaufmann, John Dossett, and Sarah Hicks, National Conference Of State Legislatures And National Congress Of American Indians, Government To Gov- ernment: Understanding State And Tribal Governments 3 (2009) (hereinafter NCSL/NCAI Guide). The guide notes that a “major impetus for the increased need for improved tribal-state rela- tions is devolution—the transfer of resources and responsibilities, often through federal block grants or other funding mechanisms, to state, local or tribal governments.”

80 NCHRP LRD 76 2. State Approaches and Experiences877 a. Arizona Arizona has 22 federally recognized tribes. Tribal lands make up about 28 percent of the State’s land base. In 1999, the Arizona Department of Transportation (ADOT) established its Arizona Tribal Strategic Partnering Team (ATSPT), bringing together representatives from state, tribal, federal, and local agencies to discuss tribal transportation issues and to develop forums to address these issues. In 2006, ADOT adopted a tribal consulta- tion policy. ADOT has three federal-state-tribal transportation partnerships each with the following partners: • Hopi Tribe/BIA/FHWA/ADOT/Coconino County/Na- vajo County/Navajo Nation/Navajo DOT Partnership • Navajo Nation/Navajo DOT/ADOT/BIA/FHWA/Hopi Tribe/ Coconino County/Navajo County/Apache Coun- ty Partnership • San Carlos Apache Tribe/White Mountain Apache Tribe / State / Federal / Counties / Railroad /Private Or- ganization Partnership Each of these partnerships has unique missions, goals, and objectives. ADOT also has a tribal liaison.878 b. California879 California has 109 federally recognized tribes. Caltrans has established a Native American Liaison Branch to serve as a liai- son between Caltrans and tribal governments. A Native Ameri- can Advisory Committee advises Caltrans management about transportation issues in the State. Caltrans also has District Na- tive American Liaisons and a tribal consultation policy.880 c. Minnesota Minnesota’s state–tribal “Government-to-Government Transportation Accord” was executed on April 1, 2002. Signa- tories were the Minnesota Department of Transportation (Mn- DOT), the 11 federally recognized Indian tribal governments within Minnesota, and FHWA’s Minnesota Division. This ac- cord reflected the signatories’ “desire to improve their mutual cooperation as neighbors by improving the development, main- tenance, and operation of interconnected transportation sys- tems.” Acknowledging the need for “better coordination and understanding between the parties on transportation planning, development and maintenance projects,” the accord provided as one of its purposes and objectives this statement: This agreement demonstrates a commitment by the parties to give practical implementation to a new government-to-government part- nership in a broad array of transportation matters. This partnership 877 CTC & Associates, supra note 864. 878 Id. at 3–4; Arizona Department of Transporta- tion, Arizona Tribal Transportation Website, http:// www.aztribaltransportation.org/ (accessed July 1, 2018). 879 Id. at 3. 880 Caltrans, Native American Liaison Branch, http://www. dot.ca.gov/transplanning/osp/nalb.html (accessed July 1, 2018). The general assembly finds and declares that the affairs of the two Indian tribes whose reservations are largely within the state of Colorado, the Southern Ute tribe and the Ute Mountain tribe, include matters of state interest and that the state of Colorado rec- ognizes the special governmental relationships and the unique po- litical status of these tribes with respect to the federal government and, further, that it is in the best interest of all the people of Colo- rado that there be an agency providing an official liaison among all persons in both the private and public sectors who share a concern for the establishment and maintenance of cooperative relation- ships with and among the aforesaid tribes and Indian people. The duties of the Colorado Commission of Indian Affairs are typical of the duties of other such state commissions or coun- cils.874 The NCSL/NCAI report states that many of these offices are called “Governor’s Office of Indian Affairs,” but most com- missions are established through legislation with a mix of In- dian and non-Indian members.875 However, whether the state organization is a legislative com- mittee, a commission, a council, or the Governor’s office, the mechanism or approach used in seeking a cooperative relation- ship, as previously noted, may be as important as who leads it. Pommersheim identified the State of Washington’s approach in reaching its 1989 Centennial Accord as a prototype, making this statement: Tribal–state relations are often caught in a history…. The principles embedded in a prototype set of negotiated sovereignty accords could go a long way toward ameliorating this declivity. * * * These accords would involve no waiver or abridgement of any rights by either side, but would simply take the word “respect” and apply it to the legal realm. The quality and texture of tribal–state relations are such that it is necessary for states to demonstrate publicly and in writing that they recognize tribal sovereignty— that is, the right of tribal governments to exist, to endure, and to flourish. Such accords might be seen as establishing an innovative set of new political and diplomatic proto- cols which might serve as a gateway to a more fulfilling and successful future.876 874 See Colo. Rev. Stat. § 24-44-103: (1) It is the duty of the commission: (1)  It is the duty of the commission: (a)    To coordinate intergovernmental dealings between tribal governments and this state; (b)  To investigate the needs of Indians of this state and to facilitate the provision of technical assistance in the preparation of plans for the alleviation of such needs; (c)  To cooperate with and secure the assistance of the local, state, and federal governments or any agencies thereof in formulating and coordinating programs regarding Indian affairs adopted or planned by the federal government so that the full benefit of such programs will accrue to the Indians of this state; (d)  To review all proposed or pending legislation affecting Indians in this state; (e)  To study the existing status of recognition of all Indian groups, tribes, and communities presently existing in this state; and (f)    To employ and fix the compensation of an executive director of the commission, who shall carry out the responsibilities of the commission. 875 NCAI/NCSL Models of Cooperation, supra note 870, at 24–25. 876 Pommersheim, supra note 864, at 269.

NCHRP LRD 76 81 e. Washington The 1989 Washington Centennial Accord between 28 fed- erally recognized Washington Indian tribes and the State of Washington888 was initiated by the Governor’s proclamation of January 3, 1989, and was signed by the Governor and a representative of each tribe. It “provides a framework for that government-to-government relationship and implementation procedures to assure execution of that relationship.” Pertinent to the issue of effective outreach is this provision of the Accord: There are twenty-eight federally recognized Indian tribes in the state of Washington. Each sovereign tribe has an independent relationship between the state of Washington, through its governor, and the signa- tory tribes. The parties recognize that the state of Washington is governed in part by independent state officials. Therefore, although, this Accord has been initiated by the signatory tribes and the governor, it welcomes the participation of, inclusion in and execution by chief representa- tives of all elements of state government so that the government-to- government relationship described herein is completely and broadly implemented between the state and the tribes. In 1999, the Governor’s Office of Indian Affairs issued the Washington State/Tribal Government-to-Government Imple- mentation Guidelines, which were developed by a combined tribal and state task force. WSDOT implemented these guide- lines with its WSDOT Centennial Accord Plan (2003).889 WS- DOT also has a Tribal Communication and Consultation Pro- tocol for Statewide Policy issues.890 In addition, WSDOT has a tribal liaison and held a tribal-state transportation conference in 2016.891 f. Wisconsin There are eleven federally recognized tribes in Wisconsin. The Wisconsin Department of Transportation (WisDOT) has a tribal affairs office which co-hosts an annual tribal transpor- tation conference and consultation event with the WisDOT Inter-Tribal Task Force.892 WisDOT along with the FHWA Wis- consin Division and the state’s eleven federally recognized tribes entered into a partnership agreement in 2010 to “continue to create and define the processes by which the Wisconsin De- partment of Transportation (WisDOT) and the Wisconsin Di- vision-Federal Highway Administration (FHWA) will work in 888 The State of Washington Governor’s Office of Indian Affairs Centennial Accord, available at https://goia.wa.gov/rela- tions/centennial-accord (accessed September 23, 2018). 889 The WSDOT Centennial Accord Plan Implementation Guidelines, available at: https://goia.wa.gov/relations/millennium- agreement/implementation-guidelines (accessed Sept 18, 2018). 890 WSDOT Communication Protocol, June 2011, available at: http://www.wsdot.wa.gov/sites/default/files/2004/06/25/WSDOT_ TribalCommunicationandConsultationProtocolsf.pdf (accessed July 1, 2018). 891 WSDOT, 2016 Tribal State Transportation Conference, available at: http://www.wsdot.wa.gov/tribal/2016Conference.htm (accessed Sept. 18, 2018). 892 WSDOT, Tribal Affairs, http://wisconsindot.gov/Pages/ doing-bus/civil-rights/tribalaffairs/default.aspx (accessed July 1, 2018). is designed to demonstrate mutual respect for each other, to enhance and improve communication between the parties, to foster increased cooperation on transportation projects, and to facilitate the respect- ful resolution of inter-governmental differences that may arise from time to time in the area of transportation. The development of this agreement is intended to build confidence among its parties on each of these objectives. The parties have adopted this agreement in order to institutionalize new information-sharing cooperative intergovern- mental project development within their respective governmental structures.881 In April 2003, subsequent to completion of the Transporta- tion Accord, Minnesota Governor Pawlenty issued Executive Order 03-05, “Affirming the Government-to-Government Re- lationship Between the State of Minnesota and Indian Tribal Governments Located Within the State of Minnesota.”882 This Executive Order provided: Agencies of the State of Minnesota and persons employed by state agencies (the “State”) shall recognize the unique legal relationship between the State of Minnesota and Indian tribes, respect the fun- damental principles that establish and maintain this relationship and accord tribal governments the same respect accorded to other gov- ernments.883 A similar executive order, Executive Order 13-10, was issued by the Minnesota Governor Dayton in August of 2013 which re- quired certain executive branch agencies—in consultation with tribes—to develop a tribal consultation policy.884 Subsequently, the Minnesota Department of Transportation’s developed a “Minnesota Tribal Nations Government-to-Government Rela- tionship with MnDOT” policy.885 d. New Mexico The New Mexico Department of Transportation (NMDOT) has a tribal liaison who is charged with maintaining govern- ment-to-government relationships as described in the State’s State-Tribal Collaboration Act.886 NMDOT has completed Memoranda of Agreement and Joint Powers Agreements with all the pueblo and tribal nations in the State.887 881 Minnesota Government-to-Government Transporta- tion Accord III, Purposes and Objectives, available at: http:// www.dot.state.mn.us/mntribes/pdf/accord2002.pdf (accessed July 1, 2018). 882 Executive Order 03-05, dated April 9, 2003, filed with the Secretary of State, April 11, 2003. 883 Id. 884 Executive Order 13-10, Affirming the Government-to Govern- ment Relationship Between the State of Minnesota and the Minnesota Tribal Nations, Providing for Consultation, Coordination, and Coop- eration, Rescinding Executive Order 03-05 (Aug. 8, 2013), available at: https://mn.gov/gov-stat/images/EO-13-10.pdf (accessed July 1, 2018). 885 Minnesota DOT, Minnesota Tribal Nations Govern- ment-To-Government Relationship With MnDOT, MnDOT Policy AD005, effective Feb. 25, 2014, available at: http://www.dot. state.mn.us/policy/admin/ad005.html (accessed July 1, 2018). 886 N. M. Stat. Ann. §§ 11-18-1 to 11-18-5. 887 New Mexico Department of Transportation Native American Tribal Liaison, http://dot.state.nm.us/content/nmdot/en/ Planning.html#TL (accessed July 1, 2018).

82 NCHRP LRD 76 a beginning point to dealing with routing and emergency re- sponse issues for nuclear waste transportation.897 Cooperative agreements were also addressed by Congress in the Indian Child Welfare Act (1978)898 and Indian Gaming Reg- ulatory Act,899 which authorize or require state–tribal coopera- tive agreements to effectuate each Act. The U.S. Supreme Court suggested the use of cooperative agreements in its decision in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma.900 The Court ruled that Oklahoma had no jurisdiction to tax tribal members on trust land cigarette sales but upheld the State’s right to collect such taxes on sales to non- members of the tribe. The Court suggested that this could be done by a tribal–state cooperative agreement: “States may also enter into agreements with tribes to adopt a mutually satisfac- tory regime for the collection of this sort of tax.”901 The Montana legislature responded to the Supreme Court’s suggestion in 1993 by amending its State–Tribal Cooperative Agreement Act902 to specifically include a cooperative regime for tax assessment and collection or refund by the State, a public agency, or a Montana Indian tribe. The Preamble to the amend- ment903 is noteworthy for its focus on state–tribal government- to-government relationship and cooperation: WHEREAS, the Legislature finds it necessary to clarify provisions of the State–Tribal Cooperative Agreements Act in order to reduce the delays in implementing taxation agreements entered into between the State of Montana and Montana Indian Tribes; and WHEREAS, clarifying provisions of the State–Tribal Cooperative Agreements Act will also reduce the need for duplicative language, which results in increased costs associated with publication of the Montana Code Annotated; and WHEREAS, the Supreme Court, in Oklahoma Tax Commis- sion v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S. Ct. 905 (1991), stated, among alternatives, that the state and a tribe may adopt a “mutually satisfactory regime” for col- 897 Id., note 152, at 260. See also Mack and Timms, supra note 864, citing Charles F. Wilkinson, To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis. L. Rev. 375, 410; and James B. Reed & Mara A. Cohen, Jurisdic- tion Over Nuclear Waste Transportation On Indian Tribal Lands: State Tribal Relationships (NCSL, State Legislative Report, Vol. 16, No. 4, at 5, 1991): For example, the Wisconsin Department of Natural Resources entered into a cooperative agreement with the Menominee Tribe to fill in the regulatory gaps relating to hazardous and solid waste management. Prior to the agree- ment, state officials were unsure of their proper rule; there- fore, they were hesitant to work with Indian tribes, even when asked to help. State workers who responded to a Menominee hazardous waste spill did not know if their insurance covered them while working outside the state’s jurisdiction. 898 Pub. L. No. 95-608, 92 Stat. 3069 (1978). 899 Pub. L. No. 100-497, 102 Stat. 2467 (1988). 900 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). 901 Id. at 514. 902 Mont. Code Ann. §§ 18-11-101, et seq. 903 See Mont. Code Ann. § 18, ch. 625, L. 1993. collaboration with the eleven federally recognized tribes (tribes) of Wisconsin.”893 3. Tribal–State Cooperative Agreements a. Background A “cooperative agreement” between an Indian tribe and a state may be described as an intergovernmental agreement that settles or avoids jurisdictional disputes and determines certain substantive matters by forming political policies be- tween governmental entities.894 While properly drafted trib- al–state cooperative agreements should be developed based upon general contract principles and designed to be enforce- able in court, the extent of their enforceability as contracts is unclear due to the paucity of case law dealing with the issue.895 The discussion and recommendations appearing in section G on contracting with Indian tribes and tribal enti- ties should be considered if parties to a cooperative agree- ment intend to treat such an agreement as enforceable. Pommersheim’s case study clearly demonstrated that the use of tribal–state cooperative agreements is not a new thing. For example, he points out that some states retroceding ju- risdiction under Public Law 280 entered into cross-deputi- zation agreements between tribal law enforcement and state patrol.896 Pommersheim also refers to the 1989 Legislative Re- port of The National Conference of State Legislatures, which addressed existing state–tribal transportation agreements as 893 The Partnership Agreement, Oct. 26, 2010, available at: http://wisconsindot.gov/Documents/doing-bus/civil-rights/ tribalaffairs/20120209100322502.pdf (accessed July 1, 2018). 894 Mack and Timms, supra note 864, at 1305. 895 Id. See also State of Minnesota v. Manypenny, 662 N.W.2d 183 (Minn. filed June 3, 2003), where the court in upholding a coopera- tive agreement authorizing tribal officers to lawfully arrest Indians on the reservation stated that “the scant case-law treatment address- ing the issue of cooperative agreements appears only in dicta.” Id. at 187. In the earlier case of State of Minnesota v. Stone, 572 N.W.2d 725 (1997), the Minnesota Supreme Court stated: “We anticipate that tribes without the resources to sustain their own [motor vehi- cle] enforcement systems will enter into cooperative agreements with state and local governments to obtain these services.” Id. at 732. 896 Pommersheim, supra note 864, at 239, n.184. The Indian Law Enforcement Reform Act, Pub. L. No. 101-379, 104 Stat. 473 (1990) (codified at 25 U.S.C. §§ 2801-2815), was enacted by Congress to provide authority for cross-deputization agreements involving enforcement of federal or tribal laws by states in Indian country.

NCHRP LRD 76 83 On behalf of the state, the commissioner may enter into agree- ments with Indian tribal authorities for the purpose of provid- ing maintenance, design, and construction to highways on tribal lands. These agreements may include (1) a provision for waiver of immunity from suit by a party to the contract on the part of the tribal authority with respect to any controversy arising out of the contract and (2) a provision conferring jurisdiction on state district courts to hear such a controversy. • Caltrans’ authority to enter into contracts with federally recognized tribes is expressly limited as follows: (a) The department may make and enter into any contracts in the manner provided by law that are required for performance of its duties, provided that contracts with federally recognized Indian tribes shall be limited to activities related to on-reservation or off-reservation cultural resource management and environmen- tal studies and off-reservation traffic impact mitigation projects on or connecting to the state highway system. (b) To implement off-reservation traffic impact mitigation con- tracts with federally recognized Indian tribes, all of the following shall apply: (1) Any contract shall provide for the full reimbursement of ex- penses and costs incurred by the department in the exercise of its contractual responsibilities. Funds for the project shall be placed in an escrow account prior to project development. The contract shall also provide for a limited waiver of sovereign immunity by that Indian tribe for the state for the purpose of enforcing obliga- tions arising from the contracted activity. (2)  The proposed transportation project shall comply with all applicable state and federal environmental impact and review requirements, including, but not limited to, the California Envi- ronmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). (3) The department’s work on the transportation project under the contract shall not jeopardize or adversely affect the comple- tion of other transportation projects included in the adopted State Transportation Improvement Program. (4) The transportation project is included in or consistent with the affected regional transportation plan.908 • Montana enacted its State–Tribal Cooperative Agree- ment Act in 1981 “to promote cooperation between the 908 Cal Sts. & High. Code § 94. lection of a tax but did not mandate that a state collect the tax; and WHEREAS, in an effort to promote a government-to-government re- lationship between the State of Montana and Montana Indian Tribes and in recognition that both the state and tribal governments must be trusted to act responsibly, it is appropriate that the party designated to collect taxes on an Indian reservation pursuant to any agreement be subject to negotiation. THEREFORE, the Legislature of the State of Montana finds it ap- propriate to amend the State–Tribal Cooperative Agreements Act to specifically include tax assessment and collection or refund and to establish specific requirements for tax assessment and collection or refund by the state, a public agency, or a Montana Indian Tribe (Em- phasis added). b. State’s Legal Authority for Intergovernmental Agreements with Tribes Practitioners advising state transportation agencies should consider whether state statutory authority exists to enter into co- operative agreements with tribal governments either from stat- utes specifically addressing such agreements or other applicable statutes authorizing state agency actions. There are numerous states that have enacted statutes authorizing the governor, state agencies, and/or local governments to enter into agreements with tribes for prescribed purposes, including the joint exercise of jurisdiction. Take for example, the following state laws: • The State of Washington’s Interlocal Cooperation Act was enacted in 1967 to enable local governmental units to cooperate with other localities, including “any Indian tribe recognized as such by the federal government.”904 The statute authorizes “joint powers agreements,” and specific provisions which must be in these agreements.905 • The State of New Mexico has a similar Joint Pow- ers Agreement Act906 which defines the covered “public agency” to include “an Indian nation, tribe or pueblo; a subdivision of an Indian nation, tribe or pueblo that has authority pursuant to the law of that Indian nation, tribe or pueblo to enter into joint powers agreements directly with the state.”907 • Minnesota has expressly authorized its department of transportation to enter into agreements with tribal au- thorities for highway work on tribal lands. Minn. Stat. § 161.368(a) provides: 904 Wash. Rev. Code 39.34. Wash. Rev. Code 39.34.020(1) defines “Public agency,” as follows: any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi municipal corporations, special purpose districts, and local service districts; any agency of the state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state. 905 Wash. Rev. Code 39.34.030. 906 N.M. Stat. Ann. §§ 11-1-1 through 1-7. 907 N.M. Stat. Ann. § 11-1-2.